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MATTER OF J-:L-B-D-Q-

Non-Precedent Decision of the Administrative Appeals Office

DATE: JAN. 19,2018

APPEAL OF BUFFALO, NEW YORK FIELD OFFICE DECISION

APPLICATION: FORM N-600, APPLICATION FOR CERTIFICATE OF CITIZENSHIP

The Applicant, who was born in in seeks a Certificate of Citizenship indicating he derived U.S. citizenship upon his mother' s naturalization in See Immigration and Nationality Act (the Act) section 321, 8 U.S.C. § 1432, repealed by Sec. 103(a), title I, Child Citizenship Act of2000 (the CCA), Pub. L. No. 106-395, 114 Stat. 1631 (2000). An individual born outside the United States who acquired U.S. citizenship at birth, or who automatically derived U.S. citizenship after birth but before the age of 18, may apply to receive a Certificate of Citizenship. See section 341 (a) of the Act, 8 u.s.c. § 1452.

To establish derivative citizenship under former section 321 of the Act, an individual born between December 24, 1952, and February 27, 1983, must satisfy certain conditions. Those conditions include the individual's residence in the United States as a lawful permanent resident, and naturalization of both parents as U.S. citizens before his or her 18th birthday. For individuals born to foreign national parents, only one of whom naturalized before the individual turned 18, the individual may become a U.S. citizen only if one of three conditions is met: that individual's non-naturalized parent is deceased, the U.S. citizen parent has custody over the individual after a legal separation or divorce. or, if the individual was born to unmarried parents and is claiming to be a U.S. citizen through a naturalized mother, the individual ' s paternity had not been established by legitimation.

The Director of the Buffalo, New York Field Office denied the application, concluding two things: first, that the Applicant did not establish derivative citizenship under former section 321 of the Act, which was in effect prior to his 18th birthday, because that section required naturalization of both parents and only the Applicant's mother naturalized before he turned 18 years of age; and second. that the Applicant was ineligible for a Certificate of Citizenship under the Child Citizenship Act (CCA, or current section 320 of the Act) because he was over the age of 18 on the date it became effective, or February 27, 2001.

On appeal, the Applicant asserts that the Director's decision was in error because the provisions of the CCA should be applied retroactively in his case.

Upon de novo review, we will dismiss the appeal. The Applicant resides in Canada and we do not have jurisdiction to adjudicate his citizenship claim. Furthermore, the evidence is insufficient to establish that he derived U.S. citizenship pursuant to section 320 or former section 321 of the Act.

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Matter of J-L-B-D-Q-

I. LAW

The Applicant seeks a Certificate of Citizenship indicating that he derived U.S. citizenship upon his mother's naturalization in Section 341 (a) of the Act provides that a person who claims to have derived U.S. citizenship through naturalization of a parent may apply to the Secretary of the Department of Homeland Security for a Certificate of Citizenship. The Secretary shall furni sh a Certificate upon satisfaction that such person is a citizen, as claimed, but only if that person is at the time within the United States.

The Secretary of Homeland Security has jurisdiction over the administration and enforcement of the Act within the United States. Section 103(a)(l) of the Act, 8 U.S.C. § 1103(a)(l). However, a citizenship claim made by an individual physically present outside of the United States may only be properly made before the U.S. Department of State (DOS) through a consular officer. Section 1 04(a) of the Act, 8 U.S.C. § 11 04(a) (providing, in pertinent part, that the "Secretary of State shall be charged with the administration and the enforcement of the provisions of this Act and all other immigration and nationality laws relating to . .. (3) the determination of nationality of a person not in the United States"); see also 22 C.F.R. § 50.2 (providing that DOS "[s]hall determine claims to United States nationality, when made by persons abroad on the basis of an application tor registration, for a passport, or for a Consular Report of Birth Abroad of a Citizen of the United States of America . .. . ")

For derivative citizenship purposes, we apply "the law in effect at the time the critical events giving rise to eligibility occurred." See Mina.~yan v. Gonzales. 401 F.3d 1069, I 075 (9th Cir. 2005). Prior to February 27, 2001 , a child born abroad to married foreign national parents could derive U.S. citizenship only if both parents naturalized before the child's 18th birthday, and the child resided in the United States as a lawful permanent resident. The CCA, which took effect on February 27, 2001. repealed former section 321 of the Act and amended section 320 of the Act. Under the amended section 320 of the Act, a child who is under 18 years old will automatically derive U.S. citizenship if he or she has at least one U.S. citizen parent and is residing in that parent's legal and physical custody in the United States as a lawful permanent resident. The provisions of the CCA, however, are not retroactive and a child born outside of the United States may derive U.S. citizenship under cun·ent section 320 of the Act only if he or she satisfied all of the conditions under that section on or after February 27, 2001 , the etTective date of the CCA amendments. 1

II. ANALYSIS

The issue on appeal is whether we have jurisdiction to adjudicate the Applicant's citizenship claim and, if so, whether he has demonstrated that he derived citizenship from hi s U.S. citizen mother.

1 /2 USC!S Policy Manual HA(A), https://www.uscis.gov/policymanual.

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Matter of.J-L-8-D-Q-

A. Jurisdiction

The record reflects that the Applicant was admitted to the United States as a lawful permanent resident in He was later deported from the United States in and, most recently, in November . In January , the Applicant filed the instant Form N-600 claiming that he derived U.S. citizenship from his mother. On the Form N-600, which he signed in November 2016, the Applicant represented he resided in Canada. On the instant Form 1-2908. Notice of Appeal or Motion, the Applicant also indicates that he is in Canada. Accordingly, as the record shows that the Applicant was outside of the United States when he tiled his Form N-600 and he continues to reside outside of the United States at this time, the U.S. Department of State has exclusive jurisdiction over his U.S. citizenship claim. Nevertheless, because the Director adjudicated the Applicant ' s Form N-600 on its merits, we will also address the substance of the Applicant's claim.

B. Derivative Citizenship Not Established

The record reflects that the Applicant was born abroad to married foreign national parents in He was admitted to the United States as a lawful permanent resident in , and his mother naturalized in . His father did not naturalize until when the Applicant was already over 18 years of age. These facts indicate that the Applicant did not derive U.S. citizenship under former section 321 of the Act, because that section required naturalization of both parents when the parents were married and neither was deceased, and only the Applicant's mother naturalized before he turned 18 years of age in There is nothing in the record to suggest that at the time of the mother's naturalization the Applicant met one of the three conditions under former section 321 of the Act to derive citizenship from only one parent; that is: that his parents were divorced and the mother had legal custody; he was born out of wedlock and not legitimated; or that his father was deceased. The Applicant is also ineligible to derive citizenship from his mother under current section 320 of the Act, because he was over 18 years old when that section was amended by the CCA on February 27, 2001. A child who was over the age of 18 years on February 27, 2001 , is not eligible for the benefits of the amended section 320 of the Act. Maller (~l Rodriguez-Tejedor, 23 l&N Dec. 153 (BIA 2001).

III. CONCLUSION

The record reflects that the Applicant resides abroad and he therefore must make his claim to having derived citizenship to the U.S. Department of State. We note, however, that even if he lived in the United States, the Applicant would be ineligible to receive a Certificate of Citizenship because he did not derive citizenship under either former section 321 or current section 320 of the Act.

ORDER: The appeal is dismissed.

Cite as Matter of J-L-B-D-Q-, lD# 805063 (AAO Jan. 19, 2018)

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