The Supreme Court of the United States just recently issued an important decision regarding the acquisition of US Citizenship by children born abroad. In Sessions v. Morales-Santana, the high court ruled that the disparity in criteria applicable to those claiming US citizenship through an unwed citizen father as opposed to an unwed citizen mother was unconstitutional and violated the 5th Amendment’s right to equal protection under the law. While recognizing the historical and gender-based notions that undergirded the different rules at the time, the Court held that no important governmental interest was served by perpetuating antiquated laws based on stereotypical notions that unwed fathers are less likely to assume responsibility for children born out of wedlock, thereby, as the obsolescent view goes, vitiating the connection between the foreign-born child and the US. As a consequence, the Court did not find a justifiable reason to continue allowing those claiming US citizenship through an unwed mother to show only one year of her continuous physical presence in the US, but those asserting citizenship through an unwed father to demonstrate, as per the general rule, ten years physical presence of the father in the US, at least five of which were after the age of reaching the age of 14. (The current physical presence rule, applicable to children born on or after November 14, 1986, is five years, two of which need to be after the age of 14.) In the case at hand, Mr. Morales-Santana’s claim of acquisition through his unwed father had been denied because his foreign national father left the US without having lived here for five years after turning 14: in fact, he left only 20 days short of his 19th birthday, a fact that disqualifies him under 8 USC 1409(a) but would not under section 1409(c) which is the statutory exception that applies only to out-of-wedlock children born to unwed mothers.
Acquisition Different From Derivation
Transmission of US citizenship to children born abroad should not be confused with derivation of US citizenship, which is something different. Derivation applies when an applicant is claiming that he or she automatically became a citizen before the age of 18 through one or more parent’s citizenship. For example, under the Child Citizenship Act of 2000, a foreign-born child automatically derives US Citizenship through a parent if he or she
•· Has at least one US Citizen parent by birth or naturalization
•· Live in the legal and physical custody of the US Citizen parent
•· Be admitted as a lawful permanent resident
•· Be under the age of 18 when all the above conditions occur
Therefore, if a child has a green card and is living in the legal and physical custody of a lawful permanent resident parent who naturalizes before the child turns 18, that child will automatically derive US Citizenship. This is different from an individual who is born abroad to a US Citizen parent and acquires US Citizenship. Both individuals are US Citizens. However, the manner in which they procured this status is different.
Determining whether an individual is, in fact, a US Citizen, can be incredibly complicated given the multitude of arcane rules. With respect to acquisition, there are a number of parameters, including 1) the time in which the individual was born, 2) whether one or both parents are citizens and 3) whether the parents were married at the time of the child’s birth. Similarly, the criteria for derivation depends on what time period the parent(s) naturalized.
The importance of accurately assessing a claim of citizenship cannot be overemphasized. It can mean the difference between merely applying for proof of citizenship vs. having to qualify for citizenship through the naturalization process. With this comes even broader implications and ramifications. For some, such as with Mr. Morales-Santana, already being a citizen renders one immune to removal proceedings regardless of whether one has been convicted of a crime involving moral turpitude or an aggravated felony. For others who may be looking to become citizens through the N-400 application, it is one of first questions that needs to be addressed first. For more information on the eligibility requirements for acquisition or derivation of citizenship, as well as naturalization, please contact our office.