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. U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). This also includes persons born in certain US territories under U.S. control. INA §§302 and 304-307. This also includes a person born in the Panama Canal under certain conditions. 8 USC §1403. Persons born in the Commonwealth of the Northern Mariana Islands after January 9, 1978, are United States citizens by virtue of covenant between the US and the Commonwealth. 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. However, they may acquire citizenship by naturalization. Entines v. U.S., 160 F.Supp.3d 208 (D.D.C. 2016).
A lack of an official birth record is not as decisive as to whether someone is born in the US. Persons of unknown parentage found in the US are considered born in the United States unless proven otherwise before turning 21. INA §301(f).
Citizenship by Acquisition at Birth
A child born outside the US where one or both parents are United States citizens may acquire citizenship ay birth. INA 301(c)-(e), (g)-(h). A child born out of wedlock may acquire citizenship and requires the mother to be physically present in the United States to transmit citizenship. INA §309(c). 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. Residence has been defined as principal dwelling place of a person without attention to intent. 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 father violated equal protection. 137 S.Ct 1678 (2017). Physical presence need not be counted by the minute. If the parent is a naturalized US citizen, the time before and after naturalization may be counted. Matter of M-, 7 I&N Dec. 643 (RC 1958). A parent may not that constructive presence prevented him from residing in the United States due to war or illness but may when he was prevented by the government due to erroneous interpretation of the law. Matter of Navarrete, 12 I&N Dec. 138 (BIA 1967).
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
Prior to 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 have also derived if he or she was residing in the United States and was in the legal custody of that parent. INA §321. The Board of Immigration Appeals has interpreted the law to require lawful permanent residence before the age of 18. Matter of Nwozuzu, 24 I&N Dec. 609 (BIA 2008). The law required 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, or 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 new law, a child derived citizenship if 1) one child is a citizen by birth or naturalization, 2) if the parent naturalized, the child was under 18, 3) the child is residing in the United States as a lawful permanent resident; and 4) the child is residing in the US in the legal custody of the United States citizen parent. INA §320(a). Under INA §320(b), adopted children derive citizenship after admittance as lawful permanent residents. Lawful permanent residence must be obtained legally without misrepresentation. 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. Legal custody means that 1) the child currently resides with both parents, 2) the child resides with one natural parent of the other is deceased, or 3) the child was born out of wedlock was legitimated and currently resides with the natural parent. Matter of Rivers, 17 I&N Dec. 419, 421 (BIA 1980).
The child must be under 18 at the time he or she receives permanent residence. Gutierrez v. Lynch, 830 F.3d 179 (5th Cir. 2016).
Children born out of wedlock may claim citizenship from their mother when the mother naturalizes. Children claiming derivative citizenship through their father may use the legitimization laws at the place of residence at the time of birth. Matter of Cross, 26 I&N Dec. 485 (BIA 2015). Step-children are not covered under the law since they are included in the definition under INA §101(c). Matter of Guzman-Gomez, 24 I&N Dec. 824 (BIA 2009).
Certificate of Citizenship under 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, and 4) the child is outside the United States in the legal custody of a father who has been in the United States for 5 years 2 of which after the age of 14. A child may obtain a certificate within 5 years of a parent’s death if there is grandparent or United States citizen guardian. An adopted child must have been adopted before 16. 8 CFR §322.
A child whose parent did not meet the physical presence requirements may still obtain a certificate if the United States grandparent resides in the United States for 5 years 2 of which were after the grandparent’s 14th birthday. 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 United States. Persons otherwise eligible may file form N-600 if they are in the United States.
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. 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. Matter of Paek, 26 I&N Dec. 403, 406-07 (BIA 2014). Effective date of residence is rolled back for applicant who adjusted under the Cuban Adjustment Act or asylees.
- Must be at least 18 years old under 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 for five years unless married to a United States 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. 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 3 years rule. INA §319(a). The person must also reside for at least three months in the state where he applies. 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. Id. Disruptions in residence between 6 months and 1 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 4 years and one month after coming to the United States. A person who qualifies under the 3 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. 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. 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 1) family ties, 2) absence of criminal history, 3) education and school records, 4) employment history, 5) other law-abiding behavior including paying taxes, 6) community involvement, 7) credibility and 8) length of time in the US. Polygamy and commission of criminal acts may also be used to deny an application.
- 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.