Receiving a Notice to Appear from immigration court can be frightening. For many people, the first thought is, “How can I stop deportation?” But sometimes, the more important question is one that should be asked before anything else:
Was this person actually a US citizen all along?
That question can be especially important for people who were born outside the United States to a US citizen parent.
A person does not necessarily have to be born in the United States to acquire US citizenship. Under certain circumstances, a child born in another country can acquire US citizenship at birth through a US citizen parent.
A recent case illustrates why this issue can be so important.
A Case That Started With a Notice to Appear
In one case handled by our office, a woman born in Mexico received a Notice to Appear and was placed in removal proceedings.
She had been working with another law firm on an asylum case. Like many people facing immigration proceedings, she was trying to understand a complicated legal system while also dealing with the fear and uncertainty of potentially being removed from the United States.
But there was an important fact that needed to be examined more closely.
Her biological father was a natural-born US citizen.
The situation was made more complicated by the fact that her father had passed away. She therefore could not simply sit down with him and obtain documents or ask him questions about his history in the United States.
The question became whether enough evidence existed to establish that she had acquired US citizenship through her father when she was born in Mexico.
After reviewing the circumstances and available records, we filed a motion asking the Immigration Court to terminate the removal proceedings based on her claim to US citizenship.
The evidence included her Mexican birth certificate identifying her father, her father's US birth certificate, the marriage certificate of her parents, and Social Security records showing her father's extensive employment and physical presence in the United States before her birth.
The case demonstrates an important lesson:
Sometimes the most important immigration issue is not how to defend against removal, but whether the person is legally subject to removal in the first place.
Can You Be a U.S. Citizen If You Were Born in Mexico?
Yes, in certain circumstances.
Being born outside the United States does not automatically mean that a person is not a US citizen.
US immigration law provides several ways a person may acquire or obtain citizenship. One of those situations involves a child born outside the United States to a US citizen parent.
However, citizenship through a parent is not automatic in every situation. The requirements can depend on several factors, including:
When the person was born;
Whether the US citizen parent was the mother or father;
Whether the parents were married when the child was born;
Whether the parent-child relationship can be established;
How long the US citizen parent was physically present in the United States before the child's birth;
The age of the US citizen parent during that physical presence;
Whether certain requirements concerning acknowledgment, legitimation, or support were satisfied; and
The law that applied at the time of the child's birth.
This is why a person should not assume that being born in Mexico, or another country, means that they are automatically an immigrant.
The law can be complicated, and the requirements can change depending on the person's date of birth.
The Date of Birth Can Matter
One of the important issues in these cases is that the law in effect when the person was born may control the citizenship analysis.
In the case discussed here, the respondent was born in 2003. The motion therefore examined the citizenship law applicable on the date of her birth rather than simply applying today's requirements.
At that time, the applicable law generally required a US citizen parent to have been physically present in the United States for a specified period before the child's birth.
For this particular case, the applicable statute required at least five years of physical presence in the United States before the child's birth, including at least two years after the US citizen parent reached the age of 14.
That requirement made the father's history extremely important.
What If the US Citizen Parent Has Died?
A deceased parent does not necessarily prevent a child from proving citizenship through that parent.
In fact, this is one of the reasons a careful search for government and historical records can be so important.
In the case discussed here, the father had died. However, records still existed showing that he was born in the United States and had spent substantial periods of time working in the United States before the respondent was born.
Social Security records were particularly important.
The records showed employment in the United States from approximately 1990 through 2002, years before the respondent's birth in 2003. The motion argued that these records established significantly more than the required period of physical presence.
This illustrates why families should not assume that a deceased parent's immigration or citizenship history can no longer be documented.
Birth certificates, Social Security records, employment records, tax records, school records, military records, medical records, and other historical documents may sometimes help establish where a person lived and worked.
The exact evidence needed will depend on the individual case.
What If the Parents Were Not Married?
Another issue that can make citizenship cases more complicated is when a child is born to unmarried parents.
In the case discussed here, the respondent's parents were not married when she was born.
That did not necessarily prevent citizenship from being transmitted through her father.
Because the father was the US citizen parent and the parents were unmarried at the time of birth, the motion examined the requirements of INA § 309(a), which addresses transmission of citizenship through an unmarried US citizen father.
Among other things, the law required evidence establishing the biological relationship between the father and child, the father's US citizenship, and certain requirements concerning acknowledgment, legitimation, or establishment of paternity.
In this case, the Mexican birth certificate identified the US citizen father as the child's father.
The parents also subsequently married. Their marriage certificate was submitted as evidence in support of the citizenship claim.
These facts were important because citizenship cases involving children born outside the United States to unmarried parents can require a detailed examination of both U.S. immigration law and the law of the country where the child was born or lived.
Why the Mexican Birth Certificate Was Important
A foreign birth certificate can be an extremely important document in a citizenship investigation.
In this case, the respondent's Mexican birth certificate identified her biological father by name.
That helped establish the claimed parent-child relationship. The motion also explained that the Mexican civil registry's recognition of the father was relevant to the legal requirements concerning acknowledgment and legitimation.
Of course, not every foreign birth certificate will be enough by itself.
Immigration authorities and courts may look at the circumstances surrounding the document, when it was created, what information it contains, whether it is authentic, and whether additional evidence is available.
That is why citizenship cases often require putting several pieces of evidence together rather than relying on one document.
Building the Citizenship Case From Multiple Documents
One of the most important lessons from this case is that immigration cases are often about putting together a complete history.
The evidence submitted in this case included:
The respondent's Mexican birth certificate;
An English translation of the birth certificate;
The US citizen father's US birth certificate;
The parents' marriage certificate; and
Social Security Administration records documenting the father's employment and physical presence in the United States.
Each document answered a different question.
Who was the father?
The Mexican birth certificate helped establish the parent-child relationship.
Was the father a US citizen?
His US birth certificate established that he was born in the United States and therefore was a US citizen.
Were the parents later married?
The marriage certificate provided evidence of the subsequent marriage.
Was the father physically present in the United States long enough to satisfy the applicable law?
The Social Security records provided government documentation of his employment in the United States over a substantial period of time.
When these documents were considered together, they supported the argument that the respondent had acquired US citizenship at birth.
Why This Can Completely Change a Removal Case
A person in removal proceedings may assume that the only question is whether they qualify for asylum, cancellation of removal, adjustment of status, or another form of immigration relief.
But citizenship can change the entire legal analysis.
The Immigration Court generally has authority over removal proceedings involving individuals who are alleged to be removable as noncitizens.
A person who is actually a US citizen is not removable under the Immigration and Nationality Act.
That was the basis of the motion filed in this case.
The motion argued that once substantial evidence supporting the citizenship claim was presented, the Department of Homeland Security had to establish that the respondent was actually an alien subject to removal.
The motion ultimately asked the Immigration Court to terminate the removal proceedings because the evidence established a claim to US citizenship.
The Immigration Judge subsequently entered an order addressing the motion to terminate.
What Happens After Removal Proceedings Are Terminated?
Termination of a removal case is extremely important, but it does not necessarily mean that every citizenship document automatically appears in the person's hands.
A person may still need to take additional steps to formally document their citizenship.
Depending on the circumstances, those steps can include applying for a Certificate of Citizenship using Form N-600 and/or applying for a US passport.
These documents can provide important evidence of US citizenship for future purposes, including employment, international travel, and other situations where proof of citizenship is required.
In the case discussed here, after the removal proceedings were terminated, the client moved forward with the process of documenting her citizenship through an N-600 application and a US passport application.
That is an important distinction:
Establishing that someone acquired citizenship and obtaining documentation of that citizenship can be related but separate steps.
Do Not Wait Until You Are in Removal Proceedings to Investigate Citizenship
The biggest lesson from this type of case is simple: if you have a parent who was a U.S. citizen, investigate the citizenship issue.
This is particularly important if:
You were born in Mexico or another country;
Your mother or father was a US citizen when you were born;
Your parents were not married when you were born;
Your US citizen parent has passed away;
You do not have many records concerning your parent;
You have previously been told that you are not a US citizen;
You are currently in removal proceedings; or
You are preparing an asylum or other immigration application and have never had your citizenship eligibility carefully reviewed.
The answer is not always obvious.
Some people may have a valid claim to citizenship. Others may not meet all of the legal requirements. The important point is that the question should be properly investigated before assuming that the person must pursue an immigration benefit available only to non-citizens.
A Notice to Appear Does Not End the Inquiry
Receiving a Notice to Appear is serious and should never be ignored.
But the allegations in a Notice to Appear are not necessarily the end of the legal analysis.
In the case discussed here, the Notice to Appear alleged that the respondent was not a US citizen and was removable under the Immigration and Nationality Act.
The response was not simply to accept that allegation.
Instead, the case required looking at the respondent's family history, her father's citizenship, the circumstances of her birth, the laws applicable at the time of her birth, and the documentary evidence available decades later.
That investigation changed the direction of the case.
Could You Be a US Citizen Without Knowing It?
Possibly.
There are people who grow up believing they are citizens of the country where they were born, only to later discover that they may have acquired US citizenship through a parent.
This can happen when parents do not understand the citizenship laws, when families move between countries, or when important family records are lost over time.
It can also become especially important when a person encounters the immigration system for the first time.
The key is not to assume.
If you were born outside the United States and have a US citizen parent, your situation may deserve a citizenship analysis before you proceed with an immigration application or immigration court defense.
The Importance of Reviewing the Entire Family History
Immigration law can sometimes turn on facts that seem small or unrelated.
Where was your parent born?
Where did your parent live?
How long did your parent live in the United States?
How old was your parent during those years?
Were your parents married?
Was your father listed on your birth certificate?
Did your parents marry after your birth?
Did your parent acknowledge you?
What records exist?
Did the law change between the time your sibling was born and the time you were born?
These questions can make a significant difference.
A citizenship investigation is therefore not simply a matter of asking, “Was my father American?”
It may require reconstructing the family's history and matching the available evidence to the law that applied when the child was born.
If You Were Born Abroad to a US Citizen Parent
If you were born in Mexico or another country and believe one of your parents was a US citizen when you were born, it may be worthwhile to have your situation reviewed.
Gather whatever documents you have, including:
Your foreign birth certificate;
Your parent's US birth certificate or naturalization certificate;
Your parents' marriage records;
Your parent's Social Security or employment records;
School records;
Tax records;
Military records;
Prior immigration records; and
Any other documents showing your parent's residence or physical presence in the United States.
Do not assume that the death of the US citizen parent makes the case impossible.
And if you have already been placed in removal proceedings, do not assume that asylum or another form of immigration relief is necessarily the only option.
A citizenship claim should be investigated carefully because, if a person acquired US citizenship at birth, the legal issue may be fundamentally different from a typical immigration case.
Final Thoughts
One of the most important things an immigration attorney can do is look beyond the immediate problem.
A Notice to Appear may make someone think about deportation. An asylum application may make someone think about proving persecution. A complicated immigration history may make someone think that there is no simple answer.
But sometimes the answer begins with a basic question:
Did this person already acquire US citizenship through a parent?
In the case discussed in this article, a woman born in Mexico faced removal proceedings and initially believed she needed to pursue an immigration case as a noncitizen. A closer examination of her family history revealed that her father was a natural-born US citizen and that the available evidence supported a claim that she acquired U.S. citizenship at birth.
The Immigration Court proceedings were subsequently terminated, and she could then move forward with the process of formally documenting her citizenship.
Every case is different, and being born to a US citizen parent does not automatically mean that a person is a US citizen. The applicable law can depend on the date of birth, the circumstances of the parents, the US citizen parent's physical presence, the parent-child relationship, and other legal requirements.
But if you were born outside the United States and have a US citizen parent, do not assume you are an immigrant without first finding out whether you may already be a U.S. citizen.
A careful review of your family's history and available records may reveal an issue that could fundamentally change your immigration case.
This article is for general informational purposes only and does not constitute legal advice. Immigration laws and procedures can change, and the best strategy depends on the individual facts of each case.
