Under the Immigration and Nationality Act (INA), a child under the age of eighteen who is a legal permanent resident (LPR) of the United States acquires citizenship when that child’s parent becomes a U.S. citizen if the child is residing in the United States in the “legal and physical custody” of the citizen parent. 8 U.S.C. § 7 1431(a). In this matter, the Second Circuit determined that a child who was in juvenile detention when his father naturalized was still in his father’s legal and physical custody, and as such, acquired derivative citizenship.
“[A] parent’s physical custody of a child does not cease due to a child’s brief, temporary separation from a parent.” “State family law definitions of the term ‘physical custody’ are often at odds with the government’s assertion that a child must be ‘actually resid[ing]’ with a parent for the child to be in that parent’s ‘physical custody.’ For example, physical custody can be split between parents, and two parents can share and retain ‘physical custody’ even if the child does not actually reside in any one parent’s home full‐time.” “Indeed, in the state where Khalid lived with his family prior to his detention and conviction, ‘[p]hysical custody . . . means the right and obligation to provide a home for the child and to make the day‐to‐day decisions required during the time the child is actually with the parent having such custody.’” “The BIA’s decision reduces ‘physical custody’ to an ‘actual residency’ requirement at some point after the citizen parent naturalizes, but before the child’s eighteenth birthday—even in cases involving short, temporary separations, like this one. State law rarely uses such a narrow definition of physical custody, and we do not think that ‘physical custody’ is determined exclusively by the small moment in time immediately following a citizen parent’s naturalization, even when looking to state law for guidance.”
In addition, “the history of the derivative citizenship statute supports reading the statute—and the term ‘physical custody, in particular—to ensure that a child’s ‘real interests’ are in the United States through a genuine connection between the United States citizen parent and that parent’s child.” “Here, there is no dispute that Khalid had such a connection to his United States citizen father at the time Khalid’s father naturalized. Khalid had lived at home with his parents since entering the United States. Thus, Khalid’s acquisition of derivative citizenship does not violate Congress’s demand that the child has a strong connection to the United States to acquire derivative citizenship.”
:Finally, we note that we do not deal in this case with a juvenile adjudicated guilty and imprisoned pursuant to a court‐ordered sentence at the time the juvenile claims to have acquired citizenship. There may be reason in such situations to determine that a minor is not in a naturalizing parent’s physical custody for purposes of 8 U.S.C. § 1431.”
The full text of Khalid v. Sessions can be found here:
http://www.ca2.uscourts.gov/decisions/isysquery/77c6d41c-6bd7-4c5a-8d9a-3ffb65202f94/10/doc/16-3480_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/77c6d41c-6bd7-4c5a-8d9a-3ffb65202f94/10/hilite/
