Introduction

In 1992, at the age of seven, Evaristo Gonzalez entered the United States unlawfully. His father, a naturalized US citizen, filed a petition for an immediate-relative visa, and in 2008, Gonzalez became a lawful permanent resident (LPR). In 2011, Gonzalez pleaded guilty to a felony. Shortly thereafter, the Department of Homeland Security (DHS) initiated removal proceedings. 

For the most part, nothing in this factual scenario is unusual: for noncitizens, conviction of certain crimes results in removability, and in fiscal year 2013, Immigration and Customs Enforcement (ICE) removed approximately 110,000 noncitizens convicted of crimes in the United States. However, Gonzalez’s case was unusual in one respect: he claimed to be a US citizen through “derivative citizenship.” Derivative citizenship is citizenship acquired when an individual’s parent or parents become citizens and certain other conditions are met. In Gonzalez’s case, the relevant statute was 8 USC § 1432(a)(5), which was enacted as § 321(a)(5) of the Immigration and Nationality Act (INA) and which allows for derivative citizenship for a child when one parent is a naturalized citizen and the child “is residing in the United States pursuant to a lawful admission for permanent residence at the time of [the parent’s naturalization], or thereafter begins to reside permanently in the United States while under the age of eighteen years.” 

The statute is ambiguous as to whether “lawfully admitted for permanent residence” and “reside permanently” mean the same thing. “Lawfully admitted for permanent residence” is a term defined in the statute as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws.” “Permanent” and “residence” are also defined, but “residing permanently” is not, and a composite definition based on the two words does not completely align with the statutory definition of “lawfully admitted for permanent residence.” This ambiguity has created a split in the circuits, with the Ninth and Eleventh Circuits holding that “lawfully admitted for permanent residence” and “reside permanently” carry the same meaning and the Second Circuit holding that the phrases have independent meanings. 

Resolution of this split, however, is not the focus of this Comment. Instead, this Comment focuses on an unresolved question created by the Second Circuit’s reasoning: If LPR status is not required for derivative citizenship, can individuals who entered the country unlawfully but who otherwise meet the derivative citizenship requirements obtain citizenship via operation of § 1432(a)? The Second Circuit has expressly declined to answer this question, and while the Fifth Circuit recently found against Gonzalez on the basis of his unlawful entry, the scope of its decision remains unclear. The Ninth and Eleventh Circuits have not addressed the question, because their interpretation of the statute moots it. 

The question is not a trivial one. In 2000, there were 2.6 million foreign-born children residing in the United States who had at least one foreign-born parent. For individuals in this set who are not yet citizens but have at least one parent who is a citizen, a plausible citizenship claim exists provided that they meet the other statutory requirements. However, for those in this group who entered the country illegally, a citizenship claim succeeds only if a court holds that § 1432(a) does not carry an implicit lawful entry requirement.

Further, the question’s importance transcends numbers. Courts and administrative bodies make decisions each day that affect people’s lives, but few of these decisions are as significant as those concerning citizenship status. A finding that an individual is not a US citizen may lead to his removal, which could lead to disruption of his family and professional life as well as return to a country with which he may have little to no connection. Indeed, if an individual’s removal destination is particularly dangerous, finding that individual to be a potentially removable noncitizen may lead to more-severe consequences than a criminal conviction and incarceration would: if such an individual also faces removal after completing a sentence, he faces additional risk to life and limb that would not exist were he simply released in the United States

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