- Introduction: Matter of Falodun, 27 I&N Dec. 52 (BIA 2017)
- Factual and Procedural History: 27 I&N Dec. at 52-54
- Analysis and Decision: 27 I&N Dec. 54-56
On June 2, 2017, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Falodun, 27 I&N Dec. 52 (BIA 2017) [PDF version]. The Board made two key holdings in this decision. First, it held that a certificate of citizenship, unlike a Certificate of Naturalization, does not confer United States citizenship. Rather, it merely “provides evidence that the applicant previously obtained citizenship status.” Second, the Board held that judicial denaturalization proceedings are not required to revoke a certificate of citizenship. Instead, the Department of Homeland Security (DHS) may revoke a certificate of citizenship administratively upon determining that the applicant is not entitled to the claimed citizenship status. This issue may arise in derivation of citizenship cases where a certificate of naturalization was alleged to have been issued in error.
In this article, we will examine the facts and procedural history of the Matter of Falodun, the Board's analysis and decision, and what the decision will mean going forward as administrative precedent.
The respondent, a native and citizen of Nigeria, was born in Nigeria in 1981. He obtained lawful permanent resident (LPR) status in the United States in 1996 as the stepchild of a U.S. citizen who was married to his alleged adoptive father. The respondent made a claim to U.S. citizenship based on the naturalization of his putative custodial adoptive father in 1995. The respondent was issued a Form N-560, Certificate of Citizenship on February 17, 1998.
On August 2, 2002, the then-Immigration and Naturalization Service (INS) (its functions have mostly been taken over by DHS) issued a notice of intent to cancel (NOIC) the respondent's Certificate of Citizenship. The NOIC was based on information discovered in connection with a Federal criminal investigation that disclosed that the respondent's putative adoptive father was actually his biological brother. The respondent had claimed that his biological father had died in 1983. However, records indicated that, as of 2002, the respondent's biological father was actually alive and living in Nigeria. Additionally, the NOIC indicated that the respondent had submitted a fraudulent adoption certificate.
On October 23, 2002, the respondent responded to the NOIC by denying each and every charge included. In so doing, he submitted a purported death certificate for the person who he alleged was his biological father. The death certificate was issued 8 months after this individual's death and three days before the respondent's response to the NOIC was due.
The respondent was convicted on February 14, 2003, in the United States District Court for the District of Minnesota on charges that would be relied upon in the eventual removal proceedings.
On April 21, 2003, the District Director concluded that the respondent's evidence was insufficient to overcome the evidence set out in the NOIC supporting the cancellation of his Certificate of Citizenship. The District Director determined that the adoption decree submitted on the respondent's behalf was fraudulent. Furthermore, the District Director found that the respondent did not derive citizenship through his purported adoptive father — in fact, his biological brother — under the former section 321(a)(2) of the Immigration and Nationality Act (INA) (the former section was in effect at the time the respondent turned 18). The Administrative Appeals Office (AAO) dismissed the respondent's appeal from the District Director's decision.
The respondent was subsequently placed in removal proceedings. The respondent, relying on section 342 of the INA, filed a motion for the termination of his removal proceedings. The respondent argued that the cancellation of his Certificate of Citizenship did not affect his claim to status as a U.S. citizen. The Immigration Judge dismissed the respondent's motion and ordered him removed to Nigeria after rejecting his claim to U.S. citizenship. The respondent subsequently appealed to the BIA.
On appeal, the respondent argued that:
- The cancellation of his Certificate of Citizenship did not affect his claim to U.S. citizenship status; and
- He was denied due process because the Immigration Judge did not defer to a Federal court regarding his claim to U.S. citizenship.
The respondent relied upon section 342 of the INA in making his argument. Section 342 provides that a certificate of citizenship may be cancelled through administrative procedures, but that the cancellation of such certificate “shall affect only the document and not the citizenship status of the person in whose name the document was issued.” Additionally, the respondent relied upon the published decision of the United States Court of Appeals for the Ninth Circuit in Gorbach v. Reno, 219 F.3d 1087 (9th Cir. 2000) (en banc) [PDF version], wherein the Ninth Circuit enjoined administrative proceedings to revoke naturalization.
The respondent claimed that he had derived citizenship under the former section 321(a) of the INA as the minor child of a custodial adoptive parent who had been naturalized in 1995. The respondent did apply for and have approved an application for a certificate of citizenship. However, the Board noted that the issuance of the certificate was “only in recognition of that derivative status.” The Board stated that, once the adoptive relationship underlying the respondent's derivative status was found to be fraudulent, the respondent no longer had any basis to claim derivative status. Accordingly, the District Director cancelled the respondent's Certificate of Citizenship under section 342 of the INA.
The Board took the position that the respondent appeared to be conflating the grant of citizenship through the naturalization process, in which a naturalized citizen may be granted a Form N-550, Certificate of Naturalization, with the approval of an application for a Certificate of Citizenship.
The Board explained that an applicant for naturalization may file a Form N-400, Application for Naturalization, if he or she is 18 years old and meets other statutory requirements for naturalization. If the naturalization application is approved and the applicant for naturalization takes the oath of allegiance, he or she will be issued a Form I-550 to document that he or she was granted U.S. citizenship. However, the respondent did not claim citizenship through naturalization. Rather, he was issued an entirely different form — Form N-560, the Certificate of Citizenship — under section 341 of the INA, in recognition of what turned out to have been a fraudulent claim of having derived citizenship.
The Board explained that a certificate of citizenship merely serves as documentation for an individual who claims to have derived citizenship. The certificate does not itself confer citizenship, but instead merely recognizes and serves as evidence that the applicant had previously derived citizenship. In this sense, the Board compared a certificate of citizenship to a U.S. passport in that it serves as “indicia of citizenship.”
In the instant case, the Board noted that the respondent's Certificate of Citizenship was void because the respondent's derivation of citizenship claim was based on fraud. Citing to 8 C.F.R. 342.1 (2016) and the Ninth Circuit decision in Friend v. Reno, 172 F.3d 638, 647-48 (9th Cir. 1999) [PDF version], the Board explained that the District Director has an affirmative duty to initiate administrative proceedings to cancel a Certificate of Citizenship upon determining that it was issued in error.
The Board held that the District Director had statutory authority to cancel the respondent's fraudulently-obtained Certificate of Citizenship. For this reason, the Board held that the respondent's claim in reliance on section 342 of the INA, specifically that the cancellation of a certificate of citizenship does not affect the citizenship status of the person in whose name it was issued, was misguided. The reason for this is that the respondent had never been entitled to status as a U.S. citizen. To this effect, the Board cited to its decision in the Matter of Koloamatangi, 23 I&N Dec. 548, 551 (BIA 2003) [PDF version], wherein it held that an alien who receives LPR status through fraud is deemed to have never obtained LPR status once his or her original ineligibility is fully adjudicated in immigration proceedings.
For these reasons, the Board made clear that administrative proceedings to cancel a certificate of citizenship under section 342 of the INA are entirely distinct issue from denaturalization proceedings under section 340 of the INA. The Board stated that: “The main difference between cancellation and revocation proceedings is that cancellation only affects the document, not the person's underlying citizenship status.”
The Board explained that the situation would be different for an individual who obtained a Certificate of Naturalization after completing the naturalization process. In this event, the Certificate of Naturalization could not be cancelled without his or her citizenship first having been revoked through the denaturalization process. While revocation of a certificate of citizenship can occur in a purely administrative setting, revocation of citizenship, also known as denaturalization, can only occur in Federal court.
The Board made clear that the denaturalization provisions “do not apply to persons, like the respondent, who have obtained citizenship status derivatively and whose Certificate of Citizenship was cancelled under section 342 of the [INA].” Accordingly, the Board held that the respondent's reliance on the Ninth Circuit decision in Gorbach, which dealt with denaturalization proceedings, was misplaced.
The Board held that the respondent did not show that denaturalization proceedings must be instituted in his case. For this reason, the Board saw no support for his claim that the Immigration Judge was required to defer to a Federal Court for a decision on the respondent's claim to U.S. citizenship. The Board held that, in the context of removal proceedings, an individual who was born outside the United States is presumptively an alien and has the burden of establishing U.S. citizenship. The Board held that the respondent failed to submit sufficient evidence to show that he had derived citizenship in accord with the old section 321(a) of the INA.
Accordingly, the Board affirmed the Immigration Judge's decision and dismissed the respondent's appeal.
The key point in the Matter of Falodun is that cancellation of a certificate of citizenship is entirely distinct from revocation of naturalization (or denaturalization).
A certificate of citizenship issued to an individual who derived citizenship may be cancelled administratively if it is found to have been issued in error. The Board held that. if it is established that the individual's claim of derived citizenship was based on fraud, section 342 of the INA states that the cancellation of a certificate of citizenship does not affect the individual's underlying status and does not mean he or she was ever a citizen. In short, the Board applied a similar principle to derivation of citizenship claims that it applied to claims of LPR status based on fraud in the Matter of Koloamantangi. For the respondent to have avoided removal, he would have had to establish through the submission of evidence that he had actually derived citizenship.
Denaturalization only applies to individuals who completed the naturalization process. Denaturalization proceedings take place in Federal court, rather than in Immigration Court.
If an individual is facing the cancellation of his or her certificate of citizenship, he or she should consult with an experienced immigration attorney. An attorney may assess the situation and determine the best path to move forward.