"Nonlegitimated" Children Of Naturalized Mothers Eligible For Derivative Citizenship, CIS Clarifies

IMMIGRATION LAW & POLICY

Naturalization and Citizenship

"Nonlegitimated" children of naturalized mothers eligible for derivative citizenship, CIS clarifies
Immigrants' Rights Update, Vol. 17, No. 7, November 24, 2003

A non-U.S. citizen child "who was born out of wedlock and has not been legitimated is eligible for derivative citizenship when the [child's] mother becomes a naturalized citizen" of the U.S., if the child meets all the other requirements for citizenship under sections 320 or 322 of the Immigration and Nationality Act, according to a memorandum dated Sept. 26, 2003, issued by William R. Yates, acting associate director of U.S. Citizenship and Immigration Services (CIS).

Yates issued the memo to clarify how CIS officers are to interpret the definition of "child" in INA sec. 101(c)(1) when adjudicating applications for citizenship under INA secs. 320 and 322. Under sec. 320, the non-U.S. citizen child of a U.S. citizen automatically derives U.S. citizenship from the parent if the child is residing in the U.S. and otherwise meets the requirements for citizenship; and sec. 322 provides that the noncitizen child of a U.S. citizen who regularly resides outside the U.S. may naturalize to U.S. citizenship via an application made by his or her U.S. citizen legal guardian or grandparent.

According to the memo, the directions in it supercede previously issued policy clarifications "concerning children who are eligible for benefits under the Child Citizenship Act [of 2000] . . . and is to be followed in all cases that are pending on [Sept. 26, 2003], as well as in cases filed on or after that date." (The Child Citizenship Act provides that certain foreign-born, non-U.S. citizen children may acquire U.S. citizenship automatically rather than having to apply for it via naturalization.) But even for cases that were adjudicated before Sept. 26, the new policy clarification is to be considered "a sufficient basis to grant an otherwise untimely motion to reopen or reconsider a previous decision, if the child is still otherwise eligible," according to the memo.

This latest clarification was issued as a result of a request made by the Immigration and Naturalization Service to the Justice Dept.'s Office of Legal Counsel that it provide a legal opinion regarding whether a "nonlegitimated" child may derive U.S. citizenship under the Child Citizenship Act. CIS, which took over the service functions of the INS when the latter was dissolved earlier this year, received the legal opinion on July 24, 2003.