BIA HOLDS THAT A PERSON BORN ABROAD TO UNMARRIED PARENTS CAN QUALIFY AS A “CHILD” UNDER INA § 320(a) (AUTOMATIC ACQUISITION OF DERIVATIVE U.S. CITIZENSHIP) IF HE OR SHE IS OTHERWISE ELIGIBLE AND WAS BORN IN A COUNTRY OR STATE THAT HAD ELIMINATED LEGAL DISCTINCTIONS BETWEEN CHILDREN BASED ON THEIR PARENTS’ MARITAL STATUS OR HAD A RESIDENCE OR DOMICILE IN SUCH A COUNTRY OR STATE.
On February 12, 2015, the Board of Immigration Appeals (BIA), in reconciling its previous interpretations of the phrase “paternity…established by legitimation” as used for derivative citizenship purposes with the term “legitimation” as used in defining who is a “child” under INA §§ 101(b)(1) and (c)(1), held that its prior precedents—which found that “legitimation” could not have two separate meanings within the INA—had been wrongly decided. As such, the Board held that one could derive U.S. citizenship as a legitimated child under INA § 320(a), even if he did not qualify as his father’s “child” under § 101(c)(1). Finding error in its previous understanding that the U.S. Supreme Court’s decision in Clark v. Martinez, 543 U.S. 371 (2005) mandated a uniform interpretation of “legitimation” throughout the Act, the BIA withdrew from Matter of Hines, 24 I. & N. Dec. 544 (BIA 2008) and Matter of Rowe, 23 I. & N. Dec. 962 (BIA 2006) to the extent these decisions require such a uniform interpretation, concluding these cases had improperly overruled Matter of Clahar, 18 I. & N. Dec. 1 (BIA 1981) and Matter of Goorahoo, 20 I. & N. Dec. 782 (BIA 1994) and thus reinstated and reaffirmed the holdings of Clahar and Goorahoo. Matter of Cross, 26 I. & N. Dec. 485 (BIA 2015).
