Tag Archives: citizen

Non-existing law was applied when deporting U.S. Citizen

This is a very interesting case regarding immigration and obtaining citizenship through a U.S. citizen parent.  Basically, this case used Article 314 of the Mexican Constitution when determining whether to deport individuals who claim American citizenship.

In Mexico, Saldana was born to an American male and a Mexican female. His birth certificate listed both parents.  DHS deported him and denied his citizenship application on the basis that he was born out-of-wedlock.

According to DHS, Article 314 provided that children born out of wedlock can only be legitimized if the couple marries subsequently. At oral argument, however, the government admitted that Article 314 did never existed.  DHS then cited Article 130 alleging it required marriage for legitimacy of children.

The Fifth Circuit Court of Appeals held in their opinion disagreed. Article 130 merely cited that marriage was a civil contract, rather than a religious one.  In addition, the court noted that this article said nothing about the legitimization of children.  The court explained,

In sum, under the laws of Tamaulipas, Mexico, where Saldana was born and resided as a child, he was acknowledged by his father when his father placed his name on the birth certificate before the Civil Registry.  As an acknowledged child, Saldana had the same filial rights vis-a-vis his father as a “legitimated” child.

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Filed under civil rights, federal, immigration

No citizenship proof for voters

The Supreme Court decided Arizona v. Inter Tribal Council of Arizona, where the Supreme Court ruled that federal law preempted Arizona’s law.  In other words, it held that Arizona’s requirement of proof of citizenship was in conflict with the National Voter Registration Act.  Thereby, that requirement was rejected.

Arizona’s law required registered voters to show proof of citizenship.  Under Arizona’s law, a person must be a citizen to be eligible to vote.  This case concerned only how Arizona was trying to enforce that qualification.  In 2004, Arizona voters passed Proposition 200, which provided that voters must “present proof of citizenship when they register to vote and to present identification when they vote on election day.”  If an individual does not provide “satisfactory” proof of citizenship, then the application must be rejected.

The issue here is how this citizenship-proof law and the National Voting Registration Act work together.  The Voter Registration Act required that states must “accept and use” the Federal Form.  The Voter Registration Act provided that a state shall “ensure that any eligible applicant is registered to vote in an election… if the valid voter registration form of the applicant is post-marked.” (italics in original).

Although the Voter Registration Act provides that states can create their own state-specific voter-registration forms, the Voting Registration Act also places a backstop.  The Supreme Court explained that,

No matter what procedural hurdles a State’s own form imposes, the Federal Form guarantees that a simple means of registering to vote in federal elections will be available.

Based on this language, the Supreme Court rejected Arizona’s arguments.  If Arizona, or any other state, could demand Federal Form applicants additional pieces of information, “the Federal Form ceases to perform any meaningful function, and would be a feeble means of ‘increas[ing] the number of eligible citizens who register to vote in elections for Federal Office.” (quotations and marks in original).

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Filed under civil rights, legal decision, rules, state, Supreme Court

Non-Citizens and Deportation for Convicted Crimes

Moncrieffe v. Holder, 11-702 (2013) is an interesting Supreme Court decision.

The Immigration and Nationality Act (“INA”), 8 USC 1101, provides that a non-citizen who has been convicted of an aggravated felony may be deported from the US.  As way of background, ordinarily, a non-citizen when facing deportation, may ask for discretionary forms of relief and cancellation of the removal.  The exception is for aggravated felonies.

This case comes because among the crimes that are classified as aggravated felonies are illicit drug trafficking offenses.  The issue the Supreme Court addressed is whether this category includes state criminal statutes that extends to the social sharing of a small amount of marijuana.

In a 7-2 vote, the Supreme Court rejected the government’s position. The court explained that if a state crime of marijuana distribution does not closely match the federal crime of distribution, in a direct comparison of what each covers, it is not an “aggravated felony.”

In this case, the non-citizen came to the US legally in 1984.  In a traffic stop, the police found 1.3 grams of marijuana.  The non-citizen pled guilty to the charge of possession with the intent to distribute.  Under Georgia statute, this violation may be punishable up to 5 years.  Given this, the government alleged this was an aggravated felony.

The Supreme Court rejected this argument because it held the generically defined federal crime is “any federal punishable under the Controlled Substances Act.” 18 USC 924(c)(2).  “[N]ot just any offense ‘under the CSA’.”

The Supreme Court further explained,

This is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as ‘illicit trafficking in a controlled substance,’ and thus an ‘aggravated felony.’  Once again we hold that the Government’s approach defies ‘the commonsense conception’ of these terms….

Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, ‘does not fit easily into the ‘every day understanding’ of ‘trafficking,” which ordinarily… means some sort of commercial dealing.’…

Nor is it sensible that a state statute that criminalizes conducted that the CSA treats as a misdemeanor should be designated an ‘aggravated felony.’  We hold that it may not be.

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Filed under Appellate, civil rights, courts, immigration, legal decision, Supreme Court