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DEPORTATION DEFENSE COLUMN
Could you be an American?
By Nora Milner, Esq.
LIDYA frantically called the only immigration attorney number she had — one given to her by a friend who promised that this particular attorney could help her.
In her haste, she barely made her fingers dial the number, she shook so much. As the phone rang, she prayed silently that this attorney could help her, and, more importantly, her son.
At the other end, the attorney's secretary answered and listened patiently to the urgent plea Lidya made for an immediate appointment. Sympathetically, the secretary said that there were absolutely no available times for another two weeks. The attorney was simply booked up till then.
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Lidya pleaded, this was urgent and could not wait. The secretary, accustomed to hearing such tales of woe, decided to ask the attorney if perhaps she just might be able to accommodate Lidya due to the dire circumstances. After hearing her story, the attorney said, yes, have her come in at noon. Lunch could wait.
When Lidya arrived with her husband, Juan, the attorney was surprised. He was so tall, blond and blue-eyed. He also had an anglo last name; "Smith." As he sat down, the attorney simply could not help but stare, he just didn't look Hispanic even with the first name of Juan and his general inability to speak English.
Lidya, however, was clearly Hispanic and spoke in quick, clipped Spanish. She spun a sad tale: Her only son, Roberto, age 15, was picked up by the U.S. Border Patrol and was being held in detention, scheduled for deportation by 5:00 p.m. that day.
Juan is a lawful permanent resident, having adjusted via the "amnesty" program in the late 1980s; Lidya, Roberto, and her two other Mexican children have approved visa petitions in the quota filed by Juan, but other than that, have no legal status to remain in the U.S. Thus, it was the USCIS's intention to remove Roberto immediately. "Please," she pleaded, "don't let them take my son. He has no one except us. No family in Mexico."
As she spoke, the attorney looked intently at Juan. Finally, after hearing the story, she inquired of Juan about his father: Who was he? Where was he born? Juan looked quizzically at the attorney, wondering why, with Roberto scheduled for removal from the U.S., the attorney was asking about his own father, who, after all, had been dead for many years. Still the attorney persisted. Finally, Juan told the attorney that he, Juan, had been named after his father who he thought was an American citizen, one John Smith.
Juan and his two brothers were born in Mexico, just across the border from El Centro, California, and had lived there with their mother, a Mexican citizen, till her death. He, Juan, had entered the U.S. illegally in 1975 and had remained here since then.
Although he had looked into the possibility at one time that he might be an American citizen, he had been advised to just become a lawful permanent resident via the amnesty program, so he had never really pursued the idea. What did it matter, anyway, since Roberto was the one that they cared about now?
The attorney immediately advised Juan that based on her knowledge of the immigration laws that Juan himself might be a U.S. citizen. How is that so?
The laws applicable to citizenship are complex because they have changed several times over the years and thus reference must be made to dates of birth of the U.S. citizen parent and the alien child, physical presence of the U.S. citizen parent in the U.S. prior to the birth of the alien child, and, under certain circumstances, physical presence of the alien in the U.S.
In this case, the attorney was convinced that Juan himself was a U.S. citizen and that he had "transmitted" that citizenship to his son, Roberto, thus making it illegal for the USCIS to deport Roberto. However, that issue would require substantial documentation, a matter to be resolved later, with more time. For now, it was imperative that a stop be put on Roberto's removal to allow the attorney time to obtain the required proof.
The attorney filed an emergency stay with the Immigration Judge who had the case and, based on her documents to the judge, the temporary stay was granted, thus providing Roberto with the chance to remain with his family in the U.S. pending a full hearing on his status.
The next step: Research the history of the Smith family and obtain the necessary documentation to prove Juan is a U.S. citizen and has transmitted such status to Roberto.
To be continued ...
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Readers may get in touch with columnist Nora Milner at Milner & Markee, LLP, 16780 W. Bernardo Dr. #320, The Bluffs, San Diego, CA 92127; tel. (858) 451-6269.
NORA MILNER received her Juris Doctor degree from the University of Denver, College of Law in 1976. After serving in the Navy's Judge Advocate General (JAG) Corps, she entered private practice in 1980. In 1986, Milner focused her practice on Immigration and Nationality Law in San Diego, California and has been a practicing immigration lawyer for more than 20 years. She is an active member, lecturer, board member and past chapter chairwoman of the American Immigration Lawyers Association, and has served as a professor at two local law schools. She is a certified specialist in Immigration and Nationality Law. She is licensed in the states of California, Colorado and Iowa, and is admitted to practice before the United States Supreme Court.
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