TESTIMONY OF:

Shawn Blumberg, Supervising Attorney Immigration Community Action Project

BROOKLYN DEFENDER SERVICES

Presented before the New York City Council Committee on Immigration

Oversight Hearing on Reducing Barriers to Citizenship

Introduction

My name is Shawn Blumberg and I am a Supervising Attorney in the Immigration Community Action Project at Brooklyn Defender Services (BDS). BDS provides multi-disciplinary and people-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy to nearly 30,000 people and their families in Brooklyn every year. I want to thank the Committee on Immigration and Chair Menchaca for holding this important hearing today on the barriers to citizenship.

BDS’ immigration practice is a multi-unit practice that works to minimize the negative immigration consequences of criminal charges for noncitizens, represent our clients in applications for immigration benefits and defend our clients against ICE detention and deportation. Since 2009, we have counseled, advised, or represented more than 15,000 clients in immigration matters including deportation defense, affirmative applications, advisals, and immigration consequence consultations in Brooklyn’s criminal court system. Our Immigration Community Action Program (ICAP) represents people in non-detained removal proceedings as well as applications for immigration benefits, including family-based applications for lawful permanent status, fear-based applications, U & T visas, Special Juvenile Immigrant Status (SIJS), DACA renewal and related applications.

Racist Policing and Broken Windows Police Practices Result in Denials of U.S. Citizenship

In the City, broken windows policing and similar racist policing paradigms have created a culture of constant police presence and surveillance of Black and Latinx New Yorkers,

particularly those who are poor, resulting in the criminalizing even the smallest of offenses. Mere arrests, even in cases that are later dismissed or resolved with a non-criminal violation, can lead to denials of citizenship as a result of an inability to prove “good moral character”—¹

The Immigration and Nationality Act (INA) and corresponding regulations outline permanent bars to “good moral character,” which means that certain convictions and length of sentences will result in an immigrant permanently unable to meet the requirement of GMC.² In addition to the permanent bars to GMC, the INA and corresponding regulations include bars to GMC specify are known as “conditional bars” to GMC which are “specific acts, offenses, activities, circumstances such as arrests, or convictions within the statutory period for naturalization” are included in this analysis.³ The USCIS Policy Manual specifies that “USCIS officers determine on a case-by-case basis whether an unlawful act committed during the statutory period is one that adversely reflects on moral character. The officer may make a finding that an applicant did not have GMC due to the commission of an unlawful act evidenced through admission, conviction, or other relevant, reliable evidence in the record.”⁴ As a result of the discretion left to the USCIS offer to determine whether an individual satisfies GMC on a case-by-case basis, in many cases after an arrest and even a disposition that is considered “favorable” such as a disorderly conduct, an Adjournment in Contemplation of a Dismissal (ACD) the immigrant will need to wait for five years after the resolution of the criminal case before applying for citizenship. Notably, non- criminal dispositions in New York such as NY “violations” are treated as “convictions” under immigration law if handled in criminal court or summons court. Similarly, in some cases convictions that are dismissed or reduced after a guilty plea or dismissed after completing a program are also considered to be “convictions” for immigration purposes on the INA definition and can result in an immigrant being determined to be deportable, permanently barred from showing GMC or conditionally barred from showing GMC during the statutory period.⁵

In practice, we have often seen the denial of citizenship based on the existence of an open criminal charge, adjournment in contemplation of dismissal (ACD), conditional discharge as a sentence or ongoing probation as a sentence. The USCIS Policy Manual states that, “an officer may not approve a naturalization application while the applicant is on probation, parole, or under a suspended sentence” citing to the Code of Federal Regulation. ⁶ In practice, not only have we seen pending probation as resulting in the denial of a citizenship application for anyone who is currently on probation, but it has also been interpreted to result in a denial for applicants within the open one-year ACD period or the conditional discharge period. In addition, USCIS regularly requires a certificate of disposition for any criminal arrests. For open pending cases in which a client is challenging the charges and asserting their right to plead “not guilty” USCIS frequently denies the citizenship application based on a “failure to respond” due to the inability to produce a disposition because the charges are pending.

Moreover, a broad range of criminal convictions may result in the risk of deportation of a Lawful Permanent Resident (LPR), also known as a “green-card holder.” The range of convictions incudes even minor misdemeanor convictions such as possessing a small amount of marijuana or a fare evasion, even if the conviction happened 10, 20 or 30 years ago and the individual did not serve any jail time or already served their jail time. As a result, even a long-time LPR can face mandatory detention in immigration jail and deportation based on low-level offenses which are often linked to racist policing practices targeting low-income communities of color in New York City. An LPR who is deportable is essentially never able to apply for naturalization because if they apply for citizenship, they are at risk of being detained in immigration jail and referred to immigration proceedings for deportation proceedings.

Client Story

Edouard Connor, a 52-year-old legal permanent resident, was convicted of drug possession and a prostitution related offense almost 30 years ago. Mr. Connor had not had a criminal conviction since and worked as a buyer and window display designer for a clothing retailer for nearly two decades. He is deeply involved in New York's vibrant Caribbean-American community, running a company that designs elaborate costumes for Carnival celebrations in New York and around the world and participating in cultural and educational events for youth in his community.

However, because of his prior criminal history, Mr. Connor was at risk of deportation—and therefore could not apply for U.S. Citizenship for many years--resulting in a feeling of being in limbo due to an inability to move forward with his life, a lack of a sense of security, and an inability to travel abroad to visit family. After years of advocacy, in December 2020, Mr. Connor was granted a Gubernatorial Pardon by Governor Cuomo. As a result, Mr. Connor is able to move forward with his life to apply for U.S. citizenship and visit his family abroad, unafraid of deportation.

Complicated procedures and questions about criminal history may wrongly bar some from citizenship

The federal government scrutinizes citizenship applications and based on our experience frequently asks for information that does not exist or asks for information to be presented in a particular form that is confusing or misleading. At BDS, we have counselled many clients who could have naturalized years ago but expressed fear related to criminal system interaction and unknown consequences of past criminal charges or convictions, even if they would have been eligible for citizenship. In addition, because there is no right to representation in immigration proceedings, most individuals applying for citizenship apply pro se without legal advice or apply without the benefit of full legal representation. As a result, immigrants applying for citizenship may be asked to produce documents that do not exist or are difficult to produce.⁷When the individual is unable to produce those records the citizenship application is denied based on a “failure to respond.” With access to legal counsel, an attorney on the case would be able to contextualize someone’s arrest history for USCIS and reduce barriers to citizenship based on GMC denials.

The questions on the U.S. citizenship application relating to a prior arrest or conviction are confusing for a lay person without a legal background, even more so for an individual whose first language is not English. Without the assistance of an attorney who is versed in both immigration and criminal law, navigating this process is incredibly difficult. As described above, there are also discrepancies between how New York State classifies a disposition as “non- criminal” or dismissed, as opposed to how that disposition is classified under the INA definition of a “conviction.” As a result, an individual may accidentally make a mistake or a misrepresentation on a citizenship application when reporting a prior arrest, which will lead to the denial of the application any may lead to deportation charges relating to charges of fraud or misrepresentation or may even lead the federal government to pursue denaturalization in the future.

Client Story

Jason Jeremy,⁸ came to the U.S. from Haiti as an LPR when he was 13 years old. He has lived in Brooklyn ever since. Before coming to BDS, he applied pro se to become a citizen three times and was denied. He found out about the immigration practice at BDS through his criminal defense attorney at BDS who represented Mr. Jeremy on an unlicensed driving charge in 2016. The last time he applied for his citizenship pro se he was scheduled for his oath ceremony, but then unfortunately was denied citizenship because of the pending arrest charge. With the legal assistance of the criminal defense and immigration practice at BDS, Mr. Jeremy’s criminal charges were dismissed, and a new citizenship application was filed. Through BDS’ legal assistance and expertise, we were able to ensure that all certificates of disposition were provided for past criminal cases, we helped to answer confusing questions about child support during the USCIS interview and responded to a Request for Evidence (RFE) for proof of child support.

After three failed attempts at citizenship, Mr. Jeremy was finally able to be sworn in as a U.S. Citizen with about 1,000 other immigrants, about 10 of whom were also from Haiti. Following the ceremony, Mr. Jeremy went directly to the Department of Motor Vehicles and applied for his commercial driver’s license and registered to vote! His also planned to petition for his wife and his mother to be able to gain status and live lawfully in the United States.

Other Barriers to Citizenship: Poverty, Filing Fees, Language Access and Disability Waivers

Poverty, job loss, housing insecurity, food and financial insecurity, difficulty accessing medical care, as well as language access and technology barriers are some of major the challenges and predominant concerns among the immigrant clients that BDS represents. These challenges have been exacerbated by the COVID-19 pandemic. Even before the pandemic, exorbitant application fees are the primary barrier keeping immigrant New Yorkers from obtaining citizenship status, supporting their families, exercising voting rights and living a life out from under fear of deportation.

In some cases, BDS has successfully filed some disability waivers for people in their citizenship applications. The disability waivers have sought to overcome barriers such as mental health issues, intellectual disabilities, neurodevelopmental disorders, memory challenges and low English literacy which would otherwise prevent them from being able to pass the civics exam. However, even with the assistance of a legal representative through BDS we have had difficulties gathering the necessary documentation, information and contextualizing these barriers in the manner sufficient for USCIS to grant the waiver. Therefore, even for the limited scope of issues for which a disability waiver is available, an individual who may qualify essentially requires legal representation to assist in the filing of the waiver. In most cases, individuals themselves are unable to sufficiently advocate before the bureaucracy of USCIS due to their disability.

The excessive fees associated with filing immigration applications are often far out of reach for many of the people we serve. In recognition of the financial barrier of exorbitant application fees, BDS launched an Immigration Fees Fund to help our clients pay for things like DACA application forms ($495), green card renewals ($540), work authorizations ($410), and more.

Through the support of private donors, we are able to offer this benefit to people who access our free-immigration legal services.

Conclusion—Need for Legal Services Funding for Citizenship Applications to Strengthen Families and Communities

The stakes for immigrants pursuing U.S. citizenship are extremely high, and any arrest history even for low-level or dismissed charges places an immigrant at risk of denial of their application, deportation or denaturalization. Unnecessary arrests and racist policing practices puts low- income communities of color at a particular disadvantage for the possibility of achieving U.S. citizenship and all of the rights, stability of status, and other advantages that are tied to citizenship, including the right to vote. These police practices not only have an impact on the individual but also lead to disenfranchisement of entire communities who are unable to vote due to their immigration status. Not only do these barriers to citizenship affect individuals, but it affects families, as citizenship is passed on legally to minor children under 18 years old and also allows family members to sponsor other family members to become Lawful Permanent Residents. When people of color are unlawfully targeted by the police, the impact is felt across generations and grossly impacts the ability to achieve economic stability and security.

BDS’ immigration work is made possible through the generous funding of the New York City Council. With the new Administration in Washington, we are hopeful that pathways to citizenship will open up and we want to make sure that the people we serve are able to be included without the barriers of exorbitant fees, language access, and difficulty accessing legal services. We are able to help reduce barriers for those at higher risk of citizenship denials due to our specialization in the immigration consequences of criminal system interaction and the family court systems. Now more than ever, immigrant New Yorkers are in need of comprehensive legal assistance to help them navigate the complex pathways to legal status and enable access to services to alleviate the strains of the global health and economic crises. With the continued support of the NYC Council, BDS can continue to provide immigrant New Yorkers with high- quality immigration legal services and much-needed assistance to overcoming the numerous barriers to citizenship.

Thank you again for holding this important hearing. If you have any questions, please feel free to contact Kathleen McKenna, Senior Policy Social Worker, at kmckenna@bds.org.

***

¹ When applying for citizenship, a person must prove that they are of “good moral character” (GMC). An arrest or criminal record may show someone is not of GMC based on the (1) permanent bars to GMC; (2) conditional bars to GMC; (3) denial of citizenship based on having an open criminal charge or pending probation; (4) deportability of a Lawful Permanent Resident; or (5) mistakes or misrepresentations in a citizenship application resulting in a denial or worse.

² USCIS Policy Manual, Volume 12, Part F, Chapter 5, https://www.uscis.gov/policy-manual/volume-12-part-f- chapter-5

³ Id.

⁴ Id.

⁵ See INA § 101(a)(48) for the immigration law definition of “conviction” and the aforementioned legal resources for information on what types of offenses are “convictions” for immigration purposes.

⁶ See 8 CFR 316.10(c)(1).

⁷ For example, a declined to prosecute letter from a District Attorney’s office when cases are dismissed; certificates of disposition with information that is not generally produced on the disposition; criminal complaints and other arrest reports related to arrest charges that were dismissed decades ago or for records which have subsequently been destroyed.

⁸ Name has been changed for confidentiality purposes.