This decision by the U.S. Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals resolves a circuit-split as to the meaning of former section 321(a)(3) of the Immigration and Nationality act. JCS Immigration and Visa Law Office, located in Los Angeles, has successfully helped hundreds of applicants obtain U.S. citizenship for their children and other immediate family relatives.
Former section 321(a) provided that citizenship was automatically acquired by a child born outside the United States of alien parents under the following conditions:
- When both parents become citizens; OR
- When one parent becomes a citizen if the other parent has died; OR
- The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the citizenship of the mother of the child is born out of wedlock and the paternity of the child has not been established; AND
- Such naturalization takes place while such child is under the age of 18 years; AND
- Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of the subsection, or thereafter begins to reside permanently in the United States while under the age of eighteen years.
The heart of this issue is whether a child seeking to establish derivative citizenship (through a parent) must prove that his parent was naturalized after a legal separation from the other parent, in cases of separation, and that the parent had legal custody of the child.
Here, the court rules that it believes that a child, under the age of 18 years, must receive United States citizenship, regardless of whether the naturalized parent acquired custody of the child before or after naturalization, so long as the statutory conditions were satisfied before the child reached the age of 18.
Furthermore, there is no custody requirement for a citizen parent petitioning a child, provided that the parent becomes a citizen while the child is a minor. In other words, whether the parent petitioning a child has custody or not is irrelevant to establishing derivative citizenship for an eligible child.
The court reaffirms the decision in Matters of Baires, stating that a child who has satisfied the conditions of 321(a) before the age of 18, acquired U.S. citizenship, regardless of whether the naturalized parent acquired legal custody of the child before or after the naturalization.