Recent Decisions on Acquisition and Derivation of Citizenship | CLINIC

Recent Decisions on Acquisition and Derivation of Citizenship

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Ilissa Mira

The laws regarding acquisition and derivation of citizenship have changed frequently over the years, resulting in different requirements that must be satisfied in order for a U.S. citizen to pass citizenship on to children born abroad.

Two recently decided cases positively interpret statutory language to allow individuals to assert their automatic citizenship. 

Kamara v. Lynch, No. 13-70657 (5th Cir. 2015)

What does it mean to be in the legal custody of a citizen parent for purposes of deriving citizenship?  The Fifth Circuit addressed this issue in the context of INA § 321, the law that was in place in 1998 when Hamid Kamara claimed he derived citizenship after his mother’s naturalization.  Prior to the Child Citizenship Act of 2000, the law on derivation of citizenship provided that the naturalization of one parent would grant automatic citizenship to a child where the parents were legally separated and the child was in the custody of the naturalizing parent.  The parent’s naturalization must have occurred while the child was under 18 and the child must have been residing in the U.S. as a lawful permanent resident at the time of the parent’s naturalization.  INA § 321 (since repealed by the Child Citizenship Act of 2000).   

Kamara lived with his mother since 1991 and was a 16-year-old LPR when his mother naturalized in 1998.  His parents were divorced in Texas in 1990 but no child custody orders were made.  To demonstrate that he derived citizenship from his mother, the 5th Circuit Court held that Kamara need only prove he was in the “actual uncontested custody” of his U.S. citizen mother.  In so holding, the Court clarified a previous decision in Bustamante-Barrera v. Gonzalez, 447 F.3d 388 (5th Cir. 2006), which requires the naturalizing parent to have “sole legal custody” only when a noncitizen minor’s parents have a joint custody order following divorce or judicial separation. 

The “actual uncontested custody” standard has been the law for decades and has been applied in the Second, Third, Seventh, and Ninth Circuit Courts.  Matter of M-, 3 I&N Dec 850 (CO 1950) set forth a two-step test for legal custody.  First, if there is a judicial determination of custody, then the parent to whom custody has been granted has legal custody for INA purposes.  Second, if no legal custody determination has been made, then the parent in “actual uncontested custody” is deemed to have legal custody.”  The Fifth Circuit held that under this rule, the question of “sole legal custody” arises only in cases where a formal custody order exists.  Since no legal custody order was entered in Kamara’s case, the Court found that the Bustamante-Barrera “sole legal custody” rule did not apply.  Though the court determined that Kamara’s mother had actual custody, the case was remanded to determine whether that actual custody was uncontested.

Morales-Santana v. Lynch, No. 11-1252-ag (2ndCir. 2015)

In Morales-Santana v. Lynch, the LPR petitioner raised a constitutional challenge to an acquisition of citizenship law that imposed more restrictive requirements on unwed citizen fathers as compared to unwed citizen mothers.  Morales-Santana was born abroad to an unwed U.S. citizen father and a Dominican mother.  His father legitimated him prior to his 18th birthday and the only issue as to his citizenship was whether his father met the physical presence requirement.  Under the Immigration and Nationality Act of 1952, the law in place at the time of Morales-Santana’s birth, a child born abroad to an unwed citizen mother and a non-citizen father has citizenship at birth as long as the mother had continuous physical presence in the United States or one of its outlying possessions for at least one year at some point prior to the child’s birth.  INA § 309(c) (1952).  In contrast, an unwed citizen father can transmit citizenship at birth only if he legitimates the child and was present in the United States or one of its outlying possessions prior to the child’s birth for at least ten years, with at least five of those years occurring after the age of fourteen.  See INA § 301(a)(7) (1952).  Morales-Santana’s father had lived in Puerto Rico for almost 18 years and was just days short of meeting the requirement of five years of physical presence after the age of fourteen.  The Second Circuit held that this disparate treatment based on  gender violates the Fifth Amendment’s guarantee of equal protection and that the proper remedy is to apply to unwed fathers the less burdensome standard that unwed mothers receive under § 309(c). 

The government argued that the different physical presence requirement for unwed men and women exists to ensure that children acquiring citizenship have an adequate connection to the United States.  However, the court found no support for the assertion that unwed mothers and fathers differed with respect to how long they should be present in the U.S. prior to the child’s birth to ensure that a parent has gained the values of citizenship and can pass them on to their children.   While the court recognized a difference between the way men and women can establish a biological parent-child relationship, it decided that a more stringent physical presence requirement for fathers does not provide any additional assurances that there is a biological relationship between father and child.  The court ultimately held that the statute’s gender based distinction on physical presence requirements is not substantially related to the goal of ensuring a sufficient connection between citizen children and the U.S. and remanded the case to the BIA to apply the less onerous one year continuous presence requirement.

This decision conflicts with that of the Ninth Circuit in Flores-Villar, 536 F.3d 990, in which the court upheld the constitutionality of the same law, despite the gender-disparate requirements.  In 2011 the Supreme Court upheld Flores-Villar in a 4-4 split.