Is someone “literate” if he or she is able to pass the naturalization exam?

Last week I had a new situation, at least new for me.  I was representing a native Spanish speaker.  I had conducted all of our interviews through an interpreter.  He understood some basic English but could not read or write ;  he was also illiterate  in Spanish.   He is, however, a naturalized US citizen and had passed his citizenship exam in English.   I was going to argue that my client was illiterate and that in combination of his closely approaching advanced age, and limitation to light work, he would be considered disabled pursuant to Rule 202.09  of the “grids” (Appendix 2 to Subpart P of Part 404 , Medical-Vocational Guidelines).     I was worried that the ALJ would find him literate because he passed his citizenship exam.  I know the naturalization exam is not a literacy test, but it got me thinking as to whether there was any California case law on the topic.  I was surprised to some California law on point.

In an unpublished case, Lopez v. Astrue, CV 09-8136-MLG, United States District Court, C.D. California, Western Division, July 1, 2010, the Judge asked the vocational expert to assume the following concerning the claimant’s language ability,

I am going to say that since he is a naturalized citizen, we’re going to presume that he has adequate ability in English language to communicate and to read and write at least well enough to get along at a basic level in our society.

Based on that hypothetical, the Vocational Expert identified two jobs in the national economy that the claimant could perform:  Surveillance System Monitor (DOT 379.367-010) and Information Clerk (DOT 237.367-018).  In supporting the judge’s decision, the government argued on appeal that, “Plaintiff must have an adequate ability to communicate in English because he has lived in the United States for 28 years, is a naturalized citizen, and testified that he writes, understands and speaks basic English.”

The Court did not accept the argument that naturalization = literacy.  The Court held that the ability to speak basic English was not sufficient to show that the claimant had the ability to perform those jobs, both of which required Level Three Language Development skills.  Although the case is not published,  it is a useful to see how a federal judge dealt with the issue.

The Court though cited to a published case  on literacy, ” Pinto v. Massanari, 249.F.3d, 840, 843 (9th Cir. 2001).  In Pinto, the vocational expert testified that the claimant, who was illiterate  in English, could perform her past relevant work as a hand packager, which required Language Level 1, as it was generally performed in the national economy. Id. The Ninth Circuit found that the ALJ “although noting Pinto’s limitation in both his findings of fact and hypothetical to the vocational expert, failed to explain how this limitation related to his finding that Pinto could perform her past relevant work as generally performed.” Id. at 847.  With this particular claimant, it appeared that her English was below Level 1 and the Court held that the ALJ must explain how this claimant could perform a job with a language level less than what she had.

Naturalization applicants must prove a basic level of English, not literacy, in order to pass the exam.  Passing the exam means an applicant has demonstrated a basic proficiency in English, nothing more.  An ALJ cannot assume a level of English simply because an applicant has passed the citizenship exam.  Moreover, if a an individual is illiterate, the judge has to explain how the claimant is able to perform the job with the language level that the claimant has.  While no one wants to admit to being illiterate, a finding of illiteracy or an inability to communicate in English  may make or break the case.  It did in mine.  We won.

Spouses and children of members of the U.S. Armed forces may complete naturalization abroad

On October 2, 2008, USCIS released fact sheets on the procedures for spouses and children of members of the U.S. Armed forces to apply for naturalization abroad.  While spouses and children must still comply with the laws relating to eligibility for naturalization, they may now apply for it abroad.  According to the new USCIS guidance, they must meet certain requirements to prove that they are stationed abroad:

1.  A spouse of a member of the U.S. Armed forces must have official military orders authorizing him or her to accompany their spouse abroad and must accompany their spouse abroad as provided in the orders.

2.  A minor child must also have official orders allowing him or her to accompany the parent abroad.

An applicant may consider time spent abroad on official orders as time meeting the physical presence requirements of being in the United States.  A spouse who wishes to apply for naturalization in three years based on his or her marriage to an American citizen still has to prove marital union but USCIS understands that involuntary separations such as those due to deployment, do not prevent naturalization.

CIS has provided a list of the required documents in their fact sheets available on their website.

It is not mandatory that a spouse or child apply abroad; is is an option they may choose.  Unfortunately the USCIS guidance does not explain where the interview will take place.  It is clear that the whole process may be done abroad, but the notice does not indicate where the applicant will have to go for an interview.  I would assume it would be closest USCIS office abroad.  This may or may not be so convenient for the applicant.  The information provided also does not indicate what would happen to the application if the U.S. Armed force spouse/parent transferred to another country or left the military during this process.  Presumably the application would be transferred to the USCIS district office closest to the applicant’s new residence.

While this new process makes it easier for those residing abroad to apply for naturalization, I would not advise an applicant to go through this unless he or she was planning to be abroad for at least a year.  I imagine there will be delays if the applicant transfers locations or returns to the U.S. and tries to tansfer the application back.

Is the new naturalization (cititzenship) exam easier than the old one?

On October 1, 2008, applicants for naturalization (citizenship) will have the option of taking the current English and civics tests or the new one, now called the “redesigned test.”  USCIS has posted a chart on their website indicating when people will be required to switch to the new exam.  Essentially, if an applicant filed before October 1, 2008, he or she has the option of taking the new test or the current one.  Any applicant who files after October 1, 2008, must take the new exam.  The chart is reproduced here:

 

Date Form N-400 Filed* Date of Initial Exam Test to be Taken If Applicant Fails Initial Exam, Re-test to be Taken
Before October 1, 2008 Before October 1, 2008 Current Test Current Test
Before October 1, 2008 On or After October 1, 2008 up until October 1, 2009 Applicant’s Choice of -Current Test or -Redesigned (New) Test The same version of the test as the one taken during the initial examination
On or After October 1, 2008 On or After October 1, 2008 Redesigned (New) Test Redesigned (New) Test
At Any Time (i.e. Before, On or After October 1, 2008) On or After October 1, 2009 Redesigned (New) Test Redesigned (New) Test

 

 

Is the new test harder or easier than the current one?  I do not think there is much of a difference.  USCIS gives applicants the English vocabulary used on the reading and writing exam so applicants may study it ahead of time.  Applicants will have to memorize the words if they do not already know them. 

 

The questions for the civics portion of the exam include some new questions but many of the old questions are there.  You may find the questions here:

 

http://www.uscis.gov/files/nativedocuments/100q.pdf

 

It is still a memorization test for those who are not already familiar with U.S. history and civics.  An applicant must study all 100 questions and will be asked 10 of them.  He or she will need to get six questions correct in order to pass.  Thus, the scoring procedure remains unchanged from the current exam.  The sample questions and answers are different in that now several possible correct answers are presented to a question.  Applicants need only know one of the answers in order to get the question correct.  Some of the questions are refreshing to see.  For instance, there is now a question about women on the exam:

 

Q:        What did Susan B. Anthony do? 

A:         fought for women’s rights; fought for civil rights.

 

 

There is also now a more detailed question about Native Americans:

 

Q:        Name one American tribe in the United States

A:        [USCIS Officers will be supplied with a list of federally recognized American Indian tribes.]

Cherokee

Navajo

Sioux

Chippewa

Choctaw

Pueblo

Apache

Iroquois

Creek

Blackfeet

Seminole

Cheyenne

Arawak

Shawnee

Mohegan

Huron

Oneida

Lakota

Crow

Teton

Hopi

Inuit

 

The test is certainly more balanced that it was before.  The intention of the exam is for people to learn American history and civics and I believe the test accomplished that goal.  For those people who wish to or can only do rote memorization, they will be able to do it and still pass the exam.