Matter of Hines
| Decision Date | 04 June 2008 |
| Docket Number | File A41 455 569.,Interim Decision No. 3612. |
| Citation | 24 I&N Dec. 544 |
| Parties | Matter of Shawn Theodore HINES, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated February 26, 2007, an Immigration Judge terminated these removal proceedings based on a determination that the respondent derived United States citizenship through his mother pursuant to former section 321(a)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1432(a)(3) (1988). The Department of Homeland Security ("DHS") has appealed from that decision. The appeal will be dismissed.
The following facts are undisputed. The respondent was born out of wedlock in Jamaica on October 5, 1980, and his biological parents have never been married to each other. On August 4, 1988, the respondent was admitted to the United States as a second-preference family-sponsored immigrant, based on a visa petition that was filed by his mother, who was then a lawful permanent resident of the United States. The respondent's mother became a naturalized citizen of the United States in 1991, at which time the respondent was residing in her custody as a lawful permanent resident. The respondent's father is not a United States citizen.
On April 6, 2001, the respondent was convicted in New Jersey of robbery and aggravated assault, for which he was sentenced to lengthy prison terms. The DHS commenced removal proceedings, charging the respondent with removability as an alien convicted of an aggravated felony. See section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2000). The respondent moved to terminate the proceedings, however, arguing that he was a citizen of the United States who was not subject to the jurisdiction of the Immigration Court. The Immigration Judge sustained the motion and terminated the proceedings, concluding that the respondent had derived United States citizenship in 1991 upon the naturalization of his mother pursuant to former section 321(a)(3) of the Act.
On appeal the DHS argues that the respondent's derivative citizenship claim fails because he did not prove that his paternity "has not been established by legitimation" under Jamaican law, as required by former section 321(a)(3). In support of its argument, the DHS invokes our decision in Matter of Clahar, 18 I&N Dec. 1 (BIA 1981), where we held that a Jamaican child who had been born out of wedlock after the effective date of the Jamaican Status of Children Act of 1976 ("JSCA")—which purported to eliminate all legal distinctions between legitimate and illegitimate children—would be deemed to have been legitimated under Jamaican law for purposes of visa preference classification, even though the child may not technically have been "legitimated" under the Jamaican Legitimation Act. Id. at 3. According to the DHS, the respondent, who was born after the JSCA took effect, must likewise be deemed to have had his paternity established "by legitimation," thereby precluding him from qualifying for derivative citizenship solely through his mother.
The issue in this case is whether the respondent derived United States citizenship through his mother's naturalization by virtue of his status as a child born out of wedlock in Jamaica whose paternity has not been established by legitimation under Jamaican law.
The starting point of our analysis is the language of former section 321(a) of the Act.1 In 1991, when the respondent's mother naturalized, section 321(a) provided in pertinent part as follows:
A child born outside of the United States of alien parents . . . becomes a citizen of the United States upon fulfillment of the following conditions:
(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent if one of the parents is deceased; or
(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if
(4) Such naturalization takes place while such child is under the age of eighteen years; and
(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the . . . parent naturalized under clause . . . (3) of this subsection, or thereafter begins to reside permanently in the United States while under the age of eighteen years.
Former section 321(a) of the Act (emphasis added).
In removal proceedings, evidence of foreign birth gives rise to a rebuttable presumption of alienage, shifting the burden to the respondent to come forward with evidence to substantiate his citizenship claim. Matter of Rodriguez-Tejedor, 23 I&N Dec. 153, 164 (BIA 2001) (citing Matter of Leyva, 16 I&N Dec. 118, 119 (BIA 1977)); Matter of Tijerina-Villareal, 13 I&N Dec. 327, 330 (BIA 1969). The respondent does not dispute that he was born in Jamaica and that he must therefore adduce evidence to prove that he is a United States citizen. It is also undisputed that the respondent was born out of wedlock and that both his admission to lawful permanent residence and his mother's naturalization occurred prior to his 18th birthday. Therefore, the dispositive question on appeal is whether the respondent has proved that his paternity "has not been established by legitimation" under Jamaican law. We conclude that he has.
In Matter of Rowe, 23 I&N Dec. 962, 967 (BIA 2006), we resolved an issue virtually identical to that presented here, although in the context of Guyanese law. The respondent in that case was born out of wedlock in Guyana and claimed that he derived United States citizenship through his mother under former section 321(a)(3) of the Act. The Immigration Judge rejected his citizenship claim, concluding that the Guyanese Removal of Discrimination Act of 1983 had eliminated all legal distinctions between legitimate and illegitimate children, thereby "legitimating" the respondent by operation of law and precluding him from deriving United States citizenship solely through his mother. In arriving at that conclusion, the Immigration Judge relied on our decision in Matter of Goorahoo, 20 I&N Dec. 782 (BIA 1994), where we held that children born out of wedlock in Guyana after the effective date of the Guyanese Removal of Discrimination Act were to be considered the "legitimate" children of their biological fathers for preference allocation purposes.
After analyzing the evolution of our "legitimation" jurisprudence with respect to the law of Guyana, however, we ultimately disagreed with the Immigration Judge's decision and held that for purposes of the immigration laws of the United States, Guyana's statute forbidding discrimination...
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