I recently encountered a gentleman who lives under the cloud of a deportation order that cannot be executed. He spent six months in immigration detention, the end result of which was he was released because while he was ordered removed from the United States his country of origin will not accept him. So he is not – currently – removable (deportable), but that could change if a new treaty regarding acceptance of deportees is signed between the U.S. and his country of origin. Under immigration law, he is classified as an aggravated felon and a drug trafficker, factors that made him ineligible to apply for relief from removal such as Cancellation of Removal, even though he has U.S. citizen relatives. So, he thought he was really at a dead end in terms of avoiding potential deportation.
He came to me because he came across something that made him think that he might, after all this, already be a U.S. citizen, which would make the specter of deportation hanging over his head simply disappear. ICE cannot deport a U.S. citizen. (Well, it happens, but it is not supposed to.)
The Child Citizenship Act of 2000 (“CCA”) changed the conditions that a person needs to meet to derive citizenship through a parent’s naturalization. To “derive” citizenship means to obtain it through your relationship to someone else, usually a parent, both parents, or a grandparent. Before the CCA, which went into effect on 2/27/2001, for someone to derive citizenship through naturalization, all of the following conditions had to be met:
1. The person had to be under age 18.
2. The person had to be a U.S. lawful permanent resident.
3. BOTH the person’s parents had to naturalize before the person turned 18, UNLESS the parents had legally separated and the custodial parent naturalized before the person turned 18, or UNLESS one parent had passed away and the remaining parent naturalized before the person turned 18.
Derivation means you obtain the benefit automatically. You have the status of U.S. citizen as of the moment you meet all of these conditions. You do not need to apply for it, you already have it. It’s advisable to get proof of your status, like a certificate of citizenship or a U.S. passport, but not necessary.
So, having one parent who naturalized before a child turned 18 was usually not good enough for a child born abroad to parents who were not U.S. citizens at the time of the child’s birth. This created the strange incentive of – in the case of having only one naturalized parent – some individuals trying to prove that their parents were legally separated to obtain citizenship, even when the parents were happily still married to each other. Public policy usually does not intentionally promote separation of families. (One could argue that public benefits programs sometimes unintentionally promote separation of families, but that is a topic outside the scope of this blog.)
The CCA took away the requirement that BOTH parents be naturalized and in its place permitted children to derive citizenship from ONE naturalized parent, so long as, the same as under the prior law, the child was under age 18, a lawful permanent resident, and in the legal and physical custody of the naturalizing parent (which does not preclude the child also being in the legal and physical custody of the other, non-U.S. citizen parent).
But the CCA also, by its very enactment, added a new, time-limiting factor. This was not a retrospective law so the child had to still be a “child,” that was, under age 18, when the law went into effect, on 2/27/2001. So derivative citizenship can sometimes hinge on your birthday. If your 18th birthday falls before 2/27/2001, you had to determine your eligibility to derive citizenship based on the first, more stringent set of factors listed above. If your birthday falls on or after 2/27/2001, you could use the more lenient standard contained in the CCA.
It may seem unfair, to have your citizenship status in the end be determined by your date of birth, but that’s just one of the quirks of immigration law, and those of us who practice it must sometimes parse out eligibility for relief down to the very day a client is born.
