In a decision published February 12, 2015, the BIA states that a child born out of wedlock may qualify as a legitimated child for purposes of deriving citizenship. In Matter of Cross, 26 I&N Dec. 485 (BIA 2015), the BIA finds:

A person born out of wedlock may qualify as a legitimated “child” of his or her biological parents under section 101(c)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1101(c)(1) (2012), 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. Matter of Hines, 24 I&N Dec. 544 (BIA 2008), and Matter of Rowe, 23 I&N Dec. 962 (BIA 2006), overruled in part. Matter of Clahar, 18 I&N Dec. 1 (BIA 1981), and Matter of Goorahoo, 20 I&N Dec. 782 (BIA 1994), reaffirmed.

The language of the INA imposes a separate standard for derivation of citizenship for those who were born out of wedlock. In Cross the BIA finds that a child born out of wedlock will be treated the same as a child born of married parents if they were born in a country or state that eliminates any legal distinction between children born out of wedlock and children born of married parents or had a residence or domicile in such a country or state. The BIA notes that this includes a state within the US.

In Cross the respondent was born in Jamaica in 1988, 12 years after the Jamaican Status of Children Act (“JSCA”) of 1976 had eliminated the legal distinctions between legitimate and illegitimate children in that country. The BIA therefore found that the respondent qualified as a child under section 101(c)(1) of the Act for purposing of deriving citizenship under section 320(a).

The BIA also affirms that under 8 C.F.R. § 322.1 (2014), there is a reputable presumation that a biological parent has legal custody over their child. (See also Matter of Rivers, 17 I&N Dec. 419 (BIA 1980).

It is important to note that the respondent in Cross was born after his country of birth eliminated any distinction between legitimate and illegitimate children. The decision does not apply this standard to a child who is born in a country that after child’s date of birth eliminates any distinction between legitimate and illegitimate children.

The statute regarding derivation of citizenship was repealed and replaced by the Child Citizenship Act of 2000, Pub. L. No. 106-395, §§ 101(a), 103(a), 104, 114 Stat. 1631−33effective February 27, 2001. The new citizenship provisions were not retroactive, so former section 321(a) continues to apply to any derivative citizenship claim made by an individual who turned 18 before the statute’s effective date. Matter of Rodriguez-Tejedor, 23 I&N Dec. at 162. Thus this case applies the former INA section 321(a) which, states in pertinent part:

A child born outside of the United States of alien parents . . . becomes a citizen of

the United States upon fulfillment of the following conditions:. . .(3) The naturalization of the . . . mother if the child was born out of wedlockand the paternity of the child has not been established by legitimation . . . .(Emphasis added.)

While it seems clear that treating individuals differently under the law violates the equal protection clause the Federal Courts have found that states may have a legitimate purpose for making such a legal distinction (mainly protecting the rights of the non-custodial parent). The Supreme Court tackled this issue in Levy v. Louisiana, 391 U.S. 68, 7, (1968). finding that although there make be a legitimate purpose for such a distinction, certain laws that deprive illegitimate children of rights to which they would otherwise be entitled is unconstitutional. The New York Courts have found that for purposes of intestate inheritance, an illegitimate child has a right to inheritance from a biological father even if the child was born out of wedlock.

Under this new rule many more people will be eligible to derive citizenship through their father who previously would have been unable to because they could not establish that their parents were legally married.

When handling a case involving a respondent that may have derived citizenship it is important to keep in mind that the Government bears the burden of establishing alienage in removal proceedings. United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 153 (1923); Woodby v. INS, 385 U.S. 276 (1966); Matter of Cervantes, 21 I&N Dec. 351, 354 (BIA 1996) (“The burden of proof in deportation proceedings does not shift to the alien to show time, place, and manner of entry under section 291 of the Act, until after the respondent’s alienage has been established by clear, unequivocal, and convincing evidence.”), Therefore, it is important to deny all allegations so the burden remains with the Government.

The Government cannot establish alienage based on statements made by the respondent. The only means for the Government to terminate citizenship is through expatriation pursuant to 8 U.S.C. §1481. The Supreme Court has held that citizenship can only be voluntarily relinquished by an individual acting with intent to relinquish citizenship. Vance v. Terrazas, 444 U.S. 252 (1980). Therefore, even if the respondent had made a statement to DHS while in custody that he was a citizen of another country it would have no bearing on his claim to derived citizenship unless the Government can prove that in doing so he, “also intended to relinquish his citizenship.” Id. At 261. The Government cannot strip a respondent of his derived citizenship simply because he mistakenly claimed to be a noncitizen. The Supreme Court has held, “in our country the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship.” Afroyim v. Rusk, 387 U.S. 252, 257 (1967).

Keep in mind that the Government cannot call a respondent testify until they have established alienage. If there is a claim to derived citizenship then the EOIR lacks jurisdiction pursuant to 8 C.F.R. §§1240.8(a) and (c). Therefore, the proceedings must be terminated.

As the Supreme Court has stated, “deportation is a drastic measure and at times the equivalent of banishment or exile.” Fong Haw Tan v. Phelan, 333 U.S. 6 (1948). “Since the stakes are considerable for the individual, we will not assume Congress means to trench on his freedom beyond that which is required by the narrowest of several possible meaning of the words used.” Id. at 10. The Courts have found, “The right in question-American Citizenship- is one of the most precious imaginable.” Batista v. Ashcroft, 270 F.3d 8, 14 (1st Cir. 2001). Therefore, it should be argued that the continued detention and removal of the respondent would be unconscionable if there is a reasonable possibility he is in fact a US citizen.

Derivation of citizenship is a complicated matter. There have been many changes to the law over the years and it is not fully understood by many. It is estimated that ICE has mistakenly removed over 20,000 US citizens since its inception. It is important to spot a potential claim to derived citizenship and bring it to the attention of ICE immediately.

Matter of Cross should make this process easier for many. POSTED FROM NYIMMIGRATION.ORG