Federal immigration law provides multiple ways that a person can become a naturalized citizen of the United States. Children may be able to obtain naturalization if one or both parents successfully complete the naturalization application process, but this does not apply to all children of newly naturalized citizens. The Immigration and Nationality Act (INA) draws a distinction between children who were either born in wedlock or have been “legitimated” under the laws of their home country, as opposed to children who were born out of wedlock. While the United States has done away with most legal distinctions between children born in and out of wedlock, they persist in some countries, and they may still be a factor under the INA. A recent decision by the Board of Immigration Appeals (BIA) addresses some confusion over this process. Matter of Cross, Int. Dec. 3826, 26 I&N Dec. 485 (BIA 2015).
The INA states that a child born outside the U.S. automatically becomes a U.S. citizen if at least one parent is a citizen, the child is less than 18 years old, and the child lawfully resides in the U.S. in the citizen parent’s custody. 8 U.S.C. § 1431(a). This applies whether the parent obtained citizenship “by birth or naturalization.” This may seem straightforward, but the way the INA defines a “child” for the purposes of this provision makes it more complicated.
For the purposes of the naturalization provisions of the INA, a “child” is defined as an unmarried person who is under the age of 21 and who, before the age of 16, was “legitimated under the law of the child’s [or the father’s] residence or domicile.” 8 U.S.C. § 1101(c)(1). The concept of “legitimation” or “legitimacy” relates to whether a child’s parents were married at the time of their birth and whether the child’s father has gained legal recognition as the father. Amendments to the INA enacted in 1995 changed most instances of the terms “legitimate child” and “illegitimate child” to “child born in wedlock” and “child born out of wedlock,” respectively.
The respondent in Cross was born in Jamaica in 1988 to unmarried parents. His parents never married, but in 1995, his father, also a Jamaican national, added his name to the respondent’s birth certificate. The father immigrated to the U.S., and the respondent was able to join him in 2000 as a lawful permanent resident. In 2001, the father became a naturalized U.S. citizen.
The government initiated removal proceedings against the respondent in 2010, based on a criminal conviction. The respondent sought to dismiss the case on the ground that he was a naturalized U.S. citizen and therefore not subject to removal. The immigration judge rejected this claim, finding that the respondent was not a “child” under the INA’s definition because he had not been legitimated.
The BIA reversed this order and terminated the removal proceedings. It found that the respondent’s father had fulfilled the legal requirements for legitimating the respondent under the Jamaican Status of Children Act by adding his name to the birth certificate. Since the respondent fit the INA’s definition of a “child,” the BIA found that he had become a U.S. citizen with his father in 2001.
Samuel C. Berger, an immigration lawyer who practices in Northern New Jersey and New York City, represents immigrants, prospective immigrants, and their family members and employers. Contact us online, at (201) 587-1500, or at (212) 380-8117 today to schedule a confidential consultation with a member of our experienced and knowledgeable team.
More Blog Posts:
U.S. Supreme Court Reviews Government’s Authority to Revoke Naturalization, New York & New Jersey Immigration Lawyer Blog, May 11, 2017
Dual Citizenship Under U.S. Immigration and Nationality Law, New York & New Jersey Immigration Lawyer Blog, April 14, 2016
Citizens, Nationals, and Immigrants in the United States, New York & New Jersey Immigration Lawyer Blog, March 24, 2016