Only a person who is not a citizen or natural of the United States may be deported.  Three safe havens are related to alienage or nationality. 

 

            (a)  United States Citizens cannot be deported, unless they acquired citizenship by naturalization, and the grant is revoked.  See § 3.4, infra.

 

            (b)  Nationals of the United States cannot be deported.  See § 3.5, infra.

 

            (c)  American Indians born in Canada cannot be deported.  See § 3.6, infra.

 

These are the gold standard of safe havens: if the client falls within any of these groups, s/he absolutely cannot be deported under any ground of deportation whatsoever.  The courts must evaluate claims of United States citizenship before ruling against a person on the basis that the person is a noncitizen.[5]  The burden of proof on this issue changes according to the context,[6] but always remains on the government if it is attempting to establish a ground of deportation, such as the aggravated felony conviction ground of deportation.[7]

[5] Theagene v. Gonzales, 411 F.3d 1107 (9th Cir. June 15, 2005) (“Because only an “alien” may be required to exhaust administrative remedies under § 1252(d)(1), the plain language of § 1252(b)(5) requires that upon a petition for review of the BIA’s final order of removal, we must evaluate a petitioner’s claim to United States nationality regardless of whether the claim was raised below.”).

[6] An applicant for admission to the United States as a citizen of the United States has the burden of proving citizenship. Matter of GR, 3 I. & N. Dec. 141 (BIA 1948). Once the applicant establishes that s/he was once a citizen and the government asserts that s/he lost that status, then the government bears the burden of proving expatriation. Ibid. The standard of proof to establish expatriation is less than the clear and convincing evidence test as applied in denaturalization cases, but more than a mere preponderance of evidence. The proof must be strict and exact. Ibid.

[7] Woodby v. INS, 385 U.S. 276 (1999).

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).

CITIZENSHIP - DERIVATIVE
Matter of Bires-Larios, 24 I. & N. Dec. 467 (BIA Mar. 10, 2008) (a child who has satisfied the statutory conditions of former INA 321(a) (1988) is a United States Citizen, even if the divorced, naturalized parent obtained legal custody of the child after the parent naturalized).

CITIZENSHIP - DERIVATIVE CITIZENSHIP - MINOR MUST BE LPR
Matter of Nwozuzu, 24 I. & N. Dec. 609 (BIA 2008) (to obtain derivative citizenship under former INA 321(a) (1994), person must have acquired LPR status while he or she was under 18 years old).

First Circuit

CITIZENSHIP - ACQUIRED
Walker v. Holder, 589 F.3d 12 (1st Cir. Dec. 11, 2009) (respondent failed to established derivative citizenship through the Child Citizenship Act where the Lawful Permanent Residence could not be met because respondents LPR status had been obtained by fraud perpetrated by the respondents parents).

CITIZENSHIP
Pina v. Mukasey, 542 F.3d 5 (1st Cir. Sept. 12, 2008) ("legal custody" for purposes of the Child Citizenship Act is to be determined by reference to the relevant state law).

Second Circuit

CITIZENSHIP " DERIVATIVE CITIZENSHIP " LEGAL SEPARATION NOT POSSIBLE WHERE PARENTS WERE NEVER MARRIED
Pierre v. Holder, 738 F.3d 39 (2d Cir. Dec. 10, 2013) (petitioner was not entitled to automatic derivative citizenship under 8 U.S.C. 1432(a) based on his father's naturalization because his parents were never married and thus there could be no "legal separation" as required under the statute).

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 - DERIVATIVE CITIZENSHIP - EQUAL PROTECTION GENDER CHALLENGE REJECTED
Grant v. US DHS, ___ F.3d ___, 2008 WL 2757042 (2d Cir. Jul. 17, 2008) (per curiam) (rejecting equal protection challenge to the constitutionality of 8 U.S.C. 1432 (a) (1994), which provided that an alien born out of wedlock could obtain derivative citizenship based on the naturalization of his or her mother before the alien turned eighteen but could not obtain derivative citizenship based on the naturalization of his or her father before the alien turned eighteen unless paternity had been established by legitimation).

CITIZENSHIP - DERIVATIVE CITIZENSHIP - NONCITIZEN MUST MCITIZENSHIP - DERIVATIVE CITIZENSHIP - NONCITIZEN MUST MEET REQUIREMENTS UNDER LAW IN EFFECT ON DATE S/HE FULFILLED THE LAST REQUIREMENT
Poole v. Mukasey, 522 F.3d 259 (2d Cir. Mar. 27, 2008) (petition for review granted on ground appears to have met the requirements for derivative citizenship as provided in INA 321 in 1984 (the law in effect when petitioner fulfilled the last requirement for derivative citizenship) to warrant reconsideration).

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 " DERIVATIVE CITIZENSHIP " STEPCHILDREN
Acevedo v. Lynch, ___ F.3d ___, 2015 WL 4999292 (9th Cir. Aug. 24, 2015) (the definition of child in citizenship and naturalization provisions of INA does not include stepchildren).

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

CITIZENSHIP - NATURALIZATION - MILITARY SERVICE AS PHYSICAL PRESENCE IN THE UNITED STATES
INA section 322 treats military residence abroad as physical presence in the U.S., exempts a child from the requirement of 322(a)(5), and uses INA 101(b)(1) as the test for the adoptive relationship.