Roosevelt Institute | Cornell University

DOJ Slip-up Results in 7 years of Wrongful Deportations

By Margaret McGranePublished March 14, 2015

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In the wake of a recent Board of Immigration Appeals case the Department of Justice admitted to seven years of inaccurate interpretation of Immigration Law.
A recent Board of Immigration Appeals [BIA] hearing upheld foreign born, out-of-wedlock, children's right to citizenship when one or both of their parents become naturalized. This landmark case will reverse seven years of inaccurate interpretation of Immigration Law and vindicate wrongfully deported individuals.

At the crux of the confusion is a concept known as "derivative citizenship". Under section 320(a) of the Immigration and Nationality Act [INA] http://www.uscis.gov/laws/immigration-and-nationality-act a child born abroad automatically acquires citizenship if: (1) One or both parents is a US citizen, by either birth or naturalization (2) The child is under 18 years of age (3) The child is living in the United States under the physical and legal custody of the parent with US citizenship. In the case of children born out of wedlock, the parent/child relationship must be "legitimized", meaning paternity must be legally established, for the third stipulation to hold true.

The application of the third provision caused confusion in cases of children born abroad to parents out of wedlock. This was the case for, Oshane Shaneil Cross, the respondent in this crucial BIA hearing that reversed the inaccurate standard for interpretation. Mr. Cross was born out of wedlock in Jamaica in 1988. While applying for a visa to come to the United States in 1995 the respondent's father formally placed his name on Mr. Cross' birth certificate. In 2001 the respondent's father became a United States citizenhttp://www.justice.gov/eoir/vll/intdec/vol26/3826.pdf . Despite the fact that Mr. Cross was under the age of 18 and living in the custody of his father during the time of his naturalization, his own claim to derivate citizenship was called into question.  

The Immigration Judge presiding over Mr. Cross' initial case questioned his status as a legitimate child. Relying on the precedent established by previous BIA proceedings the judge determined that the child's home country laws would be called upon to determine parental legitimacy. US Domestic Relations Law §24 sets forth the standard that a child can become legitimatized whenever paternity is legally established, regardless of marital status at the time of birth http://www.lawny.org/index.php/advocate-page-attorney-resources-119/38-public-advocate-information/171-paternity-for-advocates . By US measures, the addition of his father's name to his birth certificate in 1995 would qualify as legal paternal recognition. However, the judge found that in Mr. Cross' home county, Jamaica, legitimacy can only be achieved via marriage, which Mr. Cross' parents had not done. http://www.justice.gov/eoir/vll/intdec/vol26/3826.pdf

Section 101(c) (1) of the INA became Mr. Cross's saving grace. This section clarified that a child may be considered legitimate if legal distinctions between children based on marital status had been eliminated in the child's home country or state (including US states). At the time of Mr. Cross' birth in 1988 the Jamaican Status of Children Act [1977] had eliminated legal distinctions between legitimate and illegitimate children.

As a result of the misinterpretation American citizens have been wrongfully deported since 2008. Remedies do not seem immediately evident. Immigration proceedings are not public records, consequently the only party capable of remediation is the government. http://www.huffingtonpost.com/laura-murraytjan/whoops-the-department-of_b_6763514.html
No information has been released yet about the reparation process. The capital involved in retracing seven years of wrongful deportations and notifying individuals about their citizenship status seems costly but the information would certainly be invaluable.