Joseph P. Whalen http://www.slideshare.net/BigJoe5 Page 1 of 4
A CASE ON POINT IN DERIVATIVE CITIZENSHIP
By Joseph P. Whalen (June 4, 2015)
In the case of divorce or legal separation that involves a formal legal grant
of custody then the court’s order on the topic is binding for citizenship purposes.
In keeping with that reality, such a court order would need to be officially changed
afterwards, but before the child’s 18th birthday, in order for the child to derive
citizenship from the heretofore joint- and/or non-custodial parent. The Fifth
Circuit ruled on May 18, 2015, in a Precedential Decision that where there has
never been any court ruling on the topic, then none is required. Instead, it is
necessary to examine the facts and reality of the situation and rely on the natural
rights of parents and the child’s actual residence or “place of abode or domicile”.
The Court held that the BIA misinterpreted the reach of its decision in
Bustamante-Barrera v. Gonzales, 447 F.3d 388 (5th Cir. 2006), so to
date, DHS, through AAO, USCIS, ICE, and CBP, and the State Department have
been stuck with that same misinterpretation. It was easy to misinterpret it, have a
look for yourself.
“We must construe § 1432(a)(3)’s “legal custody” requirement to
determine whether a child seeking derivative naturalization must have been
under the sole (as distinguished from joint) legal custody of his one
naturalized parent. This is a question of first impression in this Circuit, and,
….. we answer it in the affirmative…” Id. at 389.
“… In support of his mother’s request for the amended decree, her
lawyer filed a declaration candidly stating that “[t]he purpose” for seeking
the order was “to satisfy requirements of the Department of Immigration
and Naturalization” in regards to Petitioner. In other words, Petitioner’s
mother expressly sought the amended decree for the sole purpose of
affecting the outcome of her major son’s removal proceeding.
Faced with the amended decree, the IJ concluded that Petitioner met
the requirements for derivative citizenship under § 1432(a). Reasoning that
DHS had not carried its burden of proving that Petitioner was an alien, the
IJ terminated the removal proceedings.
DHS appealed the IJ’s decision to the BIA, which, in October 2003,
reversed in favor of DHS. The BIA interpreted § 1432(a)(3) as requiring
that a LPR with two living parents, only one of whom is a naturalized citizen,
does not automatically derive citizenship from his naturalized parent unless
that parent had sole legal custody over the LPR prior to his eighteenth
birthday. Because Petitioner’s mother had not been his sole legal custodial
parent before his eighteenth birthday, the BIA sustained DHS’s appeal. In
so doing, the BIA refused to credit the retroactive effect of the California
court’s amended decree for purposes of removal.” Id. at 392.
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On May 18, 2015, the Fifth Circuit revisited its earlier decision in order to
clarify its reach and its reasoning on the issue of custody. For claims of derivative
citizenship through former INA § 321 [8 U.S.C. § 1432], the need for “sole legal
custody” is only required when there has been a court ruling on the subject matter.
If there is no formal court ruling on the subject of child custody when there has
been a divorce or legal separation, then an “actual uncontested custody” standard
rather than a “sole legal custody” standard applies.
Kamara v. Lynch, ___F.3d___(5th Cir. 2015)
“Petitioner Hamid Kamara (“Kamara”) seeks review of the Board of
Immigration Appeals’ (“BIA”) order affirming the Immigration Judge’s
(“IJ”) finding that he lacked derivative United States citizenship under
former 8 U.S.C. § 1432(a)(3).1 We hold that the BIA misinterpreted the
reach of this court’s decision in Bustamante-Barrera v. Gonzales, 447
F.3d 388 (5th Cir. 2006), which requires “sole legal custody” only when
an alien minor’s parents have a joint custody order following divorce or
judicial separation. We GRANT the petition and TRANSFER pursuant to
8 U.S.C. § 1252(b)(5)(B) to the district court for the judicial district in
which Kamara resides.” Id. at 1. [Footnote added.]
“Kamara was detained by Immigration & Customs Enforcement (“ICE”)
and placed in removal proceedings in 2009. The immigration judge
terminated the case without prejudice on the belief that Kamara may have
1 §1432. Children born outside United States of alien parents; conditions for automatic citizenship
(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
(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.
(June 27, 1952, ch. 477, title III, ch. 2, §321, 66 Stat. 245; Pub. L. 95–417, §5, Oct. 5, 1978, 92 Stat. 918; Pub. L. 97–
116, §18(m), Dec. 29, 1981, 95 Stat. 1620; Pub. L. 99–653, §15, Nov. 14, 1986, 100 Stat. 3658; Pub. L. 100–525, §8(l),
Oct. 24, 1988, 102 Stat. 2618.)
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been a derivative United States citizen and instructed Kamara to file an N-
600 citizenship form with United States Citizenship and Immigration
Services (“USCIS”). USCIS denied the N-600. Kamara appealed to the
Administrative Appeals Office, which denied Kamara’s appeal due to
insufficient evidence.” Id. at 2.
* * * * *
“The BIA determined that Kamara could not satisfy his burden of proof
for naturalization under Section 1432(a)(3). The IJ felt “bound by” this
court’s decision in Bustamante-Barrera, and therefore Kamara needed to
produce a custody order awarding “sole legal custody” to his mother. Since
Kamara’s parents’ divorce decree did not include a custody award, the IJ
held that Kamara could not provide sufficient proof that he met Section
1432(a)(3)’s requirements. Kamara argued to the BIA that the IJ should
have applied an “actual uncontested custody” standard rather than a “sole
legal custody” standard. The BIA, however, adopted the IJ’s reasoning and
reiterated that the lack of a court-issued custody determination in the
divorce decree was fatal for Kamara’s derivative citizenship claim.
The only issue in the present case is whether the BIA was correct in
reading our decision in Bustamante-Barrera as requiring for all cases a
“sole legal custody” standard for the “legal custody” requirement in Section
1432(a)(3). We conclude that Bustamante-Barrera is inapplicable to the
present case and that Kamara need only prove “actual uncontested
custody.”” Id. at 4.
This new Precedent is binding in those cases that arise in the Fifth Circuit
and it would be up to AAO and the BIA to determine if it should be applied any
further. With that said, it should be noted that the prior precedent was routinely
applied beyond the Fifth Circuit, in its misinterpreted form. Two N-600 AAO non-
precedential case decisions dated May 20, 2015, have been posted online which are
illustrative and worthy of discussion. In the first, the applicant is similarly situated
to Kamara in that there was no custody order. In the second case, the court gave
legal and physical custody of the applicant to the mother. As to that second
applicant, the field office director determined that the applicant failed to establish
eligibility for derivative citizenship because the applicant was not in her father's
legal custody after her parent's divorce and was claiming derivative citizenship
through the father.
“The record indicates that the applicant was admitted to the United States
as a lawful permanent resident, and his mother naturalized in
[REDACTED], prior to his eighteenth birthday. The applicant's parents
were divorced in [REDACTED], and the divorce document does not contain
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a custody order. At issue in this case is whether the applicant can establish
that he is residing in the United States in the legal and physical custody of
his U.S. citizen mother.” Id. at 3.
“The applicant was born in Thailand on [REDACTED], 1975. The
applicant's parents' divorce was finalized on [REDACTED], 1986. The
applicant's father became a U.S. citizen through naturalization on
[REDACTED], 1991. The applicant became a lawful permanent resident
on June 8, 1992. The applicant seeks a certificate of citizenship, claiming
that she derived U.S. citizenship through her father under the first clause
of former section 321(a)(3) of the Immigration and Nationality Act (the
Act), 8 U.S.C. § 1421  (1998). 2
The field office director determined that the applicant failed to establish
eligibility for derivative citizenship because the applicant was not in her
father's legal custody after her parent's divorce on [REDACTED], 1986.
See Decision of the Director, dated April 2, 2014. The application was
On appeal, the applicant, through counsel, contends that although the
court gave legal and physical custody of the applicant to the applicant's
mother, her mother was not financially stable and informally agreed to
give custody of the applicant to her father.” Id. at 2.
Perhaps AAO will revisit the second case sua sponte?
Dated this 4th day of June, 2015
/s/ Joseph P. Whalen
That’s my two-cents, for now!
2 8 U.S.C. § 1421 corresponds to INA § 321 which relates to the general administrative
authority while 2 8 U.S.C. § 1421 corresponds to INA § 321 and derivative citizenship of
children of naturalizing parents as it existed before it was repealed.
Digitally signed by Joseph P. Whalen
DN: cn=Joseph P. Whalen, o, ou, email@example.com, c=US
Date: 2015.06.04 21:22:44 -04'00'