Tooby's California Post-Conviction Relief for Immigrants

A 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.[53]  Derivative citizenship may also be obtained, in some cases, though adoption.[54]  Courts must entertain claims of derivative citizenship.[55]

The most recent change to the derivative citizenship rules, passed as the Child Citizenship Act of 2000 (“CCA”), further broadened the law concerning derivative citizenship.[56]  Under the CCA, a child automatically becomes a U.S. citizen if one of the child’s parents 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 (still applicable to many persons alive today) required either both parents, or the parent with sole lawful custody,[57] to be a naturalized citizen.  The new law permits a child to become a citizen based on one parent’s naturalization to 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.[58]

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.[59]  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.[60]

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.[61]  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.

[53] 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 1110 (2006).

[54] See, e.g., Brue v. Gonzales, 464 F.3d 1227 (10th Cir. Oct. 6, 2006) (rejecting claim that because noncitizen met the statutory requirements for naturalization when his adoptive parents tendered an application on his behalf, he automatically acquired citizenship and was not subject to removal); Marquez-Marquez v. Gonzales, 455 F.3d 548 (5th Cir. Jul. 6, 2006) (under the undisputed facts Moreno did not automatically obtain U.S. citizenship pursuant to INA § 301(g), 8 U.S.C. § 1401(g), by virtue of her adoption by a U.S. citizen).

[55] See, e.g., Lewis v. Gonzales, 481 F.3d 125 (2d Cir. March 23, 2007)(parents must legally separate before single parent can confer derivative naturalization upon child, since 8 U.S.C. § 1432(a)(3) (repealed 2000) requires the parents of a legitimated noncitizen child to effect a “legal separation” – even when the parents never were married in the first place – before the child may derive automatic citizenship from either of his parents individually); Hosein v. Gonzales, 452 F.3d 401 (5th Cir. Jun. 12, 2006) (dismissal of plaintiff-mother’s claim that her citizenship should be backdated in order to effectuate citizenship for her son in order to allow him to avoid deportation); 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 Case No. Civ.A. 02-124(D.N.J. Oct. 14, 2005) (unreported) (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).

[56] 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, § 104, Pub.L. No. 106-395, 114 Stat. 1631 (effective date).

[57] See, e.g., Afeta v. Gonzales, 467 F.3d 402 (4th Cir. Oct. 26, 2006) (rejecting derivative citizenship claim that Ethiopian national automatically became a citizen as a minor when his mother was naturalized; “separation agreement” obtained when parents separated was not a “formal judicial document” and therefore did not suffice to show legal separation prior to divorce); Bustamante-Barrera v. Gonzales, 447 F.3d 388 (5th Cir. Apr. 20, 2006) (sole – not joint – “legal custody” by a naturalized parent is required for a child seeking derivative naturalization; requirement not met where divorce decree awarded “sole physical custody” of child to mother, but required parents to share “joint legal custody”).  See also Matter of H, 3 I. & N. Dec. 742 (BIA 1949); Brissett v. Ashcroft, 363 F.3d 130 (2d Cir. 2004) (judicial order requiring payment of child support sufficient); Simpson v. T.D. Williamson, Inc., 414 F.3d 1203 (10th Cir. 2005).

[58] 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 (2006).

[59]  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).

[60] 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)).

[61]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).