Aggravated Felonies

(C)  Derivative Citizenship.  The person may have become a United States citizen automatically, without applying for this status or even being aware of it, if s/he was born outside the United States, but obtained “derivative” U.S. citizenship during childhood through naturalization of parent(s) as United States citizens when the noncitizen was an unmarried Lawful Permanent Resident of the United States who had not yet reached the age of 16, 18, or 21, depending on the law in effect at the time of the parent(s)’ naturalization. [11]  Courts will entertain claims of derivative citizenship.[12]

[11] See INA § § 320-321, 8 U.S.C. § § 1430-1431.  The formula for determining the citizenship of an unmarried lawful permanent resident minor one or both of whose parents both naturalized prior to his or her 18th birthday is described in I. Kurzban, Kurzban’s Immigration Law Sourcebook 775 (2004); Swanson, Challenging Alienage – Is Your Client a U.S. Citizen, in ILRC Appendix 9-A (2004).

[12] Morgan v. Att’y Gen., 432 F.3d 226 (3d Cir. Dec. 21, 2005) (petition for review of derivative citizenship claim under 8 U.S.C. § 1432(a)(3) denied on merits, because petitioner cannot establish that her parents were legally separated at the time her mother was naturalized); United States v. Guerrier, 428 F.3d 76 (1st Cir. Nov. 8, 2005) (defendant’s claim of error in the exclusion of evidence regarding his claim of derivative United States citizenship without merit); Kajtazi v. INS, ___ F.Supp.3d ___, 2005 WL 2621971 (D.N.J. Oct. 14, 2005) (federal habeas petition granted under 28 U.S.C. § 2241 challenging an immigration detainer on the ground that petitioner acquired derivative United States citizenship on July 31, 1985, when his father naturalized).