US Citizenship and Naturalization

May 18, 2021

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cesartop

The United States allows citizenship by several means, including:

1. Citizenship by birth in the United States under INA §§301(a)-(b) and (f)
2. The citizenship of one or both parents INA §§301(c)-(d) and (g)-(h)
3. A combination of parental citizenship and location INA §§301(e) and 303
4. After birth by a combination of parental citizenship and residence INA §§320 and 322
5. Naturalization under INA §316

Citizenship by Birth or Certain Unincorporated Territories

The 14th Amendment grants citizenship by birth in the United States. The United States adhered to the doctrine of jus soli. Such as in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), this also includes persons born in certain US territories under U.S. control as per INA §§302 and 304-307. This also includes a person born in the Panama Canal under certain conditions, as stated in 8 USC §1403.

Persons born in the Commonwealth of the Northern Mariana Islands after January 9, 1978 are United States citizens under the covenant between the US and the Commonwealth.

Exceptions to This Means

However, a person born in a location such as the Philippines and American Samoa are not citizens but nationals of the United States and do not acquire citizenship at birth. They may acquire citizenship by naturalization, as in the case of Entines v. U.S., 160 F.Supp.3d 208 (D.D.C. 2016).

A lack of an official birth record is also not as decisive as to whether someone is born in the US. According to INA §301(f), persons of unknown parentage found in the US are considered born in the United States unless proven otherwise before turning 21.

Citizenship by Acquisition at Birth

A child born outside the US but one or both parents are US citizens may acquire citizenship at birth, as per INA 301(c)-(e), (g)-(h). Meanwhile, a child born out of wedlock may acquire citizenship and requires the mother to be physically present in the United States to transmit citizenship, as stated in INA §309(c). However, a child does not need a certificate of citizenship.

Children born by Assisted Reproductive Technology (ART) may acquire citizenship under INA §301/309 if 1) USC father must be the genetic parent; 2) the USC mother is the genetic mother; or 3) USC mother is the gestational and legal mother of the child at the time and place of the child’s birth.

Residence of Physical Presence of the USC Parent

A child’s USC parent must reside or be physically present in the US to “transmit” citizenship to the child. The USC’s residence should be the principal dwelling place of that person without attention to intent, such as the case of Savorgnan v. US, 338 US 491 (1950). In Sessions v. Morales-Santana, the United States Supreme Court ruled that the different physical presence for unwed mothers and fathers violated equal protection.

Physical presence need not be counted by the minute, as per 137 S.Ct 1678 (2017). If the parent is a naturalized US citizen, the time before and after naturalization may be counted, as indicated in Matter of M-, 7 I&N Dec. 643 (RC 1958). A parent should not be prevented from residing in the US due to war or illness but may do so when he/she was barred by the government due to a misinterpretation of the law, as stated in Matter of Navarrete, 12 I&N Dec. 138 (BIA 1967).

Adopted Children

In Marquez-Marquez v. Gonzales, 455 F.3d 548 (5th Cir. 2006), an adopted child may not benefit from INA §301(g) but may be eligible under INA §322.

Citizenship by Derivation through Naturalization or U.S. Birth of One Parent under INA §320 and former law under INA §321

INA §320

Before the Child Citizenship Act, a child could derive citizenship when one parent became a United States citizen when the child was under 18, and the child was residing in the US after a grant of permanent residence. The child could also derive citizenship if he or she was residing in the United States and was in the legal custody of that parent, as per INA §321.

The BIA has interpreted the law to require lawful permanent residence before the age of 18, such as in Matter of Nwozuzu, 24 I&N Dec. 609 (BIA 2008). The law required the following:

1. The naturalization of both parents
2. The naturalization of one of the parents if the other is deceased
3. The naturalization of the parent with legal custody of the child
4. The naturalization of the mother of the child was born out of wedlock and legitimization has not occurred

Child Citizenship Act

The Child Citizenship Act has changed former law and streamlined the process. Under the INA §320(a), a child can derive citizenship if he/she meets any of the following:

1. The child is a citizen by birth or naturalization
2. One of his/her parents is naturalized while the child was under 18
3. The child is residing in the United States becomes a lawful permanent resident while under 18, as in the case of Gutierrez v. Lynch, 830 F.3d 179 (5th Cir. 2016).
4. The child is residing in the US in the legal custody of the United States citizen parent
5. If the child currently resides with both parents
6. If the child resides with one natural parent of the other is deceased
7. If the child was born out of wedlock but was legitimated and currently resides with the natural parent, like in the case of Matter of Rivers, 17 I&N Dec. 419, 421 (BIA 1980)

Under INA §320(b), adopted children can derive citizenship after admittance as lawful permanent residents. Lawful permanent residence must be obtained legally without misrepresentation, such as in Walker v. Holder, 589 F.3d 12 (1st Cir. 2009). The child should have been admitted for permanent residence on or after February 27, 2001.

Special Cases

Children born out of wedlock may claim citizenship from their mother when the mother naturalizes. Meanwhile, children claiming derivative citizenship through their father may use the legitimization laws at the place of residence at the time of birth, as per Matter of Cross, 26 I&N Dec. 485 (BIA 2015).

Stepchildren are not covered under the law since they are included in the definition under INA §101(c), as indicated in Matter of Guzman-Gomez, 24 I&N Dec. 824 (BIA 2009).

Certificate of Citizenship under INA §322

INA §322

A child who has not derived citizenship through the naturalization of one parent may apply for a certificate of citizenship if:

1. One parent is a USC.
2. The child is temporarily physically present in the United States under a lawful admission and is in status.
3. The child is under 18.
4. The child is outside the US in the legal custody of a father who has been in the United States for five years, two of which after the age of 14.

A child may also obtain a certificate within five years of a parent’s death if there is a grandparent or US citizen guardian. An adopted child must have been adopted before 16, as per 8 CFR §322.

Other Specifications

A child whose parent did not meet the physical presence requirements may still obtain a certificate if the USC grandparent resides in the United States for five years, two of which were after the grandparent’s 14th birthday, as per INA §322. If the grandparent died, then the child still qualifies if the grandparent met the physical presence before passing.

Children born to members of the armed forces are exempted from all these requirements under INA §322(d). The application is filed on Form N-600K before the child enters the country. Persons otherwise eligible may file form N-600 if they are in the US.

Naturalization by Application

An immigrant may become a citizen by naturalization. The person must meet the following requirements:

• The immigrant must be a lawful permanent resident. If the immigrant erroneously obtained permanent residence or by fraud, the denial of his naturalization would be upheld, such as in Reganit v. Secy., DHS 814 F.3d 1253 (11th Cir. 2016). Conditional permanent residents may apply for naturalization if they have met the physical presence requirements, as per Matter of Paek, 26 I&N Dec. 403, 406-07 (BIA 2014). The effective date of residence is rolled back for an applicant who adjusted under the Cuban Adjustment Act or asylees.
• Must be at least 18 years old, as per INA §334(b), unless the age requirement is waived for military service.
• The immigrant must meet the continuous residence and physical presence requirements. The lawful permanent resident comes after five years unless married to a US citizen. If married to a United States citizen, the couple must be 1) the United States citizen spouse has been a citizen for three years and 2) the parties have been living in a marital union for 3 years. 8 CFR §319.1(a)(3). There is no requirement that the marriage was the predicate for permanent residence. Living in a marital union means that the couple is living together, such as in S. v. Maduno, 40 F.3d 1212 (11th Cir. 1994). Involuntary separation, however, may not sever eligibility. A battered spouse or child may also apply under the three years rule, as per INA §319(a). The person must also reside for at least three months in the state where he applies, as indicated in INA §316(a). A student attending an institution outside of his state may apply in the state of the institution or his state of residence. The person must have also resided in the United States for one-half of the five or three years. The immigrant must also reside in the United States from the time of the application to the date of admission into citizenship. Disruptions in residence between six months and one year create a rebuttable presumption of abandonment of residence. Factors that may be used to show that an immigrant did not abandon residence include 1) not terminating employment in the United States; 2) the presence of immediate family in the US; 3) retention of full access to US home and 4) not obtaining employment abroad. An absence of more than one year shall disrupt residence. A person with disruption of residence may reapply four years and one month after coming to the United States. A person who qualifies under the three years rule can apply after two years and one month. There are certain exemptions including service in the military, spouses, and children of service members, employees working abroad for the US government or international organizations.
• The immigrant must be a person of good moral character for the statutory period required and until citizenship. A member of the military must be for one year. Providing false testimony can be a bar to establishing good moral character, as per INA 101(f)(6). Materiality is not a consideration in this analysis. Certain crimes also bar the finding of good moral character. A person who has committed murder is permanently barred from establishing good moral character. The permanent bar also applies to persons convicted of an aggravated felony. A person who received a pardon before or during the statutory period may still establish good moral character. Under 8 §§CFR 316.10 (c)(2)(i) and (ii), voting illegally or making false claims to citizenship may also preclude a finding of good moral character, unless 1) each parent was a United States citizen; 2) the applicant resided permanently in the US prior to 16; and 3) he or she reasonably believed that he or she was a United States citizen. The officer may still approve the application if the person is not in removal proceedings using the following factors:
• Family ties
• Absence of criminal history
• Education and school records
• Employment history
• Other law-abiding behavior including paying taxes
• Community involvement
• Credibility
• Length of time in the US
• Polygamy
• Commission of criminal acts
• The immigrant must also be attached to the principles of the Constitution under INA §316(a)(3)
• The immigrant must also be willing to bear arms, perform noncombatant services, or work of national importance
• The immigrant must also demonstrate knowledge of English and US History and Government
• The immigrant must also take the oath of allegiance

Please call us if you are eligible for citizenship through derivative status or eligible to apply for naturalization. We’d be happy to help you!

• Citizenship and Naturalization
• All You Need To Know About Citizenship Through Naturalization
• Unlawful Presence Waivers
• BIA Rules that False Claims to Citizenship at Entry Makes Alien Inadmissible

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