Eligibility of Children Born out of Wedlock for Derivative Citizenship (BCIS September 26, 2003)


Assuming an alien child meets all other requirements of Section 320 and
322, an alien child who was born out of wedlock and has not been
legitimated is eligible for derivative citizenship when the mother of
such a child becomes a naturalized citizen.

U.S. Department of Homeland Security
Bureau of Citizenship and Immigration Services HQ 70/34.2-P
425 I Street NW Washington, DC 20536

September 26, 2003

MEMORANDUM FOR REGIONAL DIRECTORS DISTRICT DIRECTORS OFFICERS-IN-CHARGE
SERVICE CENTER DIRECTORS

FROM: William R. Yates /s/ Janis Sposato Acting Associate Director
Bureau of Citizenship and Immigration Services

SUBJECT: Eligibility of Children Born out of Wedlock for Derivative
Citizenship

This memorandum updates the interpretation of Section 101(c)(1) of the
Immigration and Nationality Act (INA or the Act) that all Citizenship
and Immigration Services (CIS) officers are to follow in adjudicating
applications for citizenship under Sections 320 and 322. This memorandum
supercedes sections of Policy Memoranda 75 and 75A concerning children
who are eligible for benefits under the Child Citizenship Act (CCA, P.L.
106-395), and is to be followed in all cases that are pending on the
date of this memorandum, as well as in cases filed on or after that
date. For cases adjudicated before the date of this memorandum,
directors should consider this memorandum to be a sufficient basis to
grant an otherwise untimely motion to reopen or reconsider a previous
decision, if the child is still otherwise eligible. INA Section 320
provides for automatic citizenship of the alien child of a citizen, if
the alien child is residing in the United States and meets the relevant
requirements of Section 320.

INA Section 322 allows for the naturalization of a child of a citizen
who regularly resides outside the United States. The child must meet the
definition of “child” found in Section 101(c)(1) of the Act or the
requirements applicable to adopted child under INA Section 101(b)(1).
The child must have at least one United States citizen parent, whether
by birth or naturalization.

The question has arisen whether a child born out of wedlock who has not
been legitimated may derive citizenship automatically under INA Section
320 or 322 through the naturalization of the child’s mother. Children
born out of wedlock were previously eligible for citizenship through
Section 321 of the Act, which was repealed by P.L. 106-395. The CCA has
no specific provision for children born-out-of-wedlock. The legacy-INS
requested a legal opinion from the DOJ Office of Legal Counsel (OLC) on
the issue of whether a child born out of wedlock who has not been
legitimated may derive citizenship under the CCA. The CIS received the
opinion on July 24, 2003 in which the OLC stated that a child born out
of wedlock who has not been legitimated may derive citizenship through
his or her naturalizing mother under the CCA.

Effective immediately, all Citizenship and Immigration Services officers
are to interpret the definition of “child” for CCA as follows: Assuming
an alien child meets all other requirements of Section 320 and 322, an
alien child who was born out of wedlock and has not been legitimated is
eligible for derivative citizenship when the mother of such a child
becomes a naturalized citizen.

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Posted: Tue - October 7, 2003 at 10:47 AM        

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