Tuesday, January 7, 2014

Derivative Citizenship and Immigration Reform by Timothy Dugdale

On January 3, 2014, the Ninth Circuit rang in the new year with a very interesting judgement.

This case builds upon two previous showstoppers, Solis-Espinoza (2006) and Scales (2000) In both those cases, the judges read INA 1401/301as NOT requiring a blood relationship between a citizen parent and a child " for the purposes of 8 U.S.C. § 1101(c)(1) as long as the child is born to parents "in wedlock." In contrast,  INA 309 requires a blood relationship for children born "out of wedlock."

Mr. Gonzalez-Marquez claimed that he gained derivative US citizenship through the man married to his mother who appeared as "father" on his birth certificate, registered in Chihuahua state, Mexico. Under that state's civil code, the child become fully legitimated. 

Here is the money quote:

We conclude that the filial connection created by Chihuahua's recognition process "amply satisfies the letter and spirit of the statute." Rios v. Civiletti, 571 F.Supp. 218, 222 (D.P.R. 1983). Petitioner enjoys the right to inherit from Mr. Gonzalez; and Mr. Gonzalez undertook the legal obligation to raise Petitioner as if he were his biological or adopted son. "In every practical sense," Petitioner is the "child" of a citizen parent. Solis-Espinoza, 401 F.3d at 1094.

What the Ninth has accomplished is bringing the rail of INA 301 closer and closer to the rail of INA 322 of the old INA of 1952. It follows that any adopted foreign "child" who did not qualify for citizenship under CCA of 2000 can now take a shot at claiming derivative citizenship but only if he or she was fully legitimated before the age of 18. Legitimation, in a sense, is the clear declaritive act of claiming US citizenship. Congress has always deferred to the family laws that govern the place of domicile where the child was living at the time of legitimation.

In 2009, both the House and the Senate made feeble attempts to enact the FACE (Foreign Adopted Child Equality) ACT which would have rewritten INA 1401/301 to accomplish just what the Ninth is now doing. It remains to be seen if the 2014 House, with its many self-proclaimed advocates of foreign adoption, will make any attempt to include FACE in its own legislation.

N.B. For anyone who wants to try claiming US citizenship, you should do so through USCIS form N-600. If you are rejected, you then have the Board of Immigration Appeals and the federal courts at your disposal for timely petitions. If you do it through a US consulate and you are rejected, you will have no recourse because consular decisions are immune to judicial review. Also keep in mind that consulates use the Foreign Affairs Manual to ajudicate citizenship issues.

Timothy Dugdale, Ph.D.

Atomic Quill Media

http://lawprofessors.typepad.com/immigration/2014/01/derivative-citizenship-and-immigration-reform-by-timothy-dugdale.html

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