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Posted: December 3, 2013

Claim For Derivative Citizenship Through Father Denied Due To Parents’ Informal Separation

In Moreno v. Holder, No. 13 CV 1285, (E.D.N.Y. Nov. 6, 2013), Judge William Kuntz denied a pro se petitioner’s claim of nationality based on derivative citizenship.  The petitioner was born in Panama to Panamanian parents who later became U.S. citizens and ultimately settled in New York.  The government unsuccessfully initiated removal proceedings against the Petitioner in 2004 following convictions for attempted petit larceny and attempted robbery in the second degree.  The government again initiated removal proceedings against Petitioner in 2010 following his conviction of criminal possession of crack cocaine.

Petitioner defended the latter removal proceeding on the ground that he derived citizenship as a child through his father.  Since Petitioner had not reached age eighteen at the time the Child Citizenship Act of 2000 was enacted, the Court applied the pre-existing immigration statute, 8 U.S.C. § 1432.  Under that statute, the only avenue by which Petitioner could claim derivative citizenship was through “the naturalization of the parent having legal custody of the child when there has been a legal separation of the parents.”

The problem for Petitioner was that his parents had not legally separated, either under New York or Panamanian law, each of which required formal documentation.  As a result, the testimony of Petitioner’s father to the effect that they had separated “between three and nine times over the course of their marriage, sometimes for as long as one-and-a-half or two years” was held insufficient.  Absent a legal separation, there could be no derivative citizenship through Petitioner’s father.

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