Road to U.S. Citizenship Is Paved With Paperwork and Waiting for Millions 8/25/16 09/01/16 12:29:34 PM
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Mindy Rush Chipman, managing attorney for Justice For Our Neighbors-Nebraska, shares information on the intricacies of immigration law at the Anti-Defamation League of Omaha’s Brown Bag Series.
Road to U.S. Citizenship Is Paved
With Paperwork and Waiting for Millions
By Julien R. Fielding
The Daily Record
During this election cycle, immigration has been a frequent topic of discussion. And even though “building a giant wall” has resonated with some voters, is it a feasible solution?
Immigration law is complicated – even for attorneys – so the Anti-Defamation League of Omaha invited Mindy Rush Chipman, Rural Capacity Building managing attorney for Justice for Our Neighbors-Nebraska, to speak at its Brown Bag Series’ on Aug. 9 and provide a “primer” on immigration and the U.S. legal system.
Rush Chipman began by explaining that there are essentially two types of immigration statuses: U.S. citizens and non-citizens. Everyone in the first category enjoys the same rights; it’s just that their paths to citizenship are different.
So how does one become a U.S. citizen? One of four ways. A person can be born in the U.S. or in one of its territories, such as Puerto Rico, Guam, and the Northern Mariana Islands; one can acquire legal status through one’s parents; by naturalization; and by derivation.
These may sound straightforward but, in fact, they are quite complex. For instance, in the case of acquisition of citizenship by a child born abroad, one or both of the child’s parents must be U.S. citizens. From that point, there are four different scenarios: Birth abroad to two married citizens, birth abroad to one citizen and one alien parent in wedlock, birth abroad out-of-wedlock to a U.S. citizen father [“new” section 309(a),] and birth abroad out of wedlock to a U.S. citizen mother.
The most “complicated” of these is the third. For example, according to the U.S. government, in the case of a birth abroad to one citizen and one alien parent in wedlock, the child acquires citizenship at birth provided that the citizen parent was physically in the U.S. or one of its territories for a specified number of years required by the law applicable at the time of the child’s birth.
“For birth on or after Nov. 14, 1986, a period of five years’ physical presence, two after the age of 14, is required.” If born between Dec. 24, 1952, and Nov. 13, 1986, a period of 10 years, five after the age of 14, is required.
“Naturalization is when a foreign citizen or national is granted U.S. citizenship after having fulfilled certain requirements,” Rush Chipman said. One stipulation is that the person has been a permanent resident for at least five years; for spouses of a U.S. citizen, the term is three years or more. Then he or she must be of “good moral character,” meaning that one hasn’t committed any serious crimes, such as ones against persons with intent to harm and against property. Furthermore, one shouldn’t engage in habitual drunkenness, prostitution, polygamy, or illegal gambling. The “Application for Naturalization” (Form N-400) asks about these offenses, and if one has engaged in them and doesn’t report them, a person will be denied naturalization.
In addition to having good moral character, one must have an “understanding of English, including an ability to read, write and speak … simple words and phrases,” and “have a knowledge and understanding of the fundamentals of history, and of the principles and form of government of the United States.” Of course, there are exemptions.
Finally, one can become a U.S. citizen by “derivation.” This, like any of the others, is complicated, and the rules change, depending on when one was born; however, Rush Chipman explained that if a legal, permanent resident’s parents naturalize before his or her 18th birthday, that child derives citizenship through the parents. “Some people don’t even know they are citizens,” she said. “We have had U.S. citizens being held in detention centers.”
The next type of immigrant status is non-citizens, and many people find themselves under this category, including lawful permanent residents, also known as “green card holders;” people who are seeking asylum or who are refugees; those who are in the U.S. with temporary permission, Temporary Protected Status (TPS) and Deferred Action for Childhood Arrivals (DACA); nonimmigrants, such as those holding a Visitor Visa (B) or a Student Visa (F); and “undocumented persons.”
There is a lot of misinformation, bias, and prejudice against this last group, Rush Chipman said: “Words matter. The term ‘illegal immigrant’ is dehumanizing and inaccurate. No person is illegal. Presence in the U.S. without permission or without papers is not a crime. There are currently about 12 million undocumented people in the U.S., and the federal government only has the resources to remove 400,000 each year. About 40 percent of the people who enter the U.S. do so with permission, and it’s easy to get derailed.”
Rush Chipman explored each of these types a bit further. Those who have a green card could have obtained it a few ways: Through family, through a job, through refugee or asylee status, through the Diversity Immigrant Visa Program, sometimes called the “Green Card Lottery;” or by marrying a U.S. citizen.
Omaha has refugees who have resettled here from all over the world, including, but not limited to, Afghanistan, Bhutan, Burma, Burundi, the Congo, Ethiopia, Iraq, Liberia, Somalia, and Sudan. “These people are fleeing from persecution,” she said. “and are rightly afraid, because of their race, religion, gender, ethnicity, or political affiliation.”
Although there aren’t any refugee camps in Central America, Rush Chipman said there should be, and because there aren’t, people there can’t claim refugee status. “In my mind, they are refugees even if they aren’t allowed that designation.”
The fastest way for a rCentral American "efugee to come to the U.S. is for him or her to have family already residing in the U.S., but few have that luxury, which means they may wait for decades to come here. Contrary to popular belief, “refugees" are some of the most vetted and investigated people,” she said.
They may sound like refugees or asylees, but those with TPS status are in a bit of a different situation. The Secretary of Homeland Security has designated their countries as TPS due to conditions there that temporarily prevent the country’s nationals from returning safely or, in certain circumstances, where the country is unable to handle the return of its nationals adequately. Rush Chipman said that these people can live and work here, but they have to re-register during each re-registration period to maintain benefits. “Status can be rescinded,” she said.
President Barack Obama created the Deferred Action for Childhood Arrivals Act, or DACA, in 2012, for certain undocumented young people who came to the U.S. as children. Since its creation, age limit caps have been removed, and the policy has been expanded.
“Hundreds of thousands of people are eligible, and approximately 30% of people eligible for DACA have not applied yet.” As long as an undocumented child has lived here since 2007, meet the education requirement and do not have any qualifying criminal convictions, they can apply.” That said, the benefit is completely discretionary and applications packages are long; Rush Chipman mentioned one she saw being submitted that was 500 pages in length.
In 2014, President Obama issued an executive action expanding the DACA program, removing the age limit, and also creating a form of relief for parents of U.S. citizen and permanent resident children called Deferred Action for Parents of Americans and Permanent Residents (DAPA); however, not everyone supports deferred action and the new DACA+ and DAPA applications have not been released as of yet.
Twenty-six states, including Nebraska, challenged President Obama’s executive action in court. In 2015, a federal judge in Texas blocked the policy, ruling that the Department of Homeland Security didn’t allow public comment on its rules implementing the executive action. In June of this year, the U.S. Supreme Court voted on the issue. It was a 4-4 split, thereby rendering a “nondecision.”
Rush Chipman said this leaves many families in limbo, but her hope is that once the Supreme Court is fully functioning – with nine judges, not eight – they might revisit the case. According to one report, since 2012, there have been about 800,000 people approved for the original deferred action program, and more than half of them renewed after the two-year expiration.
The path to U.S. citizenship isn’t always an easy one. The Diversity Lottery works only for those in countries with low immigration rates, so people in countries such as South Korea, the United Kingdom, Canada, Mexico, the Philippines, China, and India are ineligible. Those who want to reunite with their family members in the U.S. can only do so with immediate relatives, and then “there are a lot of bars to overcome,” Rush Chipman said.
“It can be a long wait – sibling petitions generally take from 12 to 20 years after the petition was filed before the sibling receives any legal rights. However, the waits end up being over 100 years for people from countries with high migration rates, including Mexico. Some people could die waiting.”
Finally, Rush Chipman touched a bit on people who have Special Immigrant Juvenile Status (SIJS). “SIJS is near and dear to my heart,” she said. “These are people under 21 years old who have been abandoned, abused or neglected. The state court must decide that it isn’t in their best interests to return to their home country or be reunited with a parent, and then be declared dependent in juvenile court.”
There are pluses and minuses to applying for this status. On the plus side, the individual could apply to obtain lawful permanent resident status, which means he or she can live and work in the U.S. and travel in and out of the country. After five years, they can apply for U.S. citizenship. The downside to obtaining this status is that the person wouldn’t be eligible to use his or her new lawful immigration status to help his or her original parents to get lawful status.
At Justice for Our Neighbors, Mindy Rush Chipman focuses on Nebraska rural communities including Crete, South Sioux City, Grand Island and Lexington, and coordinates the organization’s efforts to promote inclusivity by offering education and advocacy as well as the availability of high-quality immigration legal services. In addition to her work at JFON-NE, Rush Chipman serves as an officer for several different nonprofit organizations that promote advocacy for the underrepresented and community service. She previously worked as an attorney at Legal Aid of Nebraska, where she was instrumental in the launch of the Nebraska Immigration Legal Assistance Hotline (NILAH), and earlier had her own general law practice in Cass and Otoe counties. She graduated, with distinction, in 2007 from the University of Nebraska College of Law and is licensed to practice law in Nebraska.
For more information about Omaha Chapter of the Anti-Defamation League, call 402-333-1303 or go to: Omaha.adl.org. Learn more about Justice For Our Neighbors – Nebraska at: jfon-ne.org.