If the client is a United States citizen, no ground of inadmissibility or deportation can be lawfully applied.[2]  The person may have acquired citizenship by birth, if at least one natural parent was a United States citizen at the time s/he was born, even if s/he was born outside of the United States.[3]  The person may have acquired “derivative citizenship,” if s/he was an unmarried lawful permanent resident under the age of 18 at the time both parents (or the sole custodial parent) naturalized, or under the LIFE Act if one parent naturalized after Feb. 27, 2001, or by adoption.  If so, s/he may have become a U.S. citizen without knowing it.[4]  The person may also have acquired U.S. citizenship by naturalization or by birth in the United States.  See N. Tooby & J. Rollin, Criminal Defense of Immigrants § § 3.13-3.20.

 

A small group of people may be “nationals” of the United States,[5] and therefore not subject to removal.  Two courts have held that a long-term lawful permanent resident who has filed an application for United States citizenship may be considered a “national” of the United States.[6]  However, the Board of Immigration Appeals, and other courts that have reached the issue, have rejected this definition, and limit “nationals” of the United States to persons who have naturalized, or who were born within a United States territory (such as American Samoa and Swains Island).[7]  See N. Tooby & J. Rollin, Criminal Defense of Immigrants § 3.18 for more information.  Certain Native Americans born in Canada may also be able to demonstrate that they cannot be subject to removal under the Jay Treaty of 1794.[8]  See N. Tooby &  J. Rollin, Criminal Defense of Immigrants § 3.19 for more information.

 

[2] 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).  However, this does occasionally happen.  See, 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 pending resolution of claim to United States citizenship).

[3] The formulae for determining the citizenship of the child of one or more parents, who were U.S. citizens when the child was born, are described in I. Kurzban, Kurzban’s Immigration Law Sourcebook 1113 (2007).  It is also possible that the defendant’s grandparents were U.S. citizens, thus transmitting U.S. citizenship to the defendant’s parents, who in turn transmitted it to the child.  Ibid.

[4] The formula for determining the citizenship of an unmarried lawful permanent resident minor whose parents both naturalized prior to his or her 18th birthday is described in I. Kurzban, Kurzban’s Immigration Law Sourcebook 1111 (2007).

[5] INA § 101(a)(22), 8 U.S.C. § 1101(a)(22) (defining “national” as “a person who, though not a citizen of the United States, owes permanent allegiance to the United States.”).

[6] United States v. Morin, 80 F.ed 124, 126 (4th Cir. 1996); Asemani v. Iran, 266 F.Supp.2d 24 (D.D.C. Apr. 23, 2003).

[7] See, e.g., Alwan v. Ashcroft, 388 F.3d 507 (5th Cir. Oct. 18, 2004) (registering with the Selective Service, taking oath of allegiance, and applying for derivative citizenship, without a grant of such application, is insufficient to confer "national" status); Perdomo-Padilla v. Ashcroft, 333 F.3d 964 (9th Cir. June 23, 2003) (filing  application for naturalization does not change an applicant’s immigration status from that of a noncitizen to that of a national); Matter of Navas-Acosta, 23 I. & N. Dec. 586 (BIA 2003) (same).

[8] INA § 289, 8 U.S.C. § 1359.

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 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).

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).

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).

Sixth Circuit

RELIEF - ADJUSTMENT OF STATUS - WIDOW PENALTY
Lockhart v. Napolitano, 561 F.3d 611 (6th Cir. Apr. 8, 2009) (noncitizen whose citizen spouse filed necessary immediate relative form, but then died within two years of qualifying marriage, remained spouse for purposes of adjudication of noncitizens's petition to adjust status to lawful permanent resident. Immigration and Nationality Act, 201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i)), agreeing with Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006), disagreeing with Robinson v. Napolitano, 554 F.3d 358 (3d Cir.2009).

Seventh Circuit

ADJUSTMENT OF STATUS " 245(i) ADJUSTMENT BARRED BY ILLEGAL RE-ENTRY UNDER INA 212(a)(9)(C)
Nunez-Moron v. Holder, ___ F.3d ___, 2012 WL 5315860 (7th Cir. Oct. 30, 2012) (inadmissibility under INA 212(a)(9)(C)(i)(II), 8 U.S.C 1182(a)(9)(C)(i)(II), bars adjustment of status under INA 245(i)); following In re Briones, 24 I. & N. Dec. 355 (BIA 2007); In re Torres"Garcia, 23 I. & N. Dec. 866 (BIA 2006).

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).

Other

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.