INS Issues Regulations Implementing the Child Citizenship Act

IMMIGRATION LAW & POLICY

Naturalization and Citizenship

INS ISSUES REGULATIONS IMPLEMENTING THE CHILD CITIZENSHIP ACT
Immigrants' Rights Update, Vol. 15, No. 5, Aug. 31, 2001

The Immigration and Naturalization Service has issued interim regulations to implement the Child Citizenship Act (CCA), which took effect on Feb. 27, 2001. The regulations explain the criteria the INS will use in adjudicating applications for certificates of citizenship filed on behalf of children claiming automatic derivation of citizenship or "citizenship on application." The regulations also provide that the CCA's benefits do not extend to individuals who were already over 18 years of age on the statute's effective date. In related news, the Fifth and Ninth Circuit Courts of Appeal have also concluded that the CCA does not apply to individuals who already were 18 years of age or over on Feb. 27, 2001, and the Board of Immigration Appeals has reached the same conclusion in a precedent decision.

The CCA has two major components affecting citizenship law. First, it replaces former sections 320 and 321 of the Immigration and Nationality Act with a new section 320, which governs the criteria under which a child may automatically derive U.S. citizenship from the naturalization of a parent or from adoption by a U.S. citizen parent. Children who qualify under the statute "automatically" become citizens without having to apply for a certificate of citizenship or a passport, although they may obtain such documents in order to have proof of their status. Second, the CCA amends section 322 of the INA, which governs the circumstances in which a U.S. citizen parent can obtain a certificate of citizenship for a child born abroad who does not qualify for automatic derivation of citizenship under section 320; the regulations refer to this procedure as "citizenship on application." Although this procedure entails an application for a citizenship document, it is actually a form of naturalization, and the statute provides that the child becomes a citizen only after taking an oath of allegiance.

Under the new section 320, children automatically derive U.S. citizenship at the time that they satisfy all of the following three conditions: (1) at least one parent of the child is a U.S. citizen, whether by birth or naturalization; (2) the child is under 18 years of age; and (3) the child is "residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence." Individuals who met all of these conditions on Feb. 27, 2001, the effective date of the CCA, automatically became citizens on that date. However, the regulations provide that the CCA does not apply to individuals who were already 18 years of age or older on that date.

The statute provides that an adopted child of a U.S. citizen qualifies for automatic derivation of citizenship if the child satisfies the requirements of INA section 101(b)(1) (the section contains the definition of "child" applicable to the immigration provisions of the INA; this includes both children adopted under section 101(b)(1)(E) and orphans adopted under section 101(b)(1)(F)). The statute thus incorporates a number of specific requirements for adopted children (such as requirements that the adoption have occurred before the child reaches age 16 (18 for a sibling), and that the child have resided with the adopting parent for two years) and for orphans who are adopted (see INA § 101(b)(1)(F)).

For children other than adopted children, the regulations apply the INA's definition of "child" for naturalization purposes, which can be found at INA section 101(c)(1). This definition includes a child who has been "legitimated" if the legitimation took place before the child reached 16 years of age.

The supplemental information to the regulations states that the INS and the State Dept. have not yet decided how to interpret the requirement that the child be "residing in" the U.S., in addition to having lawful permanent resident status. The INS notes, on the one hand, that "residence" under the INA is defined as a person's "principal, actual dwelling place." But on the other hand, there are circumstances in which an LPR may live outside the U.S. without losing that status and in which U.S. citizens may live abroad while still being considered to have a residence in the U.S. Pending a decision about this question and until further notice, the INS will consider this requirement satisfied only if, on or after Feb. 27, 2001, (1) the child is admitted as an LPR and actually living in the U.S., or (2) the child was previously admitted as an LPR, was absent from the U.S. on Feb. 27, 2001, but subsequently was readmitted as an LPR.

Revised INA section 322, governing "citizenship on application," allows a U.S. citizen parent to obtain a certificate of citizenship for a child born abroad if:

(1) the parent either
(A) has been physically present in the U.S. or its outlying possessions for a period or periods totaling five years, at least two of which occurred after attaining the age of 14 years; or
(B) has a citizen parent (the child's grandparent) who has been physically present in the U.S. or its outlying possessions for a period or periods totaling five years, at least two of which occurred after attaining the age of 14 years;
(2) the child is under 18 years of age; and
(3) the child is "residing outside of the U.S. in the legal and physical custody of the citizen parent, is temporarily present in the U.S. pursuant to a lawful admission, and is maintaining such lawful status."

Both section 320 (automatic derivation of citizenship) and 322 (citizenship on application) require that the child be in the "legal custody" of a U.S. citizen parent. Under the regulations, the INS will presume that a U.S. citizen parent has legal custody in the following situations: (1) where "a biological child . . . currently resides with both natural parents (who are married to each other, living in marital union, and not separated)"; (2) where "a biological child . . . currently resides with a surviving natural parent (if the other parent is deceased)"; or (3) where "a biological child born out of wedlock . . . has been legitimated and currently resides with the natural parent."

In cases of adopted children, the INS will find that a citizen parent has legal custody "based on the existence of a final adoption decree." In cases of a child of divorced or legally separated parents, the INS will consider a citizen parent to have legal custody where the parent has been granted "an award of primary care, control, and maintenance" of the child by a court of law or other appropriate government entity. Where there is an award of "joint custody," the INS will consider both parents to have legal custody. In cases where the issue of custody is not explicitly addressed in a divorce decree or a separation agreement, the determination of legal or joint custody will be based on the laws of the state or country of residence. The regulations state that "[t]here may be other circumstances under which the Service will find the U.S. citizen parent to have legal custody for purposes of the CCA."

As was true of the prior version of section 322, the current version requires a lawful admission, but the child need not have been admitted as an LPR. In one respect, the current version is significantly more restrictive than the prior law, because it also requires that the child maintain lawful status in the U.S. However, the current statute does expressly provide that the application "may be filed from abroad," and once an interview is scheduled State Dept. instructions issued under the prior law would allow the child to be issued a B-2 tourist visa (see cable reproduced at 72 Interpreter Releases 350 (Mar. 13, 1995)).

The supplemental information to the regulation states that the INS will use the new law to adjudicate applications for "citizenship on application" under INA section 322 that were filed before Feb. 27, 2001. The statement indicates that the INS will deny applicants who failed to maintain lawful status after an original lawful admission. However, this appears contrary to an express provision of the CCA, which states that as of Feb. 27, 2001, the act "shall apply to individuals who satisfy the requirements of section 320 or 322 [of the INA] as in effect on such effective date" (emphasis added).

The regulations specify the different forms and the supporting documents and evidence that should be submitted to apply for a certificate of citizenship. In general, U.S. citizen parents applying for a certificate of citizenship on behalf of a biological child should file Form N-600. U.S. citizen parents applying for a certificate of citizenship on behalf of an adopted child should file Form N-643. For those cases under INA section 322, where the application for citizenship on application is based on the prior residence of a citizen grandparent, the Form N-600/N-643 Supplement A must also be submitted. The supplementary information to the regulation notes that the INS is considering consolidating all of these forms into the Form N-600.

As noted above, the Fifth and Ninth Circuits have ruled that the CCA does not apply to individuals who were 18 years of age or older on Feb. 27, 2001. Nehme v. INS, 252 F.3d 415 (5th Cir. 2001); Hughes v. Ashcroft, 255 F.3d 752 (9th Cir. 2001). The Board of Immigration Appeals has also issued a precedent decision to the same effect. Matter of Rodriguez-Tejedor, 23 I. & N. Dec. 153 (July 24, 2001).

The interim regulations took effect on June 13, 2001.

66 Fed. Reg. 32,137-47 (June 13, 2001).