MLFA Funded CLCMA Changing the Game | Derivative Citizenship

A video series featuring CLCMA attorneys discussing topics of interest to the American Muslim community during COVID-19 and beyond.

File Transcript:

Hi my name is Kate Brady and I’m the immigration department head at the Constitutional Law Center for Muslims in America I’d like to welcome you to today’s webinar and this is on the acquisition of citizenship for children who are born abroad it’s kind of complicated and so hopefully we’re going to step you through some of the most common situations and then I will take a little bit of time to overlap that with what CLC MA does and then we’re going to talk about what we do as an organization so we are ready and let’s get going so these first couple of slides give you multiple scenarios for children who are born abroad this first one is talking about children territory parents and as you can see that there are patients on that we’re either both parents or citizens one is a citizen and a national and the other is for a citizen and a non citizen there’s different physical presence requirements and the really important thing is that in wedlock is determined legally married at the time that the child of conception or if the birth was in within 300 days of the termination of that marriage either death or divorce and it has to be married and legally parents / local law so that might come up a little bit maybe like with like a session or something like that and there is a recent policy change on that to u.s. citizen parents about one parent must be a resident of the US prior to the birth if you look down at the bottom there’s a little bit of a help here at the USCIS gov site there’s going to be four charts that we’re gonna go through kind of the scenarios that are on these charts if you want to go back and look at them you can do that what I will say is I’m giving you a snapshot of what the law is right now today this changes all the time so whenever this question comes up for me I always have to get the most information as possible when that child was born and all of the other factors surrounding that because it changes over time you’ll see a little bit of that later so this next slide is about unmarried parents of those children born abroad again in multiple scenarios both parents citizen the citizen as the mother and a citizen as the father the resident requirement is the same as it was when the when there was an in wedlock child born but there’s also now for the one parent who’s a citizen a physical presence requirement of five years prior to that child’s birth at least two of years two years which were after the age of fourteen this was a recent requirement in 2017 and then for the child only a citizen father they have a legitimation requirement and that’s because you can be the biological father but not necessarily have a relationship with that child and so that’s the important part here when we talk about legitimation so what does that mean what that means is that there needs to be a blood relation between the child and the father and that needs to be established by clear and convincing evidence a lot of times you’re going to see people providing DNA to make that clear and convincing evidence and it’s important that the child’s father was a citizen at the time of the child’s birth so after required citizenship does not allow for this child to be a citizen at birth we’re going to talk a little bit about some acquisitions if that happens later but not in this case and then there’s also a requirement for financial support of this child until that child reaches 18 this needs to be acknowledged in writing it needs to be also the paternity established by a competent court and this is controlled by where that child has their residence so if you do have a child who is born abroad who is a citizen by birth that means that the parents have met the requirements for transmitting that citizenship and the child is eligible for what we call a consular report of birth abroad that happens because the child has a birth certificate of the country where they were born but now also the u.s. is allowing for them to have evidence of that birth through the Department of State and that is done because they’re going to actually get this report and it’s going to look kind of like what a birth certificate would have looked like it must be acquired before the child reaches 18 that does not mean that if you don’t get it that the child is not a citizen it just means you’re not going to get that document which is not a travel a document if you want that child to travel to the US you must also submit a passport application to the Department of State and for that appointment you have to have both parents there unless one of these exceptions happens such as only one parent is listed on the birth certificate there is a court order granting sole custody and no access by the non-custodial parent or the non-custodial parent has been declared judicially incompetent has or has died so if there are any other reasons why that parent is not there you will need to have a notarized statement of consent so they’re not an exception but they are consenting to that application for the consular report of birth abroad but the one parent who is physically attending so this next one the child Citizenship Act of 2000 that we love tens of rebait as the CCA this one is really exciting so this is a child who was born abroad and typically where the parent was not able to pass citizenship on because they were not born in the u.s. maybe they naturalized later so that’s the most likely scenario here but that child was born outside the US after February 27th of 2001 and they are automatically a citizen when these happen so not at birth but when these happen at least one parent is a citizen and the child resides in the u.s. in the legal and physical custody of the citizen parent pursuant to a lawful admission as a permanent resident so these all have to be met prior to the child reaching 18 but the excellent thing about this is even if they are meeting all of these required requirements by their 18th birthday they don’t have to necessarily claim their citizenship prior to their 18th birthday they are still a citizen by law under the CCA and that’s this chart three prior to that time there was a different law and that was under the former ie1 and this one was a little more difficult because both parents had to be citizens and that meant that if one was already at natural-born citizen or a naturalized citizen the other one then had to naturalize the child still has to be under 18 at the time that the second parent becomes a citizen fully admitted as a permanent resident and permanently residing in the United States again all these conditions can be met before the child is 18 but regardless of when they discover it they are still a citizen I had a really exciting time when I figured this out for some clients who come in because this adult was going to naturalize and we went through the questions and I talked about well are any or either your parent citizens and she said yes both of my parents are citizens when did that happen I was about 14 or 15 so we immediately stopped her her consultation due for naturalization I said but you’re already a citizen and I showed her the law and we thought that was great so she and her two adult siblings including her fraternal twin brother all were able to get their passports because they were already citizens having met these requirements that was an exciting one so they were eligible for that passport all of them got it and if you want to explore whether any of this is something that might have passed us and ship on to you or your children that is something to talk about you look at the law of when it happened so this is an expedited naturalization of children of children and we’re going to talk about so this means they didn’t acquire it at birth and they didn’t acquire it through the CCA or the former inh 321 but we’re going to expedite your naturalization so you’re going to become a citizen as best as we can through a child’s naturalization you’re under 18 at least one of your parents was a US citizen by birth or naturalization and there’s a bit of an exception if that parent is deceased that your grandparent can step in and the citizen parent had to be physically present in the US for at least five years to after the age of 14 unless they were a service member you have to be lawfully admitted to the US but that does not mean as a permanent resident so as soon narrow might be that your alien parent comes as a student and you are their dependent or maybe as a worker and you were their dependent and then you’re gonna maintain that status and your physical presence in the u.s. if you were over the age of 14 and you are in naturalized citizen through this expedited process under i na 322 you do take the oath of allegiance which you do not have to do the child Citizenship Act or the former IMA 321 or any of the consular report of birth abroad qualifying citizens again this is chart four so let’s talk a little bit about some possible outcomes and pitfalls so maybe your parents have not met the physical presence requirements a sad situation I had was somebody who came to my office she’s been told by multiple attorneys that she was not a citizen even though she thought she was she was born to a u.s. citizen mother it was 17 at the time that she was born but she was born in a foreign country while they were getting the immigrant visa for her dad and so her parent did not have enough physical presence past her 14th birthday to pass on that citizenship she had to emigrate even though she’d been in the u.s. her whole life and thought she was a citizen so they may not be the tongue may not be in the US citizen parents legal custody this has happened to me before when there’s been a divorce and the US citizen naturalized here in the u.s. after the divorce and then the child with legally residing in the foreign country and visiting on holidays so we were unable to have that child be an expedited citizenship through the child Citizenship Act she actually had to wait until she was an adult and had her physical presence and then she was able to apply for her own naturalization which was successful and then if your parent was deceased you might need to use some of the exceptions and this is a big one if your parent committed fraud when they were naturalized you could actually have your status stripped because they could not then have passed on derivative citizenship we have a case here at CLC MA where we litigated that and had a settlement with the government so that the children could actually retain their status in the United States there was a long time to negotiate it probably over a year and it was a hard-fought win and we were very that outcome and then if you were a derivative child who then goes outside of the United States you may not be able to pass your citizenship on to somebody else or if you were even a natural-born child and didn’t have enough physical presence so I’ve seen that happen but or where somebody was maybe an infant or grand school-age child and then they left and either lived with their parents or grandparents abroad and then they had children abroad they were not able to pass along their citizenship so as I said a little bit ago you can actually lose your derivative citizenship if there’s some fraud on your parents case not if you were born abroad and we’re a natural born citizen as a concert reporter for the birth abroad or if you were having your birth between at least one of your citizen parents and they they pass our citizenship on but if it was through a naturalization of your parent such as under the I am a321 that could happen if there was some fraud and there used to be a retention requirement that has ceased as of 1952 but that used to be a people would ask me all the time well how often do I have to come back to the US and I would say you don’t have to anymore if you’re born after 1952 and even though as a derivative citizen or a citizen born abroad you cannot be deported we do have I sneaked that mistake we had a Dallas case pretty recently where there were two brothers who were minor children and they were driving in a car to a soccer tournament close to the Mexico border one of them was born in Mexico and one of them was born in Dallas they had an agreement with the one born in Mexico he agreed to leave the other one claimed to be a citizen so they actually put him into deportation proceedings and into detention until he could prove through an attorney that he was actually a natural-born citizen so also even if you’re born in the US some people born in the US are not citizens because they were born to diplomats and they are not subject to the laws of jurisdiction of the US so that is an issue there that they could not actually even though they were born the US yes citizen so let’s talk a little bit now about how immigration generally will intersect with what we do which is impact litigation impact litigation is in the federal courts and what we mean by that is we take the subject matter such as immigration which is complex and broad and we actually overlay that with litigation we’re going to talk a little bit about the subject matter where that we also have civil rights litigation in our civil litigation section and criminal litigation in the criminal section and we also have a non litigation section of the non practice group that does trainings and boot camps for active nonprofit organizations to make sure they’re in compliance and give them some tips and tricks but what we do is what most immigration attorneys do not do what I would call it most immigration attorneys do is what we call petition based meaning they make an application for citizenship they apply for your non citizen spouse to come here as an immigrant they help you with me a worker visa and for those that is what most immigration attorneys would do but impact litigation which is time intensive is what we do and let me tell you a little bit about how that happens here so we have hundreds of client intakes across all of our practice groups we will screen those have a consultation with an attorney internally make a recommendation and if we think it’s one that could be a good case for litigation we will take that to our board of directors and they will make a vote on that if they vote that we have the resources and that you’re a good one for our impact litigation you will be approved and you’ll become one of our cases and we get excited about those because what we’re really trying to do is fight against discrimination and injustice from our US government we want to identify situations where there’s been violations of the US Constitution our civil rights a lot of times in the area of national security on the basis of race country of origin or religion and so we do accept a fewer cases because we know that when we do that we are going to be able to use that one case to make a broad impact and the reason why we can do that is because good facts make good law and other cases can benefit from that and we have a finite amount of resources here and we want to make sure that we are taking those cases that can make the biggest community impact so you may be wondering if you even need an attorney I would say in this specific instance about whether your child is a citizen or not it is something that I would almost always recommend you at least consult with an attorney you may not need an attorney to get the actual document but you need to know whether or not they because sometimes you have other forms of immigration benefits that might be more form based and people might think that that’s easy or that their relatives did it or that it cost too much to go to an attorney but I can tell you that there are a lot of complications when you look at immigration and I would strongly recommend that you at least consult with an attorney whether it’s us for an impact litigation case or a general immigration attorney if you have a case that you just have more broad questions and that way you can know whether or not you are moving in the right direction so if you need that ability to talk to a general immigration attorney what I do personally and my immigration section is I am going to give you some resources these are the general resources I give and this is a lot of times I will make these a little more customized for where you live so I would hope that you’ve enjoyed what we’ve talked about I know it’s very complicated and the answer is let’s look it up let’s look at the facts but hopefully you have learned a little something out of this and the other webinars in the immigration and the other sections that have done and hopefully you’re watching all of these and we really appreciate the time you’re taking we are grateful for what you do for us and hope that you will be able to support us and that we will be able to give you more information again my name is Kate break II I’m the immigration department head at CLC MA if you want more information about what we do or think you have an inquiry that would be impact litigation and immigration or civil litigation or in criminal please do make an inquiry and if you have a nonprofit organization that you would like to have more information about our nonprofit Practice Group we would appreciate that you would go to our website and make that inquiry thank you you