Derived citizenship help

[Miguelb81]

Hello all,

so i hired a attorney for a consultation and basically go no where and a run around.

Id like to know if I am a derived citizen or not

details

born in 1981
father came to USA and got LPR through work contract sometime in 1987
I came to us a a LPR in 1991
Father became US citizen prior to my 18th Bday (Sometime in 2000)
mother maintained permanent residency
parents divorced prior to me arriving, divorce stated nothing about custody, father claimed me on income TAX for every year till age 18.

I believe if mother became US citizen I would automatically get it. but Father is a little different

If you know this answer please let me know

[newacct]

Hello all,

so i hired a attorney for a consultation and basically go no where and a run around.

Id like to know if I am a derived citizen or not

details

born in 1981
father came to USA and got LPR through work contract sometime in 1987
I came to us a a LPR in 1991
Father became US citizen prior to my 18th Bday (Sometime in 2000)
mother maintained permanent residency
parents divorced prior to me arriving, divorce stated nothing about custody, father claimed me on income TAX for every year till age 18.

I believe if mother became US citizen I would automatically get it. but Father is a little different

If you know this answer please let me know

Something is not right. If you were born in 1981 then your 18th birthday is in 1999.

Anyway, if you turned 18 before February 27, 2001, the Child Citizenship Act of 2000 did not apply to you. The previous law required that both of your parents must have naturalized before you turned 18 in order for you to derive citizenship, unless one of your parents died or were separated and the parent having legal custody of you naturalized. Since your parents were separated, in order for you to have derived citizenship, your father must have had legal custody of you. See this chart. There is a footnote there saying that some interpretations say that joint custody is enough, but some courts have ruled that sole custody is needed.

[Miguelb81]

Something is not right. If you were born in 1981 then your 18th birthday is in 1999.

Anyway, if you turned 18 before February 27, 2001, the Child Citizenship Act of 2000 did not apply to you. The previous law required that both of your parents must have naturalized before you turned 18 in order for you to derive citizenship, unless one of your parents died or were separated and the parent having legal custody of you naturalized. Since your parents were separated, in order for you to have derived citizenship, your father must have had legal custody of you. See this chart. There is a footnote there saying that some interpretations say that joint custody is enough, but some courts have ruled that sole custody is needed.

thank you for the reply, so they were divorced, and the divorce states nothing about custody, since divorce was prior to our arrival, it was never mentioned. what are your thoughts?

[newacct]

thank you for the reply, so they were divorced, and the divorce states nothing about custody, since divorce was prior to our arrival, it was never mentioned. what are your thoughts?

I am guessing they had joint custody, and that may or may not be enough. You could try applying for a US passport or a Certificate of Citizenship and see.

[UScitizenFilingforspouse]

Hello all,

so i hired a attorney for a consultation and basically go no where and a run around.

Id like to know if I am a derived citizen or not

details

born in 1981
father came to USA and got LPR through work contract sometime in 1987
I came to us a a LPR in 1991
Father became US citizen prior to my 18th Bday (Sometime in 2000)
mother maintained permanent residency
parents divorced prior to me arriving, divorce stated nothing about custody, father claimed me on income TAX for every year till age 18.

I believe if mother became US citizen I would automatically get it. but Father is a little different

If you know this answer please let me know

I would take a look at this article and follow this guy's advice. From first hand experience with clients, he's seen that the US Department of State is a lot more forgiving when it comes to cases of children born outside of the US, who are seeking a US passport through derived citizenship from a naturalized parent.
http://www.nydailynews.com/immigrati...icle-1.1318656 In case it gets blocked, you can google in quotation marks "Immigration: Children whose parents are U.S. citizens may already be citizens themselves". It will be the first result.
He also reports "Sometimes at a passport application facility a clerk will tell you that you must get a USCIS Certificate of Citizenship before you can get a U.S. passport. That advice is incorrect. If that happens to you, ask to see a supervisor, ask for help from an elected official, or try another passport office. Some passport offices use lists of proof of U.S. citizenship that ignore the possibility that a permanent resident may have derived U.S. citizenship from a parent."
So I suppose that once you find a passport application facility that accepts your application, then it's smooth sailing from there. Now, the legal custody issue. The US Department of State and USCIS both have a rather inclusive and loose definition.


"B. Legal and Physical Custody of U.S. Citizen Parent" (https://www.uscis.gov/policymanual/P...tml#footnote-5)
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: [7]

?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; [8]

?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.

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."

Sure, one could argue that you have no evidence or legal document stating that your father had sole legal custody. However, one could also argue that your parents never engaged in a custody battle. Thus, joint legal custody is implied. It was not an issue. Proof is that you wouldn't have been able to leave your country on your own to come live with your father in the US. He also sponsored you. Sooooo there's another layer. He petitioned for you - I am making assumptions here. But however it all happened, you came here under your father's wing. Had he not fed you, he would have been in trouble. He claimed you as a dependent on his federal income taxes. So again, it is implied that he had implicit legal custody of you because he was legally responsible for you.

Here is the link to the department of state's page on Citizenship evidence. https://travel.state.gov/content/tri...-evidence.html

I think your best bet here is to just go ahead and apply for a passport. My best advice to you is to go to a very diverse place. Do not go to a place where they've never encounter such applications. I bet you that in NYC, LA, Chicago, Miami, your situation is a lot more common than say, in the square states.
And of course, none of this is legal advice but my personal and humble opinion.
Best luck!

[newacct]

"B. Legal and Physical Custody of U.S. Citizen Parent" (https://www.uscis.gov/policymanual/P...tml#footnote-5)
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: [7]

?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; [8]

?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.

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."

That applies to the Child Citizenship Act of 2000. It does not apply to the prior law.

[gar21233]

I think you have a case, look only to official charts from USCIS https://www.uscis.gov/policymanual/P...lityChart3.pdf

clearly states the following:

* The definition of ?both parents? includes the:
? Surviving parent should one die; or
? Parent having legal custody where there has been a legal separation or divorce; or
? Alien parent who naturalizes when the other parent is already a USC; or
? Mother of a child born out of wedlock (as long as the child has not been legitimated).

so it didnt say is sole custody it says that the your father should continue to have custody over you, so I think the rules applies to you. Apply for an us passport as it is the easiest way.

[newacct]

I think you have a case, look only to official charts from USCIS https://www.uscis.gov/policymanual/P...lityChart3.pdf

clearly states the following:

* The definition of ?both parents? includes the:
? Surviving parent should one die; or
? Parent having legal custody where there has been a legal separation or divorce; or
? Alien parent who naturalizes when the other parent is already a USC; or
? Mother of a child born out of wedlock (as long as the child has not been legitimated).

so it didnt say is sole custody it says that the your father should continue to have custody over you, so I think the rules applies to you. Apply for an us passport as it is the easiest way.

It depends on the definition of "legal custody" for the purposes of that law. See footnote 9 in this chart I posted above. The 9th and 5th Circuits have ruled that sole custody is needed, but the 3rd Circuit has ruled that it is not. So it may depend on what state you are in.

[gar21233]

Please refer to the USCIS policy manual which clearly states at https://www.uscis.gov/policymanual/H...-Chapter4.html

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.

[gar21233]

I take my words back I think as newacct said it depends in the place of residence, look at this example case, almost same situation but the legal custody was interpreted according to the fifht circuit court, so as newacct said it depends.

- - - Updated - - -

sorry forgot the example link.

https://www.uscis.gov/sites/default/files/err/E2%20-%20Applications%20for%20Certification%20of%20Citizenship/Decisions_Issued_in_2014/MAR052014_01E2309.pdf

[newacct]

Please refer to the USCIS policy manual which clearly states at https://www.uscis.gov/policymanual/H...-Chapter4.html

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.

That regulation applies to the Child Citizenship Act of 2000, but not to the pre-CCA law.

[gar21233]

yes newacct you are right it applied to the old law, I think the best advice we can give to you is apply for a us passport here is the list of documents they will request from you.

https://travel.state.gov/content/trip-cancellation-insurance/en/passports/requirements/citizenship-evidence.html

[UScitizenFilingforspouse]

That applies to the Child Citizenship Act of 2000. It does not apply to the prior law.

And like I said to him. His best bet is to just apply for a US passport; instead of trying to sort through the laws. Or seek a free consultation with an attorney and then apply for a US passport in a non-square state. Or go to one of those passport acceptance events where they have agents you can ask questions to. He has two naturalized parents. Send those two certificates of naturalization and see what happens. That's my humble two cents

[UScitizenFilingforspouse]

I take my words back I think as newacct said it depends in the place of residence, look at this example case, almost same situation but the legal custody was interpreted according to the fifht circuit court, so as newacct said it depends.

- - - Updated - - -

sorry forgot the example link.

https://www.uscis.gov/sites/default/...14_01E2309.pdf

Like the article I gave him states, the department of state is way more lenient than USCIS. If he goes to a passport acceptance event, he can ask questions and they'll find a way to approve it. USCIS will look for ways to deny it.