Breyer v. Meissner, Eastern District of Pennsylvania
In this case, the court ruled that the defendant was born a US citizen and had not expatriated himself by service in the German army during World War I.
The court was dealing with this case after the Third Circuit Court of Appeals remanded the case. In 1992, the INS began denaturalizing proceedings against Johann Breyer, alleging that he had participated in Nazi era persecution. He argued that while he had fraudulently obtained his permanent residence, he could not be denaturalized because he was a US citizen by virtue of his birth to a US citizen mother. At the time of his birth, US citizen women were not able to pass citizenship to children born abroad. In 1994, Congress changed the law to allow such transmission, but prohibited the change from applying to people, like Breyer, who immigrated to the US under the Displaced Persons Act. The Third Circuit, while noting the important reasons for this exception, found that it was an unconstitutional form of gender-based discrimination. It remanded the case for a determination of whether Breyer had engaged in activities by which he had renounced his US citizenship. A summary of the Third Circuit’s opinion is available at http://visalaw.wpengine.com/00jun3/9jun300.html.
On remand, the court found that Breyer did not commit any expatriating acts. While he did serve in the Waffen SS, the court found that first, this service began before Breyer turned 18, and therefore could not be expatriating, and second, his continued service after 18 was not voluntary. Breyer, who was born in what was then part of Czechoslovakia, was an ethnic German. After World War II started, the German government began pressuring ethnic Germans in Czechoslovakia to join German military forces. The evidence presented showed that in many cases, the pressure was such that membership in military forces could not be said to be voluntary. Breyer also testified that he told his superiors that he would not shoot a person. Therefore, he claimed, he was stationed as a perimeter guard at two different concentration camps, Buchenwald and Auschwitz. After his parents became ill, he made repeated efforts to leave service, which were all denied. When he was finally granted leave, he deserted. The court found that he sufficiently demonstrated that his service in the Waffen SS after turning 18 was involuntary, and therefore not expatriating.
The opinion is available online at http://www.paed.uscourts.gov/documents/opinions/02D0693P.HTM.
In re Recinas, Board of Immigration Appeals
In this case, the Board ruled that the deportation of a Mexican woman which would result in exceptional hardship to her US citizen family members, and therefore ordered that she be granted cancellation of removal.
The respondent, Ariadna Recinas, is a citizen of Mexico who was placed in deportation proceedings for overstaying her visa. She applied for cancellation of removal, arguing that her deportation would result in exceptional hardship to her four US citizen children, and to her parents, who are permanent residents of the US. The immigration judge found that she had failed to prove such hardship, and ordered her deported. She appealed to the Board.
The Board found that the facts presented did show the qualifying level of hardship. First, Recinas was a single mother and the sole source of support for her children. Second, she has no close family left in Mexico, and all her family members in the US were citizens, including her five siblings, or permanent residents. Recinas runs a small business in the US, employing two people. None of her four US citizen children had ever been to Mexico, and none speak Spanish very well. Finally, because of the backlogs in family based immigration for Mexico, there is little chance that she would be able to return to the US legally.
While this opinion marks one of the few occasions in which the Board has found sufficient hardship to exist in the absence of significant medical or similar problems, it should be kept in mind that the Board noted that this case was “on the outer limit of the narrow spectrum of cases in which the exceptional and extremely unusual hardship standard will be met.”
The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3479.pdf.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. The information provided in this article has not been updated since its original posting and you should not rely on it until you consult counsel to determine if the content is still valid. We keep older articles online because it helps in the understanding of the development of immigration law.