Thursday, September 29, 2005

Jordon: Derivative Citizenship Statute Requires Legal Separation Before Naturalization

Filed 09/26/05, No. 03-2055
Jordon v. Attorney General
Jordon v. Gonzales
September 26, 2005

The Third Circuit ruled on how to interpret one of four avenues for someone to derive United States citizenship under the law that applies to most people who turned 18 before 2001 (it's referred to as former 8 U.S.C. section 1432(a)). (A new law the Child Citizenship Act is much easier to gain citizenship under and has replaced former section 1432(a), but courts have ruled that it only applies to those who turned 18 after February 2001. So, those who turned 18 a bit before 2001 must seek derivative citizenship under former section 1432(a).)

This case focuses on how to interpret the third option in the statute:
(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent if one of the parents is deceased; or
(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if
(4) Such naturalization takes place while such child is under the age of eighteen years; and
(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of this subsection, or thereafter begins to reside permanently in the United States while under the age of eighteen years.
The issue is how to interpret the requirement that there is the "naturalization of the parent having legal custody of the child when there has been a legal separation of the parents." In this case, the parent that had legal custody of the child naturalized several years before a the parents legally separated. Does the statute require that the legal separation happen before the naturalization or can it happen in any order? The Third Circuit explained that the issue was whether “when” should be read in its temporal sense (i.e., “after”) or whether it should be read in its conditional sense (i.e., “if”).

The Third Circuit ruled that it is a temporal sense -- that the legal separation must happen before the naturalization. They based it on a ruling in an earlier case in the Third Circuit, Bagot v. Ashcroft, 398 F.3d 252 (3d Cir. 2005). Therefore, the immigrant did not obtain derivative citizenship and cannot be released from detention.

The Third Circuit also addressed its jurisdiction under the REAL ID Act in a situation Congress did not directly address -- what happens if a habeas petition is on appeal at the time the REAL ID Act was passed? They rationalize that the Third Circuit will ignore the district court's ruling and review the legal rulings in the case from scratch. After REAL ID, this type of challenge is supposedly no longer allowed in the federal district court. (The issue of whether Congress's effort to cut off certain types of filings is Constitutional is a much larger topic than can be covered here. It also was not addressed by the Third Circuit in the case.)


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