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.