Snap act proposal substantive naturalization application prerequisites act.docx

REQUEST FOR A BILL TO BE INTRODUCED IN CONGRESS FOR A

SUBSTANTIVE NATURALIZATION APPLICATION PREREQUISITES ACT

The SNAP Act

Background Issue:

There is an unpleasant resurging trend that the United States has seen all too much of. The

problem first reared its ugly head beginning in the first years after the Revolutionary War and

continues to the present day. Far too many applicants for naturalization lack any “intent to

reside permanently in the United States” 1. after naturalization, and 2. prior to naturalization--some attempt to spend as little statutorily required time as

possible in the United States and even, 3. during the naturalization application process, itself, immediately after or even

departing before filing an N-400 and sometimes filing from abroad.

In the following excerpts, recent and old cases are presented that demonstrate that some

individuals seek to attain U.S. citizenship through naturalization while rubbing the collective

nose of the United States in the dirt. There are, at present, only two very minor and restrictive

instances in the Immigration and Nationality Act (INA) [8 U.S.C.] in which an applicant for

naturalization is actually required to declare before the [ Secretary of Homeland Security

or USCIS] in good faith an intention to take up residence within the United States and

then only immediately upon the termination of qualifying employment abroad of either their

USC spouse or him/herself if employed by a bona fide United States incorporated nonprofit

organization which is principally engaged in conducting abroad through communications media

the dissemination of information which significantly promotes United States interests abroad and

which is recognized as such by the United States Government. See INA 319(b) and (c).

A statutory “declaration of intention to primarily reside within the United States after

naturalization for the foreseeable future” is sorely lacking in the Immigration and Nationality

Act. I urge Congress to amend the INA to include as an overall, basic, underlying prerequisite to

naturalization, for the naturalization applicant to make both a written declaration, under penalty

of perjury, and oral declaration, under oath, as part of the formal application for naturalization,

and as part of the standard naturalization examination, a declaration of intent to primarily reside

within the United States, except as otherwise provided under the Immigration and Nationality

Act1, upon making an application for naturalization, and admission to citizenship thereto, and for

the foreseeable future.

1 INA 324 [8 U.S.C. 1435] allows for: a woman who lost citizenship due to marriage to an alien to resume her U.S citizenship,

or any citizen of the United States at birth who lost such citizenship for failure to meet the now repealed physical presence

retention requirements, but exempts them from residing in the U.S. They may subscribe to an Oath before a Consular Officer

while abroad or within the U.S. may file a form N-600 with USCIS. INA 330 [8 U.S.C. 1441] allows for the naturalization of

seamen or “Merchant Marines” who are LPR’s serving on U.S. vessels and may continue to do so as a vocation.

SNAP Act Proposal [Substantive Naturalization Application Prerequisites Act] by Joseph P. Whalen

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As things stand now, far too many applicants for naturalization simply try to “put in the minimal

time required to qualify to file an N-400” and depart the U.S. OR, even worse, depart the U.S.

and then filing an N-400 either from a fake, fraudulent or “borrowed” address in the U.S. or

even file from abroad (not discounting U.S. Military members and dependents under INA

329 or 319(e), or qualified applicants filing an N-600, as a military dependent or member, or a

qualifying child filing an N-600K under INA 322, who is supposed to be residing abroad with the

USC parent).

A Case in point is McElhaney v. USCIS et al, E. Dist. CT, Case 3:09-cv-01474-CFD Document

44, Filed 10/20/10.

Found at: http://bulk.resource.org/courts.gov/recop/pacer/ecf.ctd/04112672122.pdf

Ms. McElhaney, moved her primary residence to Canada, moved her daughter to Canada and

enrolled her in school there, her lesbian partner lost her job in the U.S. and also moved to Canada

where they married. McElhaney sold her house in CT, reduced her employment at the University

of CT and reduced her U.S. income to approximately 10% overall and filed with the IRS as a

non-resident, spending around 80% of her time in Canada. She made only a few short trip to the

U.S. after filing the N-400, being careful never to be absent for a solid year at any one time. She

used (then eventually “rented”) a room at a friend’s house from which to file her N-400 and tried

to pass off as her U.S. residence. Her N-400 was denied by USCIS and that decision was upheld

in court.

From the above case: [Substitute Secretary of Homeland Security for Attorney General.]

“Under the Immigration and Nationality Act (“INA”), the Attorney General has the “sole

authority to naturalize persons as citizens of the United States . . . .” 8 U.S.C. § 1421(a).

However, judicial review of CIS’s naturalization decisions is available in limited

circumstances. According to 8 U.S.C. § 1421(c), this Court has the authority to review

and decide de novo McElhaney’s application for naturalization. Summary judgment is

appropriate in de novo proceedings pursuant to 8 U.S.C. § 1421(c). Chan v. Gantner,

464 F.3d 289, 295–96 (2d Cir. 2006). “It is well settled that the burden is on the alien

applicant to show his eligibility for citizenship in every respect. I.N.S. v. Pangilinan,

486 U.S. 875, 886 (1988). “No alien has the slightest right to naturalization unless

all statutory requirements are complied with . . .” U.S. v. Ginsberg, 243 U.S. 472,

475 (1917). This Court must strictly comply with all of the congressionally imposed

prerequisites to the acquisition of citizenship. See Fedorenko v. U.S., 449 U.S. 490, 506

(1981).”

In stark contrast to the above cited case is, Yu ping LI v. Chertoff et al, Dist. MA, cv- 06-10963-

JLT, filed June 12, 2007, found at:

http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=tauro/pdf/li_v_chertoff.pdf


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“Although the definition of residency in the statute is simple, the clarifying provisions

regarding individuals who have been abroad for less than a year make clear that, in

this case, residency cannot be reduced to a simple test. Assessing the facts of this case,

the court concludes that Plaintiff has not abandoned her U.S. residence. Accordingly,

Plaintiff’s Motion for Summary Judgment is ALLOWED. Defendants’ Cross-Motion

for Summary Judgment is DENIED. Defendants shall promptly naturalize Plaintiff. By

September 10, 2007, Defendants shall file with this court proof that Plaintiff has been

naturalized. An order will issue.”

The statutory definition of residence referred to in the preceding case is:

INA 101 [8 U.S.C. 1101]

(a) As used in this Act--

(33) The term "residence" means the place of general abode; the place of general abode

of a person means his principal, actual dwelling place in fact, without regard to intent.

Li lost her job in the U.S. and decided to study Dentistry full time in Canada and she actually

acquired Canadian permanent resident status, her spouse also relocated to Canada. They,

however, did not sell their house in the U.S. In what I believe was a miscarriage of justice, the

Court ordered that she be naturalized. The government appealed to the First Circuit Court of

Appeals in September 2008, but I could not find out, at this writing, if the case has been decided

and if so, how it ended.

At the turn of the 20thCentury, the matter of a naturalization applicant’s intentions was an

issue of importance and remains so in the 21st Century, perhaps even more so in the age of

international and global terrorism and home-grown terrorists, whose biggest target consists of

the citizens and residents of the United States of America.

In the case of: Luria v. United States, 231 U.S. 9, 34 S. Ct. 10, 58 L. Ed. 101 (1913), it was

recognized by the U.S. Supreme Court that a grant of naturalization is a mutual agreement

between the naturalization applicant and the United States of America. Certain naturalization

applicants today lack any sense of loyalty or patriotism to the U.S. and gain citizenship for

ulterior motives and simply for personal gain. A certain statutory provision enacted to counter

the undesirable trend was later ruled unconstitutional as an overreaction by Congress and by

treating naturalized and born citizens differently. The provision, 8 U.S.C. § 1451(d), below, which was later found unconstitutional, was strikingly similar to Section 15 of the Act of 1906,

shown further below.


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U.S. v. Parviz BANAFSHE, 616 F.2d 1143, (9th Cir., 1980) held that 8 U.S.C. § 1451(d) was still valid and Banafshe was a prime example of the unscrupulous person it was designed to guard our

nation against..

This case found at: http://ftp.resource.org/courts.gov/c/F2/616/616.F2d.1143.78-2685.html

“Parviz Banafshe appeals the judgment of the district court revoking his naturalization

as a citizen of the United States on the ground that, under 8 U.S.C. § 1451(a) and (d),

he lacked the intent to reside permanently in the United States at the time he filed his

petition for naturalization. Banafshe contends that the rebuttable presumption in §

1451(d) which presumes that persons who become permanent foreign residents within

five years after naturalization lacked the intent to become permanent United States

citizens at the time of their application, is unconstitutional. Banafshe further contends

that, even if the presumption is constitutional, he produced sufficient evidence to rebut

the presumption. We find that the presumption is not unconstitutional and was not

rebutted by Banafshe, and affirm the judgment of the district court.

Banafshe, a native citizen of Iran, entered the United States as a visitor in 1963 when he

was 21 years old. That same year, he married a United States citizen and adjusted his

status to that of a permanent resident alien. The marriage ended by annulment within a

year.

Banafshe continued to reside in the United States, and in 1969 filed a petition for

naturalization. The petition was granted and Banafshe was admitted to citizenship in

September 1969.

In June 1970, after giving up his apartment, selling his car, and terminating his job in the

United States, Banafshe returned to Iran. He took up residence in Iran, married an Iranian

citizen, acquired an interest in an apartment house, and established his own business.

In August 1976 the Government commenced proceedings to revoke Banafshe's

naturalization on the ground that he obtained citizenship by concealing his intent to take

up permanent residence in Iran, which is ground for revocation under 8 U.S.C. § 1451(a)

and (d). At trial, the Government offered the affidavit of the American vice-consul in

Tehran. The affidavit stated that Banafshe established a permanent residence in Iran in

1970.

It further stated that:

‘He owns no property in the U.S. and maintains no permanent residence but has

an established business in Tehran, Iran, and owns 1/3 of a house in Tehran. He

has no family ties in the U.S. but his entire family, including wife, are Iranian

nationals living in Iran. Mr. Banafshe has not renounced his Iranian nationality.’”

.


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Found unconstitutional, INA 340 [8 U.S.C. § 1451] was repealed as of 10/ 25/1994 :

(d) If a person who shall have been naturalized shall, within five years after such

naturalization, return to the country of his nativity, or go to any other foreign country,

and take permanent residence therein, it shall be considered prima facie evidence of a

lack of intention on the part of such person to reside permanently in the United States

at the time of filing his petition for naturalization, and, in the absence of countervailing

evidence, it shall be sufficient in the proper proceeding to authorize the revocation and

setting aside of the order admitting such person to citizenship and the cancellation of the

certificate of naturalization as having been obtained by concealment of a material fact or

by willful misrepresentation, and such revocation and setting aside of the order admitting

such person to citizenship and such canceling of certificate of naturalization shall be

effective as of the original date of the order and certificate, respectively. The diplomatic

and consular officers of the United States in foreign countries shall from time to time,

through the Department of State, furnish the Department of Justice with statements of the

names of those persons within their respective jurisdictions who have been so naturalized

and who have taken permanent residence in the country of their nativity, or in any other

foreign country, and such statements, duly certified, shall be admissible in evidence in

all courts in proceedings to revoke and set aside the order admitting to citizenship and to

cancel the certificate of naturalization.

The preceding was repealed October 25, 1994, by Sec. 104 (b), below of the “IMMIGRATION

AND NATIONALITY TECHNICAL CORRECTIONS ACT OF 1994”. Sec. 104 (a) was

overkill. The proposed amendments of the SNAP Act take into account the Constitutionality

issue as will be evident later on.

SEC. 104. INTENT TO RESIDE PERMANENTLY IN THE UNITED STATES AFTER

NATURALIZATION.

(a) IN GENERAL.--Section 338 of the Immigration and Nationality Act (8 U.S.C. 1449) is

amended by striking "intends to reside permanently in the United States, except in cases falling

within the provisions of section 324(a) of this title,".

(b) CONFORMING REPEAL.--Section 340(d) of such Act (8 U.S.C. 1451(d)) is repealed. .

After that section was struck down and formally repealed, a different section of the INA was

amended to address the actions by which either a native-born or naturalized citizen could lose

their citizenship by certain affirmative acts. That is covered by INA 349 [8 U.S.C. 1481].


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This Supreme Court case is found at: http://openjurist.org/231/us/9/george-luria-v-united-states ..

Excerpts from the 1913, Luria case, referenced previously:.

“Prior to 1906, the "Uniform Rule of Naturalization" authorized by the Constitution

was found in the Act of 1802 and a few amendments thereto. This enumerated only

general controlling principles. Grievous abuses having arisen, Congress undertook, by

the Act of June 29, 1906, 34 Stat. 596, to prescribe "and fix a uniform system and a

code of procedure in naturalization matters." Report Committee on Immigration and

Naturalization, H.R. 1789, Feb. 26, 1906. This specifies with circumstantiality the

manner ("and not otherwise") in which an alien may be admitted to become a citizen of

the United States; what his preliminary declaration shall be; form and contents of his

sworn petition to the court and witnesses by which it must be verified; form of oath to

be taken in open court; necessary proof concerning residence, character, etc. The clerk

is required to post notice of the petition with details concerning applicant, when final

hearing will take place, names of witnesses by which alleged facts are to be established,

etc. And it is further provided:…………

.

Section 15. That it shall be the duty of the United States district attorney for the

respective districts, upon affidavit showing good cause therefor, to institute proceedings

in any court having jurisdiction to naturalize aliens in the judicial district in which the

naturalized citizen may reside at the time of bringing the suit, for the purpose of setting

aside and cancelling the certificate of citizenship on the ground of fraud or on the ground

that such certificate of citizenship was illegally procured. In any such proceedings the

party holding the certificate of citizenship alleged to have been fraudulently or illegally

procured shall have sixty days' personal notice in which to make answer to the petition

of the United States, and if the holder of such certificate be absent from the United States

or from the district in which he last had his residence, such notice shall be given by

publication in the manner provided for the service of summons by publication or upon

absentees by the laws of the state or the place where such suit is brought.’"

.

“Citizenship is membership in a political society, and implies a duty of allegiance on

the part of the member and a duty of protection on the part of the society. These are

reciprocal obligations, one being a compensation for the other. Under our Constitution, a

naturalized citizen stands on an equal footing with the native citizen in all respects, save

that of eligibility to the Presidency. Minor v. Happersett, 21 Wall. 162, 165, 22 L. ed.

627; Elk v. Wilkins, 112 U. S. 94, 101, 28 L. ed. 643, 645, 5 Sup. Ct. Rep. 41; Osborn v.

Bank of United States, 9 Wheat. 738, 827, 6 L. ed. 204, 225. Turning to the naturalization

laws preceding the act of 1906, being those under which Luria obtained his certificate, we

find that they required, first, that the alien, after coming to this country, should declare

on oath, before a court or its clerk, that it was bona fide his intention to become a citizen

of the United States, and to renounce forever all allegiance and fidelity to any foreign

sovereignty; second, that at least two years should elapse between the making of that


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declaration and his application for admission to citizenship; third, that as a condition to

his admission the court should be satisfied, through the testimony of citizens, that he

had resided within the United States five years at least, and that during that time he had

behaved as a man of good moral character, attached to the principles of the Constitution

of the United States, and well disposed to the good order and happiness of the same; and,

fourth, that at the time of his admission he should declare on oath that he would support

the Constitution of the United States, and that he absolutely and entirely renounced and

abjured all allegiance and fidelity to every foreign sovereignty. These requirements

plainly contemplated that the applicant, if admitted, should be a citizen in fact as well

as in name,—that he should assume and bear the obligations and duties of that status

as well as enjoy its rights and privileges. In other words, it was contemplated that his

admission should be mutually beneficial to the government and himself, the proof in

respect of his established residence, moral character, and attachment to the principles

of the Constitution being exacted because of what they promised for the future, rather

than for what they told of the past.” [Emphasis added.]

.

Current Rules:.

INA 316 [8 U.S.C. 1427] Requirements of naturalization..

(a) Residence.

No person, except as otherwise provided in this subchapter, shall be naturalized

unless such applicant, (1) immediately preceding the date of filing his application for

naturalization has resided continuously, after being lawfully admitted for permanent

residence, within the United States for at least five years and during the five years

immediately preceding the date of filing his application has been physically present

therein for periods totaling at least half of that time, and who has resided within the State

or within the district of the Service in the United States in which the applicant filed the

application for at least three months, (2) has resided continuously within the United

States from the date of the application up to the time of admission to citizenship, and (3)

during all the periods referred to in this subsection has been and still is a person of good

moral character, attached to the principles of the Constitution of the United States, and

well disposed to the good order and happiness of the United States..

(b) Absences.

Absence from the United States of more than six months but less than one year during

the period for which continuous residence is required for admission to citizenship,

immediately preceding the date of filing the application for naturalization, or during the

period between the date of filing the application and the date of any hearing under section

1447(a) [INA 336 (a)] of this title, shall break the continuity of such residence, unless the

applicant shall establish to the satisfaction of the Attorney General that he did not in fact

abandon his residence in the United States during such period. ……….


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8 C.F.R. § 316.5 Residence in the United States.

(c) Disruption of continuity of residence —

1. Absence from the United States —i. For continuous periods of between six (6) months and one (1)

year. Absences from the United States for continuous periods of

between six (6) months and one (1) year during the periods for

which continuous residence is required under §316.2 (a)(3) and (a)

(6) shall disrupt the continuity of such residence for purposes of this

part unless the applicant can establish otherwise to the satisfaction

of the Service. This finding remains valid even if the applicant did

not apply for or otherwise request a nonresident classification for tax

purposes, did not document an abandonment of lawful permanent

resident status, and is still considered a lawful permanent resident

under immigration laws. The types of documentation which may

establish that the applicant did not disrupt the continuity of his or her

residence in the United States during an extended absence include,

but are not limited to, evidence that during the absence:A. The applicant did not terminate his or her employment in the

United States;B. The applicant's immediate family remained in the United States;C. The applicant retained full access to his or her United States

abode; orD. The applicant did not obtain employment while abroad.

ii. For period in excess of one (1) year. Unless an applicant applies for

benefits in accordance with §316.5(d), absences from the United

States for a continuous period of one (1) year or more during the

period for which continuous residence is required under §316.2

(a)(3) and (a)(5) shall disrupt the continuity of the applicant's

residence. An applicant described in this paragraph who must

satisfy a five-year statutory residence period may file an application

for naturalization four years and one day following the date of

the applicant's return to the United States to resume permanent

residence. An applicant described in this paragraph2 who must

satisfy a three-year statutory residence period may file an application

for naturalization two years and one day following the date of

the applicant's return to the United States to resume permanent

residence.

Applicants have tried to misuse this regulation by purposely taking a trip just over six month,

and immediately filing four years and one day later, trying to apply up to three additional

months early by also trying to invoke the three month early filing afforded under INA 334(a)

and even trying to file three months early of reaching the remedial period of residence.

2Paragraph (c) is in two parts, (i) and (ii). The remedy has application to both, but does not allow one to file any earlier than statutorily allowed at

4 (or 2) years and 9 months as afforded by INA 334(a).


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INA 319 [8 U.S.C. 1430] Married persons and employees of certain nonprofit

organizations.

(b) Any person, (1) whose spouse is (A) a citizen of the United States, (B) in the

employment of the Government of the United States, or of an American institution

of research recognized as such by the Attorney General, or of an American firm

or corporation engaged in whole or in part in the development of foreign trade and

commerce of the United States, or a subsidiary thereof, or of a public international

organization in which the United States participates by treaty or statute, or is authorized

to perform the ministerial or priestly functions of a religious denomination having a bona

fide organization within the United States, or is engaged solely as a missionary by a

religious denomination or by an interdenominational mission organization having a bona

fide organization within the United States, and (C) regularly stationed abroad in such

employment, and (2) who is in the United States at the time of naturalization, and (3)

who declares before the Attorney General in good faith an intention to take up residence

within the United States immediately upon the termination of such employment abroad

of the citizen spouse, may be naturalized upon compliance with all the requirements of

the naturalization laws, except that no prior residence or specified period of physical

presence within the United States or within a State or a district of the Service in the

United States or proof thereof shall be required.

(c) Any person who (1) is employed by a bona fide United States incorporated

nonprofit organization which is principally engaged in conducting abroad through

communications media the dissemination of information which significantly promotes

United States interests abroad and which is recognized as such by the Attorney General,

and (2) has been so employed continuously for a period of not less than five years

after a lawful admission for permanent residence, and (3) who files his application for

naturalization while so employed or within six months following the termination thereof,

and (4) who is in the United States at the time of naturalization, and (5) who declares

before the Attorney General in good faith an intention to take up residence within the

United States immediately upon termination of such employment, may be naturalized

upon compliance with all the requirements of this subchapter except that no prior

residence or specified period of physical presence within the United States or any State or

district of the Service in the United States, or proof thereof, shall be required.

INA 334 [8 U.S.C. 1445] Application for naturalization; declaration of intention.

(a) Evidence and form

An applicant for naturalization shall make and file with the Attorney General a sworn

application in writing, signed by the applicant in the applicant's own handwriting if

physically able to write, which application shall be on a form prescribed by the Attorney

General and shall include averments of all facts which in the opinion of the Attorney


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General may be material to the applicant's naturalization, and required to be proved

under this subchapter. In the case of an applicant subject to a requirement of continuous

residence under section 1427(a) [INA 316(a)] or 1430(a) [INA 319(a)] of this title, the

application for naturalization may be filed up to 3 months before the date the applicant

would first otherwise meet such continuous residence requirement. ……….

(f) Declaration of intention.

An alien over 18 years of age who is residing in the United States pursuant to a lawful

admission for permanent residence may file with the Attorney General a declaration of

intention to become a citizen of the United States. Such a declaration shall be filed in

duplicate and in a form prescribed by the Attorney General and shall be accompanied

by an application prescribed and approved by the Attorney General. Nothing in this

subsection shall be construed as requiring any such alien to make and file a declaration

of intention as a condition precedent to filing an application for naturalization nor

shall any such declaration of intention be regarded as conferring or having conferred

upon any such alien United States citizenship or nationality or the right to United States

citizenship or nationality, nor shall such declaration be regarded as evidence of such

alien's lawful admission for permanent residence in any proceeding, action, or matter

arising under this chapter or any other Act.

8 C.F.R. § 334.1 Filing of application for naturalization.

Any person, who is an applicant under sections 316, 319, 324, 325, 327, 328, 329, or

330 of the Act and the corresponding parts of this chapter, may apply for naturalization

in accordance with the procedures prescribed in this chapter in accordance with the

instructions on the form.

8 C.F.R. § 334.2 Application for naturalization.

(b) An application for naturalization may be filed up to 90 days prior to the completion

of the required period of residence, which may include the three-month period of

residence required to establish jurisdiction under section 316(a) or 319(a) of the Act.

8 C.F.R. § 334.11 Declaration of intention.

(a) Application. Any person who is a lawful permanent resident over 18 years of age may

file an application for a declaration of intention to become a citizen of the United States

while present in the United States. Such application, with the requisite fee, shall be filed

on Form N–300.

(b) Approval. If approved, the application for the declaration of intention, page 1 of

Form N–300, shall be retained and filed in the applicant's Service file. The original of the

declaration of intention, page 2 of Form N–300, shall be filed in chronological order in


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the official files of the Service office where the application was filed. The duplicate of the

declaration of intention, page 3 of Form N–300, shall be delivered to the applicant.

(c) Denial. If an application is denied, the applicant shall be notified in writing of the

reasons for denial. No appeal shall lie from this decision.

The above mentioned form, the N-300, is not required for naturalization under the INA. It

may still have some small use to comply with state or local business or professional licensing

or for certain post-secondary educational opportunities and/or scholarship programs, and

certain service or community organizations in the private sector. INA 334(f) would not be

missed, if repealed.

INA 349 [8 U.S.C. 1481] Loss of Nationality BY NATIVE-BORN OR NATURALIZED

CITIZEN

(a) A person who is a national of the United States whether by birth or naturalization,

shall lose his nationality by voluntarily performing any of the following acts with the

intention of relinquishing United States nationality-

(1) obtaining naturalization in a foreign state upon his own application or upon

an application filed by a duly authorized agent, after having attained the age of

eighteen years; or

(2) taking an oath or making an affirmation or other formal declaration of

allegiance to a foreign state or a political subdivision thereof, after having attained

the age of eighteen years; or

(3) entering, or serving in, the armed forces of a foreign state if

(A) such armed forces are engaged in hostilities against the United States,

or

(B) such persons serve as a commissioned or non-commissioned officer;

or

(4)

(A) accepting, serving in, or performing the duties of any office, post,

or employment under the government of a foreign state or a political

subdivision thereof, after attaining the age of eighteen years if he has or

acquires the nationality of such foreign state; or

(B) accepting, serving in, or performing the duties of any office, post,

or employment under the government of a foreign state or a political


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subdivision thereof, after attaining the age of eighteen years for which

office, post, or employment an oath, affirmation, or declaration of

allegiance is required; or

(5) making a formal renunciation of nationality before a diplomatic or consular

officer of the United States in a foreign state, in such form as may be prescribed

by the Secretary of State; or

(6) making in the United States a formal written renunciation of nationality in

such form as may be prescribed by, and before such officer as may be designated

by, the Attorney General, whenever the United States shall be in a state of war

and the Attorney General shall approve such renunciation as not contrary to the

interests of national defense; or

(7) committing any act of treason against, or attempting by force to overthrow,

or bearing arms against, the United States, violating or conspiring to violate any

of the provisions of section 2383 of title 18, United States Code, or willfully

performing any act in violation of section 2385 of title 18, United States Code, or

violating section 2384 of said title by engaging in a conspiracy to overthrow, put

down, or to destroy by force the Government of the United States, or to levy war

against them, if an d when he is convicted thereof by a court martial or by a court

of competent jurisdiction.

(b) Whenever the loss of United States nationality is put in issue in any action or

proceeding commenced on or after the enactment of this subsection under, or by virtue

of, the provisions of this or any other Act, the burden shall be upon the person or party

claiming that such loss occurred, to establish such claim by a preponderance of the

evidence. Any person who commits or performs, or who has committed or performed,

any act of expatriation under the provisions of this or any other Act shall be presumed to

have done so voluntarily, but such presumption may be rebutted upon a showing, by a

preponderance of the evidence, that the act or acts committed or performed were not done

voluntarily.

INA 101 [8 U.S.C. 1101]

(a) As used in this Act--

(38) The term "United States", except as otherwise specifically herein provided, when used in a

geographical sense, means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, the

Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands .


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Analysis of the Current Problem:

Far too frequently, poor quality candidates for naturalization make little or no effort to enter into

the society in which they request the privilege of citizenship. They spend the bare minimum of

time inside the United States in order to qualify for naturalization, often scrambling and fighting

to have their back-to-back pattern of “just under six month absences” declared as not disrupting

the continuity of their residence for naturalization purposes. As the cases cited above will attest,

there is no single group that is immune from this reprehensible practice. Of late there is a wave

of Asians, Canadians, Central and South Americans, Middle Easterners, and Europeans playing

this game.

It is important to understand that the origin of the continuous residence requirement as

a prerequisite to naturalization dates back to the Naturalization Act of 1790, which at

that time required two years residence. The idea was, and remains, to allow a person to

become "Americanized" or join into the society in which they desire citizenship and will enjoy

the right to vote or serve on juries or hold any but the highest office. This residence has always

been tied to the period immediately before naturalization in an effort to have a person enter the

society as it currently exists.

The logistics of travel in 1790, were a far cry from what we have today. Generally, a person can

go from one side of the globe to the other in a day rather than spending weeks at sea relying on

the wind to cross the oceans from continent to continent. The internet, satellite phones, webcams,

CNN and the BBC have shrunk the world as far as information is concerned but such things do

not allow for the indoctrination into a society such as is desired for naturalization.

If a person gets a greencard3,and immediately, or shortly thereafter, returns home for long

periods with only a few "visits" to the U.S. to maintain LPR status, then finally comes to stay in

the U.S. just barely long enough to file for naturalization, the mere fact of having a greencard

for a long enough period of time does not prepare that person to join the American society as it

currently exists. They are strangers in a strange land and unprepared to become part of "We the

People...".

The current pattern is often that a 21 to 30 something year old adult son or daughter, who often

will have entered as a student and then either married a USC to get a greencard or got an H1-

B visa and then employment-based adjustment of status, will naturalize as a USC and try to

immigrate their parents and sometimes siblings (or children or a “new” yet “prior” spouse).

The U.S. based immigrant will try to get their alien parents into the U.S. either, immediately

before, during, or immediately after naturalization, on B-2 “tourist” visas with absolutely

3“Greencard” is the common name for a USCIS Form I-551, Permanent Resident Card. This is a world renowned prized possesion of a lawful

permanent resident of the United States of America. The “key to the kingdom” with its streets “paved with gold”, the ultimate “welfare state”.


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no intention of leaving until they either file for a greencard or get a greencard approved.

These folks have discovered that the unlawful presence bar, under INA 212(a) (9)(B), to

returning to the U.S. for either three years following an overstay of 180 days but under one year,

or a ten year bar for unlawful presence of one year or more poses problems. .

Instead of a parent simply “coming for a visit” to their adult USC child and immediately filing

for adjustment of status, getting a greencard in a few months, and heading back home, they are

often either flatly denied a tourist visa under INA 214(b) as an “intending immigrant” or they

have to come long before the adult child naturalizes. They are then stuck in the U.S. until they

get a greencard. .

If they can manage to enter on a tourist visa which is routinely given an initial six month

admission, and file for an extension of stay with USCIS just before their I-94 expires (which is

routinely denied but if it was properly filed and while pending prevents accumulation of unlawful

presence), they may be able to give their adult child enough time to file for naturalization and be

sworn as a USC before the parent overstays more than six months. The parent then immediately

obtains Advance Parole to allow them to travel abroad while the I-485 is in process. .

The processing procedures for adjustment of status includes filing an I-130, Petition for Alien

Relative by the USC adult child concurrently with the parent’s I-485, Application for Adjustment

of Status, I-765, Application for Employment Authorization, and I-131, Application for Travel

Document (includes Advance Parole). Shortly after filing (less than a month) they go get

fingerprinted and immediately depart the U.S. When the Advance Parole is received by the U.S.

kid, it is sent abroad. When the interview appointment notice is received at the U.S. address, the

parents fly back only long enough to interview and file for, and get fingerprinted for a re-entry

permit. A re-entry permit allows a greencard holder to be outside the U.S. for up to two years

at a time. The first and second re-entry permits are given as a matter of routine. A third re-entry

permit may be issued for one year or may be denied.

By abusing the re-entry permits, the new immigrants manage to put in the bare minimum of 30

months physical presence in the U.S. over the course of five years since getting a greencard, file

their N-400 and immediately depart the U.S. or even file it from abroad either directly or have

someone mail it in the U.S. for them on the very first day that they are eligible to file. Under INA

334(a) an N-400 can be filed three months early at four years, nine months and one day. .

They only return to the U.S. when they have to get fingerprinted, interview with USCIS, and for

the Oath. They will remain in the U.S. long enough to do two things after that. First they notify

the Social Security Administration of their new citizen status and file for SSI. Then apply for

a passport. Once they arrange for direct deposit of their SSI benefit they return to their home

country and live off the American taxpayers. They used to do the SSI scam without having to go

through the improper naturalization but Congress put a stop to that, thus, forcing them to change

the modus operendi for this scam.


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Conclusion and Recommendation:

I urge Congress to pass an act to strengthen the naturalization prerequisites and the process,

as well as, the meaningfulness of United States Citizenship. I do not suggest that any part

of the INA be stricken. Although, 334(f) would not be missed if it were repealed. Instead, I

ask that some additions be made. I propose a name for the legislation as the “Substantive

Naturalization Application Prerequisites Act” or SNAP Act.

A large group of poor quality naturalization applicants have found the remedial and customer

service oriented provisions of the INA, that were initially passed to benefit the truly deserving

naturalization applicants who due to actual emergent life events, such as occupational and

familial obligations, and twisted them into misused loopholes. It is time to turn the loopholes

into a noose and choke off the bad actors in this story of deceit and abuse. I say, leave the

loopholes as is, to be utilized by the individuals that they were created for but add specific

language to existing provisions crafted to block the improper use as described in the preceding

analysis section.

There is already a section of the INA that addresses prerequisites to naturalization. The

following is the current version of the law. Although the delegation of statutory authority

has shifted from the Attorney General to the Secretary of Homeland Security, the “Official”

versions of the INA and corresponding Title 8, of the United States Code, have yet to be fully

corrected to reflect that change. Indeed certain sections of the INA have true ambiguity over

shared authority. This, however, is not one of them. There is a precise split in INA 318 proviso

that involves both.

INA 318 [8 U.S.C. 1429] PREREQUISITES TO NATURALIZATION; BURDEN OF

PROOF

Except as otherwise provided in this title, no person shall be naturalized unless he has been

lawfully admitted to the United States for permanent residence in accordance with all applicable

provisions of this Act. The burden of proof shall be upon such person to show that he entered

the United States lawfully, and the time, place, and manner of such entry into the United States,

but in presenting such proof he shall be entitled to the production of his immigrant visa, if any,

or of other entry document, if any, and of any other documents and records, not considered by

the Attorney General to be confidential, pertaining to such entry, in the custody of the Service.

Notwithstanding4 the provisions of section 405(b) , and except as provided in sections 328

and 329 no person shall be naturalized against whom there is outstanding a final finding of

deportability pursuant to a warrant of arrest issued under the provisions of this or any other Act;

and no application for naturalization shall be considered by the Attorney General if there is

4Definitions of notwithstanding:

however: despite anything to the contrary (usually following a concession); "although I'm a little afraid, however I'd like to try it"; "while we

disliked each other, nevertheless we agreed"; "he was a stern yet fair master"; "granted that it is dangerous, all the same I still want to go"

wordnetweb.princeton.edu/perl/webwn

Nevertheless, all the same; Although; In spite of, despite en.wiktionary.org/wiki/notwithstanding


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pending against the applicant a removal proceeding pursuant to a warrant of arrest issued under

the provisions of this or any other Act: Provided, That the findings of the Attorney General

in terminating removal proceedings o r in canceling the removal of an alien pursuant to the

provisions of this Act, shall not be deemed binding in any way upon the Attorney General with

respect to the question of whether such person has established his eligibility for naturalization as

required by this title.

INA Sec. 405. [8 U.S.C. 1101, note] Savings Clause.

(b) Except as otherwise specifically provided in title III, any petition for naturalization heretofore

filed which may be pending at the time this Act shall take effect shall be heard and determined in

accordance with the requirements of law in effect when such petition was filed.

The altered version of this section of the INA under the SNAP Act would read as follows:

INA 318 [8 U.S.C. 1429] PREREQUISITES TO NATURALIZATION; BURDEN OF

PROOF

(a) Except as otherwise provided in this title, no person shall be naturalized unless that person

has: 1. been lawfully admitted to the United States for permanent residence in accordance with

all applicable provisions of this Act, 2. not abandoned the permanent residence described in (1) through any affirmative act as

described elsewhere in this Act to include sections 349(a) [8 U.S.C. 1481(a)] and,3. not attained a concurrent lawful permanent resident status, by whatever precise label, in

another country, after attaining such status in the United States, unless relinquished as

proscribed in (a)(4) or 4. relinquished such prior or subsequent lawful permanent resident status, prior to filing an

application for naturalization, which was attained under the laws of any other country that

is not: i. his or her home country of birth, whether a citizen or not, or, ii. immediate previous country of citizenship, if not his or her country of

birth, except to the extent provided by section 337 [8 U.S.C. 1448] of this

title, or,iii. country of nationality or citizenship by any laws of descent under the

principle of jus sanguinis, except to the extent provided by section 337 [8

U.S.C. 1448] of this title, and5. fully complied with the requirements of the specific section under which (s)he seeks to be

naturalized, and especially section 334(a) [8 U.S.C. 1445(a)] of this Act.

(b) The burden of proof is on the alien applicant to show his eligibility for citizenship in every

respect and let it be clearly known that no alien has the slightest right to naturalization unless all

congressionally mandated statutory requirements are complied with.


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(c) The burden of proof shall be upon such person to show that he entered the United States

lawfully, and the time, place, and manner of such entry into the United States, but in presenting

such proof he shall be entitled to the production of his immigrant visa, if any, or of other entry

document, if any, and of any other documents and records, not considered by the Department of

Homeland Security or the Department of Justice to be confidential, pertaining to such entry, in

the custody of such Department. This subparagraph (c) shall apply to the whole of this Act.

(d) Notwithstanding the provisions of section 405(b) , and except as provided in sections 328

and 329 no person shall be naturalized against whom there is outstanding a final finding of

deportability pursuant to a warrant of arrest issued under the provisions of this or any other Act.

(e) No application for naturalization shall be considered by the Secretary of Homeland Security

if there is pending against the applicant a removal proceeding pursuant to a warrant of arrest

issued under the provisions of this or any other Act. Such an application for naturalization

shall immediately be dismissed without prejudice to the filing of a new application in the

future if removal proceedings are concluded in the alien’s favor and (s)he qualifies to apply for

naturalization under any applicable section of this Act, at that time or any time in the future.

Provided, That the findings of the Attorney General in terminating removal proceedings or in

canceling the removal of an alien pursuant to the provisions of this Act, shall not be deemed

binding in any way upon the Secretary of Homeland Security with respect to the question of

whether such person has established his eligibility for naturalization as required by this title.

There is already a section of the INA that addresses the very basic filing of an application

for naturalization. The following is the current version of the law, specifically INA 334(a)

[8 U.S.C. 1445(a)]. Although the change of statutory authority has shifted from the Attorney

General to the Secretary of Homeland Security, the “Official” versions of the INA and

corresponding Title 8, of the United States Code, have yet to be fully corrected to reflect that

change. Indeed certain sections of the INA have true ambiguity over shared authority. This,

however, is not one of them.


(a) An applicant for naturalization shall make and file with the Attorney General a sworn

application in writing, signed by the applicant in the applicant's own handwriting if physically

able to write, which application shall be on a form prescribed by the Attorney General and shall

include averments of all facts which in the opinion of the Attorney General may be material to

the applicant's naturalization, and required to be proved under this subchapter. In the case of an

applicant subject to a requirement of continuous residence under section 1427(a) [INA 316(a)] or

1430(a) [INA 319(a)] of this title, the application for naturalization may be filed up to 3 months

before the date the applicant would first otherwise meet such continuous residence requirement.

(b) No person shall file a valid application for naturalization unless he shall have attained the

age of eighteen years. An application for naturalization by an alien shall contain an averment of


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lawful admission for permanent residence.

(c) Hearings under section 336(a) [8 U.S.C. 1447(a)] on applications for naturalization shall be

held at regular intervals specified by the Attorney General.

(d) Except as provided in subsection (e), an application for naturalization shall be filed in the

office of the Attorney General.

(e) A person may file an application for naturalization other than in the office of the Attorney

General, and an oath of allegiance administered other than in a public ceremony before the

Attorney General or a court, if the Attorney General determines that the person has an illness or

other disability which-

(1) is of a permanent nature and is sufficiently serious to prevent the person's personal

appearance, or

(2) is of a nature which so incapacitates the person as to prevent him from personally appearing.

(f) An alien over 18 years of age who is residing in the United States pursuant to a lawful

admission for permanent residence may file with the Attorney General a declaration of intention

to become a citizen of the United States. Such a declaration shall be filed in duplicate and in a

form prescribed by the Attorney General and shall be accompanied by an application prescribed

and approved by the Attorney General. Nothing in this subsection shall be construed as requiring

any such alien to make and file a declaration of intention as a condition precedent to filing

an application for naturalization nor shall any such declaration of intention be regarded as

conferring or having conferred upon any such alien United States citizenship or nationality or

the right to United States citizenship or nationality, nor shall such declaration be regarded as

evidence of such alien's lawful admission for permanent residence in any proceeding, action, or

matter arising under this or any other Act.

As altered by the SNAP Act, the section of the INA would read as follows:


(a) An applicant for naturalization shall make and file with the Secretary of Homeland Security

a sworn application in writing, signed by the applicant in the applicant's own handwriting

if physically able to write, which application shall be on a form prescribed by the Secretary

of Homeland Security and shall include averments of all facts which in the opinion of the

Secretary of Homeland Security may be material to the applicant's naturalization, and required

to be proved under this subchapter. In the case of an applicant subject to a requirement of

continuous residence under section 1427(a) [INA 316(a)] or 1430(a) [INA 319(a)] of this title,

the application for naturalization may be filed up to 3 months before the date the applicant would

first otherwise meet such continuous residence requirement. All applicants for naturalization, as

a crucial, affirmative and substantive part of their application for naturalization, shall make


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both a written declaration, under penalty of perjury and contained within the application for

naturalization; and an oral declaration, under oath, as a standard part of the naturalization

examination required under 335(b) [8 U.S.C. 1446(b)] , a declaration of their present personal

intention to primarily reside within the United States as defined in INA 101(a)(38) [8 U.S.C.

1101(a)(38)] of this Act, except as otherwise provided under the Immigration and Nationality

Act5, upon the filing of an application for naturalization, at time of admission to citizenship

pursuant thereto and as proscribed under section 337 [8 U.S.C. 1448] of this title, for the

immediately foreseeable future.

(b) No person shall file a valid application for naturalization unless he shall have attained the

age of eighteen years. An application for naturalization by an alien shall contain an averment of

lawful admission for permanent residence.

(c) Hearings under section 336(a) [8 U.S.C. 1447(a)] on applications for naturalization shall be

held at regular intervals specified by the Secretary of Homeland Security.

(d) Except as provided in subsection (e), an application for naturalization shall be filed in the

office of the Secretary of Homeland Security.

(e) A person may file an application for naturalization other than in the office of the Secretary

of Homeland Security6, and an oath of allegiance administered other than in a public ceremony

before the Secretary of Homeland Security or a court, if the Secretary of Homeland Security

determines that the person has an illness or other disability which-

(1) is of a permanent nature and is sufficiently serious to prevent the person's personal

appearance, or

(2) is of a nature which so incapacitates the person as to prevent him from personally appearing.

(f)7 An alien over 18 years of age who is residing in the United States pursuant to a lawful

admission for permanent residence may file with the Secretary of Homeland Security a

declaration of intention to become a citizen of the United States. Such a declaration shall be

5 INA 319 [8 U.S.C. 1430] allows: at (b) for the expedited naturalization of the LPR spouse of a qualified USC who shall reside abroad with that

spouse due to qualifying employment, and at (c) for the naturalization of an LPR employee of a bona fide organization in the U.S. performing

specified activities recognized by the U.S. Government. Both of these applicants declare an intention to take up residence in the U.S. in the

future. INA 324 [8 U.S.C. 1435] allows for: a woman who lost citizenship due to marriage to an alien to resume her U.S citizenship, or a citizen

of the United States at birth and lost such citizenship for failure to meet the now repealed physical presence retention requirements, but exempts

them from residing in the U.S. They may subscribe to an Oath before a Consular Officer while abroad or within the U.S. may file a form N-600

with USCIS. INA 330[8 U.S.C. 1441] allows for the naturalization of seamen or “Merchant Marines” who are LPR’s serving on U.S. vessels and

may continue to do so as a vocation.6This used to refer to various courts with naturalization authority prior to the transfer of primary naturalization authority from the courts to the

executive department. Even when courts had primary authority, Petitions for Naturalization were first filed with the Attorney General via INS,

this provision allowed direct court filing. Today, this provision is used to form cooperative agreements and arrangements between USCIS and the

Military and for USCIS to further efforts in complying with Reasonable Accomodations under the ADA and Rehabilitaion Act..

7The entirety of INA 334(f) could be completely struck as obsolete. The accompanying regulation at 8 C.F.R. 334.11 would become null and

void and the USCIS Form N-300 would cease to be filed, accepted for filing, or adjudicated. If INA 334(f) is repealed, it should be with a proviso

that specifically directs USCIS that any pending N-300 will be administratively closed, interfiled in the applicant’s A-file, and fee refunded.


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filed in duplicate and in a form prescribed by the Secretary of Homeland Security and shall be

accompanied by an application prescribed and approved by the Secretary of Homeland Security.

Nothing in this subsection shall be construed as requiring any such alien to make and file a

declaration of intention as a condition precedent to filing an application for naturalization nor

shall any such declaration of intention be regarded as conferring or having conferred upon any

such alien United States citizenship or nationality or the right to United States citizenship or

nationality, nor shall such declaration be regarded as evidence of such alien's lawful admission

for permanent residence in any proceeding, action, or matter arising under this or any other Act.

Constitutional Question:

Former INA Section 340(d) [8 U.S.C. § 1451(d)] was found unconstitutional and was

subsequently formally repealed as of 10/ 25/1994. That section imposed an unequal treatment

on naturalized citizens that was not imposed on born citizens. That section created a “second

class citizen” status.

The offending section was repealed by Sec. 104 (b), below of the “IMMIGRATION AND

NATIONALITY TECHNICAL CORRECTIONS ACT OF 1994”. However, Sec. 104

(a) was overkill and the issue was just dropped. That lack of corrective action has lead to a

trivialization of U.S. Citizenship through further abuse of the privilege of naturalization. The

proposed amendments of the SNAP Act take into account the Constitutionality issue as will be

evident later on.

SEC. 104. INTENT TO RESIDE PERMANENTLY IN THE UNITED STATES

AFTER NATURALIZATION.

(a) IN GENERAL.--Section 338 of the Immigration and Nationality Act (8 U.S.C. 1449)

is amended by striking "intends to reside permanently in the United States, except in cases falling

within the provisions of section 324(a) of this title,".

(b) CONFORMING REPEAL.--Section 340(d) of such Act (8 U.S.C. 1451(d)) is

repealed.

After that section was struck down and formally repealed, a different section of the INA was

amended to address the actions by which either a native-born or naturalized citizen could lose

their citizenship by certain affirmative acts. That is covered by INA 349 [8 U.S.C. 1481].


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Former INA 338 [8U.S.C. 1449] Certificate of naturalization; contents, read:

“A person admitted to citizenship in conformity with the provisions of this subchapter shall be

entitled upon such admission to receive from the Attorney General a certificate of naturalization,

which shall contain substantially the following information: Number of application for

naturalization; number of certificate of naturalization; date of naturalization; name, signature,

place of residence, autographed photograph, and personal description of the naturalized person,

including age, sex, marital status, and country of former nationality; location of the district office

of the Service in which the application was filed and the title, authority, and location of the

official or court administering the oath of allegiance;

statement8 that the Attorney General, having found that the applicant intends to reside

permanently in the United States, except in cases falling within the provisions of section

324(a) [8 U.S.C. 1435(a)] of this title,

had complied in all respects with all of the applicable provisions of the naturalization laws of the

United States, and was entitled to be admitted a citizen of the United States of America,

thereupon ordered that the applicant be admitted as a citizen of the United States of America;

attestation of an immigration officer; and the seal of the Department of Justice.”

The proposed amendment in the SNAP Act, provides for a written and oral declaration of

the applicant’s present intention to primarily reside within the United States as defined

in INA 101(a)(38) [8 U.S.C. 1101(a)(38)] of this Act, except as otherwise provided under the

Immigration and Nationality Act, upon the filing of an application for naturalization, at time

of admission to citizenship pursuant thereto and as proscribed under section 337 [8 U.S.C.

1448] of this title, and for the immediately foreseeable future.

At the turn of the 20thCentury, the matter of a naturalization applicant’s intentions was an

issue of importance and remains so in the 21st Century, perhaps even more so in the age of

international and global terrorism and home-grown terrorists, whose biggest target consists of

the citizens and residents of the United States of America.

8This amendment simply removed any possible such statement from the certificate and there actually was not and still is not an affirmative

requirement that a naturalization applicant has any intent to reside in the United States at all after naturalization. The exceptions referenced

have no affirmative counterpart, they are exceptions to a non-codified presumption. That presumption needs to be codified in order to have any

substance.


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