The recent news about Rep. Ilhan Omar (D-Minn.) has focused attention on how an erstwhile alien minor with lawful permanent residence (“LPR”, i.e. a “green card”) would have automatically derived citizenship based on the naturalization of a parent or parents. Curiously enough, it’s a subject I have a lot of experience in.
Current Section 320 of the INA
The current law that governs automatically acquired, derivative citizenship in this surprisingly common situation is section 320 of the Immigration and Nationality Act (INA), as amended by the Child Citizenship Act of 2000 (CCA).
That provision, captioned “Children born outside the United States and lawfully admitted for permanent residence; conditions under which citizenship automatically acquired”, states that any child “born outside of the United States” automatically becomes a U.S. citizen when three conditions have “been fulfilled”.
The first condition is that at least one of the child’s parents must be “a citizen of the United States, whether by birth or naturalization”.
The second is that the child be under the age of 18 when the other conditions are satisfied, and the third is that child be “residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence”.
Accordingly, under current law, if an alien minor is admitted to the United States with a green card or subsequently obtains LPR status, and either of the child’s parents with whom the child is living naturalizes, the child automatically becomes a U.S. citizen through derivation.
One of my immigration judge mentors described this process as the “naturalization fairy flying over the child and spreading magic citizenship dust”, and it’s an image that has stuck with me ever since.
Former Section 321 of the INA
Keep in mind, however, that this provision only applies to aliens who turned 18 on or after February 27, 2001, the effective date of the CCA. Older aliens could only have derived automatic citizenship under former sections 320 and 321 of the INA.
Section 320 (2000) governed the derived citizenship of child born outside the United States with at least one parent who was — at the time of the child’s birth — already a U.S. citizen.
In that case, the child automatically became a citizen when the other parent naturalized, provided the child was under the age of 18 and living in the United States with a green card. Former section 320(b) governed the automatic derivation of citizenship for adopted kids.
That’s pretty straightforward, especially as compared to former section 321, which was in effect prior to the passage of the CCA.
Under that provision, children born outside of this country to parents who were then aliens, or to one alien parent and one U.S. citizen parent who had lost U.S. citizenship, would become a U.S. citizen when the conditions therein were satisfied.
The first three of those conditions, written in the alternative and often referred to as the “last qualifying condition” (“LQC”) for a minor LPR already in the United States, related to the naturalization of the child’s parent or parents, and the last two to the alien children themselves.
In the case of an alien child with two living parents who were not separated, the LQC was when the second one naturalized.
If one of the parents had died, however, the LQC was the naturalization of the surviving parent.
But if the child’s parents were legally separated, then the LQC was the naturalization of the parent who had “legal custody” of the child.
If, however, the child was “born out of wedlock” and “the paternity of the child has not been established by legitimation” by the father, the LQC was the naturalization of the child’s mother.
To derive citizenship after one of those LQCs, the child to be under the age of 18 and residing in the United States with a green card at the time of the parent’s LQC naturalization.
Here’s the sole caveat: If the child entered the United States as an LPR under the age of 18 after the parental naturalization requirements had been satisfied, that admission was the LQC under the last clause in section 321(a)(5) of the INA, and such child would derive citizenship, too.
As the Ninth Circuit held in Minasyan v. Gonzales: “As with all forms of citizenship, derivative citizenship is determined under the law in effect at time the critical events giving rise to eligibility occurred.”
Therefore, claims to derivative citizenship made by green card holders are determined based on whether the individual turned 18 before, or on or after, February 27, 2001 — the day the CCA took effect.
Claims and Challenges
Importantly, however, proof of citizenship documents weren’t — and still aren’t — automatically issued to children who derived citizenship under current or former section 320 or under former section 321 because such derivation occurs through operation of law — not following the filing of a formal application.
Consequently, some aliens with green cards are actually citizens under those provisions and either don’t realize it or don’t act on it until their alienage becomes an issue — which explains why I am so familiar with these sections of the INA.
On more than one occasion when I was an immigration judge, aliens with criminal records (generally for aggravated felonies, which bar most “relief” from deportation) charged by DHS with removability under the INA would allege as a defense that they weren’t removable because they had derived citizenship through the naturalization of a parent or parents.
At that point, factual battles would ensue, with times and places of custody and residence (often long in the past) at issue.
There’s a reason why ICE’s website includes a pseudo-comic book published by the Florence Immigrant & Refugee Rights Project titled “Are You a United States Citizen?”
“Certificates of Citizenship” and Passports
None of the foregoing should suggest, however, that children (or former children) who derived citizenship through their naturalized parents can’t acquire documentary evidence of their new status.
For example, they (or their parent) could file an N-600, “Application for Certificate of Citizenship”, with USCIS, and if it is approved they will receive an N-560 “Certificate of Citizenship”. If they lose the N-560, they can file an N-565, “Application for Replacement Naturalization/Citizenship Document” to apply for an N-561 replacement document.
As the Legal Information Institute (LII) explains, “Only individuals who obtained U.S. citizenship either by action of law while residing in the United States or by having been born outside of the United States to U.S. citizen parents may apply for” those documents.
Note that the instructions for the N-600 provide that, “If you are under 14 years of age, your parent or legal guardian may sign the application on your behalf”, though it also states that, “A parent or legal guardian can also file Form N-600 on behalf of a minor child.”
I cannot imagine what sort of go-getter you must be in order to file the N-600 when you’re younger than 14, but if you are over the age of 18 when filing the N-600, you must file it for yourself.
Alternatively, the derivative citizen can apply with the U.S. Department of State for a U.S. passport.
As the Board of Immigration Appeals (BIA) — the DOJ tribunal that reviews administrative immigration decisions — held in its 1984 opinion in Matter of Villanueva:
Unless void on its face, a valid United States passport issued to an individual as a citizen of the United States is not subject to collateral attack in administrative immigration proceedings but constitutes conclusive proof of such person's United States citizenship.
Similarly, 22 U.S.C. § 2705 states that a “passport, during its period of validity” issued by the State Department to a U.S. citizen has “the same force and effect as proof of United States citizenship as” a certificate of citizenship issued by USCIS. But N-560s never expire; passports do.
Derivative citizens can obtain a passport from the State Department by filing the DS-11, “Application for a U.S. Passport”, and special rules apply to passport applications for children under the age of 16 (requiring both parents to appear in person when filing, with exceptions).
Errors and Fraud
Of course, mistakes happen, and if USCIS erroneously issues a Certificate of Citizenship, the agency can administratively cancel it — regardless of how long ago the error occurred.
In Lall v. DHS USCIS, the Third Circuit held that a certificate issued erroneously 21 years before the appellant was placed into removal proceedings (due to an aggravated felony conviction): “does not confer citizenship. Although it is prima facie evidence that the holder is a citizen, citizenship is lawfully conferred only when the statutory requirements for citizenship have been met, regardless of whether a certificate is issued.” (Citations omitted.)
Moreover, section 342 of the INA authorizes USCIS to cancel a Certificate of Citizenship “if it shall appear to the [agency’s] satisfaction that such document or record was illegally or fraudulently obtained from, or was created through illegality or by fraud practiced upon” the agency.
Section 361 of the INA conveys similar authority on the State Department to cancel a U.S. passport “if it appears that such document was illegally, fraudulently, or erroneously obtained from, or was created through illegality or fraud practiced upon” the department.
A Valuable Status
Depending on your point of view, the INA either makes it too easy or too difficult for an alien child to automatically derive citizenship when the child’s parent or parents naturalize, and either makes it too easy or too difficult for the government to revoke the indicia of that status. U.S. citizenship is valuable, however, and if you want to claim it, you must play by Congress’s rules.