USCIS wrong in interpretation of child citizenship act of 2000?

[bobjesse091]

Through out the past few years, I have noticed that the US Department of State has a different interpretation of the Child citizenship act of 2000 compared to USCIS, specifically on this part of the act.

"The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence."

And specifically, "physical custody" is treated differently.


Today I ran into this case, if you search for it on Google, you can find it, I can not post links as I am a new member

MAR212017_01E2309.pdf

USCIS in the above example interprets "physical custody" as:

"Although neither the Act nor the regulations define "physical custody," this term has been considered in the context of "actual uncontested custody" in derivative citizenship proceedings and interpreted to mean actual residence with the parent"

In the example above, the applicant has a valid US passport, but was denied a Certificate of Citizenship.

In US Department of State FAM, it states

"In some cases, a stay of a short duration will, because of its character, meet the “is residing in” requirement. For example, a child who attends boarding school abroad but spends time in the United States in the legal and physical custody of the citizen parent residing in the United States generally would be considered to be residing in the United States for purposes of INA 320. Similarly, a child whose divorced parents have joint custody and who stays with each parent would be considered to reside with both parents and, assuming at least one U.S. citizen parent lives in the United States, the child would meet the “is residing in” requirement by staying with that parent."

In a United States Court of Appeals for the Second Circuit

MOHAMMED HASSAN FAIZAN KHALID v. JEFFERSON B. SESSIONS III

The court had the opportunity to interpret "physical custody" in the Child citizenship act of 2000

In the court's opinion there are many references to previous court cases. For example

"Duarte‐Ceri compels us to “interpret the statute’s ambiguity with leniency” in a way that “preserves rather than extinguishes citizenship,” given both the statute’s purpose of maintaining family unity and the “lingering ambiguities” as to the text’s meaning. 630 F.3d at 88 90. That principle further supports reading “physical custody” not to hinge on the brief and temporary separation created by Khalid’s pretrial detention"

"residing in the United States in the legal and physical custody of the citizen parent" is ambiguous, and the court agrees that it should be interpreted in a way that “preserves rather than extinguishes citizenship,” But USCIS does not do this.

I also took out the following sections from the court ruling

For example, physical custody can be split between parents, and two parents can share and retain “physical custody” even if the child does not actually reside in any one parent’s home full‐time. See, e.g., Loran v. Loran, 2015 WY 24, 17 n.3, 343 P.3d 400, 404 n.3 (Wyo. 2015) (listing cases addressing shared physical custody in Wyoming); Jarvis v. Jarvis, 1998 ND 163, 34 37, 584 N.W.2d 84, 92 (discussing split physical custody arrangements); Child Custody Prac. & Proc. 4:34 (“When choosing between parents, the court may award sole or exclusive custody to one parent, joint legal and/or physical custody, or divided custody with each parent having physical custody of one or more children.”). Those uses of the term “physical custody” conflict with the government’s argument that Khalid must have been “actually residing” with his father at the time he naturalized or before the short time until his eighteenth birthday to obtain derivative citizenship.

"Finally, we observe that the BIA’s interpretation would produce unintended results. Although Khalid’s case arises under his unique circumstances, the BIA’s decision would likely produce unfortunate consequences for the citizenship of other LPR children facing different situations. For example, a high school boarding student away at school would not derive citizenship from her parent who naturalized unless she returned home before turning eighteen.

Similarly, a student on a semester trip abroad might be denied citizenship under the BIA’s interpretation if his parent naturalized while he was abroad and he turned eighteen while on that trip. The BIA’s interpretation likely forecloses derivative citizenship under those circumstances, without any inquiry into the particular circumstances of the parent’s custody or the law governing the child’s separation from the parent. We think that approach at odds with both the statute’s language and context and decline to adopt it here."

There are other appeals court rulings that disagreed with USCIS, I don't want to make this post longer than it is. So I will not post them, but I'm a little confused and worried at the same time.

What would happen to the person above that had/has a US passport but was denied Certificate of citizenship? is he/she a US citizen?

What do you guys think of the current situation with differences on interpretations between USCIS and US Department of State?

 

[newacct]

In principle, whether the person derived citizenship is a matter of law, not a matter of having certificates or passports. Being denied a Certificate of Citizenship and/or a US passport or having it revoked doesn't mean that the person is not a US citizen. Unfortunately, how to interpret laws is not always clear, and here there seems to be a disagreement in how to interpret the law here, and thus a disagreement over whether the person is actually a US citizen. When there is a disagreement over the interpretation of a law, every party carries on as if its own interpretation is correct, until another party does something that conflicts with it, and only then will there be a basis to go to court.

Practically, the person's US passport can serve as proof of US citizenship for almost all purposes. So as long as the Department of State maintains its interpretation that the person is a US citizen, and the person doesn't care about the Certificate of Citizenship, the person can probably continue to exercise all the rights of US citizenship on the basis of their US passport without ever needing to challenge the USCIS's interpretation.

Only if some agency were to deny something on the basis that the person is not a US citizen, and the person were to challenge it on the basis that they are a US citizen (e.g. if the person challenges the USCIS's denial of a Certificate of Citizenship, if some government agency denies some kind of benefit based on USCIS info and the person challenges that, if the person gets put into removal proceedings and the person challenges that, etc.), then this can go to court and ultimately be resolved there.

 

[bobjesse091]

I agree with you newacct, but I wonder if courts do take into account the US DOS and/or USCIS interpretation at the time a US passport or Certificate of Citizenship was issues (not by error but by actual interpretation of the law) during deportation proceedings. For example USCIS used to treat children of military personal that were stationed outside of US as if they were residing in the US. USCIS no longer interprets the law that way. But let's assume one day, one of the children already recognized as a USC by DOS or USCIS by the old interpretation of military personal gets into removal proceedings, would courts consider the interpretation of the agencies and prevent deportation?

The appeals court I mentioned in my post was ruled in 2018, and the case I posted about the petitioner being denied a COC even though he/she had a passport was from 2017 I wonder if USCIS has changed their interpretation to follow the court ruling which is more like the way US DOS interpreted it from the beginning. I also checked the USCIS page for Child Citizenship act of 2000 uscis dot gov/policy-manual/volume-12-part-h-chapter-4

It looks like they are no longer asking for evidence of physical custody, I wonder if it's the appeals court case which pushed them to change their interpretation or maybe that web page is not very accurate of what documentation they really ask for.

This is what the appeals court ruled for "physical custody"

The new "physical custody" requirement ensures that a child's "real interests" are in the United States when obtaining derivative citizenship because the child has a strong connection to the naturalizing parent

Anyways I though I would post about this for awareness. I myself have had anxiety if I am a USC because of the interpretation differences even though I hold a US passport. The multiple appeals court cases I have read have agreed with the DOS interpretation instead of USCIS which is good news.

 

[SusieQQQ]

It looks like they are no longer asking for evidence of physical custody,

I was asked to provide this for my daughter’s N600 application in late 2019.

Also note the passport instructions still technically do as well: “Your parents' marriage/certificate and/or evidence that you were in the legal and physical custody of your U.S. citizen parent, if applicable” https://eforms.state.gov/Forms/ds11.pdf , page 2, though when I offered this evidence with my kid’s passport application I was told to keep it.

I have seen the argument made before (i think in the context of a contested case too) that the US Attorney General, via USCIS, is the final arbiter of who is a citizen; this authority is noted in the uscis manual too https://www.uscis.gov/policy-manual/volume-12-part-a-chapter-3. But unless someone actually gets a previously issued passport taken away from them, their passport is always going to be accepted as evidence of citizenship. So the only real issue becomes one of whether being denied an n600 leads to the passport being taken away.

I’m not sure in the discussions above, where the leap from denied citizenship to deportation comes from? If you have applied for evidence of citizenship (whether under n600 or passport) under the CCA, you must have been a LPR to begin with. Surely if the application is denied you just revert to being a LPR, why would deportation enter the picture?

 

[newacct]

I have seen the argument made before (i think in the context of a contested case too) that the US Attorney General, via USCIS, is the final arbiter of who is a citizen;

I think you are referring to their authority in naturalization proceedings (e.g. when someone applies for naturalization). But for automatic citizenship under INA 320 as in the case here, it is automatic by operation of law. There is no discretion involved. It is a question of interpretation of the statute, for which the federal courts are the final arbiters.

I’m not sure in the discussions above, where the leap from denied citizenship to deportation comes from? If you have applied for evidence of citizenship (whether under n600 or passport) under the CCA, you must have been a LPR to begin with. Surely if the application is denied you just revert to being a LPR, why would deportation enter the picture?

Well, for example, if they are convicted of a crime, or have some other immigration violations, they can be deported as permanent residents, but cannot be deported as citizens.

Or, perhaps they have left the US for so long after automatically becoming a citizen that they would have been considered to have abandoned residency had they still been a permanent resident.

 

[ippjjang1]

Department of State actually has an upper hand after the person is deported with the decision made by IJ.

There has been cases where person who was deported was issued a US passport at the US embassy overseas and enter US as US citizen and there isn't a soul from DHS that can refuse him/her who is entering into US soil with a valid, unexpired passport.

 

[ippjjang1]

I think it is just a bs that Certificate of Citizenship is never questioned when presented to Passport agency while if you present a US Passport to USCIS, they still want to interpret it their way.

When it comes to the derivative citizenship, it says "legal" and "physical" custody. Not legal custody with court decree which satisfies the USCIS.

First of all, why even allow a child from overseas to come live in the United States as a Permanent (yes, not temporary) Resident if the petitioning parent in the US doesn't have "legal" custody of the child. The child should have been refused to begin with.

I was under the same bus. USCIS or the old INS saying that I must present a court-issued custody decree. Well damn, my country didn't even have a custody decree system in the 80s because by their operation of the law, the father automatically gets custody, so the court doesn't rule a God Damn thing.

USCIS wanted a custody decree while I submitted the civil law stating "Father is the only legal custodian after the two parents divorce, if the father passes away, the step mother becomes the legal custodian and the biological mother cannot become a legal custodian of the child whom she gave birth to during her previous marriage".

In the mean time, Department of State issued my Passport because they interpreted that law and I no doubt was under uncontested custody of my father.

 

[TinTin619]

what makes you state that military dependents stationed overseas (specifically minors) are no longer treated as „residing in the US“?

 

[bobjesse091]

what makes you state that military dependents stationed overseas (specifically minors) are no longer treated as „residing in the US“?

In 2019 USCIS changed their interpretation of the Child Citizenship Act of 2000, so that military dependents were not treated as residing in the US. I can not put the full link since it flags it as spam, if you google the line below you can read about it.

new-citizenship-policy-affect-roughly-25-military-children-year-officials-say.html

When USCIS changed their interpretation, Congress passed a new law called "Citizenship for Children of Military Members and Civil Servants Act" to solve that problem.

 

[TinTin619]

Thank you. That makes sense.

 

[Mosty]

I just came across a conflicting issue. DOS via US Embassy rejected renewal of a U.S. passport, indicating that the subjects of the passport (siblings) did not meet requirements under INA 320 establishing citizenship. However, the siblings actually derived citizenship not via INA 320, but rather INA 301 since all siblings were 1. born outside the U.S. 2. to one U.S. citizen parent, 3. who was a citizen prior to their birth, 4. was married to their mother (an alien) and 5. was physically present in the U.S. for five years, two of which were after 14 years of age, but all five years before the siblings were born. Therefore, by operation of law, the siblings are U.S. Citizens under 8 USC 1401 (g)

Unfortunately, DOS is fixed with their decision and has refused to renew the siblings passports, despite the fact that the father has documented proof that he is a US Citizen, became a Citizen before the siblings were born, lived in the U.S. for five years, two of those years after 14 years of age, and these five years were all prior to birth of the siblings. INA 301, simple operation of law.

It is amazing that DOS ignores their obvious misinterpretation. INA 320, generally speaking, applies to children who did not derive U.S. Citizenship as an operation of law at birth. In other words, if you weren't "born a U.S. citizen" then INA 320 would apply, otherwise, if at birth, then INA 301. Generally speaking.

 

[newacct]

I just came across a conflicting issue. DOS via US Embassy rejected renewal of a U.S. passport, indicating that the subjects of the passport (siblings) did not meet requirements under INA 320 establishing citizenship. However, the siblings actually derived citizenship not via INA 320, but rather INA 301 since all siblings were 1. born outside the U.S. 2. to one U.S. citizen parent, 3. who was a citizen prior to their birth, 4. was married to their mother (an alien) and 5. was physically present in the U.S. for five years, two of which were after 14 years of age, but all five years before the siblings were born. Therefore, by operation of law, the siblings are U.S. Citizens under 8 USC 1401 (g)

Unfortunately, DOS is fixed with their decision and has refused to renew the siblings passports, despite the fact that the father has documented proof that he is a US Citizen, became a Citizen before the siblings were born, lived in the U.S. for five years, two of those years after 14 years of age, and these five years were all prior to birth of the siblings. INA 301, simple operation of law.

It is amazing that DOS ignores their obvious misinterpretation. INA 320, generally speaking, applies to children who did not derive U.S. Citizenship as an operation of law at birth. In other words, if you weren't "born a U.S. citizen" then INA 320 would apply, otherwise, if at birth, then INA 301. Generally speaking.

Was a CRBA ever obtained for the children? How old are they? Are they in the US or outside? Why did DOS think they were claiming citizenship under INA 320? (Did they ever get a green card?)

 

[Mosty]

Was a CRBA ever obtained for the children? How old are they? Are they in the US or outside? Why did DOS think they were claiming citizenship under INA 320? (Did they ever get a green card?)

Was a CRBA ever obtained for the children? How old are they? Are they in the US or outside? Why did DOS think they were claiming citizenship under INA 320? (Did they ever get a green card?)

Short answer: CRBA was not obtained. I need to correct my original post—INA 301 doesn't apply, as the father did not live in the U.S. for at least two years after turning 14. I mistakenly assumed this because the father mentioned attending "college." However, in Central and South America, "college" (or colegio in Spanish) often refers to elementary/middle/high school. Although the father lived in the U.S. for six continuous years, he did not reside in the U.S. for two years after age 14.

To answer some of your questions: All siblings are in their early/mid 20s now. However, the requirements were all met prior to them reaching 18 years of age. They are all currently outside the U.S. They all hold expired passports. DOS has refused to renew on the basis that passports should not have been given b/c they now claim the siblings did not meet residency requirements under INA 320 when they first obtained their passports. (Siblings did obtain their LPR, entered the U.S. prior to 18 years of age)

This brings me back to analyzing INA 320. There are three siblings, all born in a foreign country. The father is a U.S. naturalized citizen (before the children's birth), and the mother is an alien (they were married). The children obtained visas, traveled to the U.S., and became lawful permanent residents (LPR). Later, they relinquished their LPR status and obtained U.S. passports. However, 10 years later, all three were denied passport renewals. The Department of State (DoS) concluded that the children never met the requirements for U.S. citizenship under INA 320 because they failed to meet the residency requirements since they were in the U.S. for such a short period of time and departed soon after.

However, I came across a relevant section in the DoS Foreign Affairs Manual:

8 FAM 301.10-2(F)(2) Analyzing the Duration of the Stay (CT 08-04-2023):

INA 320 does not provide a time limit for what constitutes "residing in." For example, an applicant who was lawfully admitted to the United States on the day before their eighteenth birthday and began residing in the U.S. that day would acquire U.S. citizenship, even if they spent only a few hours residing in the U.S. before turning 18. By contrast, an applicant who attended school in the U.S. but resided across the border would not acquire U.S. citizenship under the CCA, even if they spent time equivalent to a few years in the U.S. prior to age 18.

Given this DoS example, if the children were granted LPR status and were in the U.S. for just a few hours before turning 18, they would meet the residency requirement. This appears to be the logical conclusion based on the DoS's own analysis in their Foreign Affairs Manual.

(Counter argument - Children under 18 could meet residency requirements within hours of arriving in the U.S. but before they turned 18, if you look at their "residency" after they turned 18 in the context of "general abode.") But this would be a contradiction. Why? Because any "residency period" after 18 would not, and probably should not count towards residency for citizenship purposes as INA 320 specifically prohibits requirements to be considered after the child reaches the age of 18.

 

[newacct]

The point is that it's the intent and context that matters for residence. In the case of the person who became a permanent resident a few hours before turning 18, and continued to reside in the US for a long time afterwards, that few hours before 18 was part of a long period of residence, so that few hours counts as residence. Although residence after turning 18 doesn't count, the facts of their actions after turning 18 can help show that the entire period, including a few hours before turning 18, was all part of a period of "residence". So in that case, they did have residence before turning 18.

I don't know what the facts of the stay for the children in your case is.

 

[SusieQQQ]

To answer some of your questions: All siblings are in their early/mid 20s now. However, the requirements were all met prior to them reaching 18 years of age. They are all currently outside the U.S. They all hold expired passports. DOS has refused to renew on the basis that passports should not have been given b/c they now claim the siblings did not meet residency requirements under INA 320 when they first obtained their passports. (Siblings did obtain their LPR, entered the U.S. prior to 18 years of age)

This brings me back to analyzing INA 320. There are three siblings, all born in a foreign country. The father is a U.S. naturalized citizen (before the children's birth), and the mother is an alien (they were married). The children obtained visas, traveled to the U.S., and became lawful permanent residents (LPR). Later, they relinquished their LPR status and obtained U.S. passports. However, 10 years later, all three were denied passport renewals. The Department of State (DoS) concluded that the children never met the requirements for U.S. citizenship under INA 320 because they failed to meet the residency requirements since they were in the U.S. for such a short period of time and departed soon after.

I may have missed this earlier, but it’s not clear to me if the US citizen parent was residing in the US at the time they entered the US as LPRs?

 

[bobjesse091]

Short answer: CRBA was not obtained. I need to correct my original post—INA 301 doesn't apply, as the father did not live in the U.S. for at least two years after turning 14. I mistakenly assumed this because the father mentioned attending "college." However, in Central and South America, "college" (or colegio in Spanish) often refers to elementary/middle/high school. Although the father lived in the U.S. for six continuous years, he did not reside in the U.S. for two years after age 14.

To answer some of your questions: All siblings are in their early/mid 20s now. However, the requirements were all met prior to them reaching 18 years of age. They are all currently outside the U.S. They all hold expired passports. DOS has refused to renew on the basis that passports should not have been given b/c they now claim the siblings did not meet residency requirements under INA 320 when they first obtained their passports. (Siblings did obtain their LPR, entered the U.S. prior to 18 years of age)

This brings me back to analyzing INA 320. There are three siblings, all born in a foreign country. The father is a U.S. naturalized citizen (before the children's birth), and the mother is an alien (they were married). The children obtained visas, traveled to the U.S., and became lawful permanent residents (LPR). Later, they relinquished their LPR status and obtained U.S. passports. However, 10 years later, all three were denied passport renewals. The Department of State (DoS) concluded that the children never met the requirements for U.S. citizenship under INA 320 because they failed to meet the residency requirements since they were in the U.S. for such a short period of time and departed soon after.

However, I came across a relevant section in the DoS Foreign Affairs Manual:

8 FAM 301.10-2(F)(2) Analyzing the Duration of the Stay (CT 08-04-2023):

INA 320 does not provide a time limit for what constitutes "residing in." For example, an applicant who was lawfully admitted to the United States on the day before their eighteenth birthday and began residing in the U.S. that day would acquire U.S. citizenship, even if they spent only a few hours residing in the U.S. before turning 18. By contrast, an applicant who attended school in the U.S. but resided across the border would not acquire U.S. citizenship under the CCA, even if they spent time equivalent to a few years in the U.S. prior to age 18.

Given this DoS example, if the children were granted LPR status and were in the U.S. for just a few hours before turning 18, they would meet the residency requirement. This appears to be the logical conclusion based on the DoS's own analysis in their Foreign Affairs Manual.

(Counter argument - Children under 18 could meet residency requirements within hours of arriving in the U.S. but before they turned 18, if you look at their "residency" after they turned 18 in the context of "general abode.") But this would be a contradiction. Why? Because any "residency period" after 18 would not, and probably should not count towards residency for citizenship purposes as INA 320 specifically prohibits requirements to be considered after the child reaches the age of 18.

Question for you. Did the children travel to US with the US Citizen father? or was the father living in the US and the children joined him?


Also, was the US citizen father divorced when the children entered the US while under the age of 18?

 

[bobjesse091]

Also I forgot to ask. How can the father be naturalized and not have the required physical presence? You are only eligible to apply for naturalization after the age of 18, unless he derived citizenship from a parent?

 

[Mosty]

I may have missed this earlier, but it’s not clear to me if the US citizen parent was residing in the US at the time they entered the US as LPRs?

Excuse the delayed response. The US Citizen parent was in and out of the U.S. He did maintain a residence in the U.S. but was always moving around. So at the time the subject siblings (while under 18) entered the U.S. with Visas and obtained their LPR. Soon after, the children departed the U.S. and subsequently received their LPR cards. Then, they presented to the U.S. Embassy in their respective country and obtained their passports (LPR was rescinded as a result of their U.S. passports - being recognized as U.S. Citizens).

 

[Mosty]

Question for you. Did the children travel to US with the US Citizen father? or was the father living in the US and the children joined him?


Also, was the US citizen father divorced when the children entered the US while under the age of 18?

"Also I forgot to ask. How can the father be naturalized and not have the required physical presence? You are only eligible to apply for naturalization after the age of 18, unless he derived citizenship from a parent?"

I'll answer the last question first: Father derived citizenship from parents when he was under 18.

Children did travel to the U.S. with their U.S. Citizen father and the father maintained a residence in the U.S. but also maintained a residence/home outside the U.S.

The U.S. Citizen father was married when the children entered the U.S. while they were under 18 years of age.