Refujia Roman-Chavez is not what most people would consider a border threat. A hip injury keeps the 60-year-old from walking without assistance, while her kind smile and necklace of rosary beads gives her the aura of a genial grandmother.
This spring, I met her on the Mexican side of the Presidio-Ojinaga International Port of Entry, a two-lane border crossing on the edge of the sleepy rural West Texas town of Presidio. Moving is difficult for her, so she waited in the passenger seat of her sister’s car with the door ajar, listening as her niece and sister spoke to her American attorney.
It was the second time that month she had made the trek from her Ojinaga home to the border crossing, only to be denied a provisional “parole” entry into the United States.
The first time, in early March, Roman-Chavez and her sister, Araceli Linares, say they were shooed off by customs personnel for waiting too long while the attorney telephoned fellow immigration experts for advice.
“They said, ‘Go someplace else or go back to Mexico,’” Linares remembers. “We felt like we were being thrown out of the house.”
The irony is that, according to U.S. citizenship law, Roman-Chavez — a citizen and resident of Mexico — may also be an American citizen. She just doesn’t yet have the paperwork to prove it, and the way the rules work, her ability to apply may depend entirely on the whim of a customs officer.
Much as undocumented parents have struggled with a sometimes hostile Texas bureaucracy that hinders easy access to their American-born kids’ birth certificates, people like Roman-Chavez grapple with the process to verify their citizenship claims. Roman-Chavez’s claim is through her mother, an American citizen who lives in Odessa. The technical details of the law are more complicated, but broadly: A person could be considered a U.S. citizen if their parent was a citizen at the time of their birth, even if they weren’t born on American soil.
It’s the same idea that Texas Senator Ted Cruz, the GOP’s most hardline presidential candidate against illegal immigration, cited when his own citizenship was called into question. Arizona Senator John McCain — who was born in the Panama Canal Zone while his father, a Navy officer, was based there — also used the law to prove his own eligibility to run for president. But applications for this “derivative citizenship” must be made in the United States, and they can’t be filed while in the country on a tourist visa, leaving few options for claimants stymied by customs officers.
Data on derivative citizenship is limited, but according to U.S. Citizenship and Immigration Services (USCIS), the department received 47,331 derivative citizenship applications and approved 41,428 applications — some of which could have been approvals from applications filed before 2014 — from October 2014 until June 30, 2015.
Many of these are “routine cases” involving military service members who have children abroad, said Lee Terán, a clinical law professor at St. Mary’s University School of Law in San Antonio, who specializes in immigration and nationality law.
“The USCIS would consider them routine because they’re not that difficult to prove,” Terán said. In those cases, parents likely have birth certificates, tax returns, school and medical records.
“When they become difficult is when the evidence that the applicant wants to present is in the form of affidavits or testimony,” she said, which is common for migrant farm workers, or people who didn’t attend school in the United States. “That doesn’t make the applicant any less a citizen, but it makes the evidence that they have to present very complicated and difficult,” Terán said.
Terán, who has written extensively on the subject, also says that many individuals with derivative citizenship claims are vulnerable to deportation, legally unrepresented, and unaware that they even have the option to make a claim.
The number of people who qualify for derivative citizenship is likely much higher than USCIS’ application numbers, and cases like Roman-Chavez’s can go under the radar because there simply is no tracking mechanism for individuals turned away at a port of entry.
Roman-Chavez has a strong case. Though she was born in Mexico and has lived in the border town of Ojinaga for most of her life, her mother was a U.S. citizen. And of her nine siblings, Roman-Chavez is the only one who has not yet managed to acquire U.S. residency or citizenship. Two of her brothers acquired their citizenship using the very same family lineage that Roman-Chavez intends to claim.
Still, it’s not a sure bet. “It is not uncommon for some family members to get the citizenship, while others do not,” Terán said.
Roman-Chavez now lives with her partner in Ojinaga, but the rest of her family — including her mother — lives in the United States. Roman-Chavez told the Observer she hopes to reunite with her family here and to acquire adequate medical attention for her hip. But her reasons for wanting to live in the United States are legally irrelevant; no U.S. citizen needs a reason to want to live in their own country. Still, it can be a tremendously complicated process. Auden Ramirez-Chavez, Roman-Chavez’s half-brother, began his quest to attain residency when he was 20 years old. He later sought citizenship, which he was granted two years ago at age 43.
Ramirez-Chavez remembers living in the United States without legal authorization for most of his early life. He says that neither he nor his mother even knew derivative citizenship was a possibility until he discovered Jeanne Morales, a Midland immigration attorney, through a recommendation by a friend. Morales is now working on his sister’s case.
Ramirez-Chavez said that even now as a citizen, he still carries decades of residual fear. “If I see the cops here on [Interstate 20], I sometimes forget I’m a U.S. citizen,” he said. “All my life, I felt like I was running away. You start to fear the cops, you know.”
A person who wants to apply for derivative citizenship can only file their required N-600 form in the United States, meaning Refujia Roman-Chavez can’t take even the first steps toward citizenship without the cooperation of customs officers who’ve repeatedly told her to return to Mexico.
According to Jeanne Morales, a customs officer refused to issue Roman-Chavez a parole entry — the privilege of a one-time entry into the United States for a specific purpose — in early March so she could file paperwork to become an American citizen. She was denied again later that month.
Filing for a tourist visa in order to file an N-600 form isn’t an option, either. When a person applies for a visa, they must prove that it is not their intention to live in the United States — not the case for Roman-Chavez.
The tourist visa was a risk Morales didn’t want her client to take. They’re doing everything by the book — even if that makes it harder, maybe much harder, for Roman-Chavez to get citizenship. Applying through the Department of State — done at a U.S. consulate — is an alternative avenue to apply for citizenship verification, but doing so can be even more difficult than attempting to cross over into the United States to apply through immigration officials.
“The consulate is even worse than the Department of Homeland Security,” Terán told the Observer. “It’s a nightmare.” Consular officials are difficult to secure time with, she says, and they often favor the kind of evidence that non-routine claimants like Roman-Chavez lack: school records, tax returns and social security records.
And consulate rules dictate that, as an attorney, Morales is not allowed to accompany her client to the American consulate in Juárez. Since the law is mired in technicalities, not having a lawyer on hand poses an additional obstacle.
“For someone who is uneducated in a very technical aspect of the law, they have to go in defenseless, and then I’m not allowed to get any record of the proceedings,” Morales said. “It’s kind of a setup for failure.”
Morales’ attempt to secure Roman-Chavez a parole entry at the Presidio-Ojinaga International Port of Entry was an effort to navigate this complicated system of regulations. Roman-Chavez had planned to arrive from the Ojinaga side with her sister, and Morales would meet them stateside.
But the customs officer refused even to look at Roman-Chavez’s paperwork, they said. I met the women just after they’d been denied a second time.
“I don’t know what [the officer’s] motivations were but there was absolutely no reason to not let this woman in,” Morales said. It is up to the individual officer to set the terms of a claimant’s parole entry conditions. “She can put safeguards on it; require us to come back in one week or two weeks,” Morales said. “I understand what their job is, and I understand they have to keep bad actors and people who aren’t entitled to come into the United States, but this is not a high-risk individual. I’m not talking about somebody with a criminal history or anything. We’re just talking about a little old lady in a walker, who I have a pretty high level of proof that she’s a U.S. citizen.”
Morales added: “The greater risk is that [the customs officer] is violating a U.S. citizen’s right to enter the United States. That, I think, should be the overwhelming discretionary issue.”
When contacted by the Observer, the Presidio port director, John Deputy, declined to comment on any specific case, and wouldn’t confirm the identity of the customs officer who Morales says denied Roman-Chavez her parole entry.
Whatever the reason for the officer’s decision, Morales said, the bigger issue resides in the law itself.
“This is a gap in the law that needs to be fixed. Why can’t we file this outside the United States?” she said. “People need to realize that the law cuts both ways and it’s really frustrating as a professional — because I know what the rules are — for the clients who are constantly being told, you need to do things right. Well, we are doing things right and somebody else doesn’t want to play.”
Morales said she’s filed hundreds of these cases, and they’re almost always — eventually — successful. But she’ll have to “keep fighting the same fight,” she says, gambling on cooperative customs officers and shoring up her clients’ citizenship claims, unless and until the rules change.
“Make whatever rule you want,” she said, “but make it so it’s workable.”
[featured image: thebrit_2/flickr]