Reuben S. Seguritan

Automatic Citizenship After Birth

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When may a child born outside of the U.S. of alien parents acquire automatic citizenship? The Child Citizenship Act, embodied in Section 320 of the Immigration and Nationality Act (INA) provides that a child automatically becomes a U.S. citizen if all of the following conditions are met: the child has at least one parent, including an adoptive parent who is a U.S. citizen by birth or naturalization, the child is under 18, is residing in the U.S. pursuant to a lawful admission of permanent residence and is in the legal and physical custody of the U.S. citizen parent.

 

In order to acquire automatic citizenship under Section 320, the child must have been born on or after February 27, 2001, or was under 18 as of that date. For children who were already 18 years old on February 27, 2001, but who were under 18 in 1952, former INA 321(a) applies.

The Board of Immigration Appeals (BIA) recently decided a case involving Konan Waldo Douglas who was placed in removal proceedings and was found removable by an immigration judge. He was denied his claim to derivative citizenship because his mother’s naturalization took place before the legal separation of his parents.

Douglas was born in Jamaica on January 29, 1976 to his married parents, both citizens of Jamaica. He entered the United States as a lawful permanent resident on December 14, 1981. His mother’s naturalization was on April 13, 1988 and his parent’s divorce on July 25, 1990 took place while he was a lawful permanent resident and before he reached 18.

Former section 321(a) of the Act, the governing law in this case, provided that citizenship is automatically acquired by a child born outside the United States of alien parents in the following instances: (1) the naturalization of both parents; or (2) the naturalization of the surviving parent if one of the parents is deceased; or (3) the naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation.

The following conditions, however, must be met in all these three instances, one, such naturalization takes place while such child is under the age of eighteen years; and, two, such child is residing in the United States pursuant to a lawful admission for permanent residence at the time the parent(s) naturalized or thereafter begins to reside permanently in the United States.

The BIA disagreed with the immigration judge and held that Douglas acquired citizenship because he satisfied all the conditions under former section 321(a) before he reached 18.

The BIA in deciding the case went against precedent decisions by the Court of Appeals. Instead it relied on its earlier decision in a previous case that a child who has satisfied the statutory conditions of former section 321(a) of the Act before the age of 18 years has acquired U.S. citizenship, regardless of whether the naturalized parent acquired legal custody of the child before or after naturalization.

 

 

(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, you may log on to his website at www.seguritan.com or call (212) 695-5281.)

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