Third Circuit Finds that Equitable Estoppel Cannot Confer Citizenship

The Third Circuit has determined that a non-citizen who was erroneously granted a certificate of citizenship, which was not revoked for 21 years, cannot use the doctrine of equitable estoppel to obtain a declaration of citizenship from a federal court. “It is unfortunate that the government erroneously issued Lall a Certificate of Citizenship in the first place. And it is inexcusable that it quickly discovered its error but failed to correct it for over twenty-one years. Of course, it is Lall’s own subsequent criminal conduct that has brought the consequences of the government’s dereliction down on his head. Still, that dereliction has fundamentally changed Lall’s identity and place in the world. He turns to us for assistance, but we cannot provide the relief he seeks. Not every wrong is ours to right. “

The full text of Lall v. Department of Homeland Security can be found here:

https://www2.ca3.uscourts.gov/opinarch/202051p.pdf

Eleventh Circuit Rejects Equal Protection Challenge to Citizenship Claim

The Eleventh Circuit has rejected a litigant’s challenge to a derivative citizenship claim, finding that even under a gender-neutral revision to the statute, he would not be entitled to citizenship.

The full text of Lodge v. Attorney General can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/202210416.op2.pdf

Eleventh Circuit Finds that Litigant Forfeited Citizenship Claim

The Eleventh Circuit has determined that a litigant who withdrew his appeal and ask to be deported forfeited his right to judicial review of his citizenship claim.

The full text of Clement v. U.S. Attorney General can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/202113382.pdf

Seventh Circuit Remands to Determine Citizenship of Ethnic Eritrean Born in Addis Ababa

The Seventh Circuit has remanded a motion to reopen for the agency to address whether an ethnic Eritrean born in Addis Ababa before the founding of Eritrea is properly considered to be an Eritrean citizen. The Court noted that the petitioner’s citizenship was relevant to the likelihood that he would be tortured if deported to Ethiopia.

The full text of Menghistab v. Garland can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2022/D06-21/C:21-2099:J:Wood:aut:T:fnOp:N:2892707:S:0

Ninth Circuit Rejects Equal Protection Challenge to Derivative Citizenship Statute

The Ninth Circuit has rejected an equal protection challenge to derivative citizenship statute found at 8 USC 1432(a)(3).

“Section 1432(a)(3)’s second clause discriminates on the basis of gender. It grants citizenship upon ‘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,’ but it does not grant citizenship in the converse scenario: upon the naturalization of the father if the child was born out of wedlock and the child’s maternity has not been established by legitimation.” “Petitioner, however, does not challenge the clearly disparate treatment identified above. Nor could she, because both her paternity and her maternity were established during her youth. Instead, she argues that the statute unconstitutionally discriminates ‘because it does not contain any equivalent provision stating that a child automatically becomes a citizen upon the naturalization of the father if the child was born out of wedlock and the mother has relinquished parental rights’ or has abandoned the child.”

The full text of Roy v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/04/15-72942.pdf

Third Circuit Applies Futility Doctrine to Immigration Proceedings

The Third Circuit has applied the futility doctrine to immigration proceedings. The petitioner had filed a motion to reopen claiming to be a U.S. citizen, a claim that was subsequently litigated and rejected by the Eastern District of New York and the Second Circuit. Since the Board of Immigration Appeals would have no authority to make a contrary finding, remand of the motion to reopen would be futile.

The full text of Ricketts v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/101875p.pdf

Third Circuit Transfers Citizenship Claim to District Court to Evaluate Claim of De Facto Marriage in Peru

The Third Circuit has transferred a case to District Court to resolve a dispute about whether the petitioner’s parents were married (and subsequently legally separated) under Peruvian law, which recognizes de facto marriages.

The full text of Espichan v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/191049p.pdf

Seventh Circuit Rejects Equal Protection Claim to Citizenship Statute

The petitioner was born abroad to a U.S. citizen mother and a foreign national father. He challenged the constitutionality of the citizenship statute that required his mother to have resided in the United States for ten years prior to his birth in order to transmit citizenship to him. The petitioner “maintains that there is no rational basis on which to distinguish between him—a minor child, born abroad to a United States citizen, who lawfully entered the Country and lived in the custody of that United States citizen parent in the United States—and a lawful permanent resident minor child living in the custody of a lawful permanent resident parent when that parent naturalizes.” The Seventh Circuit disagreed, finding that the statute “bears a rational relation to the Government’s legitimate interest in ensuring that children born abroad who become citizens have ties to the United States.”

The full text of Lopez Ramos v. Barr can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D11-07/C:19-1728:J:Ripple:aut:T:fnOp:N:2426953:S:0

Third Circuit Addresses Transmission of Citizenship by Father to Child Born out of Wedlock

The Third Circuit has determined that the laws governing transmission of citizenship to a child born out of wedlock to a U.S.-citizen father, whose mother is deceased, and who was born in a jurisdiction where the death of the mother legally precludes the father from legitimizing the child, violate equal protection.

Petitioner Jose Francisco Tineo was born in the Dominican Republic to unwed noncitizen parents who never married. His father moved to the United States and naturalized. His noncitizen mother soon after passed away. At the time, under the law of either his or his father’s residence or domicile—the Dominican Republic and New York—legitimation could only occur if his birth parents married. Under the immigration laws, a naturalized mother can transmit her citizenship to her out-of-wedlock child, regardless of whether the father is alive; whereas a naturalized father in the same position has the additional requirement of having to legitimate the child in order to transmit his citizenship. Thus, the petitioner in this matter was left unable to receive citizenship from his father because his mother was deceased, eliminating the only avenue of legitimation in the Dominican Republic.

The court declared that the petitioner is, in fact, a U.S. citizen, by applying the standards applicable to children born out of wedlock to U.S.-citizen mothers to his situation.

The full text of Tineo v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/161461p.pdf

Third Circuit Rejects Equal Protection Challenge to INA 309

The Third Circuit has rejected a challenge to the acquired citizenship law found in INA 309, insomuch as it treats adopted children of US citizens differently than natural born children of US citizens.

“The Supreme Court has recognized the important government interest in developing the real, everyday ties that provide a connection between child and citizen parent and, in turn, the United States. We also agree with many 7 of our sister circuits that preventing immigration fraud is a legitimate interest. And finally, we have recognized the government’s legitimate interest in protecting the rights of alien parents in the immigration context.” “We also agree with the Government that the disparate treatment in Section 309 is at least rationally related to advancing these interests. Requiring an adoptive parent to apply for citizenship on behalf of his or her child, as opposed to conferring citizenship automatically upon the child, increases the probability that those who take the time to navigate that process have a real parent-child relationship. These additional requirements also reduce the likelihood that an adoption will occur solely to obtain citizenship.” “Furthermore, if adopted children could obtain automatic derivative citizenship, then the child’s biological, alien parents could be cut out of the process of determining their child’s citizenship.”

The full text of Cepeda Cabrera v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/182192p.pdf

Second Circuit Addresses Citizenship

Jaen was born on May 12, 1972 in Panama. At the time of Jaen’s birth, his mother, Leticia Rogers Boreland, was married to U.S.-citizen named Jorge Boreland. Jaen’s Panamanian birth certificate, however, lists Liberato Jaen as his father, a man with whom Leticia had an extramarital relationship during her marriage to Jorge. the sole question presented in this appeal is whether Jorge Boreland was Jaen’s “parent” for the purposes of having acquired United States citizenship at birth under former INA § 301(a)(7). The court held that the INA incorporates the common law meaning of “parent” into former Section 1401(a)(7), such that a child born into a lawful marriage is the lawful child of those parents, regardless of the existence or nonexistence of any biological link.

The full text of Jaen v. Sessions can be found here:

http://www.ca2.uscourts.gov/decisions/isysquery/acaa41e5-ff31-4711-a905-0cd79a8621e5/1/doc/17-1512_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/acaa41e5-ff31-4711-a905-0cd79a8621e5/1/hilite/

The Ninth Circuit Finds Government Officials did not Act with Deliberate Indifference in Adjudication of Naturalization Applications

Due to a serious of government missteps, the petitioner never became a U.S. citizen.  The former INS lost his mother's original naturalization application, delaying her naturalization until two months after the petitioner's 18th birthday, and thus, preventing him from deriving citizenship.  When the petitioner applied for naturalization shortly thereafter, the examiner incorrectly told him that he did not need to naturalize because he had derived citizenship through his parents.  The Ninth Circuit previously transferred the petitioner's case to determine if the government officials had acted with deliberate indifference to the petitioner's right to apply for citizenship.  The District Court determined that there was no evidence of deliberate indifference.  The Ninth Circuit affirmed, finding no evidence that any government official was aware that their actions were jeopardizing the petitioner's right to apply for citizenship or that any government policymaker formulated policy that was indifferent to the rights of the petitioner and similarly situated individuals.

The full text of Brown v. Holder can be found here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/02/11-71458.pdf

Fourth Circuit Address the Citizenship of Adopted Children

In a published decision, the Fourth Circuit has rejected the Board of Immigration Appeals' limitations on the use of nunc pro tunc adoption orders to establish the citizenship of adopted children.  The court held that an adoption order is effective for immigration purposes on the date that the state court order states that it is effective, regardless of the date it was filed or whether or not the state adoption statute specifically authorizes nunc pro tunc adoption orders.  The court recognized that adoption matters are within the expertise of state courts, and that there is no indication that Congress meant to give the Board of Immigration Appeals the ability to override or deem invalid a state court adoption order.

The full text of Ojo v. Lynch can be found here: http://www.ca4.uscourts.gov/Opinions/Published/151138.P.pdf

Ninth Circuit Discusses Jurisdiction over a Citizenship Claim

An Immigration Judge found that Sunny Viloria derived citizenship through his parents and accordingly, terminated removal proceedings against him.  The Department of Homeland Security appealed, and the Board of Immigration Appeals (BIA) sustained the appeal and remanded the case to the Immigration Judge.  Viloria appealed to the Ninth Circuit, who determined that it had no jurisdiction to review the BIA's decision because Viloria was not the subject of a final order of removal.

The full text of Viloria v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/21/11-73725.pdf

Ninth Circuit Defines Standards for Citizenship Trial in District Court

In an en banc decision, the Ninth Circuit confirmed that once a District Court finds that a litigant has adduced substantial credible evidence that he is a U.S. citizen, the burden shifts to the Government do demonstrate by clear and convincing evidence that the litigant is not a citizen.  On appeal, an appellate court will review the District Court's factual findings regard a litigant's citizenship for clear error.  In light of the contradictory evidence and credibility issues identified by the District Court, the Ninth Circuit deferred to its finding that Salvador Mondaca-Vega is not a citizen of the United States.

The full text of Mondaca-Vega v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/15/03-71369.pdf

Ninth Circuit Addresses Derivative Citizenship for Stepchildren of U.S. Citizens

The Ninth Circuit determined that step-children of U.S. citizens do not derive citizenship under the immigration laws, which provides citizenship only to the naturally born and legally adopted children of U.S. citizens.  In so doing, the Ninth Circuit agreed with the Board of Immigration Appeals' decision in Matter of Guzman-Gomez.

The full text of Acevedo v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/24/12-71237.pdf

Fifth Circuit Finds that Birth on a Military Base Abroad does not Confer Birthright Citizenship

Jermaine Thomas was born on a U.S. military base in Germany to a naturalized U.S. citizen father and a foreign national mother.  Thomas' father had not been physically present in the United States prior to his birth for a sufficient period of time to transmit citizenship to him.  When Thomas placed in removal proceedings for criminal activity, he claimed to have been born in the United States by virtue of his birth on a military base, and thus, to be entitled to birthright citizenship under the Fourteenth Amendment.  The Fifth Circuit disagreed, finding that birthright citizenship does not extend to military bases outside the territorial boundaries of the United States.

The full text of Thomas v. Lynch can be found here: http://www.ca5.uscourts.gov/opinions/pub/14/14-60297-CV0.pdf

Fifth Circuit Interprets Prior Derivative Citizenship Laws

Hamid Kamara was born in Sierra Leone in 1981. In 1990, his parents divorced in Texas.  Because Kamara was still residing in Sierra Leone, the state court did not order that one parent or the other receive custody of Kamara.  He later entered the United States as a visitor, and in 1994, he received his lawful permanent residence through his mother.  In 1998, when Kamara was 16 years old, his mother became a naturalized U.S. citizen.  Kamara was living with his mother at the time.  When Kamara applied to United States Citizenship and Immigration Services for proof that he had derived citizenship through his mother, his request was denied.  Kamara renewed this argument before the Immigration Judge, who found that he had not shown he was in his mother's "sole legal custody" at the time of her naturalization, and thus, could not establish his citizenship claim.  

On appeal, the Fifth Circuit determined that the derivative citizenship laws in force at the time of Kamara's 18th birthday only required him to show that he was in his mother's "actual uncontested custody," and not her "sole legal custody."  The "actual uncontested custody" standard was the correct one to apply when there is no judicial order regarding legal custody.  Because there was a factual dispute about whether Kamara lived in his mother's uncontested custody, the Fifth Circuit transferred the case to a District Court to adjudicate his citizenship claim.

The full text of Kamara v. Attorney General can be found here: http://www.ca5.uscourts.gov/opinions/pub/13/13-60807-CV0.pdf

The BIA Addresses the Citizenship of Children Born out of Wedlock

Last week, the Board of Immigration Appeals (BIA) attempted to reconcile its inconsistent treatment of children born out of wedlock.  The BIA determined that a person born out of wedlock may qualify as a legitimated “child” of his or her biological parents for purposes of citizenship if he or she was born in a country or State that has eliminated all legal distinctions between children based on the marital status of their parents or had a residence or domicile in such a country or State (including a State within the United States), if otherwise eligible.

On July 3, 1988, Mr. Cross was born out of wedlock in Jamaica to parents who were not then citizens or nationals of the United States.  At the time of his birth, the Jamaican Status of Children Act (“JSCA”) of 1976 had eliminated the legal distinctions between legitimate and illegitimate children in that country. In 1995, Mr. Cross’ father placed his name on this birth certificate, thereby qualifying Mr. Cross as a legitimated child for purposes of visa preference classification under American immigration law.  Mr. Cross' father eventually immigrated to the United States and subsequently accorded him a visa preference classification as his “child.”  On September 2, 2000, at the age of 12, Mr. Cross was admitted to the United States as an immigrant and thereafter resided in this country as a lawful permanent resident. On August 3, 2001, his father became a United States citizen by naturalization while Mr. Cross was in his father’s legal custody. 

At that time, the law provided that a child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled: (1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization. (2) The child is under the age of eighteen years. (3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.  

The Immigration Judge found that Mr. Cross did not qualify as the child of his father because the definition of child under the immigration law was "an unmarried person under twenty-one years of age and includes a child legitimated under the law of the child’s residence or domicile, or under the law of the father’s residence or domicile, whether in the United States or elsewhere . . . , if such legitimation . . . takes place before the child reaches the age of 16 years . . . , and the child is in the legal custody of the legitimating . . . parent or parents at the time of such legitimation."  In so holding, the Judge relied on prior BIA caselaw finding that the only way to legitimate a child under Jamaican law was for the child's parents to marry (which Mr. Cross' parents had not done).

Recognizing the tension between these interpretations, the BIA determined that a person born abroad to unmarried parents can be a “child” for purposes of section 320(a) if he or she is otherwise eligible and was born in a country or State that had eliminated legal distinctions between children based on the marital status of their parents or had a residence or domicile in such a country or State (including a State within the United States).  Thus, Mr. Cross was indeed a citizen, and the BIA terminated the removal proceedings against him.

The full text of Matter of Cross can be found here: http://www.justice.gov/eoir/vll/intdec/vol26/3826.pdf