Resolving a Dicey Bordertown Baby Dilemma

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A complicated, decades-old cross-border family case leads to a Green Card.

By Julie Kruger

February 18, 2019

I am very excited to share this “Dreams Without Borders” case!

Immigration law is an intricate practice. But sometimes, we get cases that are so complex, they become noteworthy in their own right. This is one such case.

The client we’re featuring this month came to us with a United States passport application she was hoping to have approved. We were soon to discover, however, that she had a much bigger challenge in front of her, resulting from her fascinating family/immigration history – exactly the kind of case I love to dive into.

BACKGROUND

Our client’s story begins in the 1950’s. Her mother was a United States citizen, and her father was an Italian citizen. Both parents lived on the American side of the U.S. – Canadian border in the city of Niagara Falls, NY. Like many families living on an international border, our client’s parents had family members living on both sides of the border. This meant, as it often does, cross-border family visits were a common occurrence.

Late into her pregnancy with our client, our client’s mother went to visit family on the Canadian side of the border, which was only about ten minutes from her home on the U.S. side. On the day she left the U.S., our client’s mother was 19 years and 5 days old – an important factor in the case, which will become clear later in this article.

A few hours later – and while still in Canada – our client’s mother unexpectedly went into labor and gave birth to our client on the Canadian side of the border. No one realized at the time that our client’s birth in Canada set in motion a series of events that, decades later, would lead that baby girl – now a grown woman approaching retirement age – to be stuck in the United States for almost two decades with no evidence that she was here legally.

But those details come later.

Actor Portrayal.

Even though her mother was an American citizen, our client’s birth in Canada made her a Canadian citizen, and only possibly an American citizen through her mother. A few days after our client’s birth, in a border crossing today’s world would no longer recognize, our client’s mother brought our client over the bridge to the United States, with no questions asked during the inspection process about the baby’s immigration status. Everyone assumed that if mom was a U.S. citizen, so was baby. A few years later, our client’s father became a U.S. citizen through the naturalization process, making both parents citizens of the United States.

Naturally, with both her parents being U.S. citizens, our client assumed she was a U.S. citizen, too. She went through school, entered the workforce, developed a career, married, and had a family, entirely secure in this belief.

However, after the September 2001 terrorist attacks, immigration laws became much more strictly enforced. Our client even refrained from crossing the border for more than a decade. She remained in the U.S., fearing that if she were to leave the country, she would not be allowed to return without a U.S. passport.

Then, a few years ago, an opportunity arose to take a cruise with her family outside the U.S. She decided she finally needed to apply for a U.S. passport.

This is where her problems began to surface.

CHALLENGES

Our client filed an application for a U.S. passport with the U.S. Department of State, expecting a quick approval. Instead, she got a request for more evidence from the passport agency, requesting additional proof that her mother had enough physical presence in the U.S. prior to our client’s birth to be able to transmit her citizenship to our client at the time of our client’s birth.

When a person is born outside of the United States, with only one parent who is a U.S. citizen, the law is a bit complicated on whether or not that person is a U.S. citizen at the time of their birth. The determination of citizenship status is made using the laws that were in effect at the time of the person’s birth.

At the time our client was born, the law stated that, if a person was born outside the United States to married parents, only one of whom was a U.S. citizen, for that person to be considered a U.S. citizen at the time of their birth, the person’s U.S. citizen parent must have lived in the United States for ten years prior to the person’s birth. Moreover, five of those years must have been after the parent was 14 years old.

Now, remember when I mentioned earlier that our client’s mother was 19 years and 5 days of age at the time of our client’s birth? That’s just five years and five days after our client’s mother’s 14th birthday or . . . only five days over the time that she was required to be physically in the U.S. to be able to transmit her citizenship to our client at the time of our client’s birth. Because our client’s mother spent a good deal of time traveling back and forth to Canada visiting family, it was possible that she had less than the required 5 years physical presence in the United States, and could not transmit her citizenship to our client at the time of our client’s birth.

Because of the tight timing involved in this case, the passport agency requested additional evidence to prove that our client’s mother had actually spent 5 years of the possible 5 years and 5 days physically in the U.S. Our client did not have that documentation. Making matters worse, her mother had passed away years earlier. It was therefore virtually impossible for her to respond to the request for evidence with documentation to satisfy the passport agency.

Suddenly, she was stuck.  Trapped in an immigration paradox: with no documentation of her lawful status in the United States and no means of obtaining it from her late mother, she could not conclusively prove she was a U.S. citizen. She could no longer travel outside the U.S. for fear of being unable to return and, without documentation of her citizenship, she was justifiably concerned that she could be subject to deportation at any time. Her career, her family, and her future were very much at risk of catastrophic change, and she realized that she needed an immigration attorney’s help to resolve the situation before it was too late.

This is where I came into the picture.

SOLUTION

Unfortunately, the passport application was denied for lack of evidence. I realized that we would not be able to obtain any further evidence to conclusively establish my client’s United States citizenship, so that strategy had to be thrown out. I’ve always believed that it is often more important to focus on being successful versus being “right” with one’s first choice of arguments in matters like this. This meant that my client and I needed to take a step back from her original strategy and consider what other avenues we could take. Fortunately, there was one very powerful factor in our client’s favor that offered a path to success: her husband is a United States citizen. I determined that the best and safest strategy was to have our client obtain permanent resident status (“green card”) through her husband.

This strategy did not come without risks. If it was conclusively determined that our client was not a United States citizen, that meant that she had unwittingly made many false claims about her citizenship throughout her life – both verbally and in writing – including on her U.S. passport application.

Obviously, making a false claim on a government document is a bad thing no matter how minor the matter. But when it comes to matters of U.S. citizenship, doing so could at minimum result in a lifetime bar to becoming a permanent resident for which there is no waiver. At worst, our client could be charged criminally and deported from the United States, never able to return as a permanent resident.

The stakes were very high, and clearly illustrate both the importance and the benefits of working with an experienced immigration lawyer.

I knew from previous cases over the course of my 10 years of practicing immigration law that the Child Citizenship Act provides an exception to the lifetime bar, essentially forgiving any false claims to United States citizenship if certain criteria are met. After reviewing the details of our client’s history, I concluded that our client met the necessary criteria to qualify for that exception, because both of her parents were U.S. citizens, she permanently resided in the U.S. prior to the age of 16, and her belief that she was a U.S. citizen was reasonable.

To that end, we prepared and filed a Petition for Alien Relative and an Application to Adjust Status on our client’s behalf. We submitted a detailed documentation package with the Petition and Application to support our arguments. We also had to convince the U.S. Citizenship and Immigration Services (USCIS) Officer reviewing our client’s case of our arguments, and we had to do it in person.

Attorney Julie Kruger

Prior to our client’s interview at the Buffalo Field Office of USCIS, I met with her and her husband and prepared them in detail. I then attended the interview with them, so that as a team, we would be able to immediately address any concerns of the USCIS Officer, and provide any additional documentation needed.

It was our hope and belief that taking this approach would yield the successful result we all wanted.

RESULT

Our client’s adjust of status application was approved at the interview and she received her green card (a.k.a. permanent residence card) within a few weeks!

Relieved and excited, our client emerged from a frightening and potentially-devastating situation  with the proof she needed to live and work permanently and more importantly, legally, in the United States.

Best of all, she will be eligible to apply for naturalization in three years, and become the United States citizen that she had always believed herself to be.

To me, this is what it means to achieve Dreams Without Borders for my clients, and what makes me personally grateful to have been able to be a part of this – and every – U.S. immigration story that comes through my office!


Conveniently headquartered in downtown Buffalo’s historic Cornell Mansion, Kruger Immigration Law concentrates its practice in family immigration, naturalization and citizenship, and business immigration for those looking to relocate to the United States of America. If you’re immigrating from Canada to USA, our team of skilled immigration attorneys can help you achieve your “Dreams Without Borders”.

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