Physical Presence, Naturalization

1. Lawfully Admitted for Permanent Residence
2. Continuity of Residence
3. Residency: Jurisdiction
4. Physical Presence
5. Good Moral Character
6. Attachment to the Constitution English and Civics

(a) Introduction . Section 316(a) of the Act provides that “except as otherwise provided in this title,” applicants for naturalization must have been “physically present” in the United States for at least half the time for which their continuous residence is required. This chapter discusses the physical presence requirement and those classes of applicants for whom the requirement either is reduced, modified, or waived entirely.

(b) “Physical presence”
(c) Reduced physical presence requirement
(d) Constructive physical presence while outside US
(e) Applicants not subject to the physical presence requirement
(f) Documenting physical presence

(b) “ Physical Presence” as a Requirement for Naturalization . Associated with the basic eligibility requirement of at least 5 years of continuous residence within the United States is the condition that “immediately preceding the date of filing [the] application for naturalization” the applicant also must have “been physically present therein for periods totaling at least half of that time”. (See section 316(a) of the Act). The resulting aggregate of 30 months is the minimum physical presence requirement for the great majority of applicants for naturalization.

Bear in mind that although “physical presence” and “continuous residence” are interrelated concepts, each is a separate requirement that must be satisfied in order for the applicant to be admissible to citizenship. For example, an applicant whose aggregate physical presence in the United States during the preceding five years was 40 months could still be ineligible for naturalization if he or she had remained abroad for more than a year without obtaining an approved Form N-470 during the period for which continuous residence is required. On the other hand, an applicant who did procure an N-470 approval for exemption from the continuous residence requirement could nevertheless be inadmissible to citizenship if he or she failed during that time to accrue the requisite amount of physical presence. (See section 316(b) and section 316(c) of the Act)

There are several provisions of the Act that modify or set aside the physical presence requirement for certain classes of applicants. For example, for permanent residents who have lived in marital union with a U.S. citizen spouse during the three years immediately preceding their application for citizenship the minimum period of physical presence required is reduced to 18 months. (See section 319(a) of the Act)

In addition to provisions in the Act for reduced amounts of physical presence required for certain classes of applicants, there are also exceptions that credit time abroad in certain activities as constructive physical presence in the United States, and still others that exempt special classes of applicants from the physical presence requirement entirely. These exceptions will be discussed in succeeding sections of this chapter.

Prior to 1985, some Interpretations (see Interpretations 316.1(c) and Interpretations 316.1(d)) had applied the Fleuti decision to the evaluation of “physical presence” in some cases. That guidance is no longer valid. See for example Matter of Copeland , 19 I&N Dec. 788 (BIA 1988), holding that in an Application to Preserve Residence for Naturalization Purposes (Form N-470) the year of continuous physical presence required to qualify for its benefits must “follow the plain language of section 316(b).” The physical presence requirement must be strictly applied in naturalization proceedings.

(c) Classes of Applicants Having a Reduced Physical Presence Requirement . Under other provisions of the Act, a lesser amount of physical presence is required for certain classes of applicants:

(1) Spouse Living in Marital Union with a United States Citizen for 3 Years . Applicants who meet the requirements of section 319(a) of the Act are required to establish only 18 months of physical presence over the period of three years immediately preceding their application for naturalization. (See section 319(a) of the Act and the discussions in Chapter 72 and Chapter 74 of this field manual dealing with section 319(a) cases.)

(2) Employee of the U.S. Government . Sections 316(b) and (c) of the Act provide that lawful permanent residents who have been continuously physically present in the United States for at least one year prior to obtaining the permission of the Attorney General (i.e., USCIS approval of an N-470 application) to go abroad on employment by or contract with the Government of the United States will not be subject to the rest of the physical presence requirement of section 316(a). (Persons employed by or under contract with the Central Intelligence Agency can accrue the required year of physical presence at any time prior to applying for naturalization). The spouse and dependent unmarried sons and daughters who are members of the household of such an applicant are entitled to the sa me benefits, but only for the period during which they were residing abroad as dependent members of the household of the principal beneficiary.

Note that for all other classes of N-470 beneficiaries, the absence is only excused with respect to the continuous residence requirement; the applicant and beneficiary remain subject to the general physical presence requirement. (See section 316(b) and section 316(c) of the Act and Chapter 72 for a discussion of the Form N-470.)

(d) Classes of Applicants Eligible for Constructive Physical Presence While Outside The United States . For certain classes of applicants, time spent outside the borders of the United States may be counted as all or part of the physical presence required by section 316(a) of the Act.

(1) Resident Going Abroad for a Religious Vocation . Section 317 of the Act prescribes conditions by which lawful permanent residents who go abroad temporarily “in connection with or for the purpose of performing the ministerial or priestly functions of such religious denomination, or of serving as a missionary, brother, nun, or sister” for a religious denomination organized in the United States may “be considered as being physically present and residing in the United States for the purpose of naturalization within the meaning of section 316(a), notwithstanding any such absence from the United States.” However, a prerequisite for this exception is that the applicant at some time after becoming a lawful permanent resident and before filing an application for naturalization must have been “physically present and residing within the United States for an uninterrupted period of at least one year.” (See 8 CFR 317 .)

(2) Non-citizen National of the United States . Section 325 of the Act provides that in the case of a “person not a citizen who owes permanent allegiance to the United States” and applies for naturalization, and who is otherwise qualified, time spent within any of the outlying possession of the United States will be included in calculating physical presence. (See 8 CFR 325.2 .) A non-citizen national of the United States is a person born in an outlying possession, namely American Samoa or Swains Island. (See section 308 and section 101(a)(29) of the Act.)

(3) Service for 3 Years in the U.S. Armed Forces . Section 328(d) of the Act stipulates that eligible section 328 applicants who apply later than 6 months after the termination of their qualifying service are subject to the physical presence requirements of section 316(a). However, it also provides that any time spent in U.S. service during the 5 years immediately preceding the application for naturalization will be considered as physical presence within the United States.

(4) Service on Qualified U.S. Vessels . Under section 330 of the Act, any time spent in qualifying honorable service aboard a U.S. vessel or U.S.-based vessel “shall be deemed … physical presence within the United States within the meaning of section 316(a) of this title.”

Note: This section pertains to service other than service as a member of the Armed Forces of the United States.

(e) Classes of Applicants Not Subject to the Physical Presence Requirement . Certain classes of applicants are exempted from physical presence as a requisite for naturalization.

(1) Spouse of a U.S. Citizen in the Employment of the Government of the United States or of an American Institution of Research or of an American Firm or Corporation Engaged in the Development of Foreign Trade and Commerce of the United States, or a Subsidiary Thereof, or of a Public International Organization in Which the United States Participates by Treaty or Statute, or Who Is Authorized to Perform the Ministerial or Priestly Functions of a Religious Denomination Organized Within the United States or Is Eng aged Solely as a Missionary by a Religious Denomination or by an Interdenominational Mission Organized Within the United States, and Regularly Stationed Abroad . Applicant spouses (or former spouses, in the context of battered spouses) of this description who meet the qualifications prescribed by section 319(b) of the Act and by 8 CFR 319.2 are not required to demonstrate any physical presence prior to naturalization. The applicant must, however, declare a good faith intention to take up residence in the United States upon the termination of the citizen spouse’s employment abroad.

(2) Employee of a U.S. Incorporated Nonprofit Communications Media Organizations Which Are Principally Engaged in Disseminating Information That Promotes U.S. Interests Abroad . Applicants of this description who meet the qualifications prescribed in section 319(c) of the Act and 8 CFR 319.2 are not required to demonstrate any physical presence prior to naturalization.

(3) Surviving Spouse of a U.S. Citizen Who Died During Honorable Service in U.S. Armed Forces . Applicants who meet the qualifications prescribed by section 319(d) of the Act and by 8 CFR 319.3 are not required to demonstrate any physical presence prior to naturalization.

(4) Former U.S. Citizen Who Lost Citizenship Through Service in the Armed Forces of Foreign Countries During World War II . Section 327 of the Act provides that former citizens who lost citizenship through service during the Second World War in foreign armed forces not then at war with the United States can regain citizenship through an abbreviated process that requires lawful admission for permanent residence but no particular amount of physical presence. (See also 8 CFR 327 )

(5) Service in the U.S. Armed Forces for 3 Years . Section 328 of the Act provides that an applicant who has served honorably in the U.S. Armed Forces for an aggregate of 3 years is exempt from the physical presence requirement, provided that the application is filed either while the applicant is still in the service or within 6 months after the termination of such service. (See also 8 CFR 328 .) For otherwise qualified section 328 applicants who file more than 6 months after separation, see the preceding section at (d)(3).

(6) Service in the U.S. Armed Forces During Designated Periods of Military Hostilities . Section 329 of the Act provides complete exemption from the physical presence requirement for aliens and non-citizen nationals of the United States who have served honorably on active-duty in the U.S. Armed Forces at any time during the following specified periods of hostilities:
• April 6, 1917-November 11, 1918 (World War I);
• September 1, 1939-December 31, 1946 (World War II);
• June 25, 1950-July 1, 1955 (Korean hostilities);
• February 28, 1961-October 15, 1978 (Vietnam hostilities);
• August 2, 1990-April 11, 1991 (Persian Gulf conflict);
• September 11, 2001-present (Operation Enduring Freedom); or
• any other period in which Armed Forces of the United States are or were engaged in military operations involving conflict with a hostile foreign force that the President has designated for naturalization benefits by executive order.

Qualified section 329 applicants are not obligated to meet the general section 316(a) requirement of physical presence for a particular period of time. However, any section 329 applicant who on the day of filing the application for naturalization was not in lawful permanent resident status must establish that he or she was physically present in the United States or its outlying possessions at the time of enlistment or induction into the Armed Forces of the United States. (See also 8 CFR 329.2(c) ).

(7) World War II Participant Born in the Philippines . Section 405 of the Immigration Act of 1990 allowed certain natives of the Philippines with active duty service during World War II to be naturalized under section 329 of the Act, provided that they met all other requirements and applied for naturalization no later than February 3, 1995. Any qualified applicant under this law is exempted from the physical presence requirement of section 316(a) of the Act. (See also 8 CFR 329.5 .)

(8) Enlistee under the Act of June 30, 1950 (Lodge Act) . Nonresident aliens who enlisted in the U.S. Army under this law between June 30, 1950 and July 1, 1959, and who served honorably for a period of at least 5 years, are considered eligible for naturalization under section 329 of the Act and are entitled to the same exemptions from the physical presence requirement. (See Interpretations 329.2.)

(9) Distinguished Service to National Security . Section 316(f) of the Act allows the Director of Central Intelligence, the Attorney General, and the Director of USCIS to designate annually up to 5 persons who have “made an extraordinary contribution to the national security of the United States or to the conduct of United States intelligence activities.” Such persons are exempt from the physical presence requirement.

(f) Documenting Physical Presence . In general, the same documentation and evidentiary considerations discussed in the chapter on Continuity of Residence apply in the evaluation of physical presence. Once all the available evidence has been gathered, the determination as to whether the physical presence requirement has been met is a relatively simple matter of mathematical computation. (See Chapter 73.3(c) of this field manual on documenting continuity.)

(g) Conclusion . Physical presence within the United States for 30 months during the 5 years immediately preceding the application is a basic requirement for naturalization under the Act. There are statutory exceptions for certain classes of applicants who are eligible for a reduced period of physical presence, for constructive physical presence while outside the United States, or for exemption from the requirement. Those provisions, however, often prescribe conditions that must be met to qualify for the exception. Applic ants who cannot meet all the stipulated conditions for the exception remain subject to the general physical presence requirement of section 316(a) of the Act in order to be naturalized.
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INA: ACT 316 - REQUIREMENTS AS TO RESIDENCE, GOOD MORAL CHARACTER, ATTACHMENT TO THE PRINCIPLES OF THE CONSTITUTION, AND FAVORABLE DISPOSITION TO THE UNITED STATES

Sec. 316. [8 U.S.C. 1427]

(a) No person, except as otherwise provided in this title, shall be naturalized, unless such applicant, (1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship, (3) during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.

(b) Absence from the United States of more than six months but less than one year during the period for which continuous residence is required for admission to citizenship, immediately preceding the date of filing the application for naturalization, or during the period between the date of filing the application and the date of any hearing under section 336(a) , shall break the continuity of such residence, unless the applicant shall establish to the satisfaction of the Attorney General that he did not in fact abandon his residence in the United States during such period.

Absence from the United States for a continuous period of one year or more during the period for which continuous residence is required for admission to citizenship (whether preceding or subsequent to the filing of the application for naturalization) shall break the continuity of such residence except that in the case of a person who has been physically present and residing in the United States after being lawfully admitted for permanent residence for an uninterrupted period of at least one year and who thereafter, is employed by or under contract with the Government of the United States or an American institution of research recognized as such by the Attorney General, or is employed by an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States, or a subsidiary thereof more than 50 per centum of whose stock is owned by an American firm or corporation, or is employed by a public international organization of which the United States is a member by treaty or statute and by which the alien was not employed until after being lawfully admitted for permanent residence, no period of absence from the United States shall break the continuity of residence if-

(1) prior to the beginning of such period of employment (whether such period begins before or after his departure from the United States), but prior to the expiration of one year of continuous absence from the United States, the person has established to the satisfaction of the Attorney General that his absence from the United States for such period is to be on behalf of such Government, or for the purpose of carrying on scientific research on behalf of such institution, or to be engaged in the development of such foreign trade and commerce or whose residence abroad is necessary to the protection of the property rights in such countries of such firm or corporation, or to be employed by a public international organization of which the United States is a member by treaty or statute and by which the alien was not employed until after being lawfully admitted for permanent residence; and

(2) such person proves to the satisfaction of the Attorney General that his absence from the United States for such period has been for such purpose.

The spouse and dependent unmarried sons and daughters who are members of the household of a person who qualifies for the benefits of this subsection shall also be entitled to such benefits during the period for which they were residing abroad as dependent members of the household of the person.

(c) The granting of the benefits of subsection (b) of this section shall not relieve the applicant from the requirement of physical presence within the United States for the period specified in subsection (a) of this section, except in the case of those persons who are employed by, or under contract with, the Government of the United States. In the case of a person employed by or under contract with Central Intelligence Agency, the requirement in subsection (b) of an uninterrupted period of at least one year of physical presence in the United States may be complied with by such person at any time prior to filing an application for naturalization.

(d) No finding by the Attorney General that the applicant is not deportable shall be accepted as conclusive evidence of good moral character.

(e) In determining whether the applicant has sustained the burden of establishing good moral character and the other qualifications for citizenship specified in subsection (a) of this section, the Attorney General shall not be limited to the applicant's conduct during the five years preceding the filing of the application, but may take into consideration as a basis for such determination the applicant's conduct and acts at any time prior to that period.

(f) (1) Whenever the Director of Central Intelligence, the Attorney General and the Commissioner of Immigration determine that an applicant otherwise eligible for naturalization has made an extraordinary contribution to the national security of the United States or to the conduct of United States intelligence activities, the applicant may be naturalized without regard to the residence and physical presence requirements of this section, or to the prohibitions of section 313 of this Act, and no residence within a particular State or district of the Service in the United States shall be required: Provided, That the applicant has continuously resided in the United States for at least one year prior to naturalization: Provided further, That the provisions of this subsection shall not apply to any alien described in clauses (i) through (v) of section 208(b)(2)(A) of this Act.

(2) An applicant for naturalization under this subsection may be administered the oath of allegiance under section 337(a) by any district court of the United States, without regard to the residence of the applicant. Proceedings under this subsection shall be conducted in a manner consistent with the protection of intelligence sources, methods and activities.

(3) The number of aliens naturalized pursuant to this subsection in any fiscal year shall not exceed five. The Director of Central Intelligence shall inform the Select Committee on Intelligence and the Committee on the Judiciary of the Senate and the Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives within a reasonable time prior to the filing of each application under the provisions of this subsection.

Continuity of Residence within US, Naturalization eligibility

1. Lawfully Admitted for Permanent Residence
2. Continuity of Residence
3. Residency: Jurisdiction
4. Physical Presence
5. Good Moral Character
6. Attachment to the Constitution English and Civics

Continuity of Residence: Continuous residence within the United States for five years immediately preceding the application and until the date of naturalization is a basic eligibility requirement under the Act. There are statutory exceptions for certain classes of applicants eligible for a reduced period of continuous residence, for constructive continuous residence while outside the United States, or for exemption from the requirement. Those exceptions, however, often prescribe other conditions that must be met in order to qualify for the exception. Applicants who cannot meet all the stipulated conditions for the exception must meet the general continuous residence requirement of section 316(a) in order to be naturalized.

Continuous residence within the United States for a period of 5 years preceding the application for naturalization is one of the basic eligibility requirements for admission to citizenship.

(b) “ Continuous Residence” as a Requirement for Naturalization . Section 316(a) of the Act prescribes a general rule that applicants for naturalization must have “(1) … resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing …has been physically present therein for periods totaling at least half of that time … and (2) … resided continuously within the United States from the date of the application up to the time of admission to citizenship." “Continuous residence” and “physical presence” are interrelated requirements, but each must be satisfied in order for the application to be approved. Unless specifically exempt, an applicant must also establish that he or she has resided in the state or Service District having jurisdiction over the application. (See section 316(a) of the Act).

The concept of “continuous residence” concerns the maintenance of the applicant’s domicile in the United States over the period of time required by the statute. Regulations provide the general rule that for naturalization purposes the residence in question “is the same as that alien's domicile, or principal actual dwelling place, without regard to the alien's intent, and the duration of an alien's residence in a particular location is measured from the moment the alien first establishes residence in that lo cation.” (See 8 CFR 316.5(a) ).

Note: Persons applying under section 316(a) or 319(a) of the Act may file a naturalization application up to 90 days prior to the completion of their required period of residence. (See section 334(a) of the Act)

A related consideration is whether the applicant, since admission to lawful permanent residence, has maintained that status up to the time of admission to citizenship. The Act defines the term “lawfully admitted for permanent residence” as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” (See section 101(a)(20) and section 318 of the Act). The "not having changed" part of the definition recognizes the fact that at any time after the granting of a lawful permanent residence the person on whom it was conferred may forfeit that status by his or her actions. For example, any departure from the United States under an order of removal terminates the applicant's status as a lawful permanent resident and, therefore, disrupts the continuity of residence for naturalization purposes, even if the applicant happened to retain possession of the original PRC. On the other hand, an applicant who has been readmitted as a lawful permanent resident after a deferred inspection or by the immigration judge in removal proceedings can satisfy the residence and physical presence requirements in the same manner as any other applicant for naturalization. (See paragraphs (3) and (4) of 8 CFR 316.5(c) .) Other examples of a presumption that an applicant has abandoned lawful permanent resident status would be evidence that the applicant voluntarily claimed nonresident alien status to qualify for special exemptions from income tax liability, or failed to file federal or state income tax returns because he or she considered himself or herself to be a nonresident alien. (See 8 CFR 316.5(c)(2) .) In verifying that the applicant has not relinquished permanent resident status prior to applying for naturalization, it is necessary to consider the entire period from the original admission to lawful permanent resident status until the present.

Certain provisions of the Act reduce the five-year period of continuous residence for some types of applicants. For example, for permanent residents who have lived in marital union with a U.S. citizen spouse during three years immediately preceding their application for citizenship the period of required continuous residence is reduced correspondingly from five to three years. (See section 319(a) of the Act.) Other provisions in the Act and other laws provide exceptions by which time abroad in certain activities is credited as constructive continuous residence in the United States, and still others that exempt special classes of applicants from the continuous residence requirement entirely. These exceptions will be discussed in succeeding sections of this chapter.

Prior to 1985, some interpretations (See Interpretations 316.1(c) and Interpretations 316.1(d)) had applied the Fleuti decision to the evaluation of “continuous residence” in some cases. That guidance is no longer valid. The continuous residence requirement of section 316(b) must be strictly applied in naturalization proceedings.

(c) Statutorily Defined Breaks in Continuity of Residence . Every applicant has the burden of establishing by the overall context of facts and evidence that he or she has complied with the continuous residence requirement. However, section 316(b) of the Act specifies two types of absence from the United States that are automatically presumed to break the continuity of residence for purposes of naturalization:

(1) Absence of More than 6 Months But Less than 1 Year . If an absence of more than six months but less than one year has occurred during the period for which continuous residence is required prior to the filing of the application for naturalization, or between the filing of the application and the date of any hearing under section 336(a), such absence is presumed to break the continuity of such residence.

However, section 316(b) further provides that this presumption of loss of residence can be overcome if the applicant can “establish to the satisfaction of the Attorney General that he or she did not in fact abandon residence during such period.” Acceptable evidence for this purpose may include, but is not limited to, documentation that during the absence the applicant did not terminate his or her employment in the United States nor obtain employment while abroad; the applicant's immediate family remained in the United States; and the applicant retained full access to his or her United States abode. (See 8 CFR 316.5(c)(1)(i))

(2) Absence for a Continuous Period of 1 Year or More . Section 316(b) of the Act provides that “[a]bsence from the United States for a continuous period of one year or more during the period for which continuous residence is required for admission to citizenship (whether preceding or subsequent to the filing of the application for naturalization) shall break the continuity of residence.”

An exception in the case of a person who, after having lived in the United States as a lawful permanent resident for an uninterrupted period of at least one year, goes abroad for the purposes of employment by or contract with the United States government or an American institution of research recognized as such by the Attorney General, or employment by an American firm or corporation engaged in the development of U.S. foreign trade and commerce, or a subsidiary thereof, or by a public international organization of which the United States is a member, as defined in section 316(b) of the Act. No further period of absence from the United States shall break the continuity of residence if that applicant establishes to the satisfaction of USCIS prior to beginning such employment and prior to the expiration of one year of continuous absence that his or her absence is for the purpose of the qualifying employment and upon return proves to the Attorney General's satisfaction that the absence has been for such purpose.

The spouse and dependent unmarried sons and daughters who are members of the household of a person who qualifies for the foregoing exemption are also entitled to such benefits during the period when they were residing abroad as dependent members of the principal applicant's household. (See section 316(b) of the Act).

Regulations provide that the process by which a qualified applicant seeks the required approval of USCIS for the proposed absence is the Application to Preserve Residence for Naturalization Purposes, Form N-470. Unless the applicant applies in accordance with those rules, absences from the United States for a continuous period of one (1) year or more during the period for which continuous residence is required under paragraphs (3) and (5) of section 316.2(a) of the Act shall disrupt the continuity of that applicant's residence.

The application of a person who is subject to the continuous residence requirement but has been continuously absent for a year or more without qualifying for the exception benefits of section 316(b), or making a timely application for such benefits, must be denied for failure to meet the continuous residence requirement of section 316(a). In the case of a denied applicant who is subject to the five-year continuous residence period, this means that he or she becomes eligible to overcome that impediment four years and one day following the date of return to the United States to resume permanent residence. If the case of an ineligible applicant who is subject to the three-year statutory residence period, eligibility to overcome the impediment and to file a new application for naturalization will occur two years and one day following the date of return to resume permanent residence. (See to 8 CFR 316.5(c)(1)(ii) and 8 CFR 316.5(d) .) For additional discussion see the relating parts of Chapter 74.2 of this field manual, Part-by-Part Discussion of Form N-400 Data .

(d) Application to Preserve Residence for Naturalization Purposes (Form N-470) . The application process for preservation of residence under section 316(b) of the Act is described in 8 CFR 316.5(c) and 8 CFR 316.5(d) and the N-470 discussion in Chapter 74.2

If a Form N-470 application is based upon a claim that the applicant is going or has gone abroad for employment by an American institution of research, a public international organization, or an organization recognized under the International Immunities Act, the standing of the qualifying organization must be confirmed by referring to the appropriate lists in 8 CFR 316.20 .

An approval of a Form N-470 under section 316(b) that names a qualified spouse and dependent unmarried sons and daughters of the applicant will cover those family members also.

Note that the approval of an Application to Preserve Residence will not shield an applicant or any family members listed on the applicant's Notice of Approval of Application to Preserve Residence (Form N-472) from the presumption of having relinquished lawful permanent resident status while abroad if the applicant or family member claimed special tax exemptions as a nonresident alien. However, the presumption may be overcome with acceptable evidence that establishes abandonment of lawful permanent resident status did not occur.

Section 316(c) of the Act stipulates that the granting of absence benefits under subsection (b) does not relieve an applicant from the physical presence requirement, if any, except in the case of those persons employed by, or under contract with, the Government of the United States.

(e) Classes of Applicants Having a Reduced Continuous Residence Requirement . Under other provisions of the Act, a lesser amount of continuous residence is required of certain classes of applicants:

(1) Spouse Living in Marital Union with a United States Citizen for 3 Years . Spouses of United States citizens who meet the requirements of section 319(a) of the Act are required to establish a continuous residence period of three rather then five years immediately preceding their application for naturalization. (See Chapter 74 of this field manual.)

(2) Classes Subject to a Combination of Actual and Constructive Continuous Residence . See section (e) for other classes of applicants who must establish a limited period of actual continuous residence in order to qualify for constructive residence outside the United States for the balance of the time required.

(f) Classes of Applicants Eligible for Constructive Continuous Residence While Outside the United States . For specified classes of applicants, time spent outside the borders of the United States may be counted as all or part of the continuous residence required by section 316(a) of the Act:

(1) Employee of the U.S. Government, an American Institution of Research, an American Firm Engaged in Development of U.S. Foreign Trade and Commerce or its Subsidiary, or a Public International Organization . Section 316(b) and section 316(c) of the Act provide that lawful permanent residents who have been continuously physically present in the United States for at least one year and who obtain the permission of USCIS (i.e., through the Form N-470 application process) to go abroad on employment by or contract with the Government of the United States or an American institution of research recognized as such by the Attorney General, or on employment by an American firm engaged in development of U.S. foreign trade and commerce or its subsidiary, or a public international organization, will not be subject to the rest of the continuous residence requirement of section 316(a). (Persons employed by or under contract with the Central Intelligence Agency can accrue the required year of continuous residence at any time prior to applying for naturalization.)

The spouse and dependent unmarried sons and daughters who are members of the household of a qualified applicant are entitled to the same benefits, but only for the period during which they were residing abroad as dependent members of the household of the principal beneficiary.

Note: Except for employees of the U.S. Government or those under contract with it, or their dependents as previously described, all other types of N-470 beneficiaries remain subject to the physical presence requirement of section 316(a). (See Section 316(b) and section 316(c) of the Act; and discussion of the Form N-470 in Chapter 74.2 )

(2) Resident Going Abroad for a Religious Vocation . Section 317 of the Act prescribes conditions by which lawful permanent residents who go abroad temporarily “solely for the purpose of performing the ministerial or priestly functions of such religious denomination, or of serving as a missionary, brother, nun, or sister” for a religious denomination organized in the United States may “be considered as being physically present and residing in the United States for the purpose of naturalization within the meaning of section 316(a), notwithstanding any such absence from t he United States.” However, a prerequisite for this benefit is that at some time after becoming a lawful permanent resident the applicant must have been “physically present and residing within the United States for an uninterrupted period of at least one year.” (See also 8 CFR 317 .)

(3) Non-citizen National of the United States . Section 325 of the Act provides that in the case of a “person not a citizen who owes permanent allegiance to the United States” and applies for naturalization, time spent within any of the outlying possession of the United States will be counted as continuous residence in the United States. (See also 8 CFR 325.2 .) A non-citizen national of the United States is a person born in an outlying possession, namely American Samoa or Swains Island. (See section 308 and section 101(a)(29) of the Act.)

(4) Service for 3 Years in the U.S. Armed Forces . Persons eligible for the benefits of section 328 of the Act who apply later than 6 months after the termination of their qualifying service are subject to the continuous residence requirement of section 316(a). However, the statute provides that any time spent in U.S. service during the 5 years preceding the application for naturalization will be considered as continuous residence within the United States.

(5) Service on Certain U.S. Vessels . Under section 330 of the Act, any time spent in qualifying service aboard a U.S. vessel or U.S.-based vessel “shall be deemed … continuous residence within the United States within the meaning of section 316(a) of this title.”

(g) Classes of Applicants Not Subject to the Continuous Residence Requirement . Certain classes of applicants are exempted from continuous residence as a requisite for naturalization.

(1) The Spouse of a U.S. Citizen in the Employment of the Government of the United States or of an American Institution of Research or of an American Firm or Corporation Engaged in the Development of Foreign Trade and Commerce of the United States, or a Subsidiary Thereof, or of a Public International Organization in Which the United States Participates by Treaty or Statute, or Who Is Authorized to Perform the Ministerial or Priestly Functions of a Religious Denomination Organized Within the United States, or Engaged Solely as a Missionary by a Religious Denomination or by an Interdenominational Mission Organized Within the United States, and Regularly Stationed Abroad in Such Employment . An applicant spouse of this description who meets the qualifications prescribed by section 319(b) of the Act and by 8 CFR 319.2 are not required to demonstrate any continuous residence prior to naturalization. The applicant must, however, declare a good faith intention to take up residence in the United States upon the termination of the citizen spouse’s employment abroad.

(2) Employee of a U.S. Incorporated Nonprofit Communications Media Organization Disseminating Information That Promotes U.S. Interests Abroad . Applicants who meet the qualifications prescribed by section 319(c) of the Act and by 8 CFR 319.2 are not required to demonstrate any continuous residence prior to naturalization.

(3) Surviving Spouse of a U.S. Citizen Who Died During Honorable Service in U.S. Armed Forces . Applicants who meet the qualifications prescribed by section 319(d) of the Act and by 8 CFR 319.3 are not required to demonstrate any continuous residence prior to naturalization.

(4) Former U.S. Citizen Who Lost Citizenship Through Service in the Armed Forces of Foreign Countries During World War II . Section 327 of the Act provides that former citizens who lost citizenship through service during the Second World War in foreign armed forces not then at war with the United States can regain citizenship through an abbreviated process that requires lawful admission for permanent residence but no period of continuous residence. (See also 8 CFR 327 .)

(5) Service in the U.S. Armed Forces for 3 years . Section 328 of the Act provides that an applicant who has served honorably in the U.S. Armed Forces for an aggregate of 3 years is exempt from the continuous residence requirement, provided that the application is filed either while the applicant is still in the service or within 6 months after the termination of such service. (See also 8 CFR 328 .) For otherwise qualified section 328 applicants who file more than 6 months after separation, see the preceding section at (e)(4).

(6) Service in the U.S. Armed Forces During Designated Periods of Military Hostilities . Section 329 of the Act provides complete exemption from the continuous residence requirement for aliens and non-citizen nationals of the United States who have served honorably on active-duty in the U.S. Armed Forces at any time during the following specified periods of hostilities:

•April 6, 1917-November 11, 1918 (World War I);

• September 1, 1939-December 31, 1946 (World War II);

• June 25, 1950-July 1, 1955 (Korean hostilities);

•February 28, 1961-October 15, 1978 (Vietnam hostilities);

•August 2, 1990-April 11, 1991 (Persian Gulf conflict);

•September 11, 2001-present (Operation Enduring Freedom); or

•any other period in which Armed Forces of the United States are or were engaged in military operations involving conflict with a hostile foreign force that the President has designated for naturalization benefits by executive order.

Applicants who apply for naturalization under this section of law are not required to meet the minimum continuous residence requirements of section 316(a). However, any section 329 applicant who was not in lawful permanent resident status on the day of filing the application for naturalization must establish that at the time of enlistment or induction into the Armed Forces of the United States he or she was physically present in the United States or its outlying possessions. (See Section 329 of the Act and 8 CFR 329.2(c) .)

(7) World War II Participant Born in the Philippines . Section 405 of the Immigration Act of 1990 provided that certain natives of the Philippines with active duty service during World War II could be naturalized in compliance with Section 329 of the Act, if they met all its other requirements and applied for naturalization no later than February 3, 1995. Any qualified applicant under this law is exempt from the continuous residence requirement of section 316(a) of the Act. (See 8 CFR 329.5 )

(8) Enlistees under the Act of June 30, 1950 (Lodge Act) . Nonresident aliens who enlisted in the U.S. Army under this law between June 30, 1950 and July 1, 1959, and who served honorably for a period of at least 5 years, are considered eligible for naturalization under section 329 of the Act and are entitled to the same exemptions from the continuous residence requirement. (See Interpretations 329.2)

(9) Distinguished Service to National Security . Section 316(f) of the Act allows the Director of Central Intelligence, the Attorney General, and the Director of the USCIS to designate annually up to 5 persons who have “made an extraordinary contribution to the national security of the United States or to the conduct of United States intelligence activities”. Such persons are exempted from the continuous residence requirement.

(h) Documenting Continuous Residence . The applicant has the burden of establishing by a preponderance of the evidence that he or she meets the continuous residence requirement. At the time of the examination of the application for naturalization, the applicant may be required to establish the lawful permanent resident status by submitting the original evidence, issued by the Service, of lawful permanent residence in the United States, as well as any passports, reentry permits or other documents used to enter the United States at any time afte r the original admission for permanent residence. (See section 318 of the Act, 8 CFR 316.4 (a)(2) and 8 CFR 316.4 (c) .)

Mere possession of a Permanent Resident Card for the period of time required by the law does not in itself establish the applicant’s continuous residence for naturalization purposes; actual maintenance of his or her principal dwelling place in the United States is required. For example, a "commuter alien" may have held and used a PRC, as allowed by 8 CFR 211.5 , for 7 years, but would not be eligible for naturalization until he or she had actually taken up permanent residence in the United States and maintained such residence for the required statutory period. (See 8 CFR 316.5(b)(3) .)

The A-file of any applicant who at the time of examination claims not to be in possession of his or her PRC card must be carefully reviewed for verification of the claimed status. Checks of the Central Index System (USCIS) and other Service databases may be consulted, as well as other documentation submitted by the applicant. (See Chapter 72.2, Examination Preparation, and section 264(e) of the Act.)

When documentation is inadequate or inconclusive, careful interrogation and use of the applicant's own testimony may be of crucial importance in developing the facts required to make a correct conclusion regarding the continuous residence question. The same testimony can have a bearing on related issues such as the physical presence requirement or the possibility of an applicant's excludability or removability. You should, therefore, conduct an inquiry into such application items as absences, addresses, emp loyment, and tax status with a view to resolving all such issues. (See Chapter 73.5(e) of this field manual on documenting physical presence.)

In preparing to take testimony about these matters, the examiner should review the preliminary application and note any time gaps in United States residence that are not explained by listed absence(s) during such periods. These time gaps may represent undisclosed absence(s) and should be explored by appropriate questions. The same scrutiny should be given to gaps in recorded periods of unemployment. Termination of an applicant’s marriage by divorce in a foreign country could also point to a period of extended absence.
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Residency: Jurisdiction: most applicants for naturalization must establish the 3- months residence in State or Service District requirement. However, there are a few special classes of applicants who do not have to comply with this requirement because of specific exemptions provided by law.

To establish eligibility for naturalization, most applicants must file their application for naturalization with the State or Service District that has jurisdiction over his or her place of residence. In addition, most applicants must have continuously resided in the State or Service District for three months prior to filing the application. However, there are a few special classes of aliens who are exempt from this requirement.

Understanding the Terms “State or Service District” and “Residence” . The term “State” is defined in section 101(a)(36) of the Act. Service District is defined in 8 CFR 316.1 as the geographical area over which an office of the USCIS has jurisdiction. The applicant’s residence is the same as the applicant’s domicile, or principal actual dwelling place, without regard to the applicant’s intent, and the duration of an applicant’s residence in a particular location is measured from the moment the applicant first establishes residence in that location. See section 101(a)(33) of the Act. You must understand the terms State or Service District and residence to be able to determine whether an applicant meets the requirement of having continually resided in the State or Service District for the required time period. You may encounter cases where determining the applicant’s place of residence may not be a straightforward matter. Special cases as cited in 8 CFR 316.5.

The Service District that has jurisdiction over an applicant’s application may not be located within the state where the applicant resides. In addition, some Service Districts may have jurisdiction over more than one state and some states contain more than one District Office. Therefore, it is important that you commit to memory the geographical areas over which your Service District has jurisdiction and have access to information on all other Service Districts. For a complete discussion on how to determine residence, see Chapter 74.2(d)

Burden of Proof of Establishing Residence . The applicant has the burden of establishing by a preponderance of the evidence that he or she meets all of the requirements for naturalization, including that the applicant resided in the State or Service District having jurisdiction over the applicant’s place of residence for at least three months prior to filing the application. The applicant may be required to submit evidence of residence for at least three months immediately preceding the filing of the application. Your thorough review of the application and contents in the A-file, documentary evidence provided in support of the application, applicant’s testimony, and understanding of this requirement will help you to adjudicate the application properly.

Applications Filed under Section 334(a) of the Act . Section 334(a) of the Act allows an applicant to file his or her application 3 months before he or she has completed the continuous residence time period. The applicant must still establish that he or she has resided for 3 months immediately preceding the filing of the application in the State or Service District having jurisdiction over the applicant’s actual place of residence. However, in a case where the applicant files the application early pursuant to section 334(a), and the 3 month period to establish jurisdiction falls within the required period of continuous residence, the determination as to jurisdiction will be based on the applicant’s actual place of residence 3 months immediately before the examination on the application.

How to Determine Residence . To make a residence determination, you will need to ask the right questions and possibly request additional documentary evidence from the applicant. In some cases, determining an applicant’s place of residence may not be a straightforward matter.

There are various instances in which the nature and type of employment that the applicant is engaged in may dictate his or her living arrangements. For example, an applicant may work and reside in one state during the weekdays, and go home to be with his or her family in another state on the weekends. Keeping in mind the definition of residence will help you to make the determination of residence in this type of case. In addition, it may be useful to compare the applicant’s employment address, the address of the claimed place of residence, and his or her family’s address for discrepancies that should be addressed during the examination. Finally, you may need to request documentary evidence to make a final determination.

You may encounter cases where the applicant may have provided a bogus address with the intent to mislead. In these types of cases, you must both establish that the applicant does not reside at the claimed place of residence and that he or she intentionally provided false or misleading information to qualify for naturalization. See Part 7 of the N-400 and Chapter 73.6 for a discussion of good moral character.

The applicant’s present residence and not the present temporary abode will fix jurisdiction. An applicant who claims to reside in a hotel, a boarding house, or a rooming house should be further questioned to determine the circumstances involved in his or her living arrangements. In addition, you may need to question the applicant as to whether he or she rents or owns the premises that he or she claims to occupy. In most cases, the applicant may have innocently believed at the time of completing the application that his or her temporary residence would be considered as his or her actual residence to meet the jurisdiction requirement.

Determining Residence in Special Cases . The regulations provide standards that you may use to determine residence in special cases. The following will assist you in determining residence in specific cases that you may encounter:

(1) Military Personnel . For applicants who are serving in the Armed Forces of the United States but who do not qualify for naturalization under section 328 of the Act, 8 CFR 316.5 provides that his or her residence can be:

(A) The State or Service District where the applicant is physically present for at least three months immediately preceding the filing of an application for naturalization, or immediately preceding the examination on the application if the application was filed early pursuant to section 334(a) of the Act and the three- month period falls within the required period of residence under section 316(a) or section 319(a) of the Act;
(B) The location of the residence of the applicant's spouse and/or minor child(ren); or
(C) The applicant's home of record as declared to the Armed Forces at the time of enlistment and as currently reflected in the applicant's military personnel file.

(2) Students . 8 CFR 316.5 provides that an applicant who is attending an educational institution in a State or Service District other than the applicant's home residence may apply for naturalization:

(A) Where that institution is located; or

(B) In the State of the applicant's home residence if the applicant can establish that he or she is financially dependent upon his or her parents at the time that the application is filed and during the naturalization process.

(3) Commuter Aliens . 8 CFR 316.5 provides that an applicant who is a commuter alien, as described in 8 CFR 211.5 , must establish a principal dwelling place in the United States with the intention of permanently residing there, and must thereafter acquire the requisite period of residence before eligibility for naturalization may be established. Accordingly, a commuter resident alien may not apply for naturalization until he or she has actually taken up permanent residence in the United States and until such residence has continued for the required statutory period. Such an applicant bears the burden of providing evid ence to that effect.

(4) Residence in Multiple States . 8 CFR 316.5 provides that if an applicant claims residence in more than one State, the residence for purposes of this part shall be determined by reference to the location from which the annual federal income tax returns have been and are being filed.

(5) Residence During Absences of Less than One Year . 8 CFR 316.5 provides that

(A) During Absence . An applicant's residence during any absence of less than one year shall continue to be the State or Service District where the applicant last resided at the time of the applicant’s departure abroad.

(B) Upon Return to the United States . If, upon returning to the United States, an applicant returns to the State or Service District where the applicant last resided, the applicant will have complied with the continuous residence requirement specified in section 316.2(a)(5) of the Act when at least three months have elapsed, including any part of the applicant’s absence, from the date on which the applicant first established that residence. If the applicant establishes residence in a State or Service District other than the one in which he or she last resided, the applicant must complete three months at that new residence to be eligible for naturalization.

(6) Nationals . 8 CFR 325 provides that a non-citizen national of the United States who owes permanent allegiance to the United States and files for naturalization under section 325 of the Act may be naturalized, if he or she becomes a resident of any State and complies with all other naturalization requirements. In these case, residence in an outlying possession of the United States will count as residence and physical presence in the United States. However, these applicants must comply with the three months residence in State or Service District requirement. An applicant who intends to resume residence in an outlying possession after naturalization will be regarded as having establi shed that he or she intends to reside permanently in the United States. A national of the United States is a person born in American Samoa or Swains Island. The Term “outlying possessions of the United States” means American Samoa and Swains Island. See section 101(a)(29) , section 308 and section 325 of the Act, and 8 CFR 325.2 .

(h) Special Classes Exempt from the 3-Months Residence in State or Service District Requirement . There are a few distinct classes of aliens who are exempted from establishing the 3-months residence in State or Service District requirement. Please note that applicants for naturalization under section 316(b) , section 317 , and section 330 of the Act are not exempt from the 3-month residence in State or Service District requirement.

(1) An applicant who can establish that his or her United States citizen spouse is engaged in a certain type of employment as provided in section 319 (b)(1)(B) of the Act, including that his or her spouse is regularly stationed abroad may qualify for naturalization under section 319(b) of the Act. 8 CFR 319.2(a)(6) provides the exception to the 3-month time in State or State District requirement for this class of persons.
(2) Applicants may qualify for naturalization under section 319(d) of the Act as the surviving spouse of a United States citizen who died during a period of honorable service in an active duty status in the Armed Forces of the United States, provided all other eligibility requirements are met. Applicants who qualify under section 319(d) are specifically exempt from the 3-month residence in State or Service District requirement. See 8 CFR 319.3(a)(5) .
(3) Applicants who can establish continuous employment for 5 years by a recognized United States nonprofit organization engaged in disseminating information which significantly promotes United States interests abroad, may qualify for naturalization under section 319(c)(1) of the Act. It is specifically stated at section 319(c)(5) of the Act that these applicants do not have to comply with the 3-month residence is State or Service District requirement.
(4) Section 324 of the Act provides for the naturalization of former citizens of the United States who lost citizenship by marriage and former citizens whose naturalization is authorized by private law. While it is highly unlikely that you may encounter these types of cases, you should know that an applicant who qualifies under this Section of the law is not required to establish the 3-month residence in a State or Service District to be eligible for naturalization. The specific cite that states that these applicants are exempt from this requirement may be found at section 324(a)(1) of the Act.

(5) Applicants who lost United States citizenship through service in the Armed Forces of a foreign country during World War II may be naturalized provided all eligibility requirements are met. It specifically states at 8 CFR 327.1(f) that these applicants are exempt from the residence in State or Service District requirement. See section 327(a) .
(6) An applicant who files an application for naturalization under section 328 of the Act while still in honorable service, or within six months after termination of service, is generally not required to comply with the 3-month residence in State or Service District requirement. However, if the applicant’s military service is discontinuous, the applicant must establish, for periods between honorable service during the five years immediately preceding the date of filing the application, or the examination on the application if he or she filed early under section 334(a) of the Act, that he or she resided in the United States and in the State or Service District in the United States in which the application was filed.

Applicants who file an application more than six months after honorable discharge from the military must satisfy the 3-month residence in State or Service District requirement. See section 328 of the Act and 8 CFR 328.2 (e)(1) .

(7) Applicants who qualify for naturalization under section 329 of the Act, based on active duty Service in the United States Armed Forces during specified periods of hostilities are not required to satisfy the 3-month residence in State or Service District requirement. You may find the specific cite that provides for this exception at section 329(b)(2) of the Act, 8 CFR 329.2(e)(2) and 8 CFR 329.3
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INA: ACT 319 - MARRIED PERSONS AND EMPLOYEES OF CERTAIN NONPROFIT ORGANIZATIONS

Sec. 319. [8 U.S.C. 1430]

(a) Any person whose spouse is a citizen of the United States, 1/ or any person who obtained status as a lawful permanent resident by reason of his or her status as a spouse or child of a United States citizen who battered him or her or subjected him or her to extreme cruelty, may be naturalized upon compliance with all the requirements of this title except the provisions of paragraph (1) of section 316(a) if such person immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least three years, and during the three years immediately preceding the date of filing his application has been living in marital union with the citizen spouse 1/ (except in the case of a person who has been battered or subjected to extreme cruelty by a United States citizen spouse or parent), who has been a United States citizen during all of such period, and has been physically present in the United States for periods totaling at least half of that time and has resided within the State or the district of the Service in the United States in which the applicant filed his application for at least three months.

(b) Any person,

(1) whose spouse is

(A) a citizen of the United States,

(B) in the employment of the Government of the United States, or of an American institution of research recognized as such by the Attorney General, or of an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States, or a subsidiary thereof, or of a public international organization in which the United States participates by treaty or statute, or is authorized to perform the ministerial or priestly functions of a religious denomination having a bona fide organization within the United States, or is engaged solely as a missionary by a religious denomination or by an interdenominational mission organization having a bona fide organization within the United States, and

(C) regularly stationed abroad in such employment, and

(2) who is in the United States at the time of naturalization, and

(3) who declares before the Attorney General in good faith an intention to take up residence within the United States immediately upon the termination of such employment abroad of the citizen spouse, may be naturalized upon compliance with all the requirements of the naturalization laws, except that no prior residence or specified period of physical presence within the United States or within a State or a district of the Service in the United States or proof thereof shall be required.

(c) Any person who

(1) is employed by a bona fide United States incorporated nonprofit organization which is principally engaged in conducting abroad through communications media the dissemination of information which significantly promotes United States interests abroad and which is recognized as such by the Attorney General, and

(2) has been so employed continuously for a period of not less than five years after a lawful admission for permanent residence, and

(3) who files his application for naturalization while so employed or within six months following the termination thereof, and

(4) who is in the United States at the time of naturalization, and

(5) who declares before the Attorney General in good faith an intention to take up residence within the United States immediately upon termination of such employment, may be naturalized upon compliance with all the requirements of this title except that no prior residence or specified period of physical presence within the United States or any State or district of the Service in the United States, or proof thereof, shall be required.

(d) Any person who is the surviving spouse, child, or parent 2/ of a United States citizen, whose citizen spouse, parent, or child 2/ dies during a period of honorable service in an active duty status in the Armed Forces of the United States and who, in the case of a surviving spouse, was living 2/ in marital union with the citizen spouse at the time of his death, may be naturalized upon compliance with all the requirements of this title except that no prior residence or specified physical presence within the United States, or within a State or a district of the Service in the United States shall be required. 2/ For purposes of this subsection, the terms “United States citizen” and “citizen spouse” include a person granted posthumous citizenship under section 329A .

(e)(1) 3/ In the case of a person lawfully admitted for permanent residence in the United States who is the spouse of a member of the Armed Forces of the United States, is authorized to accompany such member and reside abroad with the member pursuant to the member's official orders, and is so accompanying and residing with the member in marital union, such residence and physical presence abroad shall be treated, for purposes of subsection (a) and section 316(a), as residence and physical presence in--

(A) the United States; and

(B) any State or district of the Department of Homeland Security in the United States.

(2) Notwithstanding any other provision of law, a spouse described in paragraph (1) shall be eligible for naturalization proceedings overseas pursuant to section 1701(d) of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108-136; 8 U.S.C. 1443a).

FOOTNOTES FOR SECTION 319
INA: ACT 319 FN 1
FN 1 Language inserted by section 1503(e) of Public Law 106-386, dated October 28, 2000.
INA: ACT 319 FN 2

FN 2 Section 1703(f)(1) of the National Defense Authorization Act for Fiscal Year 2004, Public Law 108-136 , dated November 24, 2003, added a new sentence at the end of paragraph (d) to read: “ For purposes of this subsection, the terms “United States citizen” and “citizen spouse” include a person granted posthumous citizenship under section 329A.

EFFECTIVE DATE- The amendment made by section 1703(f)(1) shall apply with respect to persons granted posthumous citizenship under section 329A of the Immigration and Nationality Act (8 U.S.C. 1440-1) due to death on or after September 11, 2001.

Section 1703(h) further amended paragraph (d) as follows:

(1) by inserting “, child, or parent” after “surviving spouse”;
(2) by inserting “, parent, or child” after “whose citizen spouse”; and

FN 3 Section 674(a) of Public Law 110-181 , dated January 28, 2008, amended section 319 by adding a new subsection (e). EFFECTIVE DATE: The amendments made by this section shall take effect on the date of enactment of this Act (January 28, 2007) and apply to any application for naturalization or issuance of a certificate of citizenship pending on or after such date.
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In certain limited situations, a person may be able to preserve residency, previously accumulated for naturalization purposes, even though he or she may be residing outside the United States for longer than one year. Thus the time spent abroad may be counted toward the residency requirement.

These cases involve persons employed in specific jobs in the United States government and private sector as well as religious organizations.

To obtain approval to preserve residency, such permanent residents must file a Form N-470 application before departing from the United States.

The regulations are different for religious workers proceeding abroad to perform religious duties. Religious workers may apply before or after departure, or after return to the United States. They are not required to have lived in the United States for a specific period of time prior to filing Form N-470.

Filing a Form N-470 does not relieve a permanent resident from obtaining a reentry permit, in advance of trips outside the United States for a year or more, nor does it relieve the applicant from the naturalization law's physical presence requirement.

An applicant qualifying for the residency preservation may extend the benefit to his or her spouse and dependent children who are all members of the same household and have lived with the principal applicant while abroad.

Another exception to the residency requirement is made for alien members of the U.S. armed forces. A permanent resident employee of the U.S. government abroad who has filed a Form N-470 is considered physically present in the United States during such employment abroad. He or she does not need to obtain a reentry permit.

NOTE: As a naturalization applicant, you may be eligible for expeditious processing if your U.S. citizen spouse is employed outside the United States as a missionary, or by a U.S. corporation or as a member of the U.S. military.

Generally, applicants for naturalization must reside in the United States for five years (three years if qualifying under the citizen-spouse exemption) immediately preceding the date of filing an application for naturalization. Additionally, naturalization applicants are required to have been physically present in the United States for at least 30 months of those five years (18 months if eligible under the citizen-spouse exemption).

Permanent residents who remain outside the United States for more than one uninterrupted year will disrupt the naturalization residence requirement, unless they are the beneficiaries of an approved Form N-470.

You should use Form N-470 if you are a lawful permanent resident (permanent resident) who will be absent from the United States for more than one year due to qualifying employment and you want to preserve your residence for naturalization purposes.

Please note that in most cases you must have been physically present and residing in the United States for an uninterrupted period, without any absences whatsoever, for at least one year after your admission as a lawful permanent resident before you can file a Form N-470.

In addition, you must submit the Form N-470 to USCIS before you have been absent from the United States for a continuous period of one year. However, if your absence from the United States is, was or will be solely as a clergyman or clergy woman, missionary, brother, nun or sister of a religious denomination or interdenominational mission organization having a bona fide organization within the United States, you may file this application before or after an absence of one year or more.

Note that your absence from the United States is:

1. On behalf of the U. S. Government.
2. For the purpose of carrying on scientific research on behalf of an American institution of research.
3. For the purpose of engaging in the development of foreign trade and commerce of the United States on behalf of an American firm or corporation or a subsidiary thereof.
4. Necessary to the protection of property rights outside the United States of an American firm or corporation engaged in the development of foreign trade and commerce of the United States.
5. On behalf of a public international organization of which the United States is a member.
6. Soley because of your capacity as a clergyman or clergywoman, missionary, brother, nun or sister of a denomination or mission, having a bona fide organization in the United States.

You may include in your application a qualifying spouse and dependent unmarried children, sons and daughters. These family members must be permanent residents and are or will be residing outside of the United States as members of your household.

NOTE: Your employment cannot have started until after your admission as a permanent resident.

Domestic Battery Conviction , Illinois and Removal, Deportation from the United States

Domestic violence and related convictions will cause immigration problems not only for individuals that have a pending application for permanent resident status (green card) with the local CIS office but also for individuals that are already permanent residents or those who seek to apply for United States citizenship through naturalization.

Several years ago, Congress amended the Immigration law to include a conviction for domestic violence as ground of deportability. A felony conviction for domestic violence can serve as a basis for deportation even if no jail time was imposed or actually served. 8 U.S.C. § 1227(a)(2)(E)(i). A misdemeanor domestic violence conviction is not necessarily a "crime of violence" for deportation purposes, unless the "offense has as an element the use, attempted use, or threatened use of physical force against the person or property of another."

In Flores v. Ashcroft the Seventh Circuit held that a respondent convicted under the Indiana Battery statute was not deportable for a crime involving domestic violence because there was not a substantial risk that the offense involved the use of force. November 26, 2003, 2003 U.S. App. LEXIS 24051

Sec. 12-3.2 Domestic Battery (720 ILCS 5/12-3.2) (from Ch. 38, par. 12-3.2)

(a) A person commits domestic battery if he intentionally or knowingly without legal justification by any means:

(1) Causes bodily harm to any family or household member as defined in subsection (3) of Section 112A-3 of the Code of Criminal Procedure of 1963, as amended;

(2) Makes physical contact of an insulting or provoking nature with any family or household member as defined in subsection (3) of Section 112A-3 of the Code of Criminal Procedure of 1963, as amended.

(b) Sentence. Domestic battery is a Class A Misdemeanor. Domestic battery is a Class 4 felony if the defendant has any prior conviction under this Code for domestic battery

Sec. 12-3.3 Aggravated domestic battery (720 ILCS 5/12-3.3)

(a) A person who, in committing a domestic battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated domestic battery.

(b) Sentence. Aggravated domestic battery is a Class 2 felony. Any order of probation or conditional discharge entered following a conviction for an offense under this Section must include, in addition to any other condition of probation or conditional discharge, a condition that the offender serve a mandatory term of imprisonment of not less than 60 consecutive days. A person convicted of a second or subsequent violation of this Section must be sentenced to a mandatory term of imprisonment of not less than 3 years and not more than 7 years or an extended term of imprisonment of not less than 7 years and not more than 14 years. (Source: P.A. 91445, eff. 1‑1‑00.)

In Flores v. Ashcroft the Seventh Circuit held that a respondent convicted under the Indiana Battery statute was not deportable for a crime involving domestic violence because there was not a substantial risk that the offense involved the use of force. November 26, 2003. http://callyourlawyers.com/pdfcaselaw/flores_v_ashcroft_7th.pdf

REMOVABLE OFFENSES

The term "conviction" under Immigration law: * * * The term "conviction" means with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. * * * (8 U.S.C. 101(a)(48)(A)

Whether an aggravated felony or crime of moral turpitude, it is important to note that it is the “conviction” that counts. Dismissals, acquittals, adjudications (juvenile convictions) or no-paper charges do not count for immigration purposes. However, pleading guilty or even admitting to the facts supporting the elements of the offense may be considered as a conviction, even if the crimminal law does not recognize the conviction until the time a sentence has been entered (Judgment and Commitment Order). Sentences containing fines or probation constitute a conviction for immigration purposes. A deferred sentence counts only when there has been an admission of the facts beforehand. Convictions that are later set aside or expunged count as convictions if there has been an admission of the facts. In determining the length of the sentence, immigration authorities look to the term of the actual sentence, and not to the time that the offender is exposed to by statute.

Probationary sentences will trigger immigration consequenses if a term of incarceration is imposed but suspended. Probation will not trigger immigration consequences if the judge opts not to impose a sentence at all (known as an imposition of the sentence suspended, or an ISS sentence). In the case of an ISS sentence, if the candidate successfully completes probation, there are no immigration consequences because an actual sentence was never imposed. However, immigration consequences are triggered if the offender's probation is ever revoked, as the court will impose a sentence at the time of revocation. Thus, for immigration purposes it always best to request an ISS sentence for a probationary candidate.

Crimes of Moral Turpitude. Any alien who - (I) is convicted of a crime involving "moral turpitude" committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.

Multiple Criminal Convictions. Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefore and regardless of whether the convictions were in a single trial, is deportable.

Felony aggravated domestic battery is a "crime involving moral turpitude" (CIMT), an aggravated felony (only if one year of jail or more is actually imposed), and constitutes a domestic violence ground for deportation.

A felony aggravated battery conviction would be enough for ICE to charge as CIMT within 10 years of non citizen obtaining green card and/or as Agg. Felon/crime of violence if jail sentence imposed was more than one year.

Aggravated Felony: Any alien who is convicted of an aggravated felony (Sec.1101(a)(43) at any time after admission is deportable. (worst provision; no bail or relief) (f) a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment is at least one year; A "crime of violence" under § 16(b) has two elements: (1) that the crime is a felony; and (2) that the crime, "by its nature," involves a substantial risk that physical force may be used. Under federal law, a crime is a "felony" if the maximum term of imprisonment authorized for the offense is "more than 1 year." See 18 U.S.C. § 3559(a) (Q) an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more;

Domestic Violence

8 U.S.C. § 1227(a)(2)(E)(i): Any alien admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: . . . (2)(E)(i) Any alien who at any time after admission is convicted of a crime of domestic violence . . . . For purposes of this clause, the term "crime of domestic violence" means any crime of violence (as defined in section 16 of Title 18) . . . by any individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.

"Crime of Violence" With respect to the first prong of the § 1227(a)(2)(E)(i) analysis, 18 U.S.C. § 16 defines a "crime of violence" as follows:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

A "crime of violence" under § 16(b) has two elements: (1) that the crime is a felony; and (2) that the crime, "by its nature," involves a substantial risk that physical force may be used. Under federal law, a crime is a "felony" if the maximum term of imprisonment authorized for the offense is "more than 1 year." See 18 U.S.C. § 3559(a)

The BIA states that an offense does not fall within the definition of a "crime of domestic violence" under 8 U.S.C. § 1227(a)(2)(E)(i) unless (1) the crime is a "crime of violence" as defined in 18 U.S.C. § 16, and (2) the person against whom the crime was committed was a "protected person" within the meaning of § 1227(a)(2)(E)(i). Applying its traditional categorical approach to criminal convictions, the Immigration Judge/BIA would hold that (1) a felony conviction constituted a "crime of violence" because the crime, as defined by Illinois case law, requires an intentional touching that caused bodily harm and was non-consensual and, therefore, involves a substantial risk that physical force may be used, and (2) victim /spouse was a "protected person" under Illinois criminal and civil law.

[DOMESTIC VIOLENCE: The offense of aggravated stalking pursuant to section 750.411i of the Michigan Compiled Laws Annotated is a crime involving moral turpitude Matter of AJAMI, Interim Decision #3405, 1999)

A single conviction for misdemeanor domestic battery is not an Aggravated felony- as a crime of violence, and is not necessarily CIMT, unless non citizen has two or more unrelated convictions for CIMT.

A misdemeanor domestic battery conviction- regardless of jail time imposed or served by non citizen –does not necessarily fall within domestic violence Ground of removability. Flores V. Ashcroft

A simple misdemeanor battery (not domestic battery) conviction, and jail sentence of up to 364 days, charged as "offensive touching" (not bodily harm), could be argued does not constitute CIMT and clearly does not constitute a domestic violence or aggravated felony grounds for removal. ________________________________________________________________________

An Immigration Judge in Arizona recently terminated a deportation proceeding based on domestic violence-related misdemeanor convictions after concluding that the convictions were not “crimes of violence” under the Immigration and Naturalization Act (INA).

The INA describes various types of criminal conduct that can render an alien deportable. This list, increased by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996, includes convictions for domestic violence.

An alien charged with being deportable in an Arizona case was convicted of “misdemeanor assault / domestic violence”and of “misdemeanor Disorderly conduct / domestic violence”under state law. The Immigration and Naturalization Service (INS) then sought his deportation, charging that the defendant was deportable under the domestic violence provision of INA §237(a)(2)(E)(i). This section defines a “crime of domestic violence”as any “crime of violence”committed against a person in one of several listed relationships with the perpetrator, e.g., a current or former spouse.

“Crime of violence,”in turn, is defined by another federal provision (18 U.S.C. §16): (a) an offense that has an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The respondent in the Arizona case argued that he could not be deported under the INA domestic violence ground for deportation because neither of his misdemeanor convictions met the federal statute’s definition of “crime of violence.”According to the Board of Immigration Appeals, the federal definition the classification described in the INA’s deportation provisions supersedes the state law definition to avoid inconsistent results for aliens similarly situated.

Specifically, in the Arizona case respondent argued that subpart (b) of the federal definition of “crime of violence”did not apply to his case because the offenses to which the defendant pleaded guilty were Misdemeanors, not felonies.

The respondent also argued that subpart (a) did not apply to him because the domestic violence provision required the “use, attempted use, or threatened use of physical force”directed against a statutorily protected victim - elements not required for either of his misdemeanor State convictions.

Essentially, the Arizona domestic violence laws under which the respondent was convicted were broader in scope than the INA definition, because they could have allowed the prosecution of acts that did not involve attempted physical force or disorderly conduct directed to a victim. Evidence of misdemeanor domestic violence convictions under state law alone did not clearly and convincingly demonstrate that the respondent had actually committed the federally-defined domestic violence that renders a person deportable.

The Immigration Judge held that the INS failed to prove that the defendant actually committed domestic violence as defined by the INA (that is, he used or threatened physical force) in the incident for which he had been convicted under Arizona law. The judge thereafter terminated the defendant’s deportation proceedings and ordered immediate release from INS custody.

Misdemeanor Domestic Battery not a Crime of Violence, Flores v. Ashcroft, Seventh Circuit, November 2003

In Flores v. Ashcroft the Seventh Circuit held that a respondent
convicted under the Indiana Battery statute was not deportable for a
crime involving domestic violence because there was not a substantial
risk that the offense involved the use of force. November 26, 2003,
2003 U.S. App. LEXIS 24051

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PROCEDURAL POSTURE: Petitioner sought review of an order of the Board of Immigration Appeals (BIA) which ordered petitioner removed under § 237(a)(2)(E) of the Immigration and Nationality Act, 8 U.S.C.S. § 1227(a)(2)(E), because he committed a "crime of domestic violence" under 18 U.S.C.S. § 16 and had a spouse or other domestic partner as a victim.

Petitioner pleaded guilty in Indiana to battery, a misdemeanor, defined as any touching in a rude, insolent, or angry manner. Ind. Code § 35--42--2--1. The BIA determined that this offense qualified as a "crime of domestic violence" under 18 U.S.C.S. § 16 and ordered petitioner removed under § 237(a)(2)(E). Upon review, the court of appeals found that the issue was how the offense created by Ind. Code § 35--42--2--1 should be classified for purposes of § 237(a)(2)(E). Although the police report shows that petitioner attacked and beat his wife, the court of appeals reasoned that § 16 provided that the statute's elements rather than the petitioner's real activities were dispositive in misdemeanor cases such that petitioner's conviction could not properly be classified as a crime of violence. Specifically, the court of appeals found that the elements of petitioner's battery conviction could not properly be viewed as a "crime of violence" under § 16 involving a spouse or other domestic partner as a victim, and thus concluded that petitioner was not removable under § 237(a)(2)(E).

The order of removal was vacated, and the matter is remanded to the BIA for further proceedings. 1(a)(1)(A).

________________

JOSE ERNESTO FLORES, Petitioner, v. JOHN ASHCROFT, Attorney General of the United States, Respondent.

No. 02-3160

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

2003 U.S. App. LEXIS 24051

September 18, 2003, Argued November 26, 2003, Decided

PRIOR HISTORY: [*1] Petition for Review of an Order of the Board of Immigration Appeals.

DISPOSITION: Vacated and remanded.

JUDGES: Before EASTERBROOK, DIANE P. WOOD, and EVANS, Circuit Judges. EVANS, Circuit Judge, concurring.

OPINIONBY: EASTERBROOK

OPINION:

EASTERBROOK, Circuit Judge.

Jose Ernesto Flores was ordered removed under § 237(a)(2)(E) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E), because he committed a "crime of domestic violence"- which means any offense that is a "crime of violence" under 18 U.S.C. § 16 and has a spouse or other domestic partner as a victim. The crime need not be defined in state law as "domestic"; all aspects of the definition are federal. But classification of a state crime under a federal definition can be tricky, and Flores denies that his offense qualifies. We have jurisdiction to determine whether Flores has committed a removable offense, see Gill v. Ashcroft, 335 F.3d 574 (7th Cir. 2003); Yang v. INS, 109 F.3d 1185, 1192 (7th Cir. 1997), but if he has done so then we lack jurisdiction to review any other issues. See 8 U.S.C. § 1252(a)(2)(C); Calcano-Martinez v. INS, 533 U.S. 348, 150 L. Ed. 2d 392, 121 S. Ct. 2268 (2001).


Flores pleaded guilty in Indiana to battery, a misdemeanor, which in that state is any touching in a rude, insolent, or angry manner. Ind. Code § 35-42-2-1. He received a one-year sentence because bodily injury ensued. Flores admitted at a removal hearing that the victim was his wife. Although he now contends that he was not given sufficient time before that admission to retain counsel, a removal proceeding is not a criminal prosecution, and the Constitution does not of its own force create a right to legal assistance at every stage. See Stroe v. INS, 256 F.3d 498 (7th Cir. 2001). The immigration judge's failure to grant Flores additional continuances before asking questions about the charges may have violated a regulation, but given § 1252(a)(2)(C) we lack authority to vindicate regulation-based arguments by criminal aliens. (Violation of a federal regulation differs from violation of the Constitution. See United States v. Caceres, 440 U.S. 741, 59 L. Ed. 2d 733, 99 S. Ct. 1465 (1979).) By the time the hearing proper arrived, Flores was represented by counsel, as he has been ever since. Lack of legal assistance earlier [*3] could matter only to the extent it affected the determination that he committed a crime of domestic battery- and that would be possible only if, with the assistance of counsel, Flores might have refused to make one of the concessions at the earlier, uncounseled proceedings: that (a) he is the "Jose Ernesto Flores " who pleaded guilty to the charge, and (b) the victim was his wife. Yet Flores has never (with or without counsel) denied either of these things. The issue at hand is entirely legal: how should the offense created by Ind. Code § 35-42-2-1 be classified for purposes of § 237(a)(2)(E)? It would be pointless to debate whether, some years ago, the immigration judge should have afforded Flores more time to hire a lawyer. We move to the main event.

Section 16 says that "The term 'crime of violence' means-(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. [*4] " Because the offense of which Flores was convicted is a misdemeanor, only § 16(a) matters. It is limited to crimes that have as an element the use of "physical force against the person ...of another". Indiana law provides: "(a) A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery, a Class B misdemeanor. However, the offense is: (1) a Class A misdemeanor if: (A) it results in bodily injury to any other person". Ind. Code § 35-42-2-1. Flores pleaded guilty to this "Class A" version of the misdemeanor offense. The parties treat bodily injury as an "element" because it increases the maximum punishment. There are two other elements: an intentional touching, plus a rude, insolent, or angry manner. Rudeness has nothing to do with force (though it increases the offense given by the touching). But both touching and injury have a logical relation to the "use of physical force" under § 16(a).

Flores observes that Indiana does not require much of either touching or injury. Any contact counts as a "touch"- and this includes indirect as well as direct contact, so a snowball, spitball, or paper airplane [*5] qualifies if it hits the target. Indiana follows the common-law rule under which any contact, however slight, may constitute battery. Hamilton v. State, 237 Ind. 298, 145 N.E.2d 391 (1957); Seal v. State, 246 Ind. 353, 5 Ind. Dec. 451, 205 N.E.2d 823 (1965). Touching anything attached to someone else, such as the person's glasses, is treated the same as touching the body. Impson v. State, 721 N.E.2d 1275 (Ind. App. 2000). As for injury: a bruise suffices, as does any physical pain even without trauma. Lewis v. State, 438 N.E.2d 289 (Ind. 1982); Tucker v. State, 725 N.E.2d 894 (Ind. App. 2000). Indiana's courts reached this conclusion because "serious" bodily injury makes the offense a Class C felony. See Ind. Code § 35-42-2-1(a)(3). It follows, Indiana's judiciary concluded, that any physical hurt satisfies § 35-42-2-1(a)(1)(A). So if the paper airplane inflicts a paper cut, the snowball causes a yelp of pain, or a squeeze of the arm causes a bruise, the aggressor has committed a Class A misdemeanor (provided that the act was rude, angry, or insolent). It is hard to describe [*6] any of this as "violence."

Now Flores did not tickle his wife with a feather during a domestic quarrel, causing her to stumble and bruise her arm. That would not have led to a prosecution, let alone to a year's imprisonment. The police report shows that Flores attacked and beat his wife even though prior violence had led to an order barring him from having any contact with her. The contempt of court reflected in disobedience to this order, plus the ensuing injury, likely explains the prosecution and sentence. The immigration officials ask us to examine what Flores actually did, not just the elements of the crime to which he pleaded guilty. The problem with that approach lies in the language of § 16(a), which specifies that the offense of conviction must have "as an element" the use or threatened use of physical force. Section 16 adopts a charge-offense rather than a real-offense approach, as is common to recidivist statutes. See, e. g., Taylor v. United States, 495 U.S. 575, 109 L. Ed. 2d 607, 110 S. Ct. 2143 (1990). As we explained in United States v. Howze, 343 F.3d 919 (7th Cir. 2003), it may be necessary even in charge-offense systems to rely [*7] on some aspects of the defendant's actual behavior, in order to know what he has been convicted of: when one state-law offense may be committed in multiple ways, and federal law draws a distinction, it is necessary to look behind the statutory definition. See also United States v. Shannon, 110 F.3d 382, 384-85 (7th Cir. 1997) (en banc). Howze was itself an example of this. State law defined, as a single felony, theft from either a living person or an embalmed body. The former is (we held) a crime of violence under 18 U.S.C. § 924(e)(2)(B)(ii) and the latter not, because only the former poses a risk of a violent encounter between thief and victim. So in Howze we examined the charging papers to learn that the victim had been alive. Indiana's battery statute, by contrast, separates into distinct subsections the different ways to commit the offense. Particularly forceful touchings, or those that cause grave injuries, come under subsections other than Ind. Code § 35-42-2-1(a)(1)(A). Thus it is possible to focus on "the elements" of that crime, as § 16(a) requires, without encountering any ambiguity, and thus without [*8] looking outside the statutory definition. See also Bazan-Reyes v. United States, 256 F.3d 600, 606-12 (7th Cir. 2001) (drunk driving is not a crime of violence under the elements approach of § 16, even if injury or death ensues).

Although § 16(a) directs attention to the statutory elements, § 237(a)(2)(E) of the immigration laws departs from that model by making the "domestic" ingredient a real-offense characteristic. Thus it does not matter for purposes of federal law that the crime of battery in Indiana is the same whether the victim is one's wife or a drinking buddy injured in a barroom. The injury to a "domestic partner" is a requirement based entirely on federal law and may be proved without regard to the elements of the state crime. See Sutherland v. Reno , 228 F.3d 171, 177-78 (2d Cir. 2000). Substantial evidence, independent of Flores's admission, shows that the victim was his wife. When classifying the state offense of battery for purposes of § 16(a), however, the inquiry begins and ends with the elements of the crime.

According to the immigration officials, we should grant Chevron deference to the Board's decision that Ind. Code § 35-42-2-1(a)(1)(A) [*9] satisfies the federal definition. An earlier decision reached this conclusion, after extended analysis, with respect to a Connecticut law similar to Ind. Code § 35-42-2-1(a)(1)(A), see Matter of Martin, 23 I.&N. Dec. 491 (B. I.A. 2002), and in Flores's case the Board relied on Martin. Yet Chevron deference depends on delegation, see United States v. Mead Corp., 533 U.S. 218, 150 L. Ed. 2d 292, 121 S. Ct. 2164 (2001), and § 16(a) does not delegate any power to the immigration bureaucracy (formerly the Immigration and Naturalization Service, now the Bureau of Citizenship and Immigration Services), or to the Board of Immigration Appeals. Section 16 is a criminal statute, and just as courts do not defer to the Attorney General or United States Attorney when § 16 must be interpreted in a criminal prosecution, so there is no reason for deference when the same statute must be construed in a removal proceeding. Any delegation of interpretive authority runs to the Judicial Branch rather than the Executive Branch. Cf. Adams Fruit Co. v. Barrett, 494 U.S. 638, 108 L. Ed. 2d 585, 110 S. Ct. 1384 (1990). One [*10] law has one meaning, and a given state conviction a single classification, whether the subject arises in removal or in a recidivist prosecution in federal court. Although the agency's interpretation in Martin may have persuasive force, and we must give it careful consideration, it has no binding effect along Chevron's lines.

Martin is not persuasive. Besides starting with legislative history rather than the text of § 16- the Board saw great significance in a footnote to the Senate Report, though this footnote did not purport to disambiguate any statutory language and thus lacks weight on the Supreme Court's view of legislative history's significance- the Board made two logical errors. It relied on decisions such as United States v. Nason, 269 F.3d 10 (1st Cir. 2001); United States v. Ceron-Sanchez, 222 F.3d 1169 (9th Cir. 2000); and United States v. Smith, 171 F.3d 617 (8th Cir. 1999), which hold that state laws penalizing battery with intent to injure are crimes of violence under § 16 (or similar statutes, such as § 924(e)(2)). The Board concluded that this approach is equally applicable to laws such as Ind. Code § 35-42-2-1(a) (1)(A) [*11] . The first error is equating intent to cause injury (an element of the state laws at issue in those decisions) with any injury that happens to occur. It may well be that acts designed to injure deserve the appellation "violent" because the intent makes an actual injury more likely; it does not follow that accidental hurts should be treated the same way. Indiana's battery law does not make intent to injure an element of the offense; intent to touch must be established, but not intent to injure. The Board's second error was failure to appreciate the difference between felony and misdemeanor convictions. When the prior offense is a felony, then any criminal conduct that involves a "substantial risk" of physical force may be classified as a crime of violence under § 16(b) or § 924(e)(2)(B)(ii). (Howze involved a prior felony, which is why we looked to the risk of an altercation breaking out between thief and victim.) But when the conviction is for a misdemeanor, then physical force must be an element under § 16(a) or § 924(e)(2) (B)(i).

Section 16(a) refers to the "use of physical force". Every battery entails a touch, and it is impossible to touch someone without applying [*12] some force, if only a smidgeon. Does it follow that every battery comes within § 16(a)? No, it does not. Every battery involves "force" in the sense of physics or engineering, where "force" means the acceleration of mass. A dyne is the amount of force needed to accelerate one gram of mass by one centimeter per second per second. That's a tiny amount; a paper airplane conveys more. (A newton, the amount of force needed to accelerate a kilogram by one meter per second per second, is 100,000 dynes, and a good punch packs a passel of newtons.) Perhaps one could read the word "force" in § 16(a) to mean one dyne or more, but that would make hash of the effort to distinguish ordinary crimes from violent ones. How is it possible to commit any offense without applying a dyne of force? Section 16(a) speaks of "physical force against the person or property of another" (emphasis added). Cashing a check obtained by embezzlement requires lots of dynes to move the check into an envelope for mailing. Suppose someone finds a set of keys that the owner dropped next to his car and, instead of taking them to a lost and found, turns the key in the lock and drives away. One would suppose [*13] that to be a paradigm non-violent offense, yet turning the key in the lock requires "physical force" (oodles of dynes) directed against the property (the auto) of another.

To avoid collapsing the distinction between violent and non-violent offenses, we must treat the word "force" as having a meaning in the legal community that differs from its meaning in the physics community. The way to do this is to insist that the force be violent in nature- the sort that is intended to cause bodily injury, or at a minimum likely to do so. We have already drawn just that line. See Solorzano-Patlan v. INS, 207 F.3d 869, 875 n. 10 (7th Cir. 2000); Xiong v. INS, 173 F.3d 601, 604-05 (7th Cir. 1999). Otherwise "physical force against" and "physical contact with" would end up meaning the same thing, even though these senses are distinct in law. This is not a quantitative line ("how many newtons makes a touching violent?") but a qualitative one. An offensive touching is on the "contact" side of this line, a punch on the "force" side; and even though we know that Flores's acts were on the "force" side of this legal line, the elements of his offense are on the [*14] "contact" side. Because § 16(a) tells us that the elements rather than the real activities are dispositive in misdemeanor cases, this conviction cannot properly be classified as a crime of violence, and the basis for Flores's removal has been knocked out- along with any obstacle to our jurisdiction.

The order of removal is vacated, and the matter is remanded to the Board.

CONCURBY: EVANS

CONCUR: EVANS, Circuit Judge, concurring. Although it's debatable whether expending dynes (to say nothing about newtons) pressing the keys of my wordprocessor to concur in this case is worth the effort, I do so because the result we reach, though correct on the law, is divorced from common sense. For one thing, people don't get charged criminally for expending a newton of force against victims. Flores actually beat his wife- after violating a restraining order based on at least one prior beating- and got a one-year prison sentence for doing so.

If it is permissible to look to Flores' "real conduct" to determine if the person he beat was his wife rather than some stranger, why does it not make perfectly good sense to allow an immigration judge to look at what he really did in other respects as well, rather [*15] than restrict the judge to a cramped glance at the "elements" of a cold statute? The more information upon which the judge acts, the better. A common-sense review here should lead one to conclude that Flores committed a "crime of domestic violence." Simply put, by any commonly understood meaning of that term, that's exactly what he did, and that should be the end of the story. We, and the IJ as well in this case, should be able to look at what really happened. We recently observed that critics of our system of law often see it as "not tethered very closely to common sense." United States v. Cranley, 2003 U.S. App. LEXIS 23573, (2003 WL 22718171, decided November 19, 2003). This case is a good example of why that observation hits the nail on the head. Nevertheless, Judge Easterbrook is correct in applying the law so I join his persuasive (as usual) and colorful- snowballs, spitballs, and paper airplanes et al.- opinion. However, I do not applaud the result we reach. And one final point: Whether doing what Flores actually did should cause him to be removed from the country is a question we are without jurisdiction to answer. For better or worse, that's a matter for the executive branch as [*16] it attempts to implement the will of Congress.

http://callyourlawyers.com/pdfcaselaw/flores_v_ashcroft_7th.pdf