Jacob Tingen: Welcome to Nation of Immigrants. Thank you for tuning in again. It’s been an interesting week in immigration. Of course it was for me a four day weekend, I wasn’t around on Friday. I check the news this morning and thought I’d touch base on a couple of things from last week that we missed. Then also give you an update on deferred action and how USCIS handling the confusion over their policy change.
Jacob Tingen: Let’s get going. Nation of Immigrants.
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Announcer: A podcast about US immigration law with your host, Jacob Tingen.
Jacob Tingen: Okay, so first I wanted to get started talking about what was termed in the news a lot last week, medical deferred action. I pointed out that that isn’t really a thing. There’s no program for medical deferred action. There is however, deferred action, a form of prosecutorial discretion that we’ve discussed. Where basically USCIS says, “You know what, we would not deport people in this particular scenario. They’re not a priority for deportation.”
Jacob Tingen: We talked about how people with perhaps medical conditions could apply for deferred action until of course, last month. August 7th letters had been mailed out to a number of people who’d been granted a deferred action status. Many of whom had medical conditions, and that’s how they qualified absent any other ability to get in any kind of immigration status. Remember in one of our prior episodes, we talked about the myth of the immigration line.
Jacob Tingen: For people who there’s no line for, and yet they have a life-altering disease that can only be treated in the United States, their only option was deferred action. By essentially going to the service and saying, “Hey, I know I don’t have legal status, but I can’t leave. If I do, I’ll die because of this illness that I can’t get treated in my home country.” So deferred action was granted to these people.
Jacob Tingen: Well public outrage ensued, not only my podcast, but a number of people commented on the heartlessness of this policy where we’re going to start sending people away who clearly need help that can only be obtained in the US and who we’ve previously granted deferred action to. What’s interesting is I mentioned USCIS had publicly said that, “Well, ICE is going to be in charge of those decisions now.” I talked with my partners and I said, “Well, how do you even apply for deferred action with ICE? Like I wouldn’t even know where to begin.”
Jacob Tingen: Well ICE was also surprised apparently to hear the news that they were in charge of deferred action applications, because they said we have no process or policy. They also said, “What we do is we do stays of removal after someone’s been through all of the removal procedure. If after that point, there’s still a humanitarian reason to keep them here, we’ll then by all means they can ask for a stay of removal.” Which we also do and we know that that’s a difficult process, but ICE seemed confused and surprised. They said, “We don’t do deferred action. That’s USCIS.”
Jacob Tingen: It’s interesting that USCIS said that they wouldn’t do it. In an update to the news and to the community, USCIS is saying, “Well, hey look. We’re going to adjudicate petitions that we’d received prior to August 7th,” but there’s been no update on whether or not they’re going to completely reverse course or if they’re just going to let the deferred action statuses that have been granted to just expire slowly, instead of by force of a letter that was in a decision that was clearly just made in August. We’ll see what happens there. I’ll try to provide updates on this deferred action policy change as I hear about it.
Jacob Tingen: But the policy change that I want to focus on today, actually has to do with citizenship, particularly citizenship for children who are born overseas to members of our military and our armed forces. Now, I caught wind of this. I didn’t catch it on the news, but I saw it later on Facebook. It was exactly the kind of debate that I created this podcast to combat. Because somebody said, “Is this for real?” And they posted what is essentially a politicized headline. It was too strongly worded, it wasn’t entirely accurate.
Jacob Tingen: They said, “Is this for real?” Then of course, some people piled on and said, “Of course it is. The Trump administration, blah, blah, blah.” Then another person chimed in and said, “No, it only applies to kids who are adopted.” Just all this misinformation back and forth was just kind of interesting to see. I thought, “Hey, this is something I need to respond to.” I want to start though by calling out something that is just patently untrue. Ken Cuccinelli in the aftermath of the online outrage to this policy change, said, “The change,” he tweeted this, “does not affect who was born a US citizen, period.”
Jacob Tingen: That is untrue. “It only affects children who were born outside the US and were not US citizens.” He’s saying, “and we’re not US citizens,” but that’s only true because he’s the acting director of USCIS and he’s interpreting these rules. Before the policy changed, they very well could have been, right? For him to say, “It does not affect who was born a US citizen, period.” That’s just a lie. It’s a lie.
Jacob Tingen: Let’s talk about what it is and what it is not. It does not mean that every child born to US citizens overseas is no longer a citizen. That’s what it’s not. Basically, if both of your parents are citizens and you’re born in a different country, you attain citizenship just by virtue of having two parents who are US citizens. Now, a lot of the law or the statutes around who is a citizen at birth is more complex than you would think. There are frequent requirements of residence in the United States prior to the birth of your child.
Jacob Tingen: Relevant to our discussion, it’s typically five years of of residence in the United States, of which half of that residence has to occur after your 14th birthday. The memo that was issued by USCIS starts off by defining residence and defining physical presence and looking very closely at two code sections, INA 320 and INA 322. Now, as I’ve always said from the beginning, this podcast is not to get into the legal weeds. I’ve looked at those code sections and I will try my best to translate them to English. But the long and short of it is, is that children born overseas to one US citizen parent may only attain citizenship under certain conditions, or to two US citizen parents, only if those parents have met certain residence requirements.
Jacob Tingen: The statutes kind of say residence and physical presence. Now, 322 I believe is a companion section that specifically says this about children born overseas, it says, “In the case of a child of a member of the armed forces of the United States,” so children of the military, “who is authorized to accompany such member and reside abroad with the member,” and that word reside is what’s important here, “pursuant to the member’s official orders and is so accompanying and residing with the members.”
Jacob Tingen: Basically, they’re residing outside of the United States. Than it says, “Any period of time during which the member of the armed forces is residing abroad,” so again, residing abroad, “pursuant to official orders, shall be treated for purposes of subsection A2A,” which, we’re not getting into that, “as physical presence in the United States.” What USCIS has done is they’ve parsed that out and they’ve said, “Well, residence and physical presence are two completely different things,” which you know, is a legal argument I can get behind. I can agree that that words matter, right?
Jacob Tingen: But intent matters too. To me, when Congress makes a law like this, they’re trying to be inclusive and say, “Hey, even if they don’t necessarily meet a residence requirement in the United States, we’re saying that they’re there for purposes of being kind to members of our armed forces.” Yeah, this absolutely, it does not apply just to people who have been adopted. I’d like to point that out, but it also applies to people who are actually born to US citizens and whose parents are serving in our military.
Jacob Tingen: It could exclude some people. Now, it’s not gonna exclude everyone. This is a policy that affects, truth be told, a small number of people. Here’s a good summary from a brief news article. “Examples of affected service members will include recently naturalized members of the US military who do not have five years of physical presence in the United States, serve as members born in the United States who left to live abroad as children, and do not have two years of physical presence after age 14,” okay. “Service members with green cards who returned to the US to naturalize, but now cannot use that opportunity to obtain automatic citizenship for their children and certain service members who adopt children overseas.”
Jacob Tingen: That is a true list. Okay. It’s a small list, but there are people who fit in it. The point here is that this list does exclude people and that’s what’s alarming is that why would we exclude children of people who are serving in our military? Why would we care to parse these words of all the words and all the work that can be done in our Immigration and Nationality Act? Of all the laws that we could take a close look at, why take a close look at this one and then make an interpretation and change it in the worst way possible? They didn’t say, “We’re eliminating citizenship for children born overseas in these specific situations.” They just said, “We’re going to change our definition of the word residence and physical presence and how we interpret that moving forward.”
Jacob Tingen: Now, was it calculated and designed to remove citizenship for children born in these scenarios? You bet. As a practitioner of immigration law right now, I can tell you that the Trump administration, whether or not under Trump’s specific direction or not, but he has this imperative and this direction to say, “Hey, let’s limit immigration as much as possible.” Not just illegal immigration, but legal immigration. His administration has taken steps to limit all kinds of immigration as much as possible. That’s a fact.
Jacob Tingen: What’s interesting though is that as this policy is announced and it becomes unpopular, Trump of course disowns it. He says, “This technical correction hurts military families and our readiness. It’s a bad policy.” I don’t know if he says it’s bad policy, but he did say that it’s a technical correction that hurts our military. If it hurts our military and you’re the President of the United States, then why do it? I don’t get that.
Jacob Tingen: Anyway, let’s talk about this in the larger context of what all these policy changes mean. Because there’s been a lot of activity by different parts of the Trump administration in changing policies and practices. They’ve been very active in the area of immigration. What do I see happening in the court challenges that will probably come as a result of many of these policy changes? Well, it’s important to note that this is a policy change for years. Even though they’re saying, “Oh, there was confusion.” For years, people who were born in these scenarios were likely considered US citizens and received citizenship at birth. That was not a big deal and not a question that anybody really had.
Jacob Tingen: Why reverse course? Why change the policy? Then because Ken Cuccinelli was never even confirmed by the Senate, he’s just the acting director, he’s not even the actual director, what kinds of policies can he promulgate? What legal authority does he actually have to do this? To reinterpret law for a position that should undergo the rigorous process of Senate confirmation, right? Then finally, how much deference should be given to an agency policy that is a clear departure from the past and that is designed to push forward an agenda that’s been clearly expressed, that’s a political agenda, right?
Jacob Tingen: What’s interesting is that last week I talked about this decision that came out of the fourth circuit court of appeals, Zuniga Romero v. Barr, and it mentioned that we normally give deference to these administrative courts, these agencies, because they’re the pros on what they do. But we don’t have to give deference in the following scenarios. They listed reasons why they wouldn’t give deference to an administrative court or an administrative agency. One of the reasons that they said they wouldn’t give deference is, “Hey, if an agency did it one way in the past and that was a perfectly acceptable interpretation, why should we give deference to their new interpretation?” Because they only have to give deference if something’s ambiguous and if it’s fair, right?
Jacob Tingen: If I’m changing interpretations all the time, is my policy change legitimate? Is it fair? Does this policy change, “This technical correction,” as Trump put it, does it merit any deference at all in a court of law? That’s an interesting question that I think will be answered as these challenges come through to courts as people take a look at some of these policy changes. I don’t know if there’s a lawsuit against this. I just assumed there are lawsuits against every policy change these days. But, it’s interesting as we see some of these immigration cases come through court, one of the big issues that we’ll see is how much deference should be given to an agency’s authority to promulgate regulations and, let me make this not legalese, promulgate regulations and interpret what they mean.
Jacob Tingen: It’s not fair for you to be able to make the rules and then change them at will and say, “No, the game is played this way.” Right? That’s what USCIS is doing. That’s why this is a problem. I hope that I’ve cleared up the issue of what’s actually going on. It wasn’t a change to birthright citizenship, it was a change to what does residence mean and what does physical presence mean? Yet it has this impact on citizenship that was planned and calculated. That’s obvious to me as someone who works in immigration law.
Jacob Tingen: It affects more than people who were just adopted and it does admittedly affect a small number of people, but I imagine that it’s a big change in their lives and a big change in their planning. How sad would it be for us to have someone look at this policy and say, “Well, I fought so hard to attain citizenship and I want my children to have it, so I won’t serve my country so that I can establish physical presence in the United States and make sure that my children are born US citizens.” How sad would it be for someone to say, “You know what, I can’t serve because it’s better for my family not to.” That is not the country we want to promote, but that is what this policy does.
Jacob Tingen: With that, we’ll wrap up. Thank you for listening to Nation of Immigrants. By the way, the podcast is now officially listed on iTunes. So I’m excited to have that happen. You can find us there, YouTube, Facebook. Thanks again for listening and watching and have a good day.