Full custody by the naturalizing parent is not mandatory according to the USCIS.
Joint custody is ok.
Do I qualify under Child Protection Act?
- Thread starter Rikk
- Start date
Joint custody is ok.
This is an old thread, but the question of which type of custody is necessary for derivative citizenship before the Child Citizenship Act of 2000 is complicated. The USCIS Policy Manual section on derivative citizenship before the Child Citizenship Act of 2000 does not clarify which kind of custody is needed under the previous law, so I'm not sure how you are claiming "according to the USCIS".
Citizenship Chart C, footnote 16, goes into the question in detail. Basically, the FAM (8 FAM 301.9-9(C).e) says that joint custody is okay, but decisions from the 9th and 5th Circuits say that the naturalizing parent must have sole custody.
My best friend, 47 (He turned 18 before CCA enacted, so he is only eligible under the OLD INA 321), who actually applied for naturalization using N-400 was denied after passing interview. He was made aware of this on his oath ceremony day (for naturalization) and informed to file N-600 saying he has been a US Citizen since 1995, when his divorced father who had joint custody naturalized. Despite my friend who had been renewing his I-551 using I-90 for the last 3 decades was shocked.
Of course, my friend reached out to his congressman demanding answers from USCIS to why my friend was granted the renewals for his green card all these years causing him to lose his rights as a US Citizen such as voting, and etc. and specifically stated saying "He thought the naturalizing parent had to have SOLE LEGAL CUSTODY." according to https://www.ilrc.org/sites/default/files/resources/natz_chart-c-2022-7-19.pdf.
Well he received a response from the USCIS in writing that USCIS no longer requires "sole custody" when adjudicating minors who derived citizenship UNDER INA 321, and "joint custody is accepted if the evidence such as divorce decree addressing custody or a custody decree" is provided.
This is what the USCIS website says.
My friend, instead of following my advise and filing for the US Passport back in early 2000s, read stories being told wrongfully by his lawyers who said he wasn't qualified and must naturalize since the naturalizing parent had a joint custody and not sole custody, ironically found out that I proved him wrong.
I guess it is really up to the director not up to us. However, your source is also not from the USCIS and regardless of what we think, it is up to the specific director of the USCIS to determine whether the legal custody had to be "sole" or "joint" during INA 321 era (pre CCA of 2000) and my friend's adjudicating director have stated that the USCIS considers joint custody acceptable. What better source than the response from the USCIS director would anyone need to clarify? Please advise.
Of course, my friend reached out to his congressman demanding answers from USCIS to why my friend was granted the renewals for his green card all these years causing him to lose his rights as a US Citizen such as voting, and etc. and specifically stated saying "He thought the naturalizing parent had to have SOLE LEGAL CUSTODY." according to https://www.ilrc.org/sites/default/files/resources/natz_chart-c-2022-7-19.pdf.
Well he received a response from the USCIS in writing that USCIS no longer requires "sole custody" when adjudicating minors who derived citizenship UNDER INA 321, and "joint custody is accepted if the evidence such as divorce decree addressing custody or a custody decree" is provided.
Chapter 4 - Automatic Acquisition of Citizenship after Birth (INA 320)
A. General Requirements: Child Automatically Acquiring Citizenship after Birth[1]
www.uscis.gov
B. Legal and Physical Custody of U.S. Citizen Parent
Legal custody refers to the responsibility for and authority over a child. For purposes of this provision, USCIS presumes that a U.S. citizen parent has legal custody of a child and recognizes that the parent has lawful authority over the child, absent evidence to the contrary, in all of the following scenarios:[8]- A biological child who currently resides with both biological parents who are married to each other, living in marital union, and not separated;
- A biological child who currently resides with a surviving biological parent, if the other parent is deceased;
- A biological child born out of wedlock who has been legitimated and currently resides with the parent;
- An adopted child with a final adoption decree who currently resides with the adoptive U.S. citizen parent;[9]
- A child of divorced or legally separated parents where a court of law or other appropriate government entity has awarded primary care, control, and maintenance of the child to a parent under the laws of the state or country of residence.
This is what the USCIS website says.
My friend, instead of following my advise and filing for the US Passport back in early 2000s, read stories being told wrongfully by his lawyers who said he wasn't qualified and must naturalize since the naturalizing parent had a joint custody and not sole custody, ironically found out that I proved him wrong.
I guess it is really up to the director not up to us. However, your source is also not from the USCIS and regardless of what we think, it is up to the specific director of the USCIS to determine whether the legal custody had to be "sole" or "joint" during INA 321 era (pre CCA of 2000) and my friend's adjudicating director have stated that the USCIS considers joint custody acceptable. What better source than the response from the USCIS director would anyone need to clarify? Please advise.
That section is about the current INA 320 under the Child Citizenship Act of 2000. It is not about the former INA 321 of the laws prior to the Child Citizenship Act of 2000.Chapter 4 - Automatic Acquisition of Citizenship after Birth (INA 320)
A. General Requirements: Child Automatically Acquiring Citizenship after Birth[1]www.uscis.govB. Legal and Physical Custody of U.S. Citizen Parent
Legal custody refers to the responsibility for and authority over a child. For purposes of this provision, USCIS presumes that a U.S. citizen parent has legal custody of a child and recognizes that the parent has lawful authority over the child, absent evidence to the contrary, in all of the following scenarios:[8]
USCIS considers a U.S. citizen parent who has been awarded “joint custody” to have legal custody of a child. There may be other factual circumstances under which USCIS may find the U.S. citizen parent to have legal custody to be determined on a case-by-case basis.
- A biological child who currently resides with both biological parents who are married to each other, living in marital union, and not separated;
- A biological child who currently resides with a surviving biological parent, if the other parent is deceased;
- A biological child born out of wedlock who has been legitimated and currently resides with the parent;
- An adopted child with a final adoption decree who currently resides with the adoptive U.S. citizen parent;[9]
- A child of divorced or legally separated parents where a court of law or other appropriate government entity has awarded primary care, control, and maintenance of the child to a parent under the laws of the state or country of residence.
This is what the USCIS website says.
Says who? Where does it says that the legal and physical custody is SPECIFICALLY for the new INA? Because obviously, you want to make a decision over the USCIS Director who had to explain to the congressman that the current USCIS is ok with Joint legal custody since 1996.
As a matter of a fact, the old Adjudicator's Field Manual is also retired and now the new Policy Manual is in effect. So interpretation is technically up to the adjudicators. In my friend's case, my friend sufficed all the requirement by the USCIS' interviewer to get approved for his N-400 application after the interview, ONLY TO BE DENIED by the higher ranking adjudicator, the Director who said my friend derived citizenship in 1995 because the JOINT CUSTODIAL FATHER naturalized.
In your theory, why do USCIS even then on a INA 321 require evidence of physical custody? There is NOT ONE WORD on the OLD INA 321 where you had to prove physical custody UNLESS YOU WERE ADOPTED, but they have (both the DoS and the DHS) ALWAYS requested for evidence of physical custody by a naturalizing parent when the child who derived citizenship under the old INA 321 wanted a Passport or a Certificate of Citizenship. So were they both not following the rule according to your theory?
It isn't always about how it is written in my opinion. At the end of the day, it isn't definite that the sole custody is the only requirement otherwise myself and my best friend would never have been proclaimed as a US Citizen. And last but not least, a written response by the Director of USCIS saying that my friend derived US Citizenship is what I am going by. Because to be honest, my friend should have been able to get naturalized if the decision was based on what you are saying.
As a matter of a fact, the old Adjudicator's Field Manual is also retired and now the new Policy Manual is in effect. So interpretation is technically up to the adjudicators. In my friend's case, my friend sufficed all the requirement by the USCIS' interviewer to get approved for his N-400 application after the interview, ONLY TO BE DENIED by the higher ranking adjudicator, the Director who said my friend derived citizenship in 1995 because the JOINT CUSTODIAL FATHER naturalized.
In your theory, why do USCIS even then on a INA 321 require evidence of physical custody? There is NOT ONE WORD on the OLD INA 321 where you had to prove physical custody UNLESS YOU WERE ADOPTED, but they have (both the DoS and the DHS) ALWAYS requested for evidence of physical custody by a naturalizing parent when the child who derived citizenship under the old INA 321 wanted a Passport or a Certificate of Citizenship. So were they both not following the rule according to your theory?
It isn't always about how it is written in my opinion. At the end of the day, it isn't definite that the sole custody is the only requirement otherwise myself and my best friend would never have been proclaimed as a US Citizen. And last but not least, a written response by the Director of USCIS saying that my friend derived US Citizenship is what I am going by. Because to be honest, my friend should have been able to get naturalized if the decision was based on what you are saying.
This is good debate. I also want to tell you that both I and my brother was born before 1980 and we both became a US citizen along with our father, who had joint legal custody with our mom, who still is alive to this date is a LPR and didn't naturalize. I only have US Passport, but my younger brother received his N-560 after filing out N-600. They RFE'd requesting a handful of evidence of physical custody but NEVER once required anything more than my parents' divorce decree which addressed custody to both our mom and dad.
I understand that it is complicated since USCIS didn't clearly state whether Joint custody suffices for derivative citizenship under INA 321. However, I seriously doubt that the Department of State made that policy official without discussing that matter with the Department of Justice and the INS before the CCA 2000 kicked in. Otherwise, there would have been tens and thousands of derived citizens who would have gotten approved for US Passport, then gets rejected for N-560 which you get one chance per lifetime.
I understand that it is complicated since USCIS didn't clearly state whether Joint custody suffices for derivative citizenship under INA 321. However, I seriously doubt that the Department of State made that policy official without discussing that matter with the Department of Justice and the INS before the CCA 2000 kicked in. Otherwise, there would have been tens and thousands of derived citizens who would have gotten approved for US Passport, then gets rejected for N-560 which you get one chance per lifetime.