A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Monday, June 5, 2017

USCIS May Cancel Certificate of Citizenship Without Federal Court Order


                   

If you acquired citizenship indirectly through your parent's naturalization, the Department of Homeland Security has authority to cancel your Certificate of Citizenship, according to a recent Board of Immigration Appeals (BIA) decision. 

A lawful resident of the United States may apply for citizenship through the legal process of naturalization, if she is over the age of 18 and meets several legal requirements such as good moral character and knowledge of American civics and history.  Citizenship through naturalization confers the person with certain rights such as the ability to vote and to apply for a U.S. passport.  A naturalized person's citizenship status can normally be taken away only through a formal legal process called "denaturalization" in the Federal court, where she has the right to defend herself by presenting evidence and also conducting cross-examination.

The Immigration and Nationality Act (the INA) also provides that minor children under 18 may acquire citizenship derivatively when their parents become naturalized citizens.  While naturalized persons will be issued a Certificate of Naturalization, a child who acquired citizenship derivatively may only apply for a document called Certificate of Citizenship.  The Certificate of Citizenship generally can be used as proof of a person's U.S. citizenship. For example, it can be used to apply for a U.S. passport or to apply for a Federal job.

In Matter of Bright Idada Falodun, a BIA decision decided on June 2, 2017 (Interim Decision #3895), the respondent in removal proceedings was issued a Certificate of Citizenship through the naturalization of his adoptive father.  However, USCIS subsequently obtained evidence to show that he obtained his citizenship through fraud. For example, there is evidence that his "adoptive father" is actually his brother.  The former Immigration and Naturalization Services (INS) cancelled his Certificate of Citizenship.   He was subsequently placed in removal proceedings and an Immigration Judge found him deportable from the United States.

Mr. Falodun appealed the Immigration Judge's decision and argued that he was entitled to more legal protection by virtue of his possession of a Certificate of Citizenship.  He argued that by issuing him the certificate, the U.S. government conferred him certain rights and privileges.  Specifically, he argued that his citizenship can only be  stripped away in Federal court proceedings rather than through administrative proceedings conducted by the INS or USCIS.

The BIA disagreed and noted that Mr. Falodun's birth certificate shows that he was born outside of the United States. As such, he has the burden of proof that he is not entitled to deportation in removal proceedings.  Although he has a Certificate of Citizenship, Mr. Falodun did not obtain United States citizenship through naturalization. Instead, he was issued his Certificate of Citizenship under section 341 of the INA, based on his claim of derivative citizenship through the naturalization of his "adoptive father", who in fact was found to be his brother. The BIA noted that a Certificate of Citizenship only serves as evidence that a person obtained his citizenship derivatively through his parents; it does not confer the same rights and privileges that a Citizenship of Naturalization confer.  Consequently, Mr. Falodun's appeal was dismissed.

This is a case of first impression, and the BIA decision may  not be the final word on this important issue.  However, holders of Certificate of Citizenship should understand that, under the Falodun decision, their citizenship can be cancelled by the government administratively without a Federal court hearing.

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