Eligibility of Unlegitimated Children for
                             Derivative Citizenship
An alien child who was born out of wedlock and whose paternity has not been established by
  legitimation is eligible for derivative citizenship under section 320 of the Immigration and Naturali-
  zation Act at the time the child’s mother becomes a naturalized citizen.

                                                                                        July 24, 2003

        MEMORANDUM OPINION FOR THE ACTING PRINCIPAL LEGAL ADVISOR
             BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES
                  DEPARTMENT OF HOMELAND SECURITY

    Section 320(a) of the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1431(a), as amended by the Child Citizenship Act of 2000, Pub. L. No. 106-395,
114 Stat. 1631 (2000) (“CCA”), provides automatic United States citizenship to a
child born outside the United States upon the satisfaction of a specified set of
conditions. One of these conditions is that “[a]t least one parent of the child is a
citizen of the United States, whether by birth or naturalization.” INA § 320(a)(1),
8 U.S.C. § 1431(a)(1). Your predecessor agency, the Immigration and Naturaliza-
tion Service, asked for our opinion whether this condition is satisfied for an alien
child who was born out of wedlock and whose paternity has not been established
by legitimation at the time the child’s mother becomes a naturalized citizen.1 For
the reasons stated below, we conclude that it is.

                                                  I.

    The term “derivative citizenship” refers to citizenship that a child may derive
after birth through the naturalization of a parent. See 7 C. Gordon et al., Immigra-
tion Law and Procedure § 98.03[1] (2003). It is distinct from the acquisition of
citizenship at birth, including the “citizenship by descent” that may be conferred
on a child born abroad to a citizen parent. See id.; see also INA § 301(c), (d), (e),
(g), 8 U.S.C. § 1401(c), (d), (e), (g) (2000) (examples of INA provisions confer-
ring citizenship by descent).
    In enacting the INA in 1952, Congress expressly provided that an alien child
who was born out of wedlock outside the United States and whose paternity had
not been established by legitimation could acquire derivative citizenship through


    1
      Memorandum for Daniel Koffsky, Acting Assistant Attorney General, Office of Legal Counsel,
from Bo Cooper, General Counsel, Immigration and Naturalization Service, Re: Children Born Out-of-
Wedlock and Eligibility for Derivative Citizenship Under the Child Citizenship Act (CCA), Pub. L. 106-
395 (October 30, 2000) (Aug. 21, 2001). Because the same issue arises with respect to passport appli-
cations, we subsequently solicited the views of the Department of State, which responded by letter
dated February 28, 2003.




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             Eligibility of Unlegitimated Children for Derivative Citizenship


the naturalization of his mother. Section 321 of the INA set forth the conditions for
automatic derivative citizenship of children born outside the United States of alien
parents. Where the alien parents were still alive and married, section 321 required
as a condition the naturalization of both parents. But section 321 also accommo-
dated other situations. Among other things, section 321 specifically provided that a
child born outside the United States of alien parents “becomes a citizen of the
United States upon fulfillment of the following conditions:”

      (1) “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”;

      (2) the naturalization of the mother “takes place while such child is
      under the age of sixteen years”; and

      (3) the child “is residing in the United States pursuant to a lawful
      admission for permanent residence at the time of the [mother’s] natu-
      ralization . . . or thereafter begins to reside permanently in the United
      States while under the age of eighteen years.”

INA § 321, 66 Stat. 163, 245 (1952). Section 320 of the INA separately addressed
automatic derivative citizenship for a child born outside the United States of one
alien parent and one citizen parent; it provided as one of the conditions of such
citizenship that the alien parent be naturalized before the child turned 18. Section
101(c)(1) of the INA in turn defined “child” for purposes of subchapter III of the
INA, which included section 321.
    In enacting the CCA in 2000, Congress created a new section 320 that sets forth
the conditions for automatic derivative citizenship for the two categories of
children born outside the United States—those born of alien parents and those
born of one alien parent and one citizen parent—that had been governed by former
sections 321 and 320, respectively. The new section 320 significantly broadens the
class of children eligible for automatic citizenship by requiring that no more than
one parent need be a citizen. Section 320 now provides:

      A child born outside of the United States automatically becomes a
      citizen of the United States when all of the following conditions have
      been fulfilled:

          (1) At least one parent of the child is a citizen of the United
          States, whether by birth or naturalization.

          (2) The child is under the age of eighteen years.




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          (3) The child is residing in the United States in the legal and
          physical custody of the citizen parent pursuant to a lawful admis-
          sion for permanent residence.

INA § 320, 8 U.S.C. § 1431. The CCA did not amend section 101(c)(1), which
continues to define “child” for purposes of subchapter III of the INA, which now
includes new section 320.

                                          II.

   Unlike former section 321, new section 320 does not specifically address the
eligibility of children born out of wedlock for derivative citizenship. Rather, it
generally confers automatic derivative citizenship on any “child” when a custodial
parent is or becomes a citizen and when its age and residency requirements are
satisfied. Whether an alien child who was born out of wedlock and whose
paternity has not been established by legitimation is eligible under the CCA for
derivative citizenship upon the mother’s naturalization therefore depends on the
scope of the definition of the term “child” in section 101(c)(1).
   Section 101(c)(1) provides:

       The term “child” means an unmarried person under twenty-one years
       of age and includes a child legitimated under the law of the child’s
       residence or domicile, or under the law of the father’s residence or
       domicile, whether in the United States or elsewhere, and except as
       otherwise provided in sections 1431 and 1432 of this title, a child
       adopted in the United States, if such legitimation or adoption takes
       place before the child reaches the age of 16 years (except to the ex-
       tent that the child is described in subparagraph (E)(ii) or (F)(ii) of
       subsection (b)(1) of this section), and the child is in the legal custody
       of the legitimating or adopting parent or parents at the time of such
       legitimation or adoption.

INA § 101(c)(1), 8 U.S.C. § 1101(c)(1) (2000).
    We understand the words “legitimated,” “legitimation,” and “legitimating” in
this definition to refer to the formal legal process of establishing a child’s paterni-
ty. This understanding is consistent with former section 321(a)(3), which, as noted
above, in conjunction with this same definition of “child,” established as one
condition of derivative citizenship that “the paternity of the child has not been
established by legitimation.” The fact that section 101(c)(1) itself treats mothers
and fathers differently by allowing legitimation “under the law of the child’s
residence or domicile, or under the law of the father’s residence or domicile,” but
not under the law of the mother’s, further supports our reading that “legitimation”
refers to the establishment of paternity. We therefore will use “legitimated” and




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               Eligibility of Unlegitimated Children for Derivative Citizenship


“unlegitimated” as shorthand terms to refer, respectively, to a child whose
paternity has been established by legitimation and to a child whose paternity has
not been so established.

                                                A.

   The question whether the unlegitimated offspring of an alien mother is a
“child” within the meaning of section 101(c)(1) is complicated by the fact that
section 101(c)(1) is poorly drafted. Among other things, section 101(c)(1) runs in
circles by using the term it is defining—“child”—as part of the substantive
definition of that same term. Worse, it fails to establish any coherent relationship
between its “means” phrase (“means an unmarried person under twenty-one years
of age”) and its 110-word “includes” phrase (“includes a child legitimated . . .”).
Ordinarily, one would expect an “includes” phrase to clarify that the scope of a
“means” phrase is broader than might be evident (i.e., “includes” more than it
unambiguously “means”). In section 101(c)(1), however, the substance of the
“includes” phrase in no way elucidates, and in fact appears entirely unrelated to,
possible meanings of “unmarried person under twenty-one years of age.” Instead,
the arguable purpose of the “includes” phrase is to provide some sort of implied
exception to the “means” phrase by excluding from the definition of “child” some
set of “unmarried person[s] under twenty-one years of age” that it does not say is
included.2
   We discern four possible approaches to section 101(c)(1):
   Approach 1: Under a strictly literal reading, the “includes” phrase would be
understood not to limit the “means” phrase, so that any “unmarried person under
twenty-one years of age” would be a “child.” It is true that this approach would
render the entire “includes” phrase surplusage, but this approach could be
defended on the ground that the phrase is in fact cast as surplusage.
   The three other approaches would construe—or, more candidly, rewrite—
section 101(c)(1) to reflect competing versions of what the definition supposedly
means. Under these approaches, the “includes” phrase would be recast as an
exception to the general definition of “child.”
   Approach 2: Under one rewriting, section 101(c)(1) might be understood to
mean:

           The term “child” means an unmarried person under twenty-one
        years of age, except that (A) it shall include any such person legiti-
        mated under the law of the such person’s residence or domicile, or

    2
      The two “except” clauses appended to the “includes” phrase are also poorly structured. Because
they relate only to adopted children, not to legitimated children, we do not address them here.
Paragraphs (B) and (C) of our rewriting of section 101(c)(1) in Approach 2 offer one view of what
these clauses may have been intended to mean.




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      under the law of the father’s residence or domicile, whether in the
      United States or elsewhere, only if the legitimation takes place be-
      fore the person reaches the age of 16 years and only if such person
      was in the legal custody of the legitimating parent or parents at the
      time of such legitimation; (B) it shall include (other than for purpos-
      es of section 1431 of this title) any such person adopted in the United
      States only if the adoption takes place before the person reaches the
      age of 16 years (or, if the person meets the definition of ‘child’ under
      subparagraph (E)(ii) or (F)(ii) of subsection (b)(1) of this section, be-
      fore the person reaches the age of 18 years) and only if such person
      was in the legal custody of the adopting parent or parents at the time
      of such adoption; and (C) it shall include, for purposes of section
      1431 of this title, any such person adopted in the United States only
      if such person meets the definition of ‘child’ under paragraph (E) or
      (F) of subsection (b)(1) of this section.

Under this rewriting, paragraph (A) (the only paragraph that directly bears on our
question) would provide that only certain legitimated persons did not fall within
the definition. Therefore, under this reading, any unlegitimated person who is
unmarried and under 21 would be a “child.”
    Approach 3: Under a competing reading—the reading that, as we understand it,
your Bureau and the Department of State both favor—paragraph (A) would
provide only that certain persons claiming citizenship through their fathers did not
fall within the definition:

          The term “child” means an unmarried person under twenty-one
      years of age, except that (A) with respect to a person claiming citi-
      zenship through the person’s father, it shall include a person born out
      of wedlock only if such person was legitimated under the law of the
      person’s residence or domicile, or under the law of the father’s resi-
      dence or domicile, whether in the United States or elsewhere, before
      reaching the age of 16 years and while in the legal custody of the le-
      gitimating parent or parents . . . .

Under this reading, any unlegitimated person who is unmarried and under 21
would be a “child” (as would be any legitimated person claiming citizenship
through the person’s mother or satisfying the requirements of paragraph (A)).
   Approach 4: Alternatively, section 101(c)(1) could be understood to exclude
from its scope all persons born out of wedlock (whether legitimated or unlegiti-
mated) who are not specified in the “includes” phrase. The relevant portion of this
rewriting might read:




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                Eligibility of Unlegitimated Children for Derivative Citizenship


           The term “child” means an unmarried person under twenty-one
        years of age, except that (A) it shall include any such person who
        was born out of wedlock only if such person was legitimated under
        the law of such person’s residence or domicile, or under the law of
        the father’s residence or domicile, whether in the United States or
        elsewhere, before reaching the age of 16 years and only if such per-
        son was in the legal custody of the legitimating parent or parents at
        the time of such legitimation . . . .

Under this reading, no unlegitimated person would qualify as a “child” under
paragraph (A).

                                                   B.

   It is, happily, unnecessary for us to further parse the text of section 101(c)(1),
for former section 321(a)(3) provides a ready answer to the question whether an
unlegitimated person may qualify as a “child” under section 101(c)(1). Because
former section 321(a)(3) specifically contemplated the situation where a “child
was born out of wedlock and the paternity of the child has not been established by
legitimation” (emphasis added), it is indisputable that before enactment of the
CCA the term “child” in section 101(c)(1) included unmarried persons under the
age of 21 who were born out of wedlock and unlegitimated. And because the CCA
did not modify the definition of “child” in section 101(c)(1), it follows a fortiori
that the term “child” continues to include unmarried persons under the age of 21
who were born out of wedlock and who are unlegitimated.
   We therefore must eliminate from the list of possible approaches to section
101(c)(1) Approach 4, under which no unlegitimated person would qualify as a
“child.” Under each of the three remaining approaches, any unlegitimated person
who is unmarried and under age 21 would be a “child.” We therefore need not
decide among these three approaches.3

   3
      If the Secretary of Homeland Security were to adopt Approach 3 by regulation, we expect that any
court reviewing whether that position is consistent with section 101(c)(1) and section 320 would be
very likely to conclude that it is. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837,
844–46 (1984); United States v. Mead Corp., 533 U.S. 218, 229 (2001); INA § 103(a)(1), (3), 8 U.S.C.
1103(a)(1), (3) (2000) (charging Secretary with “the administration and enforcement [with certain
exceptions] of this chapter and all other laws relating to the immigration and naturalization of aliens,”
and directing Secretary to “establish such regulations . . . as he deems necessary for carrying out his
authority under the provisions of this chapter”). Although we recognize that this approach results in
differential treatment of fathers and mothers of children born out of wedlock—i.e., only certain
legitimated children may seek derivative citizenship through their fathers, whereas both legitimated and
unlegitimated children may seek derivative citizenship through their mothers—we believe that this
approach would also withstand scrutiny under the Equal Protection Clause, at least so long as the
legitimation requirement does not in a particular case create an “inordinate and unnecessary hurdle[]”
for fathers. Nguyen v. INS, 533 U.S. 53, 70 (2001) (upholding INA section 309); see also id. at 63
(noting that “[f]athers and mothers are not similarly situated with regard to the proof of biological




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                                                  C.

    Because any unlegitimated person who is unmarried and under age 21 is a
“child” under section 101(c)(1), it follows that the naturalization of the child’s
mother satisfies the parental-citizenship condition to derivative citizenship set
forth in section 320(a)(1).
    Our conclusion is consistent both with the statutory history of derivative citi-
zenship and with the CCA’s legislative history. Because former section 321 set
forth as a usual condition of derivative citizenship “[t]he naturalization of both
parents,” it had been necessary for former section 321 to address specifically
certain circumstances, including that of unlegitimated children, where the
condition of naturalization of both parents was regarded as unreasonable. Because
new section 320 significantly broadens the class of children eligible for automatic
citizenship by requiring that no more than one parent need be a citizen, its rule is
plainly broad enough to cover unlegitimated children, and it therefore is unsurpris-
ing that it does not specifically address them.
    According to the House committee report on the CCA (originally titled the
“Adopted Orphans Citizenship Act”), the purpose of the CCA was to “modif[y]
the provisions of the Immigration and Nationality Act governing acquisition of
United States citizenship by certain children born outside of the United States,
principally by providing citizenship automatically to such children.” H.R. Rep.
No. 106-852, at 3 (2000), reprinted in 2000 U.S.C.C.A.N. 1499, 1500. The report
noted that “[c]urrent law can beneficially be streamlined in a way that will benefit
families with foreign-born children.” Id. at 4, 2000 U.S.C.C.A.N. at 1501; see also
146 Cong. Rec. 18493 (Sept. 19, 2000) (statement of Rep. Smith) (bill “designed
to streamline the acquisition of United States citizenship by foreign children after
they are adopted by American citizens”). Although “[t]he bill as introduced dealt
solely with foreign-born adopted children,” the final version was to “provide[] the
same automatic citizenship upon entry for foreign-born children of a U.S.
citizen(s) who are not considered citizens at birth under current law,” including
“children receiving citizenship on the basis of a parent(s) naturalizing.” H.R. Rep.
No. 106-852 at 5, 2000 U.S.C.C.A.N. at 1502. Neither the report nor the floor
debate indicates any intention to eliminate this benefit for children who were born
out of wedlock and who remain unlegitimated.




parenthood”). See also Barthelemy v. Ashcroft, 329 F.3d 1062, 1068 (9th Cir. 2003) (rejecting equal
protection challenge to former INA section 321(a)(3) and noting that “fathers must often take
affirmative steps to legitimate their children under the laws of various states and nations, but mothers
typically legitimate their children by giving birth”).




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             Eligibility of Unlegitimated Children for Derivative Citizenship


                                           III.

   An alien child who was born out of wedlock and has not been legitimated is
eligible for derivative citizenship under new section 320. Specifically, when the
mother of such child becomes a naturalized citizen, the child satisfies the condition
that “[a]t least one parent of the child is a citizen of the United States, whether by
birth or naturalization.” INA § 320(a)(1), 8 U.S.C. § 1431(a)(1).

                                              M. EDWARD WHELAN III
                                            Acting Assistant Attorney General
                                                 Office of Legal Counsel




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