Recent Circuit Court Cases on Derivation and Acquisition
By Jennie Guilfoyle and Debbie Smith
Derivation of Citizenship
Derivative citizenship under former INA § 321(a) does not require LPR status prior to turning 18, as long as the individual was residing in the United States before age 18, the Second Circuit held on August 12, 2013. Nwozuzu v. Holder (2d Cir. 2013)
Kelechi Nwozuzu was born in Nigeria on March 8, 1977. In 1982 he moved to the United States with his parents, who entered in F-1 nonimmigrant status as students. In 1994 both his parents naturalized. On February 6, 1995, when Nwozuzu was 17 years old, he applied for adjustment of status based on an I-130 his father had filed for him in 1990. That adjustment application was not adjudicated until after he had turned 18; he became a lawful permanent resident when he was 21.
Nwozuzu was put into removal proceedings on June 16, 2005, following three convictions in 2004 for possession of a loaded firearm and of marijuana. He applied for citizenship while in proceedings. His application was denied, but in October 2006, the Immigration Judge terminated his proceedings on the grounds that DHS had failed to establish that Nwozuzu was an alien. DHS appealed this decision to the BIA, which held in 2008 that the IJ’s ruling was incorrect – that Nwozuzu was in fact an alien. The BIA remanded the case to the IJ for further removal proceedings. The IJ ruled against Nwozuzu, and ordered him removed; the BIA issued a final removal order in November 2011. Nwozuzu appealed that decision to the Second Circuit.
The Second Circuit, looking closely at the language of former INA § 321(a), the derivation of citizenship statute that was in effect at the time Nwozuzu’s parents naturalized, and at the time he turned 18 (it was in effect from October 5, 1978 until February 26, 2001), determined that it does not require that a non-citizen child have resided in the United States as an LPR in order to derive citizenship upon the naturalization of both parents.
Former INA § 321(a) allowed derivation of citizenship by children born outside the United States upon:
- The naturalization of both parents
- While the child was under the age of 18
- While the child was residing in the United States
- Provided that the child was residing in the United States “pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized or thereafter begins to reside permanently in the U.S. while under the age of 18 years.”
The Second Circuit focused on the second prong of point 4, drawing a distinction between residing “pursuant to a lawful admission for permanent residence” and “residing permanently in the U.S. while under the age of 18,” holding that “reside permanently” means something different and less than lawful permanent residence. In Nwozuzu’s case, the court found that his application for adjustment of status in February 1995 was a sufficient indicator of his intention to remain permanently in the United States to constitute “residing permanently” under the derivation statute. The fact that Nwozuzu was under 18 when his parents naturalized, and under 18 when he subsequently demonstrated his intention to live permanently in the United States meant that he did in fact derive citizenship.
In the Second Circuit, therefore, LPR status is not an absolute requirement for derivation under former INA § 321(a). Note, however, that several other circuits have examined this issue and come to the opposite conclusion. The Ninth and Eleventh Circuits have both held that the statute does require lawful permanent residence. See U.S. v. Forey-Quintero, 626 F.3d 1323 (11th Cir. 2010); Romero-Ruiz v. Mukasey, 538 F.3d. 1057 (9th Cir. 2008).
The current derivation statute, INA § 320, which applies in cases in which the last qualifying event was on or after February 27, 2001, specifies that in order to derive citizenship, the child must be living in the United States “pursuant to a lawful admission for permanent residence.”
Acquisition of Citizenship
In order for an unmarried U.S. citizen father to transmit citizenship to his child born abroad, he must meet the requirements specified by the version of the immigration statute, INA § 309, in effect at the time of the child's birth. One of the requirements under INA § 309 for a child born in 1964 is that the child was legitimated while under age 21 under the laws of the child's or father's residence. In its opinion, Saldana Iracheta v. Holder, No. 12-60087 (September 11, 2013), the Fifth Circuit Court of Appeals held that the BIA applied a non-existent provision of the Mexican Constitution in its erroneous decision that the child was not legitimated. The Fifth Circuit analyzed the question of the child's legitimation by examining the relevant Mexican state statute and determined that the child had been legitimated and therefore had acquired United States citizenship at birth.
Sigifredo Saldana Iracheta was born in 1964 in the Mexican state of Tamaulipas to a U.S. citizen father and a Mexican citizen mother. Although Saldana's parents never married, the couple had eight children together. Saldana came to the United States and was granted temporary status as an agricultural worker in 1989. Following a criminal conviction, he was placed in proceedings before the immigration court.
Saldana's citizenship claim required that he show:
- He was legitimated before the age of 21 under the laws of the Mexican state where he resided or was domiciled as a child; and
- His father resided in the United States for at least ten years, five or which were after the age of 14, at the time of Saldana's birth.
Saldana attempted to demonstrate that he acquired U.S. citizenship from his unmarried citizen father, but when he could not locate documents to support the claim, he was deported from the United States.
Saldana returned to the United States and filed several N-600s based on having acquired citizenship. DHS and the AAO denied Saldana's N-600s, relying on several decisions by the BIA, including Matter of Reyes, 16 I&N Dec. 436 (BIA 1978). Matter of Reyes held that under the Mexican Constitution, Article 314, a child may be legitimated only by the subsequent marriage of his or her parents. In 2012, DHS reinstated Saldana's removal order and Saldana requested that the Fifth Circuit review the reinstatement order.
In its decision, the Fifth Circuit stated that DHS rejected Saldana's citizenship claim relying on Matter of Reyes for the proposition that Article 314 of the Mexican Constitution permits legitimation only where the child's parents later marry. The court noted that "the BIA's mistake in citing a non-existent constitutional provision, perpetuated and uncorrected by DHS in subsequent years, prevented the agency from making the correct inquiries or possibly from apply the correct law in subsequent cases." (Saldana Iracheta v. Holder, pg. 7, n.3). Determining that under the Mexican civil code for the state of Tamaulipas Saldana was properly legitimated, the court found that Saldana established that he is a U.S. citizen.
The Saldana Iracheta v. Holder case reminds us that the issue of legitimation under a foreign statute is a complicated one and that the BIA can sometimes reach the wrong conclusion. As advocates we need to challenge BIA decisions when we believe they are incorrectly decided.