ATTORNEY HAMILTON WINS ADJUSTMENT OF STATUS FOR GUATEMALAN ALIEN ACCUSED OF A "FALSE CLAIM OF CITIZENSHIP"

Chow & Hamilton today received notice that its motion to reconsider the denial of an adjustment of status for a Guatemalan national accused of having made a "false claim of citizenship" at the time of her attempted entry into the US in 2001, has been granted, and the alien adjusted to lawful permanent resident (LPR) status. The alien had originally sought entry and was "paroled" into the United States in 2001 as a minor.

In March of 2007, Hamilton took the case over from a previous attorney, after the Board of Immigration Appeals had denied the alien's appeal of a deportation order by an immigration Judge (IJ) in Los Angeles, California. Mr. Hamilton petitioned the 9th Circuit Court of Appeals for review of the BIA decision sustaining deportation and subsequently sought reopening of the case with the lower BIA. The BIA upon the request of Hamilton's motion, reopened and remanded the case to the IJ for further proceedings in July of 2007.

Attorney Hamilton then sought to adjust the alien's status with the IJ, who in January 2008, granted a termination of Removal (court) proceedings to allow USCIS to adjudicate the adjustment of status (since IJs generally rule that they do not have jurisdiction over the adjustment of status of aliens "paroled" into the U.S.).

During the process of the alien's adjustment matter the USCIS adjudicating officer accused the alien of having made a false claim of US Citizenship upon attempting to enter the United States. This charge is a serious and devastating one, since, if true, it serves as a barrier to adjustment of status and is not waivable. Further, many officer's view the false claim statute as one of strict liability, meaning that once the false claim is made by word or deed, the negative consequences of that claim attach, regardless of the age of the alien. There are only very limited and narrow defenses to a false claim allegation. In spite of Mr. Hamilton's efforts to explain to the officer the legal reasons why this particular alien should be adjusted in spite of the officer's perception of the false claim, the adjustment was denied.

Hamilton filed a motion to reconsider USCIS's denial of the adjustment application in June 2009, and simultaneously fought off efforts by ICE to recalendar the case with the IJ for renewed removal proceedings. Mr. Hamilton articulated in his memorandum of law why in spite of the government's perception that minors are not exempted from the negative consequences of a false claim of citizenship, this particular minor could not be subjected to those consequences.

The fruit of those efforts are now manifest in the grant of the motion to reconsider and the alien's adjustment of status, allowing said alien for the first time in nine years, to truly embrace the concept of belonging to a specific country.

By: Maria Rangel