Second Circuit Construes Legitimation under Salvadoran Law

The Second Circuit has interpreted what impact the 1983 Salvadoran Constitution had on the rights of a child born out of wedlock, and thus, that child’s ability to derive citizenship through his mother’s naturalization. “We must decide whether Lainez’s paternity was established by legitimation, as that phrase is used in former § 321, by El Salvador’s promulgation of a new constitution in 1983 granting all children equal rights before their parents. To answer that question, we first determine what it means for paternity to be established by legitimation in former § 321.” “We conclude that paternity is established by legitimation when a father’s parental rights with respect to his child are established in connection with an act of legitimation. We then conclude that El Salvador’s constitutional reform granting children equal rights and prohibiting discrimination did not establish Lainez’s father’s parental rights, and so did not establish Lainez’s paternity by legitimation. Therefore, Lainez was free to derive citizenship from his mother’s naturalization and is not removable.”

“First, paternity is not established automatically by the enactment of a 12 general legitimation law. Second, former § 321’s protections for the rights of noncitizen parents depend, naturally, on the establishment that a particular person has parental rights with respect to the child.” “The difference between establishment of paternity for purposes of former § 321, on the one hand, and mere legitimation, on the other, is that establishing paternity means establishing who has parental rights with respect to a given child.”

“Lainez’s father did not take any relevant actions to establish his paternity by legitimation under El Salvador law. It is undisputed that Lainez’s parents did not marry before or after his birth. At oral argument, the government conceded that his father’s name appearing on his birth certificate does not actually matter in this case, and we agree.” “ While there is no dispute about who Lainez’s father is, that does not mean he obtained parental rights. Because that is the relevant inquiry under former § 321, we conclude Lainez could and did derive citizenship from his mother’s naturalization.”

The full text of Lainez v. Bondi can be found here: https://ww3.ca2.uscourts.gov/decisions/isysquery/c8056d4d-b9a8-4a63-9693-0713e966764e/4/doc/21-6386_complete_opn.pdf

The Fifth Circuit Rejects a Derivative Citizenship Claim Based on Legitimation under Mexican Law

The Fifth Circuit has rejected a derivative citizenship claim.

The statute governing the petitioner's claim to derivative citizenship is the version of the INA in place at the time of his birth.  The INA dictates that a child born out of wedlock to a non-citizen mother and a citizen father can establish derivative citizenship “if the paternity of such child is established while such child is under the age of twenty-one years by legitimation.” The INA also dictates that his claim to legitimation is governed by the laws of Tamaulipas, Mexico—where he resided as a child. Even if he can prove his legitimation under Tamaulipan law, the INA imposes an additional hurdle for claiming derivative citizenship: legitimation must have occurred before Gonzalez–Segura turned twenty-one years old. 

The Board of Immigration Appeals defines “legitimation” as “the act of putting a child born out of wedlock in the same legal position as a child born in wedlock.” Legitimation requires a formal act. A child may be legitimated under the laws of either the child’s or the father’s domicile—whether in the United States or elsewhere.

The 1961 Civil Code of Tamaulipas (“CCT”) establishes how a father can legitimate a child who was born out of wedlock.  CCT Article 370 provides that a child may be legitimated by either (1) the father’s voluntary acknowledgment or (2) a court judgment declaring paternity. CCT Article 379 provides five ways that voluntary acknowledgement of a child born out of wedlock can occur: 1) In the birth certificate before the Civil Registry official; 2) By special acknowledgement proceeding before the same official; 3) By a notarial instrument; 4) By a will; and 5) By direct and express judicial confession.

The petitioner argued that he satisfied the CCT legitimation requirements in three ways. First, his amended birth certificate qualifies as a voluntary acknowledgment of his paternal lineage. Second, the 2007 ruling by the Tamaulipas court that ordered the rectification of his original birth certificate qualifies as a court judgment declaring paternity. Third, his father’s 1970 holographic will qualifies as a voluntary acknowledgement of paternity.

Only the amended birth certificate and the 2007 judicial decree are valid forms of legitimation under Tamaulipan law. The Court held that the petitioner cannot rely on these otherwise valid forms of legitimation for his claim to derivative citizenship because the legitimation occurred after he had turned twenty-one years old.

The full text of Gonzalez-Segura v. Sessions can be found here:

http://www.ca5.uscourts.gov/opinions/pub/16/16-41413-CV0.pdf

Second Circuit Construes Old Derivative Citizenship Statute

The Second Circuit has construed the legitimation requirements of the Immigration and Nationality Act (INA), as they pertain to former section 321 of the INA, which governed derivative citizenship claims for children who were over 18 on February 27, 2001.  Under this section, an individual derived citizenship if one parent was deceased and the surviving parent naturalized before the child's 18th birthday.  However, if the individual was born out of wedlock, he would only be considered the child of the naturalized parent if he was legitimized before his 16th birthday.  

July Gil argued that the Dominican Code for the Protection of Children (DCPC) retroactively abolished all distinctions between children born in and out of wedlock.  Thus, he is considered under Dominican law to be legitimated since his birth.  However, the DCPC was enacted after his 16th birthday.  The court disagreed, and held that "the legitimizing act at issue here was the enactment of the Code, a law that became effective well after Gilʹs sixteenth birthday.   Because Gil did not gain legitimated status under the new law before he turned sixteen years old, he is not a legitimated child." 

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

http://www.ca2.uscourts.gov/decisions/isysquery/a41ed0f7-8933-48f7-8278-abeb3772baac/1/doc/15-3134_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a41ed0f7-8933-48f7-8278-abeb3772baac/1/hilite/