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Are You a U.S. Citizen by Derivation?

Considering aggressive enforcement of immigration law, a non-U.S. citizen or a green card holder with serious criminal offenses may be at risk of being apprehended by the Immigration and Customs Enforcement (ICE). There are several reliefs that may be available to an individual who was apprehended and taken into removal proceedings to avoid deportation.

One of the possible reliefs is a claim to a U.S. citizenship. How does one determine if he can claim U.S. citizenship at birth or through derivation? What steps must be taken?

James was born in Manila, Philippines. He was born out wedlock and never met his biological father. James mother was petitioned for a family based petition and James received his green card status. When he was 17 years old, his mother naturalized to become a U.S. citizen. In 2015, when James was already 30 years old, he was convicted of sale, use and possession of illegal drugs and was sentenced to more than one year of imprisonment. After serving sentence, ICE agents apprehended James and brought to removal proceedings.

During his court hearing, James attorney raised U.S. citizenship as a defense and moved that the case be terminated because James s a U.S. citizen by derivation. Will James deportation/removal proceedings be terminated?

Child Citizenship Act

Children who do not acquire citizenship at birth through their U.S. citizen parents may derive U.S. citizenship through naturalization of a parent. The Child Citizenship Act of 2000 (CCA) was enacted on February 27, 2001 provides that foreign-born children whose parent is, or subsequently becomes, a U.S. citizen may acquire automatic citizenship on or after February 27, 2001 as long as certain conditions are met.

To be eligible for derivative citizenship under Section 320 of the Immigration and Nationality Act (INA), the child must have been born on or after February 28, 1983 and is under age 18 when all of the following are met:

  1. At least one parent is a U.S. citizen (by birth or naturalization) at the time of the child’s application.
  2. The child, pursuant to a lawful admission for permanent residence, is residing in the United States in the legal and physical custody of the U.S. citizen parent; and
  3. For adopted children, the child has been adopted pursuant to a full, final and complete adoption.

When to file for U.S. citizenship under the CCA? All conditions must be met while the child is under the age of 18. But for this derivation of citizenship under Section 320, U.S. Citizenship may be filed even after the child reaches age 18.

James met all the conditions set by the Child Citizenship Act before he turned 18. He was in the legal custody of the parent who filed for naturalization when James was still below 18. When he entered the United States he was a lawful permanent resident. Despite reaching the age of 30 years old, since he met all these conditions before reaching the age of 18, James is considered a U.S. citizen by derivation. His removal case in court will be successfully terminated.

For those with ascendants or parents who are U.S. citizens, who remained lawful permanent residents for many years and are now facing immigration issues, it will be best to seek consultation with an attorney for an assessment on whether U.S. citizenship was ever acquired in the past.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and immigrant’s right advocate. She may be reached at law@tancinco.com, facebook.com/tancincolaw,  or 1 888 930 0808)

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