A recently released memorandum dated November 19, 2009 superseded a prior memorandum issued on November 6, 2008 that provided guidance in investigating claims of U.S. citizenship. The more recent guidance was intended to ensure that claims to U.S. citizenship receive immediate and careful investigation and analysis.
While performing their duties, U.S. Immigration and Customs Enforcement (ICE) agents may encounter aliens who are not certain of their status or claim to be United States citizens (USC). As the Immigration and Nationality Act (INA) provides numerous avenues for a person to derive or acquire U.S. citizenship, ICE agents are directed to handle these matters with the utmost care and highest priority. While some cases may be easily resolved, because of the complexity of citizenship and nationality law, many may require additional investigation and substantial legal analysis. As a matter of law, ICE cannot assert its civil immigration enforcement authority to arrest and or detain a USC. Consequently, investigations into an individual’s claim to U.S. citizenship should be prioritized and Office of Investigations (OI) and Detention and Removal Operations (DRO) personnel must consult with the Office of the Principal Legal Advisors (OPLA)’s local Office of the Chief Counsel (OCC).
When ICE agents encounter an individual who they suspect is without lawful status but claims to be a USC, the situation will fall into one of three categories:
1) evidence indicates the person is a USC; 2) some evidence indicates that the individual may be a USC but is inconclusive; and 3) no probative evidence indicates the individual is a USC.
If evidence indicates the individual is a USC, ICE should neither arrest nor place the individual in removal proceedings. Where there is some probative evidence that the individual is a USC, ICE agents should consult with their local OCC as soon as practicable. After evaluating the claim, if the evidence of U.S. citizenship outweighs evidence to the contrary, the individual should not be taken into custody.
The person may, however, still be placed in removal proceedings if there is reason to believe the individual is in the United States in violation of law. Finally, where no probative evidence of U.S. citizenship exists and there is reason to believe the individual is in the United States in violation of law, the individual may be arrested and processed for removal. In all cases, any uncertainty about whether the evidence is probative of U.S. citizenship should weigh against detention.
If an individual already in custody claims to be a USC, an ICE agent is directed to immediately examine the merits of the claim and notify and consult with his or her local OCC. If the individual is unrepresented, an officer must immediately provide the individual with the local Executive Office for Immigration Review (EOIR) list of pro bono legal service providers.
Stewart Rabinowitz is President of Rabinowitz & Rabinowitz, P.C. Mr. Rabinowitz is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. To contact a Dallas immigration lawyer or Dallas immigration attorney visit Rabinowitzrabinowitz.com
