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