Government relies on nonexistent Mexican law to deny U.S. Citizenship for over 20 years

Well, this is interesting.  For over twenty years, Sigifredo Saldana Iracheta insisted he was a U.S. citizen because he was born to an American father and a Mexican mother in a city just south of the Texas border. The federal government rejected his claims over and over again, deporting him at least four times and at one point detaining him for nearly two years as he sought permission to join his wife and three children in South Texas.  The government argued that the only way for Saldana to gain legal legitimacy would have been for his parents to marry, which they never did. 

In its September 11^th decision, the Fifth Circuit Judge Jennifer Walker Elrod disagreed with the government finding that Saldana acquired citizenship through his U.S. Citizen father, met the U.S. citizenship requirements of INA §§ 301 and 309, and remanded with instructions to vacate or terminate the order of removal.

The problem with the government’s argument, the Judge Elrod point out, was that it relied on provisions of the Mexican Constitution that either never existed or do not say what DHS claimed they said.  In rejecting Saldana's claim to citizenship, the government had applied case law from 1978 that cited Article 314 of the Mexican Constitution, which supposedly dealt with legitimizing out-of-wedlock births. This provision never existed.  

Most recently, the government had cited to a different provision of the Mexican Constitution, Article 130, to deny Saldana’s claim in 2004. While this provision does exist, it only states that marriage is a civil contract, as opposed to a religious one and says nothing about legitimation or children.  Under the law applicable at the time, even though he was born out of wedlock, Saldana was formally acknowledged (or “legitimated”) by his father when his father placed his name on Saldana’s birth certificate before the official registry.

At oral arguments last month in Houston, Judge Elrod was incredulous: “These people are citizens by their birth, and for 35 years the government has been telling them you are not citizens because of this law that doesn't exist.”  Most denials such as Saldana’s are never appealed, often because the people involved do not have the money to pursue the matter to higher courts.  This crucial break-through in the law is a testament to Saldana’s persistence.  

Glickman Turley's Client Gets Promising Ruling in Immigration Appeal

One of our clients came to us when she found out she was facing deportation. After her case was rejected by an immigration judge and the Board of Immigration Appeals, Glickman Turley attorneys filed an appeal in the First Circuit Court of Appeals. We requested a stay of removal for this client, so she could remain in the U.S. while her appeal was pending. The stay was granted, but the court also identified several issues it found relevant to her claims. Specifically, the court requested information on the question of whether there was "substantial evidence" to support the BIA's findings that our client would be able to find work in her home country and that she might have been aware of misconduct by her spouse many years ago. It also questioned the BIA's authority to review credibility findings and whether our client's stated intention to exercise her rights under U.S. law, should she become a citizen, could be held against her. 

Although our client's appeal is not yet decided, this is a promising sign. We will exercise our best efforts to fight for her ability to stay in the U.S.

If you are facing deportation, or if you want to change your immigration status, Glickman Turley can help. Contact us today about your immigration issue.

A Challenge to Mandatory Detention

The United States District Court, District of New Jersey ruled in the case of Garfield Gayle, Sheldon Francois, Neville Sukhu v. Janet Napolitano where the issue was whether individuals in removal proceedings are subject to mandatory detention. Mandatory detenetion is "detention without possibility of a bond hearing or any other determination of whether detention is justified based on danger or flight risk."

Plaintiffs were seeking the an order from the court that would prevent "the government from mandatorily detaining them without the opportunity for a fair hearing at which an Immigration Judge ascertains whether they have a substantial challenge to removal and are therefore eligible for an individualized bond hearing."

When the government charges individuals on grounds of removal as enumerated under 8 USC sec. 1226(c) - applying to non-citizens who are "deportable or inadmissible based on specific crimes, including various misdemeanors and minor drug offenses" - they are subjected to mandatory detention. The exception is if an individual can show a very high burden to an IJ that the government is "substantially unlikely to prevail on the charges against them." Mandatory detention can last for months and years.

The Court held that mandatory detention violated the "Due Process Clause of the Fifth Amendment..unless it is reasonably related to the purpose of ensuring availability for removal and protecting the community, and is accompanied by adequate procedural protection." The Court stated that the government had "inadequate hearing procedures violat[ing] the Due Process Clause of the Fifth Amendment and/or the Immigration and Nationality Act, and that [the government] must provide constitutionally-adequate hearings to Named Plaintiffs and proposed class members - ie, hearings that use the proper standard for when mandatory detention applies and to include adequate notice; place the initial burden on the government to establish prima facie deportability or inadmissibility on a ground that triggers mandatory detention; provide the opportunity for Named Plaintiffs and proposed class members to show that they have substantial challenges to removal and are thus not properly subject to mandatory detention; and provide a contemporaneous record of such proceedings."

For representation on immigration matters, please contact Glickman Turley LLP at 617-399-7770.

Glickman Turley's experienced attorneys represent individuals on a wide range of immigration matters, as well as other legal issues. Please contact our attorneys if you wish to discuss representation on immigration matters, real estate purchase and sales, condominium associations, criminal defense, non-profit law, civil litigation, business litigation, business law, trademark law, probate matters including wills, powers of attorney, health care proxy, same-sex co-parent adoptions, guardianships, animal law, or LGBT legal matters.

BIA Deadlines Impacted by Hurricane Sandy

From LexisNexis Immigration Law Community:

"On October 29-30, 2012, the Board of Immigration Appeals (BIA) was closed due to Hurricane Sandy.  The BIA will consider timely filed any filing that meets both of these criteria:

1. the filing was due on a weekday during the week of October 29, 2012; and
2. the BIA received the filing on or before November 5, 2012.

No request or documentation is required for filings that arrive by November 5, 2012.  Filings that arrive after November 5, 2012, are subject to normal filing deadlines.  If weather is an issue for any filings that the BIA receives after November 5, 2012, parties should consult the BIA Practice Manual, Chapter 3.1(b)(v), on page 34 (“Natural or manmade disasters”).  The BIA Practice Manual is available on-line at http://1.usa.gov/Md03oi." -EOIR, Oct. 31, 2012.

For representation on immigration cases, please contact Glickman Turley LLP at 617-399-7770.

Glickman Turley's experienced attorneys represent individuals on a wide range of immigration matters, as well as other legal issues. Please contact our attorneys if you wish to discuss representation on immigration matters, real estate purchase and sales, condominium associations, criminal defense, non-profit law, civil litigation, business litigation, business law, trademark law, probate matters including wills, powers of attorney, health care proxy, same-sex co-parent adoptions, guardianships, animal law, or LGBT legal matters.

Visas and Same-Sex Spouses of US Citizens

The federal government continues to take important steps to ensure equality for all people in the US. Recently, the Board of Immigration Appeals issued four decisions that indicate that the US government should issue visas for same-sex spouses of US citizens. This is a huge victory for countless LGBT families who are excluded from the benefits of family-based immigration. See the Board decisions at http://www.aila.org/content/default.aspx?docid=40271.  Stay tuned with Glickman Turley LLP on the progress of this important issue!

Glickman Turley's experienced attorneys represent individuals on a wide range of immigration matters, as well as other legal issues. Please contact our attorneys if you wish to discuss representation on immigration matters, real estate purchase and sales, condominium associations, criminal defense, non-profit law, civil litigation, business litigation, business law, trademark law, probate matters including wills, powers of attorney, health care proxy, same-sex co-parent adoptions, guardianships, animal law, or LGBT legal matters.  

First Circuit Rules in Favor of Petitioner in Jabri

The United States Court of Appeals for the First Circuit rendered its decision in the case of Abdallah Jabri v. Holder on March 16, 2012. The Appeals Court ruled that the Board of Immigration Appeals (BIA) erred when it upheld the holding of an immigration judge (IJ) that the petitioner, a native and citizen of Jordan, had not  made credible claims and therefore denied him asylum, withholding of removal, and protection under the Convention Against Torture (CIA). Petitioner had appealed on the basis that the IJ and BIA had ignored material portions of evidence that supported his claim while focusing on minor and nonexistent inconsistencies to deny him relief. The Court agreed with the Petitioner, holding that "The IJ must...present a reasoned analysis of the evidence as a whole. We are not satisfied that the IJ has done so here."


Petitioner and his family entered the United States and lived in New Hampshire when he was a child. They overstayed their visas and  removal proceedings were initiated against Petitioner in April 2009. However, Petitioner and his family had converted from Islam to Christianity during their years living in the United States and Petitioner feared he would be persecuted on account of his conversion if he entered Jordan. The Court noted "There was evidence that the Jordanian constitution stipulates that Muslims' personal status is governed by Islamic law, according to which apostasy may be punished by an inability to own property, find employment, marry, or maintain custody of one's children." Petitioner also feared his grandfather, a prominent member of the Islamic community, would instigate an honor killing against him for converting to Christianity. 


For more on this case, click here. 

Glickman Turley's experienced attorneys represent individuals on a wide range of immigration matters, as well as other legal issues. Please contact our attorneys if you wish to discuss representation on immigration matters, real estate purchase and sales, condominium associations, criminal defense, non-profit law, civil litigation, business litigation, business law, trademark law, probate matters including wills, powers of attorney, health care proxy, same-sex parent adoptions, guardianships, animal law, or LGBT legal matters.