Natty Shafer Law

Utah lawyer for criminal and immigration cases

Category Archives: Immigration Law


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Derivative Citizenship; or How You Can Be a U.S. Citizen and Not Know It

Several years ago, Luis Fernando Juarez wanted to buy a firearm. At the time of purchase he filled out what is called a “Firearms Transaction Report.” Among the questions asked was whether or not he is a U.S. Citizen. Federal law makes it a felony for anyone to lie about being a U.S. Citizen on official documents. Mr. Juarez believed he was not a U.S. Citizen when he completed the form, but, as Mr. Juarez found out later, he may actually be a citizen.

Derivative citizenship is a method of citizenship that has not yet made its way into popular culture. It’s citizenship that children receive after their parents are naturalized, provided certain conditions are met, or to foreign-born children adopted by parents who are already U.S. citizens. Mr. Juarez may be a derivative citizen of the United States. His mother became a U.S. citizen when he was 16 years old, which is important because only immigrants under the age of 18 can gain derivative citizenship. Mr. Juarez’s father was already dead, and he intended to live in the United States permanently at that time, so Mr. Juarez may have met the conditions for derivative citizenship. Obviously if Mr. Juarez is a U.S. Citizen, he can’t have lied on the Firearms Transaction Report about being a U.S. citizen.

Unfortunately for Mr. Juarez, he discovered this after he had already pleaded guilty. His lawyer candidly admits that he had never heard of derivative citizenship. He appealed his case to a federal court, which initially denied his appeal, but last Friday, the Fifth Circuit Court reversed and remanded the case to the district court.

Utah is not a part of the Fifth Circuit, so last weeks decision is not binding on the federal courts here. Nevertheless, the derivative citizenship law is applicable to the whole country, but the derivative citizenship defense is one that trips up even seasoned immigration counsel.


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Utah’s Immigration Law Still in Limbo

On Tuesday, U.S. District Judge Clark Waddoups announced that he will keep an injunction in place keeping Utah’s 2011 immigration law from taking effect. Judge Waddoups heard oral arguments on Friday, February 17, but he declined to make a ruling until he receives “additional guidance” from the United States Supreme Court. The Supreme Court is set to hear oral arguments on Arizona’s similar immigration law sometime in April and should issue its opinion in June.

For undocumented aliens, this means that Utah’s law may never take effect. As I mentioned last month, immigrants living in Utah are unlikely to notice any changes to their daily lives. Among the people I have interacted with, however, it does appear to have increased the urgency for permanent resident status.

If the Supreme Court rules against Arizona, it should dampen the enthusiasm of other states in passing immigration laws. If, however, the Supreme Court upholds Arizona’s law, we’re likely to see many more states pass some sort of immigration law.


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Permanent Residents Can Legally Change Their Names

It’s incredible, but 11 years later, and even judges irrationally invoke September 11 as a means to enact their own agendas. A New Jersey parent requested, under New Jersey state law, to change the name of his daughter from “Honghong Zhan” to “Michelle Zhan.” According to the New Jersey appellate court, the judge denied the request, “without citing any specific statutory provision or case law” because “the federal ‘Immigration and Naturalization Control Act’ pre-empted state law on the issue of name changes, and stated his view that for security reasons, ‘the Country needs to identify who [is] here under the names that they have.'” However, as the appellate court noted in its reversal of the lower court, the name change process creates a paper trail of the name change.

Utah has a similar law to the New Jersey rule. Utah Code §42-1-1 through §42-1-3 and §77-27-21.5(20) governs name changes for Utah residents, and there is no requirement that the petitioner be a citizen of the United States. Unless the name change is requested for an illegitimate reasons—such as to avoid debts or commit fraud—residents of Utah are free to change their names. As Eugene Volokh noted, name changes can help immigrants Americanize, if that’s what they desire.


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Mormons’ Views on Immigration Less Friendly Than Their Church’s

You wouldn’t know it from hearing Mormon politicians discuss their views on immigration, but their church, The Church of Jesus Christ of Latter-day Saints, has a fairly pro-immigration stance. Mitt Romney, during a January Republican presidential candidate debate, said he favors “self-deportation,” which he described as making it difficult for undocumented aliens to find work, so they return home. Russell Pearce, also a member, was one of the sponsors and main advocates of Arizona’s strong immigration law. (Pearce has since been voted out of office through Arizona’s recall election procedures.) Jason Chaffetz, Utah’s U.S. Representative for the 3rd congressional district, has also been a vocal opponent of immigration.

The LDS Church, which includes a large number of immigrants among its members, has a friendlier stance. When Utah was passing its own immigration law last year, church officials decided to endorse the bill, after they ensured that the bill included “guest worker” permits to allow undocumented aliens with jobs to stay in the United States. The LDS Church also released a number of explicit statements in favor of allowing some undocumented workers to stay.

So why the dichotomy between official church position and some of its most prominent politicians? Any thoughts would be appreciated.


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Obama Testing New Policy

Undocumented immigrants received a bit of good news earlier this month when the Obama administration decided not to move forward with approximately 16% of the deportation cases in Denver; a similar percentage of cases were dropped in Baltimore. The immigrants in those cases, a total of about 1,650 people, pose no security risk and will be allowed to stay in the United States. These immigrants’ legal status will not change, however.

President Obama directed the Department of Homeland Security to review the cases of all 300,000 immigrants facing deportation. The policy is being first tested in Denver and Baltimore. If the same percentages hold across the country, nearly 40,000 deportation cases could be dropped. The Obama administration wants to have the policy in place throughout the country by this summer so Utah immigrants may have to wait several months for the policy to be implemented here.

This policy, however, will not be a panacea for Utah immigrants. The affected immigrants will be left in limbo, as they will not be able to obtain a Utah driver’s license, nor will they be able to legally work.


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Utah’s 2011 Immigration Law

You may have heard that in 2011 the Utah Legislature passed, and Governor Gary Herbert subsequently signed, House Bill 497, which the state intended to be a “solution” to perceived problems with immigration. However, due to an ongoing lawsuit between the federal government and the State of Utah, the key provisions of the bill may never go into effect.

The law requires Utah police officers to check the immigration status of anyone arrested for a felony or a Class A misdemeanor. Other misdemeanors also require a check if the person is arrested. In November, the United States Department of Justice filed a lawsuit in federal court requesting that the key provisions be declared unconstitutional and also requesting an injunction to prevent the state from enforcing the law before the matter is settled in court. We should get a ruling on the injunction sometime in February; a hearing is scheduled for February 17. The judge’s ruling on the injunction should give us a pretty good idea of which way he is likely to rule on the constitutionality of the law.

Arizona’s similar (but more sweeping) law has not fared well in federal courts. The United States Court of Appeals for the Ninth Circuit upheld the lower court’s ruling that key provisions of Arizona’s law were unconstitutional. Only the Supreme Court can overrule the Ninth Circuit. Utah, which resides in the Tenth Circuit, could theoretically be subjected to a contradictory ruling, but the federal government seems confident in its case. In addition to Utah and Arizona, the Department of Justice also has lawsuits against Alabama and South Carolina for enacting immigration laws.

Until we get a definitive ruling, immigrants living in Utah are unlikely to notice any changes to their daily lives. Undocumented aliens will still need to be careful, but they can also live their lives just as they did before Utah passed its immigration law.