By Henry J. Chang
The Immigration and Nationality Act (“INA”) provides special privileges to American Indians born in Canada. INA §289 provides as follows:
Nothing in this title shall be construed to affect the right of American Indians born in Canada to pass the borders of the United States, but such right shall extend only to persons who possess at least 50 per centum of blood of the American Indian race.
§292.2 of the Immigration Regulations, contained in Title 8 of the Code of Federal Regulations (8 CFR), provides that American Indians born in Canada who are residing in the United States shall be regarded as having been lawfully admitted to the United States for permanent residence. It further provides that American Indians born in Canada do not possess at least 50 per centum of blood of the American Indian race, but who entered the United States before December 4, 1952 under a similar provision contained in the Act of April 2, 1928, are also regarded as having been admitted to the United States for permanent residence.
To meet the bloodline requirement contained in INA §289, a Canadian-born American Indian is required to establish that he or she has at least 50 per centum of American Indian blood. The phrase “American Indians born in Canada” is interpreted in a racial context instead of a political one. In other words, political recognition as an Indian such as registration with the Canadian government or with tribal authorities is not a prerequisite to benefits under INA §289.
The right of an American Indian born in Canada to pass the borders of the United States amounts to an absolute exemption from all immigration-related restraints contained in the INA, upon the establishment of the necessary percentage of Indian blood. So absolute is the exemption from immigration constraints that in Matter of Yellowquill, 16 I&N Dec. 576 (BIA 1978), an American Indian born in Canada who was convicted of selling heroin could not be deported.
Under 8 CFR §289.1, the right of free passage across the United States border does not extend to the spouse or dependent child of an American Indian born in Canada or an adopted member of an Indian tribe unless that person also has a minimum of 50 per centum of blood of the American Indian race. However, as an American Indian who resides in the United States under 8 CFR §289 is considered lawfully admitted for permanent residence, he or she will be able to petition a spouse or dependent child under the 2a family-based immigration preference.
It is interesting to note that the Canadian government does not extend reciprocal privileges to American Indians born in the United States.
[Henry Chang is a partner is SSHC’s Toronto office and can be reached by e-mail at hchang@visalaw.com]
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