(D)  Naturalization.  The person may also have acquired U.S. citizenship by naturalization, either by filing his or her own application as an adult, or during the client’s childhood by application of a U.S. citizen parent, generally followed by a swearing-in ceremony.[13]  Until the swearing in has occurred, the person is not a naturalized United States citizen.[14]  Once the person has been sworn in, s/he cannot be deported unless naturalized citizenship is first revoked.[15]  Even then, s/he cannot be deported for convictions occurring prior to denaturalization.[16]

 

[13] See INA § § 310 et seq., 8 U.S.C. § § 1410 et seq.  This summary was drawn from M. Vargas, Representing Noncitizen Criminal Defendants In New York State, Chapter 2, p. 2-2 (N.Y. State Defender’s Association, Criminal Defense Immigration Project, 2d ed., 2000).

[14] Tovar-Alvarez v. U.S. Att’y Gen., 427 F.3d 1350 (11th Cir. Oct. 13, 2005) (noncitizen must participate in public citizenship ceremony in order to fully naturalize); United States v. Hovsepian, 422 F.3d 883 (9th Cir. Sept. 6, 2005) (district court’s decision to administer oath of citizenship affirmed where district court’s finding that they were persons of Good Moral Character was not clearly erroneous).

[15] U.S. citizenship can be revoked on the basis of certain false statements in the application.  See United States v. Alferahin, 433 F.3d 1148 (9th Cir. Jan. 11, 2006) (conviction of knowingly procuring naturalization contrary to law, in violation of 8 U.S.C. § 1425(a), reversed for ineffective assistance of counsel since jury instructions were incomplete, and defense attorney declined the court’s offer to instruct the jury on the element of materiality); United States v. Kumpf, 438 F.3d 785 (7th Cir. Feb. 23, 2006) (affirming grant of summary judgment for the government in a denaturalization case where the naturalized individual illegally gained his entry visa by hiding his personal assistance in the persecution of civilians as a Waffen SS guard in Nazi concentration camps during World War II, rejecting equal protection argument).

[16] Costello v. INS, 376 U.S. 120 (1964) (person who was convicted of two crimes involving moral turpitude while he was a United States citizen cannot be deported on account of them after he lost his citizenship through denaturalization).

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