Crimmigration Considerations for American Indians Born in Canada

On April 4, 2014, Cascadia Cross-Border Law hosted “Crimmigration 101,” a CLE exploring the intersection of criminal and immigration law.

The two bodies of law are inextricably bound: for example, under Padilla v. Kentucky, criminal defense attorneys must advise noncitizen defendants of the adverse immigration consequences resulting from a plea agreement, or face possible liability for ineffective assistance of counsel. Similarly, immigration attorneys must be prepared to appropriately advocate for clients with criminal convictions before the Department of Homeland Security, and to work with defense attorneys or even directly with prosecutors to craft “safe” plea agreements that will not trigger removal or otherwise affect an individual’s immigration status.

As such, one of the most important things an attorney can learn about a client is the individual’s immigration status, because that status will determine the attendant consequences of a plea agreement—the most significant usually being whether the plea agreement will trigger removal.

However, even if it is clear that a client is a noncitizen (and that derivative citizenship laws do not apply, which would make the individual a citizen) the inquiry must not end—because the individual’s specific status matters, to the extent that the person may not actually be removable. Attorney Greg Boos opened Crimmigration 101 with a presentation exploring the potential in certain circumstances to “short-circuit the system” and obviate removal proceedings entirely.

There is one special group of noncitizens for whom removal is not a concern. Certain American Indians born in Canada enjoy access to the United States unrestricted by Immigration and Nationality Act (INA), including its removal provisions.

“American Indian born in Canada” is a statutory term of art that encompasses indigenous peoples of North America, who were born in Canada and who have at least a 50% native bloodline. Rooted in the Jay Treaty of 1794 and now codified by INA § 289 (8 U.S.C. § 1359), this status allows those who can establish this bloodline freely enter and renter the United States for any purpose. Furthermore, they cannot be removed.

Unfortunately, this extraordinary right is widely misunderstood, both by its intended beneficiaries and by those enforcing our immigration laws. Many who qualify for the status do not know they meet the status, either because they do not consider themselves to be Indian, or because they are unaware of their native bloodline. However, American Indian born in Canada status is an entirely racial metric and does not depend in any way on a tribal identity.

These considerations highlight the need for an awareness and broader understanding on the part of those adjudicating this status, those enforcing U.S. immigration law, as well as the native communities and general public, with regard to who is eligible. These considerations similarly emphasize the importance for attorneys who represent noncitizens to fully understand this status, and ask the appropriate questions to determine whether a noncitizen client may indeed be an American Indian born in Canada.

More information about the unparalleled rights of American Indians born in Canada can be found at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2334394.