CA2 on Derivative Citizenship; Overrules ID 3621: Nwozuzu v. Holder

CA2 on Derivative Citizenship; Overrules ID 3621: Nwozuzu v. Holder

"The question presented is whether Nwozuzu's failure to become a lawful permanent resident before turning eighteen years old bars him from claiming derivative citizenship from his parents. We hold it does not. ... 

Nwozuzu applied for citizenship in August 2005 and April 2006, but his application was not approved. On October 6, 2006, the immigration judge (the "IJ") held that DHS failed to meet its burden to establish alienage and terminated proceedings against Nwozuzu. DHS appealed the decision to the Board of Immigration Appeals (the "BIA"). On September 10, 2008, the BIA issued its decision (the "September 10 decision"), sustaining DHS's
appeal and remanding the case to the IJ to complete removal proceedings. See Matter of Nwozuzu, 24 I. & N. Dec. 609, 616 (BIA 2008). ... 

We conclude that, both in the text of the statute and its legislative history, Congress has spoken directly to "the precise question at issue." Section 321(a) provided that a child whose parents were naturalized and who "beg[an] to reside permanently in the United States while under the age of eighteen years" could obtain derivative citizenship. 8 U.S.C. § 1432(a)(5) (1994); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987) ("[W]hether Congress intended the two standards to be identical is a pure question of statutory construction for the courts to decide."). As we discuss below, this was true even for a child who was not lawfully admitted for permanent residence before turning eighteen. ... 

[U]nder section 321(a)(5), a minor derived citizenship if the second parent was naturalized and he thereafter "beg[an] to reside permanently in the United States while under the age of eighteen years" -- irrespective of whether he had been lawfully admitted for permanent residence before turning eighteen. ... 

We conclude that the BIA's interpretation of section 321(a) is unreasonable. ... 

[T]he petition is GRANTED and the case is REMANDED to the BIA for proceedings not inconsistent with this opinion." - Nwozuzu v. Holder, Aug. 12, 2013.

[Hats way off to Joshua Bardavid and Ted Cox!]