Will his sickness be a challenge?

Dear Mrs Walker-Huntington,

I am a US citizen and have been in the country since 1967. My son - now 49 - has a green card and has been here since he was 12 years old. My problem is that he had been in a mental hospital and, due to his illness, he had a couple of scrapes with the law when he was younger.

He relies on me solely, except for the Supplemental Security Income (SSI) programme. I want to apply for his citizenship but I don't know if his brush with the law will have any bearing on him being accepted. I am worried if I don't get him settled before I cannot help myself, and anything happens, and he is sent back to Jamaica. Then there is no one there to take care of him.

Please advise if I should go ahead and have him file for citizenship.

- H.G.

Dear H.G.

I hear the concern for your mentally challenged son in your letter. To answer your question completely would require a personal consultation to determine some critical issues.

We would need to determine when you received your US citizenship and how old your son was when that occurred. Additionally, we would need to determine who had custody of your son when you became a US citizen and what the immigration status is of your son's father.

Your son could be the beneficiary of derivative US citizenship but the stars have to be in perfect alignment for that to occur. Derivative citizenship occurs when a child can claim US citizenship from a US naturalised citizen parent. Two different laws govern derivative citizenship, and dates play an important role in the eligibility determination. If your son qualifies for derivative US citizenship, he can apply for a certificate of naturalisation (citizenship) and he cannot be deported.

However, if after your son's situation is analysed and he does not qualify for derivative citizenship, he could possibly face deportation for any or all of his criminal charges. The level of your son's mental illness can play a role in any deportation proceedings along with the seriousness of any criminal charges that he may have had in the past.

Relief from deportation

If your son is placed in removal (deportation) proceedings he may have several avenues of relief from deportation available to him. However, his available relief will depend on his criminal charges and what section of the Immigration & Nationality Act his criminal charges violate.

It is very important in your situation to consult with an experienced immigration attorney because filing for US citizenship with criminal charges, despite your son's mental illness, can place him in deportation. While he may have relief from deportation, he may not want to put himself through the rigors of a deportation trial with an uncertain future.

Regardless of your son's immigration future, you should try to receive services for your son in the form of a social worker who can counsel you about possible placement of your son in a group home facility or having a guardian appointed to him. His SSI income may be able to cover whatever expenses he may need for care. The level of services that will be offered to you and your son will also depend on the level of his mental illness and whether he is able to live in a group facility or if he will need one-on-one attention. You may also want to speak to your personal attorney about making a will or a trust to ensure your son's continued care.

Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises in Florida in the areas of immigration, family and corporate law. She is a mediator, arbitrator and special magistrate in Broward County, Florida. info@walkerhuntington.com or editor@gleanerjm.com.