David Sebastian skipped his naturalization ceremony, putting his citizenship in question. A court's decision in his case could affect the future of thousands who did the same.

BY ALFONSO CHARDY

On March 11, 1988, David Sebastian appeared before a citizenship examiner at the immigration building in Miami. She asked him questions about his naturalization application, his moral character and his knowledge of American history and civics.

At the end of the interview, Sebastian picked up a pen and signed a piece of paper containing the oath of allegiance to the United States.

That 16-year-old document is now at the center of a legal struggle that could determine not only whether Sebastian, 38, a Cuban exile who works as a paralegal, is an American -- but whether thousands of other foreign nationals who signed the oath but missed naturalization ceremonies also are citizens or nationals.

''It could have a substantial impact on a large number of citizenship cases,'' said Ira Kurzban, a veteran Miami immigration attorney who is considered an authority on immigration law.

On Friday, the Eleventh U.S. Circuit Court of Appeals in Atlanta will hear Sebastian's argument that he became a citizen the moment he signed the oath.

The immigration service contends that signing the oath was a preliminary step and that Sebastian remains a foreigner, thus deportable, because he failed to complete his naturalization process, missed citizenship ceremonies, didn't correctly take the oath and became a convicted felon.

Kurzban said it is the first time the Eleventh Circuit, which covers Florida, is hearing this issue -- though appeals courts have ruled on other citizenship claims by foreign nationals. Most have lost.

Sebastian's premise is simple: he is a citizen because he signed the oath.

Government attorneys cite case law that seems to contradict Sebastian's contention that he became a citizen by simply signing the oath.

The government's brief, for example, says that two circuit courts elsewhere in the country and the Board of Immigration Appeals have ruled that a foreigner can only become a citizen when he is naturalized.

But Sebastian claims the opinions do not seem to rule out the possibility that naturalization can occur without a naturalization ceremony.

A CHANGE IN THE LAW

Government attorneys, however, interpret naturalization to mean a completed process that includes a ceremony.

Existing law stipulates that the oath be administered in a ``public ceremony.''

But the law in effect in 1988, when Sebastian signed the oath, required that the oath be taken in open court -- though it did not completely close the door to the possibility that citizenship could be conferred by court-designated officials such as citizenship examiners.

LEGAL BUMPS IN ROAD

Sebastian's case is full of complications.

Here are two:

• Sebastian is now a felon, convicted of selling stolen marine equipment. Government attorneys say that conviction alone makes him ineligible for citizenship and deportable. Sebastian says the conviction is irrelevant because it happened after he became a citizen, thus shielding him from deportation.

• Sebastian missed two naturalization ceremonies. Government attorneys say his failure to appear is yet another bar to his quest for citizenship. Sebastian says he missed the ceremonies because invitations were sent to the wrong address -- a fact the immigration service concedes.

DEPORTATION FEARS

Sebastian says his heart and soul are American.

''I've been living in the United States for well over 36 years and this is where I've grown up,'' said Sebastian, who works in the law firm of attorney Eduardo Soto.

``If there is a lifting of the trade embargo on Cuba, say in the next couple of years, I will be shipped backed to Cuba. That's why this case is so important to me.''

Immigration officers declined to comment. But court files highlight their stance: ``The record establishes that Sebastian never completed his naturalization proceedings and therefore never became a naturalized citizen.''

In a sworn statement, Meryl Finnerty, the Miami immigration examiner who handled Sebastian's case, explained why he is not a citizen.

''I never administered the oath of allegiance to naturalize David Sebastian,'' Finnerty said.

''I know this specifically because a designated naturalization examiner operating under the laws and regulations existing on 3/11/88 had only the authority to make a recommendation to the court to either grant or deny a petition for naturalization,'' he said.

A PIVOTAL CASE

Starting in 1990, the agency then known as the U.S. Immigration and Naturalization Service began sharing naturalization duties with federal courts. Before that, courts handled naturalizations.

Attorney Soto says the case will benefit others -- if his client wins.

''It's going to allow other individuals who, placed in a situation where they are determined not to be eligible for their citizenship, will be able to now obtain citizenship in this country,'' Soto said. ``Their cases would be reopened.''