Fed. Tort: Suing Gov't. for Constitutional Violations. Are they always immune???

[Rakym75]

I have also posted this (?) another section; I have two parts to this question. One based on Naturalization vs. Native Citizen (born in U.S.). And the other part dealing w/ the 14th Amendment (equal protection of rights & privileges).

First, once a person becomes a Naturalized U.S. citizen (as a minor), isn't he forever a citizen of the United States(unless they apply for something else, of course)? Aren't they protected by the same rights, privileges, and laws as any other citizen (Native or Naturalized)?

So, if for instance the INS were to hold this Naturalized citizen for an extended period of time, because of errors in their records-keeping, then release them once the corrected the mistake. Wouldn't this be a violation of this person's rights? The INS has NO Power to hold a U.S. citizen, nor does it have the power to consider a U.S. citizen for deportation. Is this not correct?

This brings up my second question. If this did take place, as described above. Doesn't this violate the 14th Amendment of the U.S. Constitution, which gives the right to fair, and indiscriminate protection of rights & privileges. Is the U.S. Government above this statute? Or does this only apply to states?


This person was born in Jamaica; at age of 4 came to U.S. (legally) as Lawful Perm. Resident Alien(never left the U.S.). His mother naturalized & became a U.S. citizen while son was a minor. Pursuant to 8U.S.C.1432 of U.S. Code (INA:321), son also derived U.S. citizenship, "automatically". Six yrs. later, after son was now 21, he was taken into custody of INS. He was later released (months later), and told "sorry, you were right, you are a U.S. citizen". He, was issued a "certificate of citizenship" and sent on his way. The INS went so far as to back-date it for the day his mother naturalized, making his effective date, 6 yrs. prior to the day he was taken into custody. As, far as I know, this is an admission of guilt, on the part of INS. 8U.S.C.1432 is specific in its wording. If a child meets the requirements for derivative citizenship to occur, it is "automatic", and it is effective on the day of the parent(s) naturalization. So, if citizenship occured as a minor, as is the case here (by INS' own addmission), how can this CITIZEN be held as an adult? The way I see it, INS was negligent! I know that it is almost impossible to bring "cause for action" claims to Gov't. for "false imprisnonment" or "false arrest", but there must be another avenue to pursue this (i.e., violation of Due Process, Speedy Trial, etc.)So, if there's anyone out there who knows anything about derivitive citizenship, constitutional law & Federal Tort, please give me a reply.

[Edited by Rakym75 on 01-27-2001 at 06:14 PM]

 

[lawrat]

I am a law school graduate. What I offer is mere information, not to be construed as forming an attorney client relationship.

The INS does in fact have the power to deport and actually deport criminals when they are convicted and are reported to the INS.

INS doesn't automatically grant the minor u.s. citizen status. There are procedures to go through.

http://www.ins.usdoj.gov/graphics/services/natz/insfnl.pdf

 

[Rakym75]

Did anyone actually read the facts above. We are not talking about an "Alien". I am talking about a child who did go through the "procedures"; who pursuant to 8USC1432 or INA:321, became a US citizen on the day of his mothers Naturalization. The "procedure" is "automatic", and immediate, upon the fullfillment of its requirements. There is no seperate application; citizenship is derivative, from paren to child. Allow me to post the law, from the United States Code, this is also paralleled in the Immigration & Nationality Act (INA:321):

TITLE 8 USC

Sec. 1432. Children born outside United States of alien parents; conditions for automatic citizenship

(a) A child born outside of the United States of alien parents, or of an alien parent and a citizen parent who has subsequently lost citizenship of the United States, becomes a citizen of the United States upon fulfillment of the following conditions:

(1) The naturalization of both parents; or

(2) The naturalization of the surviving parent if one of the parents is deceased; or

(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if

(4) Such naturalization takes place while such child is unmarried and under the age of eighteen years; and

(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of this subsection, or thereafter begins to reside permanently in the United States while under the age of eighteen years.

(b) Subsection (a) of this section shall apply to an adopted child only if the child is residing in the United States at the time of naturalization of such adoptive parent or parents, in the custody of his adoptive parent or parents, pursuant to a lawful admission for permanent residence.

So, the child did in fact become a citizen on the day mother naturalized. So, why would the INS have the right to hold a citizen? They are the custodians of their records, if the records-keeping was in error, then this would be negligence. The average person isn't responsible for the accuracy of their INS status, you don't know if their up to date. Now outside of perjury on the application (which wasn't the case), or anti-allegiance activity against U.S. (ie, terrorism, espionage, etc.), then there is no cause to revoke or suspend someone's citizenship. So, if this is the case then this person was deprived of there right to be a citizen, to pursue life & liberty as protected by the U.S. Constitution. So, after someone READS ALL the facts above, please feel free to answer my question. Thanks.

 

[Rakym75]

Come on people, I need some answers here. Anyone have some legal theory here on this scenerio?