(E)  The Child Citizenship Act of 2000 (“CCA”).  The CCA, effective February 27, 2001, further broadened the law concerning derivative citizenship.[17]  A child automatically becomes a U.S. citizen if one of the child’s parents is a U.S. citizen by birth or naturalizes before the child’s 18th birthday, the child is a lawful permanent resident whose 18th birthday has not yet occurred, and the U.S. citizen parent has lawful and physical custody of the child.  Prior law required either both parents, or the parent with sole lawful custody, to be a naturalized citizen.  This change permits a child to become a citizen based on one parent’s U.S. citizenship, even if that parent does not have sole lawful custody, and also permits a child to become a U.S. citizen based on a parent who is a U.S. citizen by birth.[18]

The CCA also provides that foreign-born adopted children who meet the adoption definition of “child” automatically become U.S. citizens at the moment that they gain lawful permanent resident status on petition of their parents, as long as this occurs before their 18th birthday.[19]  In other words, the adopted child receives citizenship as soon as s/he receives permanent residency, without having to become a lawful permanent resident first and then apply for naturalization.  The CCA does not, however, apply to step-children.[20]

 

The CCA is not retroactive, and its benefits do not apply to persons who were at least 18 years of age as of the Act’s effective date, February 27, 2001.[21]  Thus, for example, a foreign-born person who was adopted by a U.S. citizen and who turned 18 in 1999 cannot claim naturalization under the Act.  As of February 27, 2001, however, the Act automatically conferred citizenship on approximately 75,000 foreign-born adoptees who were under 18 at the date of enactment.

[17] The law was enacted October 30, 2000, but the naturalization provisions took effect 120 days later, on February 27, 2001.  Child Citizenship Act of 2000, Pub.L. No. 106-395, 114 Stat. 1631 (effective date § 104).

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

[19]  For a person to qualify as a “child” by adoption for immigration purposes, the adoption must have been finalized before the child’s 16th birthday and the child must have lived in the parent’s lawful custody for two years, at any time.  INA § 101(b)(2), 8 U.S.C. § 1101(b)(2).

[20] This is based on the definition of “child” applicable in the CCA (under INA § 101(c)(1), 8 U.S.C. § 1101(c)(1)), which is different from the definition of the same term for other immigration purposes (under INA § 101(b)(2), 8 U.S.C. § 1101(b)(2)).

[21]Matter of Rodriguez-Tejedor, 23 I. & N. Dec. 153 (BIA 2001); see also Nehme v. INS, 252 F.3d 415 (5th Cir. 2001); INS interim rule implementing Title I of the CCA in 66 Fed. Reg. 32138-47 (June 13, 2001).

Second Circuit

CITIZENSHIP - ACQUIRED CITIZENSHIP - BIOLOGICAL PARENTAGE IS NECESSARY TO A CLAIM TO UNITED STATES CITIZENSHIP UNDER FORMER INA 301(a)(3)
Colaianni v. INS, 490 F.3d 185 (2d Cir. Jun. 15, 2007) (per curiam) (petition for review denied on basis that noncitizen's claim to be United States citizen, advanced as a defense in removal proceedings, was invalid, since biological parentage is necessary for a person to claim citizenship under former INA 301(a)(3) because of the plain language of the statute, which refers to persons "born ... of parents both of whom are citizens of the United States" and pertains only to the acquisition of citizenship "at birth."), citing Marquez-Marquez v. Gonzales, 455 F.3d 548, 556-57 (5th Cir.2006) (rejecting the same argument based upon a plain reading of the statute).

Lower Courts of Second Circuit

CITIZENSHIP - UNCONSTITUTIONAL TO CONVICT OF ILLEGAL REENTRY
Perez v. United States, ___ F.Supp. ___, ___ (D.N.Y. 2006) ("[B]ecause Petitioner has established that he is a United States citizen, it is a constitutional violation to convict him for reentering the United States. As a result, the Court finds that Petitioners conviction and, in turn, his sentence should be vacated pursuant to 28 U.S.C. 2255.")

Fifth Circuit

CITIZENSHIP - BIRTH IN UNITED STATES
Lopez v. Holder, ___ F.3d ___, 2009 WL 682991 (5th Cir. Mar. 17, 2009) (without consent of petitioners, magistrate judge did not have jurisdiction to try citizenship case based on birth).

Other

ILLEGAL REMOVAL OF UNITED STATES CITIZENS
Occasionally, persons are placed in removal proceedings, and even removed, even though they are United States citizens. E.g., Diaz v. Reno, 40 F.Supp. 2d 984 (N.D. Ill.1999) (U.S. citizen who had been ordered summarily excluded from the United States mounts several claims related to summary exclusion after returning to the United States); Fierro v. INS, 66 F. Supp. 2d 229 (D. Mass. 1999) (court enjoins removal of individual pend-ing resolution of claim to United States citizenship).

CITIZENSHIP - FOUNDLINGS
INA 301(f) allows "a person of unknown parentage found in the United States while under the age of five years" to be considered a citizen of the United States unless the person is "shown, prior to his attaining the age of twenty-one years, not to have been born in the United States."

CITIZENSHIP - PROOF OF - CENSUS INFORMATION
United States Citizenship may be sometimes proven by showing a child appeared on a U.S. census in the United States shortly after birth. Contact US Census Bureau. Thanks to Mary Lee Eldridge