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Media Alerts - Gil v. Sessions - Second Circuit
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March 19, 2017
  Gil v. Sessions - Second Circuit
Headline: Second Circuit denies petition to review Board of Immigration Appeals decision denying claim of derivative citizenship

Area of Law: Immigration Law

Issue Presented: Whether the petitioner, who was born out of wedlock in the Dominican Republic to two Dominican citizens, could claim derivative citizenship as a legitimized "child" of his naturalized father under the Immigration and Nationality Act.

Brief Summary: The petitioner was born in the Dominican Republic to unwed Dominican citizens. He petitioned for review of a Board of Immigration Appeals ("BIA") decision that found him ineligible for derivative citizenship through his naturalized father and, accordingly denied his motion to terminate removal proceedings initiated based upon his two prior convictions. To be a "child" eligible for derivative citizenship under § 101(c)(1) of the Immigration and Nationality Act, an individual born out of wedlock must be "legitimated" under the Act by the age of 16. The Second Circuit affirmed the findings of the BIA and held that petitioner failed to gain legitimated status under Dominican or New York law before he turned 16 years old and, therefore, was not eligible for derivative citizenship.

To read the full opinion, visit:
http://www.ca2.uscourts.gov/de...52cfa3ec46d/1/hilite/

Extended Summary: Gil was born in the Dominican Republic in 1968. His parents, unwed, were both Dominican citizens. In 1978, at nine years old, Gil came to the United States to live with his father as a lawful permanent resident. His father became a naturalized United States citizen in November 1980 when Gil was 11 years old and Gil received a Certificate of Citizenship at this time on the basis that he derived citizenship as a result of his father's naturalization. Gil was convicted of first-degree robbery in 1987 and of a controlled substance offense in federal court in 1995.

Thereafter, in 2010, the United States Citizenship and Immigration Services determined that Gil's Certificate of Citizenship was unlawfully or fraudulently obtained because he was not a qualifying "child" under the Immigration and Nationality ("INA") requirement for derivative citizenship. His Certificate of Citizenship was therefore cancelled and the Department of Homeland Security instituted removal proceedings against Gil based upon his prior convictions.
On November 18, 2013, an Immigration Judge ("IJ") rejected Gil's motion to terminate the removal proceedings based upon a claim of derivative citizenship, finding Gil was not "legitimate" under Dominican or New York law before reaching the age of sixteen as specified in the INA. The Board of Immigration Appeals (BIA) affirmed the IJ's ruling and Gil petitioned the Second Circuit for review of the BIA decision.

The INA § 321(a) addresses when a "child" born outside of the United States to alien parents may become a United States citizen through derivative citizenship. INA § 101(c)(1) then defines a "child" under the Act as "includ[ing] a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile if such legitimation . . . takes place before the child reaches the age of 16 years . . . and the child is in the legal custody of the legitimating . . . parent . . . at the time of such legitimation." 8 U.S.C. § 101(c)(1). While not defined in the Act, the BIA has interpreted "legitimated" to refer to a child born out of wedlock who has been accorded legal rights that are identical to those enjoyed by a child born in wedlock. The issue of this case turned on whether, before Gil turned 16 years old, Dominican or New York had eliminated all legal distinctions between children born in and out of wedlock.

The Second Circuit ruled that Gil had not "legitimated" by the time he was 16 years old under Dominican law. A law was enacted in 1994 that changed Dominican law to eliminate all legal distinctions between children born in wedlock and those born out of wedlock, however Gil was 26 years old when this law took effect and therefore, the court found, was not a legitimated child by the age of 16 as required by the Act. The Second Circuit further ruled that Gil was not a legitimated child under New York law finding that New York law distinguishes between children born in and out of wedlock for inheritance purposes, citing to N.Y. Est. Powers & Trusts Law § 4-1.2(b) (McKinney 2010). Concluding Gil did not "legitimate" by the age of 16 years old under Dominican or New York law, and accordingly was not a "child" under § 101(c)(1) of the INA. the Second Circuit agreed with that he was not eligible for derivative citizenship through his father's naturalization. Accordingly, the Second Circuit denied Gil's petition for review of the BIA's decision that rejected his claim of derivative citizenship and denied his motion to terminate his removal proceedings.

To read the full opinion, visit,
http://www.ca2.uscourts.gov/de...52cfa3ec46d/1/hilite/

Panel: Circuit Judges Walker, Hall, and Chin

Argument Date: 10/31/2016

Date of Issued Opinion: 3/17/2017

Docket Number: 15-3134-ag

Decided: Petition Denied

Case Alert Author: Leigh G. Wellington

Counsel: Joshua E. Bardavid, New York, New York for Petitioner; Lisa M. Damiano, Trial Attorney, Terri J. Scadron, Assistant Director, Office of Immigration Litigation, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C. for Respondent.

Author of Opinion: Circuit Judge Chin

Case Alert Circuit Supervisor: Professor Elyse Diamond

    Posted By: Elyse Diamond @ 03/19/2017 11:33 AM     2nd Circuit  

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