BIA and Supreme Court Weigh in on Citizenship Issues

Last Updated

June 29, 2017

The nuances of U.S. citizenship were front and center in a pair of important recent legal decisions. The Board of Immigration Appeals, or BIA, issued a ruling involving cancellation of a citizenship of certificate. The U.S. Supreme Court, in a unanimous decision, struck down the law that treated certain citizen mothers and fathers differently with respect to the ability to confer citizenship on children born outside the United States.

Matter of Falodun

In the BIA case Matter of Falodun, 27 I&N Dec.52 (BIA 2017), the respondent, a native and citizen of Nigeria, had previously been issued a certificate of citizenship after he derived citizenship when his adoptive father naturalized. U.S. Citizenship and Immigration Services, or USCIS, later cancelled the certificate of citizenship upon finding that the respondent obtained it through fraud. Among other evidence of fraud, his alleged adoptive father turned out to be his biological brother.

After being ordered removed, the respondent on appeal argued that his citizenship could not be revoked without a hearing in federal court. However, the BIA disagreed and found that a certificate of citizenship can be canceled administratively by the Department of Homeland Security, or DHS, without a hearing in federal court, when it demonstrates that an applicant is not entitled to the claimed citizenship status. Here, the respondent was not entitled to citizenship because his eligibility was based on fraud.

The BIA also found that a certificate of citizenship is not a grant of citizenship but, similar to a U.S. passport, merely provides evidence that the applicant previously obtained citizenship status. When someone’s citizenship is based on fraud, the certificate of citizenship is void and USCIS has an affirmative duty to initiate administrative proceedings to cancel the certificate.

The BIA stressed that cancellation of a certificate of citizenship is different from cancellation of a naturalization certificate, where someone’s naturalization (and by extension, their underlying citizenship) must first be revoked. “Denaturalization” can’t be handled by DHS administratively; it must be done in federal court. According to the court “[a] person’s naturalization can be revoked either by a civil proceeding filed in Federal court pursuant to section 340(a) of the Act or by a criminal conviction under 18 U.S.C. § 1425 (2012), which results in the automatic revocation of naturalization under section 340(e) of the Act.”

Sessions v. Morales-Santana

In Sessions v. Morales-Santana, (June 12, 2017), the Supreme Court found a law to be unconstitutional because it made it harder for unwed U.S. citizen fathers than unwed U.S. citizen mothers to confer citizenship on their children born abroad. Where the child is born out of wedlock to one citizen parent and one noncitizen parent, INA § 309(a) imposes strict residence requirements for citizen fathers. In order for the child to acquire U.S. citizenship, the citizen father must have been physically present in the United States for five years, with at least two of those years coming after the age of 14. On the other hand, under an exception at INA § 309(c), the citizen mother could meet the residence requirement by living in the United States continuously for just one year.

Mr. Morales-Santana, the “child” in this case, was unable to acquire citizenship because his father died just 20 days short of meeting the physical presence requirement. Hoping to get the more lenient one-year physical presence requirement applied to him, he challenged the law, arguing that the different treatment based on gender was unconstitutional under the Equal Protection clause of the Fifth Amendment. 

The Court agreed, finding that the law relied on “overbroad generalizations about the different talents, capacities or preferences of males and females.”  However, instead of applying the more favorable one-year physical presence requirement to citizen fathers of children born out of wedlock, the court struck down the exception that granted more favorable treatment to citizen mothers. The Court ruled that the longer period of physical presence should apply prospectively to citizen mothers as well as fathers. Thus, Mr. Morales-Santana was unable to acquire citizenship, and this case has important implications going forward.

It’s not clear how this ruling will be applied prospectively  It may mean that the decision will only have an impact on children born abroad after the decision was issued. However, we will have to wait to see how USCIS interprets and implements this decision.

Example: Greta is a U.S. citizen who was born in Chicago on May 5, 1995. Two years later, in 1997, Greta and her family moved to Germany, and she has resided there since then. Greta, who is not married, is now pregnant and is due to give birth next month. Before the Morales-Santana decision, Greta’s child would have acquired citizenship because Greta had resided in the United States continuously for one year prior to her child’s birth. Now, however, Greta’s child will acquire U.S. citizenship only if Greta can show five years of residence in the United States before her child’s birth, with two of those years coming after age 14. Since Greta only lived in the United States for two years before moving to Germany, her child will not acquire citizenship.