Does the client have a parent or grandparent, living or dead, who may have been born in the U.S. or who may have acquired U.S. citizenship?  If so, it is possible that the client has unknowingly inherited U.S. citizenship.  Ask this question of the client’s spouse as well.  If the answer is yes, refer the person to competent immigration counsel for analysis of citizenship.[9]  See § 9.22, infra, for referral suggestions.

 

            PRACTICE AID:  An “Intake Form” specifically focused on the client’s immigration situation is reproduced in Appendix 3.  This form is intended to elicit all information immigration counsel will need to diagnose the situation.  An English-Spanish client questionnaire with more explanations is also available at California Criminal Law And Immigration, Chapter 10.

 

[9] See California Criminal Law And Immigration, Appendix 9-B, Part Two, Swanson, Challenging Alienage – Is Your Client A U.S. Citizen?, for detailed discussions of how a person may be a U.S. citizen and not be aware of it.

BIA

CITIZENSHIP " DERIVATIVE CITIZENSHIP
Matter of Douglas, 26 I&N Dec. 197 (BIA 2013) (a child who has satisfied the conditions of former section INA 321(a) before turning 18 has acquired United States citizenship, regardless of whether the naturalized parent acquired legal custody of the child before or after the naturalization). Note that the BIA refused to follow Jordon v. Attorney General of U.S., 424 F.3d 320 (3d Cir. 2005).

Second Circuit

CITIZENSHIP - ACQUIRED CITIZENSHIP
United States v. Connolly, 552 F.3d 86(2d Cir. Dec. 4, 2008) (denying claim of U.S. citizenship where respondent was illegitimate child of U.S. citizen father who, at the time of birth, was no longer a member of the U.S. Army Reserves).

CITIZENSHIP - COUNSEL'S DUTY TO VERIFY - NONCITIZENS' BELIEF THEY CANNOT BE DEPORTED IF THEY HAVE PAPERS
It is common for noncitizens to believe the concept of "citizen" includes a lawful permanent resident with papers legalizing their immigration status in the United States. (E.g., People v. Castro-Vasquez (2d Dist. March 26, 2007) 148 Cal.App.4th 1240, 1246 n.6, 56 Cal.Rptr.3d 406 ["However, the probation officer stated in his report that he told appellant he could be deported and appellant replied, 'That's O.K., I have papers.'").

Fifth Circuit

CITIZENSHIP " BIRTH ON U.S. MILITARY BASE ABROAD DOES NOT CONFER U.S. BIRTHRIGHT CITIZENSHIP
Thomas v. Lynch, ___ F.3d ___, 2015 WL 4745688 (5th Cir. Aug. 7, 2015) (petitioner's birth on military base did not render him a birthright citizen under the Fourteenth Amendment).

Ninth Circuit

CITIZENSHIP - FACTUAL QUESTION CONCERNING IDENTITY OF PETITIONER'S FATHER
Ayala-Villanueva v. Holder, 572 F.3d 736 (9th Cir. Jul.14, 2009) ("a genuine factual dispute [exists] concerning the identity of Ayala's father and . . . the resolution of this factual dispute will determine whether or not Ayala acquired derivative citizenship. Accordingly, we transfer the proceedings to the [district court] for a new hearing on [his] nationality claim and a decision on that claim as if an action had been brought" for declaratory relief under 28 U.S.C. 2201. 8 U.S.C. 1252(b)(5)(B)") (internal quotes omitted), citing Chau v. INS, 247 F.3d 1026, 1032 (9th Cir. 2001).

CITIZENSHIP - DERIVATIVE
Romero-Ruiz v. Mukasey, 538 F.3d 1057 (9th Cir. Aug. 13, 2008) (noncitizen who is not LPR at time of mothers naturalization is not eligible for derivative citizenship).

Other

RESOURCES " CITIZENSHIP " DERIVATIVE CITIZENSHIP " CHART
chart at http://www.ilrc.org/files/documents/natz_chart-c-2016-3-29.pdf