Children born outside the US are automatically US citizens provided they meet all the requirements under the Child Citizenship Act of 2000 (CCA).
The statutory requirements are: (1) at least one parent is a U.S. citizen either by birth or by naturalization; (2) the child is under 18 years old; (3) the child is a lawful permanent resident (green card holder); and (4) the child is residing in the US in the legal and physical custody of the U.S. citizen parent.
The lawful permanent resident requirement is not satisfied if the child was not issued his green card before he turned 18 even though he had applied for it and was assured that he would get it before he turned 18 but it was delayed due to bureaucratic errors committed by the USCIS.
In a recent case, a lawful permanent resident (LPR) was ordered removed by an Immigration Judge due to a previous conviction. He appealed to the Board of Immigration Appeals but his appeal was dismissed. He then filed a petition for review with the US Court of Appeals.
He claimed that he was not subject to removal because he became a permanent resident before he turned 18 and therefore automatically became a US citizen under the CCA.
He was born abroad on March 29, 1983. He came to the US with his father who later naturalized and became a US citizen in 1997. He then applied for his lawful permanent resident status. However, although he submitted his application for adjustment of status before he turned 18, it was not until a few years later that his green card was issued.
So, the issue was when he became a lawful permanent resident. If he became a lawful permanent resident before he turned 18 years old, he then automatically became a US citizen under the CCA. If, however, he became a lawful permanent resident after turning 18, he was ineligible for automatic citizenship under the CCA.
The child submitted his application for lawful permanent resident status in 1997, before he turned 18. When he was 17 years old, he was interviewed by a USCIS officer and was given a signed I-89 Form. He was also informed during the said interview that he would receive his green card in three months. Unfortunately, USCIS delayed the issuance of his card for four years and issued it in 2004.
The question raised in the case was: did he really become a US citizen prior to his 18th birthday? The law states that an alien becomes a lawful permanent resident on the date the order of the Attorney General approving the application for adjustment of status is made. In other words, it is as of the date of the order approving the adjustment of status. In this case, it was when they formally gave him his green card in 2004.
He argued that the government should be estopped from placing him in removal proceedings because the USCIS caused the unreasonable delay in the issuance of his green card which cost him the opportunity to obtain US citizenship. Placing one in estoppel means that said party is not allowed to deny or allege certain facts because of said party’s previous conduct, allegation or denial. In this case, because the US government caused the delay in the issuance of the green card, it could not claim that the petitioner did not meet all the requirements for him to be considered as a lawful permanent resident and ultimately, cannot deny him of his automatic US citizenship.
The US Fifth Circuit Court of Appeals however said that they cannot estop the government on the facts of the case. It sought guidance from a similar case and said “to state a cause of action for estoppel against the government, a private party must allege more than mere negligence, delay, inaction, or failure to follow an internal agency guideline. Instead, the petitioner must establish, among other things, affirmative misconduct of the government.” In this case, he failed to provide evidence of affirmative misconduct on the part of the government, thus his petition was denied.