Monday, December 26, 2005

Morgan: Derivative Citizenship pre-2001 on Legal Separation Depends on the Laws Covering the Marriage

Morgan v. Gonzales
Filed 12/21/05, No. 04-3254
Morgan v. Atty Gen USA

This case dealt with the rule on derivative citizenship (when a child automatically obtains citizenship upon one of his parents becoming a citizen) that existed for those who turned 18 before 2001. If you are under 18 today, look at the Child Citizenship Act of 2000 on citizenship for children, which is much easier to satisfy than the old rule.

This case focused on 8 U.S.C. section 1432(a), the prior rule on children whose parents separate and the parent who has custody becomes a United States citizen. You need to look at the statute to see all the requirements for deriving citizenship, but the Third Circuit only had to focus on one requirement in this case: that there must be a legal separation of the parents. But watch out, there could be other ways to derive citizenship -- the avenue used by the immigrant in this case is not the only way.

The Third Circuit asked: what is "legal separation" -- can it include actual separation that was never reinforced or acknowledged in a court order?

The Third Circuit's answer is: there must be some formal action that complies with what is required in the laws of the other countries or states that arguably had the power to rule on the parents' marriage.

In this case, Jamaica requires a court decree of judicial separation to obtain a judicial separation. The immigrant never did that. Another option was to satisfy Pennsylvania law, which requires not just living separate and apart for two years but also a court order that concludes that one spouse clearly manifested and communicated to the other spouse an intention to dissolve the marital union.

Here, the immigrant did not obtain a Jamaican court decree or a Pennsylvania court order (and in fact had no proof of communicating an intention to dissolve the marital union).

The rule of thumb is that if the relevant laws for legal separation require a court order, a separation that never involved a court order of any kind will not satisfy the requirement for derivative citizenship that the parents have legally separated.


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