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Frequently Asked Questions

Citizenship and Naturalization

What are the benefits and responsibilities of U.S. citizenship?

 

U.S. citizens are entitled to certain benefits, and may:

  •  vote in federal and state elections;
  • travel with a U.S. passport;
  • run for elected office where U.S. citizenship is required;
  • participate on a jury;
  • apply for federal jobs and certain law enforcement jobs;
  • secure certain federal and state benefits not available to noncitizens;
  • obtain U.S. citizenship for minor children born abroad; and
  • expand and expedite their ability to bring family members to the United States.[1]

 

Naturalized U.S. citizens also have certain responsibilities, and must:

  • renounce all prior allegiances to any other nation or sovereignty;
  • swear allegiance to the United States;
  • support and defend the U.S. Constitution and the laws of the United States; and
  • serve the United States when required.[2] 

 



[1]     U.S. Citizenship & Immigration Servs., 12 USCIS Policy Manual pt. A, ch. 2, available at https://www.uscis.gov/policy-manual/volume-12-part-a-chapter-2

[2]     12 USCIS Policy Manual pt. J, ch. 2, available at https://www.uscis.gov/policy-manual/volume12-part-j-chapter-2.

 

How do I become a U.S. citizen?

 

Generally, there are two paths to U.S. citizenship.  First, a person may become a U.S. citizen at birth.  The U.S. Constitution guarantees citizenship to virtually all persons born in the United States,[1] and Congress has provided for citizenship to certain persons born in Native American reservations within the United States,[2] Puerto Rico,[3] the former Canal Zone of Panama,[4] the U.S. Virgin Islands,[5] Guam,[6] and the Northern Mariana Islands.[7]  Congress has also provided for citizenship to certain persons born to a U.S. parent abroad. [8]  Second, a person may become a U.S. citizen through naturalization. [9]

 



[1]     U.S. Const. amend. XIV, § 1.

[2]     Section 301(a)–(b) of the Immigration and Nationality Act of 1952 (“INA”).

[3]     INA § 302.

[4]     INA § 303.

[5]     INA § 306.

[6]     INA § 307.

[7]     Section 303 of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, Pub. L. 94­–241, 90 Stat. 263, 266 (Mar. 24, 1976).

[8]     INA §§ 301(c), (g), 309(a); see also generally Sessions v. Morales-Santana, 582 U.S. ___, 137 S. Ct. 1678 (2017).

[9]     INA §§ 316, 101(a)(23).

 

Are persons born in American Samoa and Swains Island U.S. citizens?

 

No, persons born in American Samoa and Swains Island are considered noncitizen U.S. nationals. [1]  However, U.S. nationals are not considered “aliens” under the Immigration and Nationality Act of 1952 (“INA”), [2] and therefore are do not need to apply for an immigration visa or green card to live, work, and travel within the United States.[3]

 



[1]     INA §§ 308, 101(a)(29).

[2]     INA § 101(a)(3).

[3]     INA §§ 308, 101(a)(20), (29).

 

What is naturalization?

 

Naturalization is the process by which a noncitizen becomes a U.S. citizen after birth.  Generally, there are two ways to naturalize.  First, a noncitizen may affirmatively file a naturalization application, which USCIS will then adjudicate. [1]  Second, a noncitizen may naturalize by operation of law.[2]  In either circumstance, the noncitizen must comply with all statutory requirements for naturalization, including residence, physical presence, and good moral character.[3]  Ordinarily, these requirements vary based on the length of time that the noncitizen has had a green card and lived within the United States,[4] and whether she has served in the U.S. military.[5]

 



[1]     INA § 335.

[2]     INA § 320.

[3]     INA § 316.

[4]     INA §§ 316, 319.

[5]     INA § 328.

 

Can I lose U.S. citizenship?

 

Yes, a U.S. citizen may lose citizenship in two ways.  First, all U.S. citizens may voluntarily abandon their U.S. citizenship through expatriation.[1]  Because expatriation must be voluntary, the party claiming expatriation must establish, by a preponderance of the evidence, that the U.S. citizen intended to expatriate.[2]  Second, naturalized U.S. citizens may lose their U.S. citizenship through denaturalization. [3]  After being denaturalized, a person returns to the immigration status that she had before acquiring U.S. citizenship.[4]  Denaturalization requires a judicial order in federal court.[5] 

 



[1]     INA § 349(a).

[2]     INA § 349(b); Vance v. Terrazas, 444 U.S. 252, 270 (1980).

[3]     INA § 340.

[4]     12 USCIS Policy Manual pt. L, ch. 3, available at https://www.uscis.gov/policy-manual/volume-12-part-l-chapter-3.

[5]     INA § 340(a).

 

What are the grounds for expatriation?

 

Generally, there are seven potential grounds for expatriation:

  • naturalizing in a foreign state after turning 18 years old;
  • making an oath, affirmation, or formally declaring allegiance to a foreign state after turning 18 years old;
  • entering, or serving in, the armed forces of a foreign state, if:
  • those armed forces are engaged in hostilities against the United States; or
  • the U.S. citizen serves as a commissioned or non-commissioned officer;
  • accepting, serving in, or performing the duties of any office or employment under a foreign state after turning 18 years old, if:
  • the U.S. citizen has or acquires the citizenship of that foreign state; or
  • that office, post, or employment requires an oath, affirmation, or formal declaration of allegiance;
  • formally renouncing U.S. nationality in a foreign state before a diplomatic or consular officer of the United States;
  • formally renouncing U.S. nationality in the United States before a U.S. officer when the United States is at war, provided that the Attorney General approves the renunciation as not contrary to U.S. interests; and
  • committing any act of treason against, attempting to overthrow, or bearing arms against, the United States. [1]

 



[1]     INA § 349(a).

 

 

What are the grounds for denaturalization?

 

Denaturalization requires a judicial order in federal court, and may occur in either civil or criminal proceedings. [1]  In civil proceedings, there are generally two grounds for denaturalization.  First, a person may be denaturalized if she procured naturalization when she was ineligible to naturalize in the first place, even if she is innocent of any willful deception or misrepresentation. [2]  Additionally, a person may be denaturalized if she is or becomes a member, or affiliates with, the Communist Party, another totalitarian party, or a terrorist organization in the ten years before filing the naturalization application, or the five years after naturalization. [3]  Second, a person may be denaturalized if she concealed a material fact or made a willful misrepresentation in the naturalization application or interview.[4]  In civil proceedings, the government’s burden of proof is clear and convincing evidence. [5]

 

In criminal proceedings, a person may be denaturalized if the government establishes, beyond a reasonable doubt, that she procured naturalization unlawfully for herself or anyone else.[6]

 



[1] 12 USCIS Policy Manual pt. L, ch. 1, available at https://www.uscis.gov/policy-manual/volume-12-part-l-chapter-1.

[2] 12 USCIS Policy Manual pt. L, ch. 2, available at https://www.uscis.gov/policy-manual/volume-12-part-l-chapter-2.

[3] 12 USCIS Policy Manual pt. L, ch. 2, available at https://www.uscis.gov/policy-manual/volume-12-part-l-chapter-2.

[4] 12 USCIS Policy Manual pt. L, ch. 2, available at https://www.uscis.gov/policy-manual/volume-12-part-l-chapter-2.

[5] 12 USCIS Policy Manual pt. L, ch. 1, available at https://www.uscis.gov/policy-manual/volume-12-part-l-chapter-1.

[6] 12 USCIS Policy Manual pt. L, ch. 1, available at https://www.uscis.gov/policy-manual/volume-12-part-l-chapter-1.

 


Lawful Permanent Resident Status (“Green Cards”)

What is a green card?

 

A green card is an official document that is given to a noncitizen with Lawful Permanent Resident (“LPR”) status. [1]  LPR status enables a person to live, work, and travel within the United States indefinitely. [2]

 



[1]     See INA § 101(a)(20).

[2]     See INA § 101(a)(20).

 

How do I obtain a green card?

 

Generally, there are five ways to obtain a green card: (1) family,[1] (2) employment,[2] (3) investments,[3] (4) the diversity lottery,[4] and (5) humanitarian protections.  In addition to establishing a qualifying basis for a green card, an applicant must also establish that she is not subject to, or is otherwise exempt from, any of the grounds for inadmissibility.[5]

 



[1]     INA § 203(a).

[2]     INA § 203(b)(1)–(3).

[3]     INA § 203(b)(5).

[4]     INA § 203(c).

[5]     See INA § 212(a).

 

What family-based green cards are available?

 

Generally, family-based green cards are available to close family members of U.S. citizens and LPRs, though only “immediate relatives” of U.S. citizens are exempt from annual per-country limits.  Immediate relatives include (1) a spouse of a U.S. citizen; (2) an unmarried child under 21 years old of a U.S. citizen; and (3) a parent of a U.S. citizen over 21 years old.[1]

 

Other family members, however, must contend with annual per-country limits that often involve lengthy wait lists.  Outside of immediate relatives, there are five family-based preference categories.  First, the F1 preference category includes unmarried children over 21 years old of U.S. citizens.[2]  Second, the F2A category includes spouses and unmarried children under 21 years old of LPRs. [3]  Third, the F2B category includes unmarried children over 21 years old of LPRs. [4]  Fourth, the F3 category includes married children of U.S. citizens. [5]  Finally, the F4 category includes siblings of U.S. citizens over 21 years old. [6]

 



[1]     22 C.F.R. § 42.21(a).

[2]     INA § 203(a)(1).

[3]     INA § 203(a)(2)(A).

[4]     INA § 203(a)(2)(B).

[5]     INA § 203(a)(3).

[6]     INA § 203(a)(4).

 

What employment-based green cards are available?

 

Generally, there are three employment-based preference categories.  First, the EB-1 preference category, otherwise known as “priority workers,” includes (1) noncitizens with “extraordinary ability” in the sciences, arts, education, business, or athletics; [1] (2) outstanding professors and researchers;[2] and (3) certain multinational executives and managers.[3]  Second, the EB-2 category includes (1) professionals with advanced degrees; [4] and (2) noncitizens with “exceptional ability” in the sciences, arts, or business. [5]  Finally, the EB-3 category includes (1) skilled workers with at least two years of experience; [6] (2) entry-level professionals with bachelor’s degrees;[7] and (3) unskilled workers.[8]  All employment-based green cards are subject to an annual limit.[9]

 



[1]     INA § 203(b)(1)(A).

[2]     INA § 203(b)(1)(B).

[3]     INA § 203(b)(1)(C).

[4]     INA § 203(b)(2).

[5]     INA § 203(b)(2).

[6]     INA § 203(b)(3)(A)(i).

[7]     INA § 203(b)(3)(A)(ii).

[8]     INA § 203(b)(3)(A)(iii).

[9]     INA § 203.

 

What investment-based green cards are available?

 

Generally, there are two ways to obtain an investment-based green card under the EB-5 preference category.  First, a noncitizen may invest at least $1,000,000 in a U.S. enterprise that creates full-time employment for at least ten lawful U.S. workers, not including the investing noncitizen’s spouse or children.[1]  Full-time employment is defined as 35 hours per week.[2]  The Trump administration has proposed increasing the minimum investment to $1,800,000, but this rule has not been finalized yet.[3]  Second, a noncitizen may invest at least $500,000 in an approved “regional center” that promotes economic development in a targeted employment area (“TEA”).[4]  The Trump administration has proposed increasing the minimum investment to $1,350,000, but this rule has not been finalized yet.[5]

 



[1]     INA § 203(b)(5)(A), (C)(i).

[2]     INA § 203(b)(5)(D).

[3]     82 Fed. Reg. 4766 (Jan. 13, 2017).

[4]     INA § 203(b)(5)(C)(ii); 8 C.F.R. § 204.6(e)–(f).

[5]     82 Fed. Reg. 4766 (Jan. 13, 2017).

 

What is the diversity lottery?

 

Each year, the diversity lottery provides 50,000 green cards to nationals of countries that have historically sent relatively few immigrants to the United States.[1]  Noncitizens may apply for the diversity lottery from either their home countries or within the United States.  Importantly, the State Department approves more than twice as many applicants than the number of available diversity visas.  Thus, successful applicants must act quickly to secure their green cards after approval.  Generally, successful applicants outside the United States must process their visa at the consulate in their home country, while applicants within the United States may adjust status here.[2]

 



[1]     INA § 203(c); 81 Fed. Reg. 63841 (Sept. 16, 2016).

[2]     INA §§ 221, 245.

 

 


Humanitarian Protections

What humanitarian protections are available?

 

There are several humanitarian protections available to immigrants fleeing violence, abuse, and neglect.  These protections include:

 

  • the U.S. Refugee Admissions Program (“USRAP”);[1]
  • asylum,[2] withholding of removal,[3] and the Convention Against Torture (“CAT”);[4]
  • the Violence Against Women Act of 1994 (“VAWA”);[5]
  • T Visas;[6]
  • U Visas;[7]
  • Temporary Protected Status (“TPS”);[8]
  • Deferred Enforced Departure (“DED”);[9] and
  • Special Immigrant Juvenile (“SIJ”) Status.[10]

 



[1]     See Refugee Act of 1980, Pub L. 96–212, 94 Stat. 102 (1980); INA § 412.

[2]     INA § 208(a)(1), (b)(1).

[3]     INA § 241(b)(3).

[4]     The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), Dec. 10, 1984, S. Treaty Doc. No. 100–20 (1988); 8 C.F.R. § 208.18 (2018).

[5]     Sections 40701–03 of the Violence Against Women Act of 1994 (“VAWA”), P.L. 103–322 (1994); INA §§ 204(a), 216(c).

[6]     Victims of Trafficking and Violence Protection Act of 2000, Pub L. 106­–386, 114 Stat. 1464 (2000); INA § 101(a)(15)(T); 8 C.F.R. § 214.11; see also 22 U.S.C. § 7102(1), (3), (9) (2018); 18 U.S.C. §§ 1589(c)(1), (2), 1591(e)(1), (4).

[7]     Victims of Trafficking and Violence Protection Act of 2000, Pub L. 106­–386, 114 Stat. 1464 (2000); INA § 101(a)(15)(U).

[8]     INA § 244(c).

[9]     See U.S. Library of Congress, Congressional Research Service, Temporary Protected Status: Overview and Current Issues, by Jill H. Wilson, RS20844, 3–4 (Mar. 29, 2019).

[10]    INA § 101(a)(27)(J).

 

 

What is the U.S. Refugee Admissions Program (“USRAP”)?

 

The U.S. Refugee Admissions Program provides a path to a green card to refugees.[1]  To establish refugee status, an applicant generally must establish (1) past persecution or a well-founded fear of persecution; (2) that is “on account of” race, nationality, religion, political opinion, or membership in a particular social group; (3) that the applicant’s home government is “unable or unwilling to control” the persecutors; (4) that no statutory or regulatory bar precludes her claim; and (5) that the applicant is outside both her country of nationality and the United States.[2]  There is a limit on the number of refugees who may enter the United States annually. [3]

 



[1]     See Refugee Act of 1980, Pub L. 96–212, 94 Stat. 102; INA § 412.

[2]     INA § 101(a)(42).

[3]     INA § 207(a).

 

What is asylum?

 

Asylum is a grant of refugee status to persons already within the United States.[1]  Thus, persons outside the United States cannot apply for asylum.[2]  Unlike the refugee program, there is no limit on the number of people who may be granted asylum annually. [3]  Importantly, asylum is a discretionary form of relief.[4]

 



[1]     INA § 208(a)(1), (b)(1).

[2]     INA § 208(a)(1).

[3]     Compare INA § 208; with § 207(a).

[4]     8 C.F.R. § 1208.13(b)(1)(i), (iii); see also Matter of A-B-, 27 I&N Dec. 316, 345 & n.12 (AG 2018).

 

What is withholding of removal?

 

Under the INA, withholding of removal is a form of relief that prevents the government from deporting a noncitizen to a country where her life or freedom would likely be threatened on account of race, nationality, religion, political opinion, or membership in a particular social group. [1]  Like asylum, withholding of removal is available only to persons already within the United States, [2] and provides recipients the ability to apply for employment authorization.[3]  Unlike asylum, however, withholding of removal does not (1) provide relief to eligible family members in the United States; (2) provide the ability to petition to bring eligible family members to the United States; or (3) lead to a green card or citizenship.[4]  Importantly, withholding of removal is a mandatory form of relief, and immigration courts have no discretion to deny an otherwise valid claim.[5]

 



[1]     INA § 241(b)(3).

[2]     INA § 241(a)(1), (b)(3).

[3]     8 C.F.R. § 274a.12(a)(10).

[4]     See U.S. Dep’t of Justice, Executive Office for Immigration Review, Asylum and Withholding of Removal Relief Convention Against Torture Protections (Jan. 15, 2009),  https://www.justice.gov/sites/default/files/eoir/legacy/2009/01/23/AsylumWithholdingCATProtections.pdf.

[5]     Revencu v. Sessions, 895 F.3d 396, 402 (5th Cir. 2018).

 

What is the Convention Against Torture?

 

The Convention Against Torture (“CAT”) is an international human rights treaty that has been codified into U.S. law. [1]  Unlike asylum and withholding of removal, eligibility for CAT relief “need not be based on race, religion, nationality, membership in a particular social group, or political opinion.”[2]  Instead, an applicant must establish (1) that “it is more likely than not that he or she would be tortured if removed”; and (2) that the torture would be “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” [3]  A successful CAT applicant is entitled to either withholding of removal or deferral of removal. [4]  Importantly, CAT is a mandatory form of relief, and immigration courts have no discretion to deny an otherwise valid claim.[5]

 



[1]     8 C.F.R. § 208.18.

[2]     Garcia v. Holder, 756 F.3d 885, 891 (5th Cir. 2014).

[3]     8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1); Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 354 (5th Cir. 2002); Matter of W-G-R-, 26 I&N Dec. 208, 226 (BIA 2014).

[4]     8 C.F.R. § 1208.16(c)(4).

[5]     8 C.F.R. § 1208.16(c)(4).

 

What is the Violence Against Women Act of 1994 (“VAWA”)?

 

The Violence Against Women Act of 1994 (“VAWA”) is a federal statute that provides a path to a green card to (1) a victim of battery or extreme cruelty (2) committed by (a) a U.S. citizen or LPR spouse or former spouse; (b) a U.S. citizen or LPR parent; or (c) a U.S. citizen son or daughter. [1]  An applicant must also establish good moral character.[2]  Despite the statute’s misleading title, VAWA relief is not limited to women, and may be available to men and children.[3] 

 



[1]     VAWA §§ 40701–03; INA §§ 204(a), 216(c).

[2]     U.S. Citizenship & Immigration Servs., USCIS Policy Memorandum PM–602–0046, Eligibility to Self-Petition as a Battered or Abused Parent of a U.S. Citizen (Aug. 30, 2011).

[3]     See INA § 204(a).

 

What is a T Visa?

 

The Victims of Trafficking and Violence Protection Act of 2000 is a federal statute that provides a path to a green card to (1) a victim of a severe form of human trafficking; (2) who is in the United States, American Samoa, the Northern Mariana Islands, or a port of entry (“POE”) due to trafficking; (3) who complies with any reasonable request from a law enforcement agency for assistance in the investigation or prosecution of that trafficking, unless the victim is under 18 years old or otherwise unable to cooperate due to physical or psychological trauma; (4) who demonstrates that she would suffer extreme hardship involving unusual and severe harm if removed from the United States; and (5) who is otherwise admissible to the United States.[1] 

 

Additionally, an applicant may be able to bring qualifying family members into the United States, including her (1) spouse; (2) unmarried children under 21 years old; (3) parents; and (4) unmarried siblings under 18 years old.[2]

 



[1]     Victims of Trafficking and Violence Protection Act of 2000, Pub L. 106­–386, 114 Stat. 1464; INA § 101(a)(15)(T); 8 C.F.R. § 214.11; see also 22 U.S.C. § 7102(1), (3), (9); 18 U.S.C. §§ 1589(c)(1), (2), 1591(e)(1), (4).

[2]     INA § 101(a)(15)(T)(ii).

 

What is a U Visa?

 

The Victims of Trafficking and Violence Protection Act of 2000 is a federal statute that provides a path to a green card to (1) a victim of qualifying criminal activity; (2) who has suffered substantial physical or mental abuse as a result of that criminal activity; (3) who has information about that criminal activity; (4) who is or is likely to be helpful to law enforcement in the investigation and prosecution of the crime; (5) who is otherwise admissible to the United States; and (6) where the crime occurred within the United States or otherwise violated U.S. laws.[1]

 



[1]     Victims of Trafficking and Violence Protection Act of 2000, Pub L. 106–386, 114 Stat. 1464; INA § 101(a)(15)(U).

 

What is Temporary Protected Status (“TPS”)?

 

Temporary Protected Status (“TPS”) offers certain nationals from designated countries temporary protection from removal, employment authorization, and potentially travel authorization.[1]  Currently, countries designated for TPS include El Salvador,[2] Haiti,[3] Honduras,[4] Nepal,[5] Nicaragua,[6] Somalia,[7] Sudan,[8] South Sudan,[9] Syria,[10] and Yemen.[11]  Generally, an applicant must (1) be a national of a designated country; (2) file during the initial registration or reregistration period, unless an exemption for late filing applies; (3) have been continuously physically present in the United States since the effective date of the most recent designation; (4) have been continuously residing in the United States since the specified date; and (5) otherwise be admissible.[12]

 



[1]     INA § 244.

[2]     83 Fed. Reg. 2654 (Jan. 18, 2018); 83 Fed. Reg. 54764 (Oct. 31, 2018); 84 Fed. Reg. 7103 (Mar. 1, 2019); Ramos v. Nielsen, 336 F. Supp. 3d 1075, 1108–09 (N.D. Cal. 2018).

[3]     83 Fed. Reg. 2648 (Jan. 18, 2018); 83 Fed. Reg. 54764; 84 Fed. Reg. 7103; Ramos, 336 F. Supp. 3d at 1108–09.

[4]     83 Fed. Reg. 26074 (June 5, 2018); Bhattarai v. Nielsen, No. 3:19­–cv–00731 (N.D. Cal. Mar. 12, 2019); Ramos, 336 F. Supp. 3d at 1108–09.

[5]     81 Fed. Reg. 74470 (Oct. 26, 2016); Bhattarai, No. 3:19–cv–00731; Ramos, 336 F. Supp. 3d at 1108–09.

[6]     82 Fed. Reg. 59636 (Dec. 15, 2017); 83 Fed. Reg. 54764; 84 Fed. Reg. 7103; Ramos, 336 F. Supp. 3d at 1108–09.

[7]     83 Fed. Reg. 43965 (Aug. 29, 2018).

[8]     82 Fed. Reg. 47228 (Oct. 11, 2017); 83 Fed. Reg. 54764; 84 Fed. Reg. 7103; Ramos, 336 F. Supp. 3d at 1108–09.

[9]     84 Fed. Reg. 13688 (Apr. 5, 2019).

[10]    83 Fed. Reg. 9329 (Mar. 5, 2018).

[11]    83 Fed. Reg. 40307 (Aug. 14, 2018).

[12]    INA § 244(c).

 

What is Deferred Enforced Departure (“DED”)?

 

Deferred Enforced Departure (“DED”) is an inherent presidential power that offers certain nationals from designated countries temporary protection from removal, employment authorization, and potentially travel authorization.[1]  Currently, Liberia is the only country designated for DED, and this designation is scheduled to expire on March 30, 2020.[2]  DED is not an immigration status, and only provides temporary relief from removal.

 



[1]     See Congressional Research Service, Temporary Protected Status: Overview and Current Issues, RS20844, 3–4.

[2]     The White House (President Trump), Presidential Memorandum on Extension of Deferred Enforced Departure for Liberians (Mar. 28, 2019), available at https://www.whitehouse.gov/presidential-actions/memorandum-extension-deferredenforced-departure-liberians/

 

What is Special Immigrant Juvenile (“SIJ”) status?

 

Special Immigrant Juvenile (“SIJ”) status is an immigration status that provides a path to a green card to (1) a person under the age of 21; (2) who has been declared dependent, or legally committed to, a juvenile court within the United States or a state agency; and (3) whose reunification with either parent is not viable due to abuse, neglect, abandonment, or a similar basis under state law.[1]  Unlike many other forms of immigration relief, SIJ status requires an applicant to obtain certain findings in a state court before filing an application for immigration relief with USCIS.

 



[1]     INA § 101(a)(27)(J).

 

 

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