Case History: DHS, In Effect, Grants 2.5 Citizenships to One Illegal Alien

By David North on July 25, 2011

The Department of Homeland Security, in effect, has given two and a half citizenships to one illegal alien from Haiti.

One, or at most two, citizenships should be enough for any single human being, but the Administrative Appeals Office (AAO) of DHS, a semi-judicial agency, has ruled in a recent case that a Haitian citizen, who is also a Canadian citizen carrying a Canadian passport, can also enjoy Temporary Protected Status in the U.S.

This grants her the right to work legally in the U.S., despite (apparently) nearly two decades of illegal status here; and TPS, as has been shown repeatedly in the past, turns out to be a permanent (or at least, never terminated) condition. Hence, in my eyes, it is at least half a citizenship.

AAO, as we have noted in the past, provides very little information on the parties to appeals from rulings by USCIS staff. In this case a nameless Haitian woman, who was born to a nameless Canadian father in Haiti, and who (reading between the lines) must have been an illegal alien in the States since she arrived here in 1993, filed for TPS at some point in the last couple of years.

The USCIS staff, noticing her Canadian passport was still valid, and that the document had been renewed twice in recent years, ruled that she was not eligible for TPS because she had “firmly resettled” in a safe third country, Canada. (For more on how little the U.S. uses the third country option, see Mark Krikorian’s recent piece on that subject.

Following the appeal, AAO declared that she had never lived in Canada, so she could be regarded as eligible for TPS in the U.S. That she could have taken the next plane to Canada, and have moved from illegal status in the U.S. to totally legal, full-citizen status in Canada did not move AAO. (The Haitian emigre community in Montreal, incidentally, which I have visited, is at least as large as the one in Boston, if not the one in Brooklyn.)

So the alien involved now has full citizenship in Haiti and in Canada, and, for all practical purposes, the right to live and work legally in the U.S. for the rest of her life.

Formally speaking, AAO did not actually reverse the staff decision; its ruling was “The director’s [negative] decision is withdrawn. The case is remanded for further action consistent with the above and entry of a new decision.”

The alien’s lawyer regarded it as a victory, however, because she revealed the decision in the June 27 issue of Interpreter Releases, the immigration bar’s trade paper; that article is not available electronically. Nor is the June 8 decision of the AAO, as that agency does not publish its decisions until six or nine months have passed, though it can be read in that issue of IR.

As a matter of fact, this brings up another institutional tilt of AAO; if an alien loses a case before the panel, as they often do, the decision is buried in the files for nearly a year. And, like all AAO rulings, the names of both the alien and the alien’s lawyer (and the decision-maker) are redacted.

However, if the alien wins, the lawyer is free to announce the fact immediately and to link her name with the decision, as was done in this case.

Out of deference to the concept of level playing fields we are not going to print the alien’s lawyer’s name -- but the trade paper did.