Rules for Whether Individual Must Have Been an LPR Before Turning 18 to Derive Citizenship Under Old Section 321

 

Introduction: Nwozuzu and the Derivation of Citizenship for Children Under Old INA 321

Derivative citizenshipFrom December 24, 1952, to February 27, 2001, the derivation of citizenship after birth for alien children born abroad to alien parents, or to an alien parent who subsequently lost U.S. citizenship, was addressed in the old section 321 of the Immigration and Nationality Act (INA). The old section 321 was replaced by section 320, which we discuss in our full article on the derivation of U.S. citizenship after birth [see article]. The old section 321 nevertheless still applies to cases where the child born abroad turned 18 before the effective date of the current section 320 on February 27, 2001. Because of this, issues regarding the interpretation of the old section 321 are still relevant to immigration law today.

A specific provision of the old section 321 of the INA — section 321(a)(5) — has been a subject of inconsistent decisions issued by various federal circuit courts and the Board of Immigration Appeals (BIA). The question that has led to disparate decisions is whether, in order to derive citizenship, a child had to reside in the United States as a lawful permanent resident (LPR) prior to reaching the age of 18 and after his or her parent(s) were naturalized, or whether the child merely needed to “reside permanently” in the United States but not necessarily as an LPR under the same circumstances. The Board (and various federal courts) and the U.S Court of Appeals for the Second Circuit have reached different conclusions regarding the resolution of this question which arises from the use by old section 321 of both the language “lawful permanent resident” (LPR) and “reside permanently” in articulating the requirements for derivative citizenship. The Board's position is that LPR status was required to derive citizenship, whereas the Second Circuit's position was that something less than LPR status could meet the “reside permanently requirement.” In this article, we will examine the language of the old section 321, the various interpretations of the old section 321(a)(5), and the implications of the standing Board precedent and the circuit split on the issue for individuals who are still affected by the old section 321.

To read about the rule itself and where it applies, please see the last two sections of this article in the table of contents.

Please see our full article to learn more about the derivation of citizenship after birth [see article].

Text of Old Section 321

Before proceeding, we must examine the text of the old section 321. The old section 321 was codified in the U.S. Code at 8 U.S.C. 1432 [PDF version]. The text of the statute reads as follows:

  • (a) A child born outside of the United States of alien parents, or of an alien parent and a citizen parent who has subsequently lost citizenship of the United States, becomes a citizen of the United States upon fulfillment of the following conditions:
    1. The naturalization of both parents; or
    2. The naturalization of the surviving parent if one of the parents is deceased; or
    3. The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if
    4. Such naturalization takes place while such child is unmarried and under the age of eighteen years; and
    5. Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of this subsection, or thereafter begins to reside permanently in the United States while under the age of eighteen years.
  • (b) Subsection (a) of this section shall apply to an adopted child only if the child is residing in the United States at the time of naturalization of such adoptive parent or parents, in the custody of his adoptive parent or parents, pursuant to a lawful admission for permanent residence.

Understanding the Old Section 321

Old section 321(a)(1)-(5) lists the different things that must happen for “[a] child born outside the United States of alien parents, or of an alien parent and citizen parent who has subsequently lost citizenship of the United States,” to derive citizenship after birth. In this article, we are specifically discussing subsection 321(a)(5). For all of the cases that we discuss, the requirements of subsections 321(a)(1)-(4), pertaining to the naturalization of one or both parents before the child turned 18 years of age, were satisfied.

Provided that subsections 321(a)(1)-(4) have been satisfied, the final requirement found in section 321(a)(5) must be met in order for the child to derive citizenship. Subsection 321(a)(5) first states that the child must be “residing in the United states pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized…” On its face , this provision seems straightforward: In order to derive citizenship under this part of section 321(a)(5), the child must be residing in the United States as a lawful permanent resident (LPR) at the time his or her parent(s) is or are naturalized under section 321(a)(1), (2), or (3). The reason why this is clear is because section 101(a)(20) of the INA specifically defines what it means to be “an alien lawfully admitted for permanent residence” Had the old section 321(a)(5) ended there, the statute would not be ambiguous.

However, subsection 321(a)(5) continues, adding, “or [the child] thereafter begins to reside permanently in the United States while under the age of eighteen years.” The disagreement among the Board and various circuits is whether the last part of section 321(a)(5), “begins to reside permanently in the United States while under the age of eighteen years,” constitutes an alternative way for the child to satisfy 321(a)(5), distinct from residing in the United States as an LPR. Unlike the term “lawfully admitted for permanent residence,” which is defined explicitly in statute, the term “residing permanently” is not a defined term in the INA, although the INA does separately define the terms “permanent” and “residence”. Section 101(a)(31) defines the term “permanent” as meaning “a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or the individual, in accordance with law.” Section 101(a)(33) defines “residence” as “the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, with regard to intent.”

The Nwozuzu Case in the BIA and the Second Circuit

Administrative Precedent: Matter of Nwozuzu, 24 I&N Dec. 609 (BIA 2008)

In 2008, the Board issued a precedent decision on the proper interpretation of section 321(a)(5) in the Matter of Nwozuzu, 24 I&N Dec. 609 (BIA 2008) [PDF version]. In the Matter of Nwozuzu, the Board held that in in order to derive citizenship through the old section 321, the child must have been residing in the United States as an LPR prior to turning 18 years of age. This means that the Board found that section 321(a)(5) requires that the child reside in the United States as an LPR prior to turning 18 years of age. The Board held that the second part of section 321(a)(5) does not create a distinct way to satisfy section 321(a)(5), but instead merely clarifying that the child need not have been accorded LPR status at the time his or her parent naturalizes. In other words, the Board held that under section 321(a)(5), the child may derive citizenship if he or she resides in the United States as an LPR before he or she turns 18, but this may occur either before or after his or her parent naturalizes .

The Board suggested that its position in the Matter of Nwozuzu had support in administrative precedent found in the Matter of T-, 7 I&N Dec. 679 (R.C. 1958) (suggesting that LPR status was a prerequisite for derivation of citizenship), and in the Matter of C-, 8 I&N Dec. 421, 422 (R.C. 1959) [PDF version] (“[l]awful permanent residence has always been a prerequisite to derivative citizenship.” quoted by the Board in Nwozuzu). The Board also cited to multiple District Court decisions that supported its conclusion that LPR status is a prerequisite to the derivation of citizenship after birth: see Schneider v. U.S. INS, 65 F.Supp. 377, 379-80 (D .Wash. 1946) [PDF version]; United States ex rel. Goldman v. Tod, 3 F.2d 836, 838-40 (N.D.N.Y. 1924) [PDF version].

In the Matter of Nwozuzu, the Board cited to the Second Circuit opinion in Ashton v. Gonzales, 431 F.3d 95 (2d Cir. 2005) [PDF version], wherein the Second “expressed doubts,” as described by the Board, that section 321(a) requires LPR status in all cases. However, the Board declined to follow Ashton for two reasons. The first was that the Matter of Nwozuzu arose from within the jurisdiction of the Third Circuit, not the Second Circuit. This means that Ashton did not control in the Matter of Nwozuzu. Secondly, the Board noted that the Second Circuit did not conclude that the language of section was unambiguous, and the Second Circuit did not ultimately resolve the meaning of section 321(a).

Nwozuzu's Path to the Second Circuit

Upon the Board's decision, the respondent filed a motion to reconsider. The respondent had initially been in removal proceedings based on criminal charges from New York. However, because the Department of Homeland Security (DHS) initiated removal proceedings while the respondent was detained in Pennsylvania, the case arose under the jurisdiction of the Third Circuit. The Immigration Judge (IJ) who heard the case before the Board had found that the respondent had derived citizenship through his parents and accordingly terminated removal proceedings and ordered the respondent released from detention. After the Board reversed the IJ in the Matter of Nwozuzu, removal proceedings were reinstated. In the motion to reconsider, the respondent noted that he had moved to New York, which was under the jurisdiction of the Second Circuit, and because the Second Circuit would likely hear any further appeals, the Second Circuit decision in Ashton should apply. The Board granted the motion to reconsider, but it ultimately affirmed its decision in the Matter of Nwozuzu. First, the Board disagreed that it was “clear” the case would ultimately be heard by the Second Circuit, and that even if Ashton were to apply Ashton would not dictate a specific result in Nwozuzu. In Nwozuzu v. Napolitano, Civ. No. 12-3963, (D. NJ. Aug. 16, 2016) [PDF version], the respondent sought an individualized bond hearing for his second detention in Federal District Court in New Jersey. Although this decision is not relevant to the section 321(a) issue, it provides important background on how the case came before the Second Circuit. In 2009, the respondent was arrested on a disorderly conduct charge in New York. In 2010, the DHS re-detained the respondent, and his removal proceeding hearings this time came before an IJ in New York. The IJ in New York found that the respondent was removable, and the respondent's appeal to the BIA was dismissed. However, because the proceedings arose in the jurisdiction of the Second Circuit, the respondent appealed to the Second Circuit, while again asserting his citizenship claim.

Second Circuit Reverses Board: Nwozuzu v. Holder, 726 F.3d (2d. Cir 2013)

On appeal in 2013, the Second Circuit reversed the Board's 2011 decision in a precedent decision titled Nwozuzu v. Holder, 726 F.3d 323 (2d Cir. 2013) [PDF version]. The Second Circuit read section 321(a)(5) differently than did the Board, holding that a child need not become an LPR prior to turning 18 in order to derive citizenship from his or her parent(s) under the old section 321.

The Second Circuit found that the first and second parts of the old section 321(a)(5) represented distinct means by which a child could derive citizenship after the naturalization of his or her parent(s). Unlike the Board, which held that the second part qualified the first part, the Second Circuit held that the phrases “lawfully admitted for permanent residence” and “reside permanently” have “plainly different meanings” and “are not coextensive.” The Second Circuit also took the position that it made clear in Ashton that “reside permanently … requires something less than a lawful admission of permanent residency.”

Under the Second Circuit's rule, in order to derive citizenship under section 321(a) without becoming an LPR before turning 18, the child must have resided in the United States and “garnered some 'official objective manifestation'” of his or her intent to reside permanently. The Second Circuit cited to Ashton in rejecting the notion that intent alone, without residence, could satisfy the requirement of section 321(a)(5).

To reach this conclusion, the Second Circuit examined derivation of citizenship laws that predated the enactment of the old section 321(a). Citing to its precedent decision in United States ex rel. Patton v. Tod, 297 F. 385, 398 (2d Cir. 1924), the Second Circuit noted that the previous derivation of citizenship statute — which was constructed similarly to section 321 — required only that the child was “dwelling in the United States” after the naturalization of his or her parent, and that the residence need not be “lawful” for it to meet the “reside permanently” requirement (however, the Second Circuit noted that the respondent in the instant case was residing in the United States lawfully). The Second Circuit cited to its precedent decision in Duarte-Ceri v. Holder, 630 F.3d 83, 89-90 (2d Cir. 2010) [PDF version], wherein it quoted from the Fifth Circuit decision in Bustamante-Berrea v. Golzanes, 447 F.3d 388, 397 (5th Cir. 2006) [PDF version], which took the position that Congress had enacted the statute to ensure that “alien children whose real interest were located in America with their custodial parent, and not abroad, should be automatically naturalized.”

Interestingly, the Second Circuit agreed with the Board that the second part of section 321(a)(5) addressed cases where a child was either abroad or not yet admitted as an LPR when his or her second parent naturalized. The key difference is that the Second Circuit read this provision as creating a way for such a child to derive citizenship without being admitted as an LPR.

Accordingly, the Second Circuit found that the Board's reading of the old section 321(a) in the Matter of Nwozuzu was “unreasonable.”

Other Circuits Side With the BIA

While the Second Circuit established precedent that expressly contradicts the Matter of Nwozuzu, other Circuits followed the Board's reasoning.

In between the Matter of Nwozuzu and the Second Circuit decision in Nwozuzu v. Holder, the Ninth Circuit in Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1062-63 (9th Cir. 2008) [PDF version], and the Eleventh Circuit in United States v. Forey-Quintero, 626 F.3d 1323, 1326-27 (11th Cir. 2010) [PDF version], followed the Board's decision in the Matter of Nwozuzu. This means that in order to derive citizenship in the Ninth and Eleventh Circuit, a child must have resided in the United States as an LPR subsequent to his or her parent's naturalization and prior to turning 18.

Subsequent to Nwozuzu v. Holder, the Fifth Circuit resolved the same issue in Gonzalez v. Holder, 771 F.3d 238 (5th Cir. 2014) [PDF version]. The Fifth Circuit declined to decide whether the Board or the Second Circuit was correct because the respondent in Gonzalez would not have met the requirement in either case. Unlike the situation in Nwozuzu, the respondent's “residence” in the United States prior to turning 18 was not lawful. The Fifth Circuit took the position that, even under the Second Circuit's reading of section 321(a)(5), the “residence” would still have to be lawful in order to form the basis of a claim that the child presented “some objective official manifestation” of permanent residence. The Fifth Circuit deferred to the Board's interpretation of the INA without ultimately deciding whether the Board or Second Circuit was correct in the reading of section 321(a)(5). This means that for the time being, adjudicators must apply the Board's precedent in the Fifth Circuit.

The First Circuit addressed a similar situation in Thomas v. Lynch, 828 F.3d 11 (1st Cir. 2016) [PDF version]. In this case, the individual's mother had naturalized three days before he turned 18. The individual was classified as the child of an LPR but was not himself an LPR. Similarly to the Fifth Circuit Gonzalez v. Holder, the First Circuit declined to reach whether the Board or the Second Circuit was correct in reading section 321(a) because it held that the respondent was ineligible to derive citizenship under both readings. The First Circuit found that even under the Second Circuit's reading, in the three-day period between his mother's naturalization and his turning 18 the respondent had made no effort to change his status or to “begin” residing permanently in the United States. It held that even under a generous reading of the second part of section 321(a)(5), an individual such as the respondent could not automatically derive citizenship without taking some action to begin residing permanently subsequent to the parent's naturalization (e.g., by applying for LPR status). Therefore, the First Circuit rejected the respondent's petition for review, and the adjudicators must still apply the Matter of Nwozuzu in the First Circuit. It should be noted that the Thomas decision can be read as being sympathetic to the Board's position, although it did not reach the question of whether the Board or the Second Circuit was correct.

Understanding The Different Laws

The only time in which adjudicators must interpret section 321(a)(5) as providing an alternative way to derive citizenship besides the child becoming an LPR prior to turning 18 is in cases arising from the Second Circuit. It should be noted that although the Second Circuit's reading of section 321(a) is more generous than the Board's reading of the statute, Nwozuzu v. Holder does not directly address, for example, whether citizenship can be derived where the individual was residing in the United States unlawfully, or where the individual did not have a pending application for LPR status. The Second Circuit encompasses the following states: Connecticut, New York, and Vermont.

In all States and jurisdictions other than Connecticut, New York, and Vermont, adjudicators will apply the Board's rule that the individual must have been an LPR prior to turning 18. The following states and areas comprise the Ninth and Eleventh Circuits, which have explicitly followed the Matter of Nwozuzu: Alabama, Alaska, Arizona, California, Florida, Hawaii, Georgia, Guam, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, Washington (state). The following states and jurisdictions are in the First and Fifth Circuits, which addressed the issue after Nwozuzu v. Holder without resolving whether the Board or the Second Circuit was correct: Louisiana, Maine, Massachusetts, Mississippi, New Hampshire, Puerto Rico, Rhode Island, and Texas.

In a final decision of note, the Fifth Circuit held in U.S. v. Juarez, 672 F.3d 381 (5th Cir. 2012) [PDF version] that an individual could raise an ineffective assistance of counsel claim where his or her counsel failed to research and investigate the facts regarding raising a derivative citizenship claim as a defense to removal.

Conclusion

The old section 321 is still relevant to cases where an individual turned 18 before the effective date of sections 320 and 322 on February 27, 2001. At present, adjudicators will apply the narrow rule from the Matter of Nwozuzu everywhere outside of the Second Circuit. In such cases, the individual must have resided in the United States as an LPR after his or her parent's naturalization and prior to turning 18. For cases arising from the Second Circuit — which includes Connecticut, New York, and Massachusetts — there are situations in which the individual may be found to have derived citizenship without having resided as an LPR before turning 18. For example, in Nwozuzu, the individual was in the United States lawfully and was in the process of seeking LPR status. However, the Second Circuit did not address alternative situations in which there may be more negative factors than there were for the respondent in Nwozuzu v. Holder. The Fifth and First Circuits in Gonzalez and Thomas respectively addressed situations in which they held that Nwozuzu v. Holder would not have granted the respondents derivative citizenship.

Going forward, it will be worth watching to see if any circuits adopt the Second Circuit's reading of section 321(a) instead of the Board's reading of it. Furthermore, it will be interesting to see if the Second Circuit clarifies the circumstances in which it believes a non-LPR may derive citizenship under section 321(a). Finally, the fact a circuit split exists means that there is a heightened chance the issue may eventually find its way to the U.S. Supreme Court.

If an individual believes that he or she may have a derivation of citizenship claim under the old section 321(a), the individual should consult with an experienced immigration attorney immediately for a full consultation. To learn more about citizenship and naturalization, please see the full section on our website [see category].