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Fifth Circuit Interprets Old Derivative Citizenship Rules Strictly

By Robyn Hagan Cain on July 03, 2012 | Last updated on March 21, 2019

Congress simplified derivative citizenship laws when the Child Citizenship Act of 2000 became effective. But if you represent a client who turned 18 before the CCA, you have to argue for citizenship under the old rules. It can be complicated, as Patrick Ayton learned this week when he lost his removal appeal in the Fifth Circuit Court of Appeals.

To understand why the Fifth Circuit found that Ayton didn't meet the requirements for derivative citizenship, you need a little background information on Ayton.

Ayton was born in the Bahamas in 1971 to unmarried parents who never married each other. His father became a naturalized U.S. citizen in 1978. Ayton and his mother entered the United States as lawful permanent residents in 1983. Ayton moved in with his father, and, soon after, his parents -- both of whom had married and divorced other people since Ayton's birth -- began to live together.

His mother suffered cerebral anoxia during a caesarean section surgery in 1985, and entered a persistent vegetative state. She remained that way until she died in 1991. She did not naturalize before her death.

In 2005, Ayton was sentenced to 65 months' incarceration on a cocaine charge. Three years later, he was served with notice to appear for removal proceedings.

Ayton asserted derivative citizenship -- citizenship that a child may derive after birth through the naturalization of a parent -- pursuant to Immigration and Nationality Act (INA) §321 in his removal hearing. The immigration judge rejected the argument and ordered his removal.

INA §321(a) granted automatic derivative citizenship to minor children born outside of the United States where: (1) both parents naturalized; (2) one parent naturalized and the other was deceased; or (3) the parent with legal custody naturalized while the parents were legally separated, or the mother naturalized where the child was born out of wedlock and paternity had not been established by legitimation; and if (4) the naturalization took place when the child was under the 18; and (5) the child lawfully resided in the United States as a permanent resident either when the parent naturalized or else thereafter began to reside permanently in the United States while under 18.

Here, the Fifth Circuit Court of Appeals agreed that Ayton did not prove that his mother was deceased while he was still a minor because, when the INA was passed, the definition of death did not include brain death. Furthermore, Ayton failed to prove that his mother was brain dead according to the contemporary definition of death, which differentiates between brain death and a persistent vegetative state.

Ayton also failed to show that his father had legal custody of him and that his parents had legally separated, both of which were required for him to obtain derivative citizenship through his father under INA §321. Since Ayton's parents never married, they never legally separated.

If you have a client seeking derivative citizenship under INA §321, make sure you can prove all of the requirements.

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