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Are You Already a US Citizen? | N-400 Issues in New Jersey

| Mar 11, 2019 | Citizenship and Naturalization |

The vast majority of lawful permanent residents aspiring to become United States Citizens will need to undergo the naturalization process. But in some cases, an individual may already be a citizen through application of the law pertaining to either automatic acquisition or derivation. In those instances, a person will need to apply for proof of citizenship by either applying for a US Passport or a Certificate of Citizenship via Form N-600. Unfortunately, the law regarding acquisition of citizenship can be incredibly complex. Depending on when certain conditions are/were fulfilled will determine which set of rules apply. A recent Third Circuit case, Dessouki v. Attorney General, illustrates just how fact-sensitive some of these determinations can be.

In this particular case, Mr. Dessouki claimed that he was already a United States Citizen through his father. Under the law at the time his father naturalized, he had to demonstrate one of the following: that both of his parents were naturalized; or if one of the parents were deceased, the surviving parent naturalized; or that a legally separated spouse with custody of him naturalized. Mr. Dessouki argued that since his parents were separated, he derived citizenship through his father, who had naturalized in 1998. However, the Court disagreed. In examining “legal separation,” the Court determined that separation presupposes a legally valid marriage. Since Mr. Dessouki’s parents were never in fact legally married, he could not claim that his parents were legally separated, notwithstanding that they might have lived apart for decades. Accordingly, he was found not to have proven his claim of citizenship.

Interestingly, the law regarding automatic acquisition of citizenship through parents is different now. Pursuant to the Child Citizenship Act of 2000, the law requires the following:

· At least one parent is a US Citizen by birth or naturalization

· The child is residing in the US in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence

· The Child is under 18 at the time these conditions are fulfilled

The requirements may be fulfilled in any order. However, this set of criteria applies only after February 27, 2001 and only for children under 18 after February 27, 2001.

This is not the only rule regarding automatic citizenship. In some cases, a child who is born abroad to a US Citizen may also have a valid claim to citizenship. In that case, a different statute applies, to be covered in a future blog entry.

For more information on automatic citizenship, please contact our office. The above is general information only and not intended to serve as legal advice. It does not create an attorney client relationship, nor should it be relied upon in lieu of consultation with an immigration attorney.

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