(C)  Derivative Citizenship.  The person may have become a United States citizen automatically, without applying for this status or even being aware of it, if s/he was born outside the United States, but obtained “derivative” U.S. citizenship during childhood through naturalization of parent(s) as United States citizens when the noncitizen was an unmarried Lawful Permanent Resident of the United States who had not yet reached the age of 16, 18, or 21, depending on the law in effect at the time of the parent(s)’ naturalization. [11]  Courts will entertain claims of derivative citizenship.[12]

 

[11] See INA § § 320-321, 8 U.S.C. § § 1430-1431.  The formula for determining the citizenship of an unmarried lawful permanent resident minor one or both of whose parents both naturalized prior to his or her 18th birthday is described in I. Kurzban, Kurzban’s Immigration Law Sourcebook 775 (2004); Swanson, Challenging Alienage – Is Your Client a U.S. Citizen, in ILRC Appendix 9-A (2004).

[12] Morgan v. Att’y Gen., 432 F.3d 226 (3d Cir. Dec. 21, 2005) (petition for review of derivative citizenship claim under 8 U.S.C. § 1432(a)(3) denied on merits, because petitioner cannot establish that her parents were legally separated at the time her mother was naturalized); United States v. Guerrier, 428 F.3d 76 (1st Cir. Nov. 8, 2005) (defendant’s claim of error in the exclusion of evidence regarding his claim of derivative United States citizenship without merit); Kajtazi v. INS, ___ F.Supp.3d ___, 2005 WL 2621971 (D.N.J. Oct. 14, 2005) (federal habeas petition granted under 28 U.S.C. § 2241 challenging an immigration detainer on the ground that petitioner acquired derivative United States citizenship on July 31, 1985, when his father naturalized).

Second Circuit

CITIZENSHIP - ACQUIRED CITIZENSHIP - BIOLOGICAL PARENTAGE IS NECESSARY TO A CLAIM TO UNITED STATES CITIZENSHIP UNDER FORMER INA 301(a)(3)
Colaianni v. INS, 490 F.3d 185 (2d Cir. Jun. 15, 2007) (per curiam) (petition for review denied on basis that noncitizen's claim to be United States citizen, advanced as a defense in removal proceedings, was invalid, since biological parentage is necessary for a person to claim citizenship under former INA 301(a)(3) because of the plain language of the statute, which refers to persons "born ... of parents both of whom are citizens of the United States" and pertains only to the acquisition of citizenship "at birth."), citing Marquez-Marquez v. Gonzales, 455 F.3d 548, 556-57 (5th Cir.2006) (rejecting the same argument based upon a plain reading of the statute).

Lower Courts of Second Circuit

CITIZENSHIP - UNCONSTITUTIONAL TO CONVICT OF ILLEGAL REENTRY
Perez v. United States, ___ F.Supp. ___, ___ (D.N.Y. 2006) ("[B]ecause Petitioner has established that he is a United States citizen, it is a constitutional violation to convict him for reentering the United States. As a result, the Court finds that Petitioners conviction and, in turn, his sentence should be vacated pursuant to 28 U.S.C. 2255.")

Fifth Circuit

CITIZENSHIP - BIRTH IN UNITED STATES
Lopez v. Holder, ___ F.3d ___, 2009 WL 682991 (5th Cir. Mar. 17, 2009) (without consent of petitioners, magistrate judge did not have jurisdiction to try citizenship case based on birth).

Other

ILLEGAL REMOVAL OF UNITED STATES CITIZENS
Occasionally, persons are placed in removal proceedings, and even removed, even though they are United States citizens. E.g., Diaz v. Reno, 40 F.Supp. 2d 984 (N.D. Ill.1999) (U.S. citizen who had been ordered summarily excluded from the United States mounts several claims related to summary exclusion after returning to the United States); Fierro v. INS, 66 F. Supp. 2d 229 (D. Mass. 1999) (court enjoins removal of individual pend-ing resolution of claim to United States citizenship).

CITIZENSHIP - FOUNDLINGS
INA 301(f) allows "a person of unknown parentage found in the United States while under the age of five years" to be considered a citizen of the United States unless the person is "shown, prior to his attaining the age of twenty-one years, not to have been born in the United States."

CITIZENSHIP - PROOF OF - CENSUS INFORMATION
United States Citizenship may be sometimes proven by showing a child appeared on a U.S. census in the United States shortly after birth. Contact US Census Bureau. Thanks to Mary Lee Eldridge