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Immigration Law

CA3 on Peru, Marriage, Derivative Citizenship: Espichan v. Atty. Gen.

Espichan v. Atty. Gen.

"Arturo Nicola Espichan came to the United States from Peru as a 14-year-old to live with his father, who shortly after became a U.S. citizen. When the Government later sought to deport Espichan for having committed an aggravated felony, he claimed he was not an alien but a U.S. citizen, having 3 derived citizenship from his father under a then-existing statute—§ 321(a) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1432(a) (repealed 2000). To meet that provision’s requirements, Espichan needs to show that his parents had a “legal separation.” The Government claims he cannot do so because, to be separated legally, you must first be married, and it asserts Espichan’s parents were not. Because Espichan’s nationality claim presents a genuine issue of material fact—whether his parents were married—we transfer the case to a U.S. district court for a hearing and decision on that issue. If the court finds that Espichan’s parents were married, then we hold as a matter of law that Espichan has satisfied all requirements under § 1432(a)(3)–(5) for derivative citizenship and so may not be removed."

[Hats off to Kristina C. Ivtindzoski!]