The citizenship waltz

“[A]cquisition of U.S. citizenship under the Covenant can be very complex…”
[I]—7 Foreign Affairs Manual 1126.1g[/I]

“Be glad you’ve got what you’ve got when you’ve got it/Or you’re gonna find out what you’ve got is gone…”
[I]—“Be Glad,” Del Reeves, 1969[/I]

Foreign-born children of people who became citizens on Nov. 4, 1986, through the Covenant, have been asking us if they became U.S. citizens, too, either at birth or at some later time. Other people, who became U.S. permanent residents during the time that the CNMI controlled its own immigration but who later may have gone out of status before Nov. 28, 2009, want to know if they can apply for naturalization yet. In each of these cases, the affected individuals must positively assert their rights. Can they all waltz right in? That’s what we’ll talk about today.

[B]Citizenship a year at a time?[/B]

“The following persons and their children under the age of 18 years…are declared to be citizens of the United States…”
—Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, Section 301

We all usually consider the CNMI to have begun as a political entity on Jan. 9, 1978, Commonwealth Day. Interestingly, not everyone sees it that way. The State Department’s Foreign Affairs Manual, for example, notes that the Trust Territory of the Pacific Islands was established on July 18, 1947, and then continues, “The Northern Mariana Islands became the self-governing Commonwealth of the Northern Mariana Islands (CNMI), in political union with and under the sovereignty of the United States, on November 4, 1986.” 7 FAM 1126.1c. (7 FAM 1100, dealing with acquisition and retention of US citizenship and nationality, is available online at http://tinyurl.com/7bny996.)

The FAM does note that the federal courts don’t entirely agree with this description, however. The FAM acknowledges that in Sabangan v. Powell (2004), the Ninth Circuit Court of Appeals held that under the Covenant the first section of the 14th Amendment to the U.S. Constitution became effective on Commonwealth Day, and therefore all children born in the CNMI beginning 11am on Jan. 9, 1978, were U.S. citizens by birth. With palpable reluctance, the State Department states that although it “believed the decision was clearly erroneous, the Solicitor General’s office did not seek Supreme Court review, and it is now final.” 7 FAM 1126.3c(5).

According to the State Department, Covenant Section 301 “was difficult to administer since it established a complicated set of criteria under which a CNMI domiciliary could acquire U.S. citizenship,” application of which “required judicial and negotiated interpretations.” 7 FAM 1126.3a & b. One of those judicial interpretations was Sabangan, but Sabangan only provided citizenship for children born inside the CNMI on and after Jan. 9, 1978.

What about children born to—or adopted by—people who became U.S. citizens on Nov. 4, 1986, through the Covenant? That issue was decided long before Sabangan, in the 1987 case Dela Cruz v. U.S. Under Dela Cruz, persons domiciled in the Northern Mariana Islands or in the U.S. on Nov. 4, 1986, and born in the Northern Mariana Islands to at least one parent born in the former TTPI, are U.S. citizens. But the decision also defined “all persons” in Covenant Section 301 to include any person and that person’s children, using the definition of “child” in the Immigration & Nationality Act (INA)—which includes children adopted under the age of 16, and certain other children who fit into various exceptions. Most important, the FAM makes it clear that “such children did not have to be born in the CNMI nor did they have to be domiciled in the CNMI or U.S. on November 4, 1986.” 7 FAM 1126.3c(1).

So, if before Nov. 4, 1986, you were born to, or adopted by, someone who became a U.S. citizen via the Covenant, you can waltz right in and get your passport, right? That seems to be the law, but we have a client who was adopted in the early 1980s by a TTPI citizen who himself later became a citizen via the Covenant. The child should not have any problem proving her U.S. citizenship, right? Even if she was later taken to the Philippines while she was still a child? We think she is a U.S. citizen, but apparently there is some confusion in the U.S. Consulate in Manila and in the U.S. passport office in Honolulu, each of which has issued her a U.S. passport—each good for only one year.
Citizen for a year? Really? How does that work? There seems to be no problem with USCIS, but remember, it’s the State Department that issues passports, and is dedicated to “strict application of the law,” to quote the FAM. We’re trying to straighten it out, and we’ll let you know what happens.

[B]Five years and two weeks: in or out?[/B]

“With respect to children born abroad to United States citizen or non-citizen national parents permanently residing in the Northern Mariana Islands the provisions of Section 301 and 308 of the [Immigration and Nationality] Act will apply.”
—Covenant, Section 506(b)

So if you became a U.S. citizen pursuant to the Covenant, which of your children who were born after Nov. 4, 1986, are also U.S. citizens? Obviously, any of those children born in the CNMI or any other part of the U.S. are automatically U.S. citizens. Doesn’t the same apply to your children born in another country? Sometimes.

If you married the non-citizen parent of a child while the child was still under the age of 18, that child becomes your stepchild under the INA, and you can apply for a green card for her, and she can later become a U.S. citizen if all conditions are met. If you adopt the non-citizen child and she lives in your legal and physical custody for two years, you can apply for a green card for her and, if the child is under 18 when he or she becomes a permanent resident, she automatically becomes a U.S. citizen.

But what about your biological child who was born in another country after you became a U.S. citizen? There are rules, sometimes complicated, about when you can transmit your U.S. citizenship to your child. A good, simplified summary of these rules is on the instruction form for USCIS Form N-600, which is the form used to apply for a certificate of citizenship for children residing in the U.S.; it’s available at http://tinyurl.com/yg6c49. (The form used to apply for a certificate for children who regularly reside abroad, Form N-600K, is available at http://tinyurl.com/2da9e7.)

Covenant Section 506(b) specifies that INA Section 301—not to be confused with Covenant Section 301—applies to children born abroad to a U.S. citizen parent who permanently resides in the CNMI. Although Covenant Section 506 was repealed by the Consolidated Natural Resources Act of 2008 (CNRA), aka “the federalization statute,” we still look to it to determine a number of immigration issues that depend on events that occurred before the CNRA became effective. This includes the citizenship of children born abroad to CNMI-resident U.S. citizen parents before Nov. 28, 2009.

INA Section 301 is one of the parts of the INA that defines who is and who is not a US citizen. (INA Section 308, also mentioned in Covenant Section 506, only affects the children of non-citizen nationals of the U.S. Both INA Sections, 301 and 308, are available online at http://tinyurl.com/yce6wlq.) INA Section 301(g), in particular, states the basic rule for transmitting citizenship to these children:

The following shall be nationals and citizens of the United States at birth:

“(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years…”

Therefore, to transmit U.S. citizenship to a child born abroad, the U.S. citizen parent first must meet all these qualifications before the child is born. If your child does not qualify under those rules, then you will have to look at another part of the INA, such as Section 320, which requires that the child immediately becomes a U.S. citizen if she is under 18 years old, living with you in the U.S., and first becomes a U.S. permanent resident. If the child is over 18 years old and hasn’t passed through permanent residence, Section 320 won’t work, and some other path to permanent residence and citizenship must be found.

Timing is critical here. We have a client whose father was over 14 years old when he became a U.S. citizen under the Covenant. He was physically present in the CNMI until our client was born in Manila, five years and a couple of weeks after Nov. 14, 1986. INA Section 301 and a citizen since birth? We think so. INA Section 320 and out of luck? That’s what USCIS thought. We’re discussing it with them.

[B]Four years and a day? Or two years and a half and a day?[/B]

“Nothing in [the CNRA] shall be construed to make any residence or presence in the Commonwealth before [November 28, 2009] residence or presence in the United States, except that, for the purpose only of determining whether an alien lawfully admitted for permanent residence . . . has abandoned or lost such status by reason of absence from the United States, such alien’s presence in the Commonwealth before, on, or after the date of enactment of this Act shall be considered to be presence in the United States.”
[I]—Consolidated Natural Resources Act of 2008, U.S. Public Law 110-229, Section 705(c). (Emphasis added.)[/I]

Covenant Section 506 also provided that aliens who lived in the CNMI and were the immediate relatives of U.S. citizens also living here (or only absent temporarily, such as members of the armed forces or students) would be considered to be inside the U.S. for immigration purposes. That meant that quite a few people qualified for, and obtained U.S. permanent residence but, for one reason and another, did not proceed to become U.S. citizens.

For many of these people, something happened to interrupt their residence “inside” the U.S.—the U.S. citizen spouse passed away, or the couple got divorced, or the child who obtained a green card turned 21—and in each of these cases, rather than timely moving to other parts of the U.S., even Guam, the permanent resident remained in the CNMI. The result? After enough time passed, the old INS and, later, USCIS, considered these permanent residents to be out of status and some of them even lost their green cards.

The CNRA changed all that, by curing any defect in the status of these people, if the defect resulted from continued residence in the CNMI. But the cure was not total: time during which they were out of status would not count toward the time necessary to apply for naturalization. We discussed this issue in a prior column (“Four Years and a Day”), published in the last week of April 2010, and in that column set out the naturalization rules of U.S. permanent residents in some detail.

Briefly, people who obtained green cards based on marriage must reside continuously in the U.S. for three years from their approval date to apply for U.S. citizenship, if the marriage still exists. If the marital relationship no longer exists, or if the person acquired permanent residence by some other means such as employment, then the minimum continuous residence is five years. Most green card holders who were out of status before the effective date of the CNRA, which was Nov. 28, 2009, are in the five-year category. The applicant must also have been physically present in the U.S. for the 30 months immediately prior to the application date.

Most permanent residents subject to the five-year rule, who have been outside the U.S. for so long that they no longer have credit for prior continuous residence, must wait four years and a day after returning to the U.S. before filing for naturalization. But U.S. permanent residents in the CNMI, who had their five years continuous U.S. residence before falling out of status, should be able to be credited for those five years, and file only 30 months and a day after re-entering the U.S. That is, 30 months after Nov. 28, 2009: that date is Tuesday, May 29, 2012. (Different times apply to people who were green card holders living in the CNMI before the CNRA effective date, who were not also the immediate relatives of CNMI-resident U.S. citizens.)

Why is this important? Other than the simple desire to become U.S. citizens, these people may wish to apply for, or expedite existing green card applications of, immediate relative spouses or children. The current waiting time before processing green card applications of immediate relatives of permanent residents is roughly two years and eight months but it fluctuates, most often being around four years. There is no waiting time for immediate relatives of U.S. citizens although of course there is the time for processing, currently between three and five months on average. It is important, sometimes vitally important, for these families to get their applications processed as soon as possible.

[I]The information contained in this column is intended as general information only, and not as individual legal advice. Readers should obtain professional legal advice before taking action with respect to their individual situations. Readers may submit questions regarding federalization or immigration issues to the authors by email to lexmarianas@pticom.com. Readers may also e-mail written questions through the Saipan Tribune at editor@saipantribune.com.[/I]