News From The Courts

9th Circuit Holds That Alien Applicants for Citizenship Are Not Nationals

On June 23, the Ninth Circuit Court of Appeals decided the issue of whether an alien could be classified as a national of the United States when he signs a statement of allegiance to the United States as part of the naturalization application process.

The petitioner, Jose Luis Perdomo-Padilla, is a citizen of Mexico. He was convicted of conspiracy to distribute marijuana and placed in removal proceedings pursuant to 8 U.S.C. § 1227(a)(2)(iii), which calls for the automatic removal of any alien convicted of an aggravated felony.

The petitioner argued that since attaining permanent residency and prior to the conviction, he applied for naturalization and completed a statement of allegiance to the United States. The petitioner argued that because he pledged allegiance to the United States, he must be considered a national of the United States and therefore may not be removed.

The court held that the filing of an application for naturalization does not change the status of an alien to national status. The court found that one may only become a national through birth or once the naturalization process is complete.

The second circuit found in Oliver that “the term nationals came into use in this country when the United States acquired territories outside its continental limits whose inhabitants were not at first given full political equality with citizens. Yet they were deemed to owe permanent allegiance to the United States and were entitled to our country’s protection. The term national was used to include these noncitizens in the larger group of persons who belonged to the national community and were not regarded as aliens.” Oliver v. INS, 517 F.2d 426, 428 n.3 (2d Cir. 1975).

In this case, the court’s reasoned that naturalization applicants have not pledged permanent allegiance to the United States as required by the statute since their application may be denied or withdrawn. As a result, naturalization applicants do not owe permanent allegiance until they are naturalized.

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Zeba Moin, et al, v. John Ashcroft, U.S. Attorney General

United States Court of Appeals for the Fifth Circuit

Zeba Moin and her son, Moiz Ullah, appealed a ruling of the Board of Immigration Appeals (BIA), which affirmed an immigration judge’s holding that Zeba Moin abandoned her lawful permanent resident status, and is therefore subject to exclusion and deportation. The Fifth Circuit affirmed the decision of the BIA.

Zeba Moin, a native and citizen of Pakistan, was admitted into the United States as the unmarried daughter of a Legal Permanent Resident (LPR). Two months later, she left the U.S. to return to Pakistan. For the next four and a half years, Moin made several trips between Pakistan and the U.S. Her total stay in the U.S. was about six months. In 1996, she returned to the U.S., presenting her permanent resident card and Pakistani passport to immigration officials. She was referred to secondary inspection to process her son for admission. The secondary officer deferred her inspection to the INS District Office in Houston because of the amount of time she had spent outside of the U.S. An INS inspector determined that Moin had abandoned her LPR status and was therefore inadmissible to the U.S. An immigration judge agreed with the INS inspector and ordered Moin and her son to be excluded and deported from the U.S., and the BIA affirmed the opinion of the immigration judge.

Citing Matter of Huang, 19 I. & N. Dec. 749, 753 (BIA 1988), the fifth circuit ruled that Moin had abandoned her status: “[T]o qualify as a returning resident alien, an alien must have acquired lawful permanent resident status in accordance with our laws, must have retained that status from the time that [she] acquired it, and must be returning to an unrelinquished lawful permanent residence after a temporary visit abroad.” The court ruled that Moin’s trips to Pakistan were not “temporary visit[s] abroad.”

Moin argued that her trips to Pakistan were in fact “temporary visit[s] abroad.” First, she said that no trip exceeded two years and that she had been given a reentry permit valid for two years. She cited Saxbe v. Bustos, 95 S. Ct. 272, 277-278 (1974) that an alien who is granted LPR status has the privilege of living in the U.S. but is not required to do so. Second, she argued that she had always intended to reside permanently in the U.S.

The court responded that first, “ ‘temporary visits’ are not defined in terms of elapsed time alone.” Also, having a reentry permit does not guarantee that an alien will be found admissible upon seeking return to the U.S. The Saxbe case involved alien commuters who lived abroad but returned to the U.S. for work either on a daily or seasonal basis. “Alien commuters have established business affiliations in the United States that demonstrate their ‘intent to return…within a relatively short period.” Moin did not have such business affiliations.

Second, while Moin may have intended to ultimately reside permanently in the U.S., the relevant intent is the intent to return to the U.S. within a relatively short period of time. The immigration judge had ruled that based on the evidence supplied by Moin and her relatives, she was a resident of Pakistan who took a few short trips to the United States.

The Fifth Circuit agreed: “The alien’s intent must be supported by her actions.” Moin’s ultimate intent to permanently reside in the U.S. was unsupported. The perceived intent is that she would return to Pakistan as she had purchased a round-trip airplane ticket from Pakistan to the U.S. Moin also had a husband and child living in Pakistan and while she owned property in Pakistan, she did not own any property in the U.S.