Law in effect N-600 in 1987

[VonDutch 0]

The footnote is on that law too.

I dont understand... if ICIS makes a determination on the law in effect in 1987, how can they consider appeals inacted on a later date...??

[newacct 688]

I dont understand... if ICIS makes a determination on the law in effect in 1987, how can they consider appeals inacted on a later date...??

Judicial rulings are interpretations of the meaning of the law, not just for now onwards, but also for the past. They interpreted the law in effect at that time.

Edited March 19, 2016 by newacct

[EM_Vandaveer 2,438]

Any reason why you can't apply for naturalization on your own? Have you moved out of the US & lost your GC?

[VonDutch 0]

Judicial rulings are interpretations of the meaning of the law, not just for now onwards, but also for the past. They interpreted the law in effect at that time.

You are correct... That ruling does state Joint Legal Custody is not sufficient to mee the condition of Legal Custody... HOWEVER, that is a 5th Circuit Court of Appeals Ruling, which DOES NOT have Jurisdiction in California.for appellate law.

In essence, this applies only in the jurisdiction of the %th Circuit.... Texas, Louisiana, etc....

[EM_Vandaveer 2,438]

Then why don't you file N-600 & take your chances?

[VonDutch 0]

Then why don't you file N-600 & take your chances?

I will. All the posts like yours were helpful in determining what applied to me.

Thanks for the input....

[newacct 688]

You are correct... That ruling does state Joint Legal Custody is not sufficient to mee the condition of Legal Custody... HOWEVER, that is a 5th Circuit Court of Appeals Ruling, which DOES NOT have Jurisdiction in California.for appellate law.

In essence, this applies only in the jurisdiction of the %th Circuit.... Texas, Louisiana, etc....

California is in the 9th Circuit. The footnote says that the 9th Circuit also interpreted it this way, in the case U.S. v. Casasola (2012). Although the circumstances of that case are different from yours, as part of the case the court considered the person's argument that legal custody includes joint custody, and the court rejected it. From the decision:

Id. at 398. The Fifth Circuit therefore held that “only sole legal custody” satisfied § 1432(a)'s requirement that the naturalizing parent have “legal custody.” Id. at 396. We agree. - See more at: http://caselaw.findlaw.com/us-9th-circuit/1592558.html#sthash.aq0WPCU4.dpuf

Id. at 398. The Fifth Circuit therefore held that “only sole legal custody” satisfied § 1432(a)'s requirement that the naturalizing parent have “legal custody.” Id. at 396. We agree. - See more at: http://caselaw.findlaw.com/us-9th-circuit/1592558.html#sthash.aq0WPCU4.dpuf

Id. at 398. The Fifth Circuit therefore held that “only sole legal custody” satisfied § 1432(a)'s requirement that the naturalizing parent have “legal custody.” Id. at 396. We agree.

[VonDutch 0]

California is in the 9th Circuit. The footnote says that the 9th Circuit also interpreted it this way, in the case U.S. v. Casasola (2012). Although the circumstances of that case are different from yours, as part of the case the court considered the person's argument that legal custody includes joint custody, and the court rejected it. From the decision:

Id. at 398. The Fifth Circuit therefore held that “only sole legal custody” satisfied § 1432(a)'s requirement that the naturalizing parent have “legal custody.” Id. at 396. We agree. - See more at: http://caselaw.findlaw.com/us-9th-circuit/1592558.html#sthash.aq0WPCU4.dpuf

Id. at 398. The Fifth Circuit therefore held that “only sole legal custody” satisfied § 1432(a)'s requirement that the naturalizing parent have “legal custody.” Id. at 396. We agree. - See more at: http://caselaw.findlaw.com/us-9th-circuit/1592558.html#sthash.aq0WPCU4.dpuf

you interpret the case incorrectly, his parents did not legally seperate before 18.... joint custody in this case is between a married couple....

further, there are ample cases of joint custody where the petioner can prove that he/she resided with the citizen parent through school records, employment, and juvenile record where it stated that child was in legal custody of the citizen parent....

[VonDutch 0]

you interpret the case incorrectly, his parents did not legally seperate before 18.... joint custody in this case is between a married couple....

further, there are ample cases of joint custody where the petioner can prove that he/she resided with the citizen parent through school records, employment, and juvenile record where it stated that child was in legal custody of the citizen parent....

the cases are basically discrimination cases...

[newacct 688]

you interpret the case incorrectly, his parents did not legally seperate before 18.... joint custody in this case is between a married couple....

further, there are ample cases of joint custody where the petioner can prove that he/she resided with the citizen parent through school records, employment, and juvenile record where it stated that child was in legal custody of the citizen parent....

I specifically said that the circumstances of the person was different from yours. That's not the point. The point is that the court ruled on the legal matter we are talking about, because it was brought up during that case. The 9th Circuit specifically addressed the legal question of what is needed for "legal custody" under the 1978 law, and said it must be sole custody, and joint custody is not enough. This has already been mentioned by the chart C that was linked to much earlier (the quote mentioned both 5th and 9th Circuit and you conveniently ignored the relevant part about the circuit that covers your state). Actually read things before jumping to premature conclusions.

Edited March 20, 2016 by newacct

[VonDutch 0]

I specifically said that the circumstances of the person was different from yours. That's not the point. The point is that the court ruled on the legal matter we are talking about, because it was brought up during that case. The 9th Circuit specifically addressed the legal question of what is needed for "legal custody" under the 1978 law, and said it must be sole custody, and joint custody is not enough. This has already been mentioned by the chart C that was linked to much earlier (the quote mentioned both 5th and 9th Circuit and you conveniently ignored the relevant part about the circuit that covers your state). Actually read things before jumping to premature conclusions.

I'll let you kmow how my petition turns out, those cases missed one condition of legal seperation... so they argue in a married union, joint custody is not sufficient... your interpretation is that every divorce where derived citizenship is t stake, that children must have feuding parents where citizen parent gets full custody.....

ther's a case i remember reading about where the child was in joint custody, but a divorce decree stated joint custody but physical custody was to the non citizen parent. But the child decided to live with the citizen parent and showed evidence to this effect.... school, employment records, juvenile criminal case stating the child's residence and legal care of the citizen parent...... he attained derivitive citizenship

you sound very negative about any case for derivity....

[VonDutch 0]

I'll let you kmow how my petition turns out, those cases missed one condition of legal seperation... so they argue in a married union, joint custody is not sufficient... your interpretation is that every divorce where derived citizenship is t stake, that children must have feuding parents where citizen parent gets full custody.....

ther's a case i remember reading about where the child was in joint custody, but a divorce decree stated joint custody but physical custody was to the non citizen parent. But the child decided to live with the citizen parent and showed evidence to this effect.... school, employment records, juvenile criminal case stating the child's residence and legal care of the citizen parent...... he attained derivitive citizenship

you sound very negative about any case for derivity....

BOEYAH!!!!

Kamara v. Lynch, No. 13-70657 (5th Cir. 2015)

What does it mean to be in the legal custody of a citizen parent for purposes of deriving citizenship? The Fifth Circuit addressed this issue in the context of INA § 321, the law that was in place in 1998 when Hamid Kamara claimed he derived citizenship after his mother’s naturalization. Prior to the Child Citizenship Act of 2000, the law on derivation of citizenship provided that the naturalization of one parent would grant automatic citizenship to a child where the parents were legally separated and the child was in the custody of the naturalizing parent. The parent’s naturalization must have occurred while the child was under 18 and the child must have been residing in the U.S. as a lawful permanent resident at the time of the parent’s naturalization. INA § 321 (since repealed by the Child Citizenship Act of 2000).

Kamara lived with his mother since 1991 and was a 16-year-old LPR when his mother naturalized in 1998. His parents were divorced in Texas in 1990 but no child custody orders were made. To demonstrate that he derived citizenship from his mother, the 5th Circuit Court held that Kamara need only prove he was in the “actual uncontested custody” of his U.S. citizen mother. In so holding, the Court clarified a previous decision inBustamante-Barrera v. Gonzalez, 447 F.3d 388 (5th Cir. 2006), which requires the naturalizing parent to have “sole legal custody” only when a noncitizen minor’s parents have a joint custody order following divorce or judicial separation.

The “actual uncontested custody” standard has been the law for decades and has been applied in the Second, Third, Seventh, and Ninth Circuit Courts. Matter of M-, 3 I&N Dec 850 (CO 1950) set forth a two-step test for legal custody. First, if there is a judicial determination of custody, then the parent to whom custody has been granted has legal custody for INA purposes. Second, if no legal custody determination has been made, then the parent in “actual uncontested custody” is deemed to have legal custody.” The Fifth Circuit held that under this rule, the question of “sole legal custody” arises only in cases where a formal custody order exists. Since no legal custody order was entered in Kamara’s case, the Court found that the Bustamante-Barrera “sole legal custody” rule did not apply. Though the court determined that Kamara’s mother had actual custody, the case was remanded to determine whether that actual custody was uncontested.

[VonDutch 0]

BOEYAH!!!!

Kamara v. Lynch, No. 13-70657 (5th Cir. 2015)

What does it mean to be in the legal custody of a citizen parent for purposes of deriving citizenship? The Fifth Circuit addressed this issue in the context of INA § 321, the law that was in place in 1998 when Hamid Kamara claimed he derived citizenship after his mother’s naturalization. Prior to the Child Citizenship Act of 2000, the law on derivation of citizenship provided that the naturalization of one parent would grant automatic citizenship to a child where the parents were legally separated and the child was in the custody of the naturalizing parent. The parent’s naturalization must have occurred while the child was under 18 and the child must have been residing in the U.S. as a lawful permanent resident at the time of the parent’s naturalization. INA § 321 (since repealed by the Child Citizenship Act of 2000).

Kamara lived with his mother since 1991 and was a 16-year-old LPR when his mother naturalized in 1998. His parents were divorced in Texas in 1990 but no child custody orders were made. To demonstrate that he derived citizenship from his mother, the 5th Circuit Court held that Kamara need only prove he was in the “actual uncontested custody” of his U.S. citizen mother. In so holding, the Court clarified a previous decision inBustamante-Barrera v. Gonzalez, 447 F.3d 388 (5th Cir. 2006), which requires the naturalizing parent to have “sole legal custody” only when a noncitizen minor’s parents have a joint custody order following divorce or judicial separation.

The “actual uncontested custody” standard has been the law for decades and has been applied in the Second, Third, Seventh, and Ninth Circuit Courts. Matter of M-, 3 I&N Dec 850 (CO 1950) set forth a two-step test for legal custody. First, if there is a judicial determination of custody, then the parent to whom custody has been granted has legal custody for INA purposes. Second, if no legal custody determination has been made, then the parent in “actual uncontested custody” is deemed to have legal custody.” The Fifth Circuit held that under this rule, the question of “sole legal custody” arises only in cases where a formal custody order exists. Since no legal custody order was entered in Kamara’s case, the Court found that the Bustamante-Barrera “sole legal custody” rule did not apply. Though the court determined that Kamara’s mother had actual custody, the case was remanded to determine whether that actual custody was uncontested.

Also, the following was taken from USCIS website: https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartH-Chapter4.html

B. Legal and Physical Custody of U.S. Citizen Parent​

​

Legal custody refers to the responsibility for and authority over a child. For purposes of this provision, USCIS presumes that a ​U.S.​ citizen parent has legal custody of a child and recognizes that the parent has lawful authority over the child, absent evidence to the contrary, in all of the following scenarios:​ [6]

​

•A biological child who currently resides with both biological parents who are married to each other, living in marital union, and not separated;​

​

•A biological child who currently resides with a surviving biological parent, if the other parent is deceased;​

​

•A biological child born out of wedlock who has been legitimated and currently resides with the parent;​

​

•An adopted child with a final adoption decree who currently resides with the adoptive U.S. citizen parent;​ [7]

​

•A child of divorced or legally separated parents where a court of law or other appropriate government entity has awarded primary care, control, and maintenance of the child to a parent under the laws of the state or country of residence.​

​

USCIS considers a ​U.S.​ citizen parent who has been awarded “joint custody” to have legal custody of a child. There may be other factual circumstances under which USCIS may find the U.S. citizen parent to have legal custody to be determined on a case-by-case basis.​

[newacct 688]

I'll let you kmow how my petition turns out, those cases missed one condition of legal seperation... so they argue in a married union, joint custody is not sufficient... your interpretation is that every divorce where derived citizenship is t stake, that children must have feuding parents where citizen parent gets full custody.....

ther's a case i remember reading about where the child was in joint custody, but a divorce decree stated joint custody but physical custody was to the non citizen parent. But the child decided to live with the citizen parent and showed evidence to this effect.... school, employment records, juvenile criminal case stating the child's residence and legal care of the citizen parent...... he attained derivitive citizenship

you sound very negative about any case for derivity....

I am not sounding "negative" at all; I am only repeating what the 9th Circuit said and what all the summaries on the legal situation say. It is the 9th Circuit that was "negative" about this. Your responses have indicated that you have repeatedly failed to read things and are arguing things that are beside the point. You keep saying the situation in "those cases missed blah blah blah", but that is completely irrelevant. What matters; what I've repeated many times, is the court ruled on the issue we are talking about. That's it. It doesn't matter what case it was from. What matters is that they ruled on it. I can paste the relevant part from the ruling in case you cannot find it:

Suchite makes a secondary equal protection argument. He contends we should interpret the phrase “legal custody” within the meaning of § 1432(a) to include a parent having joint legal custody, and then hold the statute is irrational by treating a citizen parent with joint legal custody differently from a parent who is married. If we were to construe the statute to grant derivative citizenship upon the naturalization of a parent with joint legal custody, we agree the result would be irrational. Our law, however, recognizes the principle that courts do not construe statutes in a manner that would lead to absurd results. Ma v. Ashcroft, 361 F.3d 553, 561 (9th Cir.2004). Similarly, we do not impute to Congress an intent to create a law that produces an unreasonable result. United States v. Kaldenberg, 429 F.2d 161, 164 (9th Cir.1970). The phrase “legal custody,” therefore, means sole legal custody.

Suchite relies on a series of unpublished, non-precedential, BIA decisions in which the BIA said that derivative citizenship follows the naturalization of one parent with joint legal custody. See In re Puertas, No. A036–324–203, 2010 WL 4500862 (BIA Oct. 28, 2010) (unpublished); In re Delcid, No. A35–235–281, 2005 WL 1766776 (BIA May 3, 2005) (unpublished); see also In re Applicant, No. [redacted by agency], 2007 WL 5315191 (AAO Feb. 2, 2007). Only Skidmore deference, however, is owed to unpublished BIA decisions. See Garcia–Quintero v. Gonzales, 455 F.3d 1006, 1014 (9th Cir.2006). Under Skidmore deference, we “examine the validity of the BIA's reasoning, its thoroughness, and overall persuasiveness,” and give it weight accordingly. Id. at 1015.

We must conclude that the non-precedential, BIA statutory interpretations are not worthy of any deference, because they conflict with the words and obvious meaning of the statute. See Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004) (refusing to grant any deference when the agency decision was “contrary to the plain and sensible meaning of the statute” and would lead to an irrational result). Indeed, the only authority cited by the BIA from the time § 1432(a) was in effect is an unpublished 1996 Passport Bulletin issued by the State Department, an agency that does not enforce these immigration laws. The BIA's additional reliance on regulations later adopted by the Department of Homeland Security to implement the CCA is unpersuasive, because the CCA superseded the controlling statute in this case. Rather than follow unpublished, BIA decisions unworthy of deference, we instead give the statute a sensible interpretation and thereby agree with the only circuit decision that has addressed this issue, the Fifth Circuit's decision in Bustamante–Barrera, 447 F.3d at 395–96.

In Bustamante–Barrera, the petitioner appealed his order of removal, arguing that he obtained automatic derivative citizenship when his mother naturalized while he was still a minor. Id. at 390–92. At the time his mother naturalized his parents were divorced, and although he lived exclusively with his mother, his parents had joint legal custody and his father retained visitation rights. Id. at 390–91. The Fifth Circuit expressly observed that construing the statute as satisfied by joint legal custody, what Suchite advocates here, would lead to the irrational and absurd.

nterpreting § 1432(a)(3) as amenable to being satisfied by a decree of joint legal custody would lead to an absurd result: (1) not recognizing derivative citizenship when an alien child's parents are married and only one parent is naturalized, while (2) recognizing derivative citizenship when an alien child's parents are legally separated, continue to share legal custody (and thus legal rights) over the child, and only one parent is naturalized. Inasmuch as, in each example, both parents share rights over the child, we can conceive of no non-absurd reason—and Petitioner has furnished us none—why Congress would grant derivative citizenship to the child of the legally separated parents but not to the child of the married parents.

Id. at 398. The Fifth Circuit therefore held that “only sole legal custody” satisfied § 1432(a)'s requirement that the naturalizing parent have “legal custody.” Id. at 396. We agree. Supporting the Fifth Circuit's decision were: (1) the statute's plain language within the overall statutory scheme of the INA; and (2) the statute's purpose of protecting parental rights. Id. at 396–98. We too find these compelling.

If Congress had intended the naturalization of one legally separated parent sharing joint legal custody to trigger § 1432(a)'s grant of derivative citizenship, then Congress could have easily provided that “the parent or parents having legal custody of the child” could confer derivative citizenship upon naturalization. Id. at 396 (internal quotation marks omitted). Congress has, in fact, used such language in other provisions of the INA. See id. at 396–97. In 8 U.S.C. § 1101(b)(1)© (emphasis added), Congress defines “child” as “a child legitimated under the law of the child's residence or domicile ․ if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation.” See also id. § 1101(b)(1)(E)(I) (defining “child” to include an adopted child “if the child has been in the legal custody of, and resided with, the adopting parent or parents ” (emphasis added)); id. § 1101©(1) (similarly requiring that the child be “in the legal custody of the legitimating or adopting parent or parents ” (emphasis added)). As the Fifth Circuit summarized, “we are confident that, had Congress intended § 1432(a)(3) to be satisfied by either sole or joint legal custody, it would have used the same words or at least very similar ones.” Bustamante–Barrera, 447 F.3d at 397.

Furthermore, if § 1432(a) were interpreted to allow the naturalization of one parent with joint legal custody to confer automatic derivative citizenship on a child, the statute would not serve the purpose of protecting the custodial, non-citizen parent. See id. 397–98. Thus, in addition to the Fifth Circuit, a number of other circuit courts have assumed, if not explicitly decided, that “legal custody” is limited to “sole legal custody.” See Johnson, 647 F.3d at 126 (explaining that automatic derivative citizenship applies when “one parent is awarded sole custody of the child” (emphasis added)); Wedderburn, 215 F.3d at 800 (postulating that § 1432(a) “as written means that in shared-custody cases both parents must naturalize, and this is entirely rational”); Rodrigues, 321 Fed.Appx. at 170 (concluding that there was no derivative citizenship because the parent's informal separation resulted in joint custodial rights); see also Perez v. United States, 502 F.Supp.2d 301, 303 n. 5 (N.D.N.Y.2006) (summarily concluding that the statute requires sole legal custody); Fisher v. Mukasey, No. 08–CV–812, 2008 WL 4693135, at *7 (E.D.N.Y. Oct. 22, 2008) (unpublished) (citing Bustamante–Barrera for the proposition that “legal custody” is limited to sole legal custody); Mohammed v. United States, No. 07–22306–CIV, 2007 WL 4557145, at *7 (S.D.Fla. Dec.21, 2007) (unpublished) (adopting Bustamante–Barrera's holding that “legal custody” is limited to sole legal custody).

BOEYAH!!!!

Kamara v. Lynch, No. 13-70657 (5th Cir. 2015)

What does it mean to be in the legal custody of a citizen parent for purposes of deriving citizenship? The Fifth Circuit addressed this issue in the context of INA § 321, the law that was in place in 1998 when Hamid Kamara claimed he derived citizenship after his mother’s naturalization. Prior to the Child Citizenship Act of 2000, the law on derivation of citizenship provided that the naturalization of one parent would grant automatic citizenship to a child where the parents were legally separated and the child was in the custody of the naturalizing parent. The parent’s naturalization must have occurred while the child was under 18 and the child must have been residing in the U.S. as a lawful permanent resident at the time of the parent’s naturalization. INA § 321 (since repealed by the Child Citizenship Act of 2000).

Kamara lived with his mother since 1991 and was a 16-year-old LPR when his mother naturalized in 1998. His parents were divorced in Texas in 1990 but no child custody orders were made. To demonstrate that he derived citizenship from his mother, the 5th Circuit Court held that Kamara need only prove he was in the “actual uncontested custody” of his U.S. citizen mother. In so holding, the Court clarified a previous decision inBustamante-Barrera v. Gonzalez, 447 F.3d 388 (5th Cir. 2006), which requires the naturalizing parent to have “sole legal custody” only when a noncitizen minor’s parents have a joint custody order following divorce or judicial separation.

The “actual uncontested custody” standard has been the law for decades and has been applied in the Second, Third, Seventh, and Ninth Circuit Courts. Matter of M-, 3 I&N Dec 850 (CO 1950) set forth a two-step test for legal custody. First, if there is a judicial determination of custody, then the parent to whom custody has been granted has legal custody for INA purposes. Second, if no legal custody determination has been made, then the parent in “actual uncontested custody” is deemed to have legal custody.” The Fifth Circuit held that under this rule, the question of “sole legal custody” arises only in cases where a formal custody order exists. Since no legal custody order was entered in Kamara’s case, the Court found that the Bustamante-Barrera “sole legal custody” rule did not apply. Though the court determined that Kamara’s mother had actual custody, the case was remanded to determine whether that actual custody was uncontested.

You were the one who wrote that your father had "joint custody", which indicates a joint custody order from the court. Since your parents legally divorced, it is almost certain that there was a custody order as a part of the divorce, so this ruling you cite about people with no custody order is not relevant.

[VonDutch 0]

I am not sounding "negative" at all; I am only repeating what the 9th Circuit said and what all the summaries on the legal situation say. It is the 9th Circuit that was "negative" about this. Your responses have indicated that you have repeatedly failed to read things and are arguing things that are beside the point. You keep saying the situation in "those cases missed blah blah blah", but that is completely irrelevant. What matters; what I've repeated many times, is the court ruled on the issue we are talking about. That's it. It doesn't matter what case it was from. What matters is that they ruled on it. I can paste the relevant part from the ruling in case you cannot find it:

You were the one who wrote that your father had "joint custody", which indicates a joint custody order from the court. Since your parents legally divorced, it is almost certain that there was a custody order as a part of the divorce, so this ruling you cite about people with no custody order is not relevant.

https://www.uscis.gov/sites/default/files/err/E2%20-%20Applications%20for%20Certification%20of%20Citizenship/Decisions_Issued_in_2014/JUN032014_01E2309.pdf