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Transformation Rule Comment 5 Regarding 8 CFR Revision to ImplementAmended INA § 319(d)■ 179. Section 319.3 is amended by ...
“United States citizen” and “citizen spouse” include a person granted posthumouscitizenship under section 329A .INA § 101 ...
who rides with a younger qualifying sibling) AND did not benefit from automaticUSC. However, in order to file an N-400, th...
exceptional and extremely unusual hardship for cancellation of removal      under section 240A(b)(1)(D) of the Act, 8 U.S....
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Transformation rule comment 5 regarding ina 319 d

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Transformation rule comment 5 regarding ina 319 d

  1. 1. Transformation Rule Comment 5 Regarding 8 CFR Revision to ImplementAmended INA § 319(d)■ 179. Section 319.3 is amended by revising paragraph (a) to read as follows:§ 319.3 Surviving spouse, child, or parent of a United States citizen who diedduring a period of honorable service in an active duty status in the ArmedForces of the United States.(a) Eligibility. To be eligible for naturalization under section 319(d) of the Act, thesurviving spouse, child, or parent of a United States citizen must:(1) Establish that his or her citizen spouse, child, or parent died during a period ofhonorable service in an active duty status in the Armed Forces of the United Statesand, in the case of a surviving spouse, establish that he or she was living in maritalunion with the citizen spouse, in accordance with 8 CFR 319.1(b), at the time ofthe citizen spouse’s death;(2) At the time of examination on the application for naturalization, reside in theUnited States pursuant to a lawful admission for permanent residence;(3) Be a person of good moral character, attached to the principles of theConstitution of the United States, and favorably disposed toward the good orderand happiness of the United States; and(4) Comply with all other requirements for naturalization as provided in 8 CFR316, except for those contained in 8 CFR 316.2(a)(3) through (6).*****INA § 319(d) Any person who is the surviving spouse, child, or parent of a United Statescitizen, whose citizen spouse, parent, or child dies during a period of honorableservice in an active duty status in the Armed Forces of the United States and who,in the case of a surviving spouse, was living in marital union with the citizenspouse at the time of his death, may be naturalized upon compliance with all therequirements of this title except that no prior residence or specified physicalpresence within the United States, or within a State or a district of the Service inthe United States shall be required. For purposes of this subsection, the terms Page 1 of 4
  2. 2. “United States citizen” and “citizen spouse” include a person granted posthumouscitizenship under section 329A .INA § 101 Definitions.(c) As used in title III-(1) The term "child" means an unmarried person under twenty-one years of ageand includes a child legitimated under the law of the childs residence or domicile,or under the law of the fathers residence or domicile, whether in the United Statesor elsewhere, and, except as otherwise provided in sections 320, and 321 of titleIII, a child adopted in the United States, if such legitimation or adoption takesplace before the child reaches the age of 16 years (except to the extent that thechild is described in subparagraph (E)(ii) or (F)(ii) of subsection (b)(1)), and thechild is in the legal custody of the legitimating or adopting parent or parents at thetime of such legitimation or adoption.(2) The terms "parent", "father", and "mother" include in the case of a posthumouschild a deceased parent, father, and mother.It will be a select group of “children” and “parents” who may file an N-400 basedon INA § 319(d).Many “children” will automatically acquire or will have derived United StatesCitizenship (USC) if they did not acquire USC at birth abroad. Some of them maynot realize that fact and file an N-400 by mistake.Certain legitimated alien children who did not acquire under another section of lawand certain adopted alien children who did not otherwise automatically acquireunder another section of law, will benefit from INA § 319(d). The class of eligiblelegitimated or adopted children should be quite narrow. The numbers of eligiblelegitimated or adopted children should be relatively small.The “child” eligible to file an N-400 under INA § 319(d) will be one who waseither born to the deceased parent but did not attain USC or who became alegitimated or adopted child under age 16 (except for the 16 or 17 yr old sibling Page 2 of 4
  3. 3. who rides with a younger qualifying sibling) AND did not benefit from automaticUSC. However, in order to file an N-400, this applicant for naturalization must be18 or older AND has been an LPR for at least 3 years. INA § 101(c) defines a“child” for Title III purposes as someone under age 21. Most logically, this couldbe an 18, 19, or 20 year old who became an LPR at age 14, 15, 16, or 17. If onewas 13 and had to wait until age 18 to file an N-400, then they would qualify as aregular INA § 316(a) five-year LPR. However, there could be a few who wouldbenefit from utilizing a three-year statutory period for some reason. Individualcircumstances will vary from case to case as to continuous residence, physicalpresence, and GMC issues.A question for USCIS: Will a “child” lose eligibility to file an N-400under under INA § 319(d) upon reaching age 21 as they would nolonger be a “child” as defined at INA § 101(c)(1) for Title IIIpurposes?At the opposite pole of the INA § 319(d) sphere is the relationship that couldextend from a deceased adopted or legitimated “child” to the alien “parent”. Itseems that regardless of the direction of the relationship from the USC relative tothe alien relative, step-relationships and bona fide relationships will not countfor this route to naturalization via an N-400. Does this seem like a correctinterpretation as to these two varieties of relationships?Based on the principles espoused in certain INA Title II contexts that have comebefore the BIA, some advance consideration should be given to the above detailedissues. If USCIS chooses to not define the classes within the regulations, a FactSheet or memo or AFM update could be published after careful consideration ofthe topic.Matter of Portillo-Gutierrez, 25 I&N Dec. 148 (BIA 2009) A stepchild who meets the definition of a “child” under section 101(b)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(B) (2006), is a qualifying relative for purposes of establishing Page 3 of 4
  4. 4. exceptional and extremely unusual hardship for cancellation of removal under section 240A(b)(1)(D) of the Act, 8 U.S.C. § 1229b(b)(1)(D) (2006).Matter of Morales, 25 I&N Dec. 186 (BIA 2010) A stepparent who qualifies as a “parent” under section 101(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(2) (2006), at the time of the proceedings is a qualifying relative for purposes of establishing exceptional and extremely unusual hardship for cancellation of removal under section 240A(b)(1)(D) of the Act, 8 U.S.C. § 1229b(b)(1)(D) (2006).Thank you for the opportunity to express these thoughts on this topic.Joseph P. WhalenAugust 30, 2011 Page 4 of 4

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