CROSS

Cite as 26 I&N Dec. 485 (BIA 2015) Interim Decision #3826

Matter of Oshane Shaneil CROSS, Respondent

Decided February 12, 2015

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

A person born out of wedlock may qualify as a legitimated “child” of his or her

biological parents under section 101(c)(1) of the Immigration and Nationality Act,

8 U.S.C. § 1101(c)(1) (2012), for purposes of citizenship if he or she was born in

a country or State that has eliminated all legal distinctions between children based on the

marital status of their parents or had a residence or domicile in such a country or State

(including a State within the United States), if otherwise eligible. Matter of Hines,

24 I&N Dec. 544 (BIA 2008), and Matter of Rowe, 23 I&N Dec. 962 (BIA 2006),

overruled in part. Matter of Clahar, 18 I&N Dec. 1 (BIA 1981), and Matter of

Goorahoo, 20 I&N Dec. 782 (BIA 1994), reaffirmed.

FOR RESPONDENT: Crescenzo DeLuca, Esquire, Whethersfield, Connecticut

FOR THE DEPARTMENT OF HOMELAND SECURITY: Amit Patel, Assistant Chief

Counsel

BEFORE: Board Panel: COLE, PAULEY, and WENDTLAND, Board Members:

COLE, Board Member:

In a decision dated May 25, 2011, an Immigration Judge ordered the

respondent removed from the United States. The respondent has appealed

from that decision. The appeal will be sustained and the proceedings will

be terminated.

The only question on appeal is whether the respondent derived

United States citizenship upon the naturalization of his father pursuant to

section 320(a) of the Immigration and Nationality Act, 8 U.S.C. § 1431(a)

(2000). The Immigration Judge, relying on Board precedent, determined

that the respondent—who was born out of wedlock in Jamaica to parents

who never married—had not been “legitimated” under Jamaican law and

thus did not qualify as his father’s “child” within the meaning of the

citizenship provisions of the Act. See section 101(c)(1) of the Act, 8 U.S.C.

§ 1101(c)(1) (2012) (defining the term “child” for purposes of title III of

the Act, which is entitled “Nationality and Naturalization”).

We now hold that a person born abroad to unmarried parents can qualify

as a legitimated “child” under section 101(c)(1) of the Act if he or she was

born in a country or State that has eliminated all legal distinctions between

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children based on the marital status of their parents or has a residence or

domicile in such a country or State (including a State within the

United States), irrespective of whether the country or State has prescribed

other legal means of legitimation. In so holding, we recede from Matter of

Hines, 24 I&N Dec. 544 (BIA 2008), and Matter of Rowe, 23 I&N Dec.

962 (BIA 2006), to the extent these decisions hold that the concept of

“legitimation” must be interpreted uniformly throughout the Act, including

for purposes of visa preference classification. Consequently, our holdings

in Matter of Clahar, 18 I&N Dec. 1 (BIA 1981), and Matter of Goorahoo,

20 I&N Dec. 782 (BIA 1994), are hereby reinstated and reaffirmed.

I. FACTUAL AND PROCEDURAL HISTORY

On July 3, 1988, the respondent was born out of wedlock in Jamaica to

parents who were not then citizens or nationals of the United States. At the

time of the respondent’s birth, the Jamaican Status of Children Act

(“JSCA”) of 1976 had eliminated the legal distinctions between legitimate

and illegitimate children in that country. Before the respondent was born,

we had also issued Matter of Clahar, which interpreted the JSCA and held

that a Jamaican child who was born out of wedlock after the effective date

of the JSCA is legitimated under Jamaican law for purposes of visa

preference classification. In 1995, the respondent’s father, who was then

a native and citizen of Jamaica, placed his name on the respondent’s

Jamaican birth registration form, thereby qualifying the respondent as

a legitimated child for purposes of visa preference classification under the

Act. See Matter of Pagan, 22 I&N Dec. 547, 549 & n.1 (BIA 1999)

(indicating that a Jamaican birth certificate amended to include the father’s

name may, in light of other evidence of record, be sufficient for visa

preference classification).

The respondent’s father eventually immigrated to the United States and

subsequently accorded the respondent preference classification as his

“child.” 1 On September 2, 2000, at the age of 12, the respondent was

admitted to the United States as an immigrant and thereafter resided in this

country as a lawful permanent resident. On August 3, 2001, the

respondent’s father became a United States citizen by naturalization while

the respondent was in his father’s legal custody.

On January 15, 2010, the respondent was convicted of burglary in

Connecticut, prompting the Department of Homeland Security (“DHS”) to

initiate removal proceedings. The respondent moved to terminate the

1

Section 101(b)(1) of the Act defines the term “child” for purposes of visa preference

classification, as well as matters pertaining to removal proceedings.

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proceedings, however, on the ground that he became a United States citizen

by operation of law when his father naturalized in August 2001. 2 In

support of his citizenship claim, the respondent invoked section 320(a) of

the Act, which at all relevant times has provided as follows:

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.

(3) The child is residing in the United States in the legal and physical custody

of the citizen parent pursuant to a lawful admission for permanent residence.

The Immigration Judge found that the respondent did not derive

United States citizenship because the respondent met all of the

requirements of section 320(a), except he did not qualify as his father’s

“child” under section 101(c)(1), which provides that 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 . . . , if

such legitimation . . . takes place before the child reaches the age of 16 years . . . ,

and the child is in the legal custody of the legitimating . . . parent or parents at the

time of such legitimation . . . .

As these provisions make clear, for derivative citizenship purposes,

a person born out of wedlock is considered a “child” of his United States

citizen parent or parents only if he was “legitimated” under the law of his

own residence or domicile (or that of his father) before turning 16 and

while in the legitimating parent’s legal custody. The Immigration Judge

concluded that the respondent had not been “legitimated” under Jamaican

law because his biological parents never married. 3 In reaching that

conclusion, the Immigration Judge relied on Matter of Hines, a derivative

citizenship case arising under former section 321(a) of the Act, 8 U.S.C.

§ 1432(a) (1988), where we held that the sole means of “legitimating”

2

In removal proceedings, evidence of foreign birth gives rise to a presumption of

alienage, which the respondent may rebut by coming forward with evidence to

substantiate his claim to United States citizenship. E.g., Matter of Rodriguez-Tejedor,

23 I&N Dec. 153, 164 (BIA 2001).

3

The Immigration Judge also found that the respondent’s father never legitimated him

under the procedures prescribed for that purpose by the State of Connecticut.

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a child born out of wedlock under Jamaican law was the marriage of the

child’s natural parents.4 24 I&N Dec. at 547–48.

The respondent argues that he was the legitimated child of his father

under Board precedents issued before Matter of Hines. He further asserts

that Hines has an impermissible retroactive effect as applied to his case

because it embodies a different understanding of the “legitimation” concept

from that which was in effect at the time of his father’s naturalization.

See generally SEC v. Chenery Corp., 332 U.S. 194, 203 (1947) (stating that

the retroactivity resulting from a new principle “announced by a court or by

an administrative agency . . . must be balanced against the mischief of

producing a result which is contrary to a statutory design or to legal and

equitable principles”).

II. ANALYSIS

The respondent qualified as a legitimated child of his father for visa

preference purposes under Matter of Clahar, 18 I&N Dec. at 2–3. In that

case, we held that the JSCA eliminated the legal disabilities between

legitimate and illegitimate children by operation of law and conferred

equality of rights. We also acknowledged the existence of the Legitimation

Act of Jamaica, which required the parents to marry for an out-of-wedlock

child to be legitimated, and concluded that the illegitimate status distinction

was consequently not eliminated by law. Nevertheless, we found that the

JSCA, which conferred equality of rights, was determinative for according

visa petition benefits.

In addition, we credited a memorandum from the Jamaican Ministry of

Justice, which represented that under the JSCA, “the legal duties and

obligations of a father towards a child born out of wedlock are in all

4

Former section 321(a) of the Act provided, in pertinent part, as follows:

A child born outside of the United States of alien parents . . . becomes a citizen of

the United States upon fulfillment of the following conditions:

...

(3) 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 . . . .

(Emphasis added.) This statute was repealed and replaced by section 320(a) of the Act,

effective February 27, 2001. See Child Citizenship Act of 2000, Pub. L. No. 106-395,

§§ 101(a), 103(a), 104, 114 Stat. 1631−33. However, the new citizenship provisions

were not retroactive, so former section 321(a) continues to apply to any derivative

citizenship claim made by an individual who turned 18 before the statute’s effective date.

See Matter of Rodriguez-Tejedor, 23 I&N Dec. at 162.

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significant respects the same as those of a child born in wedlock.”

Id. at 2 (internal quotation marks omitted). As we noted, however, that

memorandum also acknowledged that Jamaican law retained some “minor

statutory distinctions” between children based on the marital status of their

parents in order “to minimize the problems associated with determining

rights and status in an area where difficulties may arise in identifying the

natural father of a child.” Id.

In a similar visa petition case, we addressed the Guyanese Children

Born Out of Wedlock (Removal of Discrimination) Act of 1983, which

effectively eliminated the legal distinction between children born in

wedlock and those born out of wedlock. Matter of Goorahoo, 20 I&N Dec.

at 783−85. We held that for purposes of visa preference classification,

children born out of wedlock in Guyana after the law’s May 18, 1983,

effective date are deemed legitimate and those under the age of 18 years

prior to that date are legitimated children. Unlike the JSCA, the Guyanese

law did not contain any broad provision purporting to eliminate all legal

distinctions between children based on the marital status of their parents;

rather, it simply amended preexisting Guyanese laws on an individual basis.

Id. at 783. Nevertheless, based on an analysis conducted by the Library of

Congress, we concluded that children born out of wedlock in Guyana have

rights equal to those of children born in wedlock. Id. at 784.

Subsequently, in the context of determining derivative citizenship, we

interpreted former section 321(a)(3) of the Act, which provided in relevant

part that a child born out of wedlock to alien parents could derive

United States citizenship through the naturalization of his or her mother,

but only if “the paternity of the child has not been established by

legitimation.” See Matter of Hines, 24 I&N Dec. at 546; Matter of Rowe,

23 I&N Dec. at 963. Considering the apparent legislative purpose of that

language, we held that individuals born out of wedlock in Jamaica and

Guyana could derive United States citizenship through the naturalization of

their mothers so long as they could prove that their fathers had not

confirmed or established their paternity “by legitimation” under the

domestic relations laws of those countries.5 See Matter of Hines, 24 I&N

Dec. at 547–48; Matter of Rowe, 23 I&N Dec. at 967. In each case, we

5

Although there is little legislative history regarding former section 321(a)(3), it has

generally been understood that the language requiring a putative United States citizen to

prove that his or her paternity has not been established by legitimation was devised by

Congress as a means of safeguarding the parental rights of alien fathers. See, e.g.,

Brandao v. Att’y Gen. of U.S., 654 F.3d 427, 429–30 & n.5 (3d Cir. 2011); Barthelemy

v. Ashcroft, 329 F.3d 1062, 1066 (9th Cir. 2003); Wedderburn v. INS, 215 F.3d 795, 800

(7th Cir. 2000).

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concluded that where a jurisdiction requires an affirmative act to legitimate

an out-of-wedlock child, paternity is not established without the requisite

act, even if the jurisdiction has enacted a law to place children on equal

footing without regard to the circumstances of their birth.

Although Jamaica and Guyana enacted laws that effectively eliminated

the legal distinction between children born in wedlock and those born out

of wedlock, both countries retained a formal means of legitimating—the

marriage of the biological parents. We therefore held that for derivative

citizenship purposes, paternity could be established by legitimation only

through the affirmative act of parental marriage. Thus, the respondents in

Hines and Rowe could derive citizenship from the naturalization of their

mothers under former section 321(a)(3) because paternity had not been

established by the marriage of their parents, which was the only means of

legitimation. We continue to espouse that holding and believe it embodies

the correct understanding of former section 321(a)(3).

Nevertheless, we find it necessary to recede from Matter of Hines and

Matter of Rowe to the extent they addressed matters beyond the scope of

former section 321(a)(3) and overruled Matter of Clahar and Matter of

Goorahoo, respectively. In Hines and Rowe, we declared that the term

“legitimation” should not have two separate meanings within the Act,

regardless of variations in statutory context. Thus, we found that our

interpretation of the term under section 321(a)(3), which makes the

establishment of “paternity . . . by legitimation” a barrier to citizenship, was

controlling in all other statutory contexts, including those that make proof

of legitimation a prerequisite for eligibility for a benefit, such as visa

preference classification. See Matter of Hines, 24 I&N Dec. at 548; Matter

of Rowe, 23 I&N Dec. at 967. Although neither Hines nor Rowe elucidates

the Board’s reasons for concluding that “legitimation” must be interpreted

uniformly throughout the Act, we apparently understood it to be required

by the Supreme Court’s decision in Clark v. Martinez, 543 U.S. 371 (2005).

In that case, the Court held that a single statutory phrase cannot have

different meanings in different factual contexts. Clark v. Martinez, 543

U.S. at 386 (rejecting “the dangerous principle that judges can give the

same statutory text different meanings in different cases”). Thus, Clark

would forbid us from giving the statutory phrase “paternity . . . has not been

established by legitimation” one meaning for people born in Jamaica and

another for those born in Guyana. Id. at 378 (“To give [the] same words

a different meaning . . . would be to invent a statute rather than interpret

one.”).

In Hines and Rowe, however, we read Clark much more broadly, as if it

required us to interpret the term “legitimation” identically throughout the

Act, regardless of variations in statutory context. That understanding was

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erroneous and conflicts with the well-settled rule that “[m]ost words have

different shades of meaning and consequently may be variously construed,

not only when they occur in different statutes, but when used more than

once in the same statute or even in the same section.” Envtl. Def. v. Duke

Energy Corp., 549 U.S. 561, 574 (2007) (alteration in original) (quoting

Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932))

(internal quotation marks omitted). In short, “[a] given term in the same

statute may take on distinct characters from association with distinct

statutory objects calling for different implementation strategies,” even if the

term is statutorily defined. Id. (citing Robinson v. Shell Oil Co., 519 U.S.

337 (1997)). Therefore, in finding that Clark v. Martinez required us to

interpret the concepts of “legitimation” in section 101(c) of the Act and

“paternity . . . established by legitimation” in former section 321(a)(3) as

the same, we misconstrued the Supreme Court’s decision.

Upon further consideration, we conclude that the interpretation of

“paternity . . . established by legitimation” that we have adopted for

purposes of former section 321(a)(3)—which requires an affirmative act by

the father in accordance with the law of the jurisdiction—cannot properly

be extended to the interpretation of “legitimation” for purposes of the

definition of a “child” in sections 101(b)(1) and (c)(1) of the Act.6

To illustrate this point, we consider the language of former section

321(a)(3) itself, which requires a person born out of wedlock to prove both

that he was a “child” when his mother naturalized and that his

“paternity . . . ha[d] not been established by legitimation” at that time.

Clearly, if “legitimation” has the same meaning in section 101(c)(1) as

“paternity . . . established by legitimation” does in section 321(a)(3), then

the statutes are in conflict. A person born out of wedlock seeking to qualify

as a “child” has to prove “legitimation,” yet if he did so, he would be

unable to prove the absence of “paternity . . . established by legitimation”

required by section 321(a)(3). Conversely, anyone who proves that his

“paternity . . . has not been established by legitimation” under section

321(a)(3) would accordingly be unable to qualify as a “child.” The

necessary corollary of this paradox is that the term “legitimation” in section

101(c)(1) must mean something different from what “paternity . . .

established by legitimation” means in former section 321(a)(3).

6

Consequently, we withdraw from Hines and Rowe to the extent that they require

“legitimation” to be given the same meaning throughout the Act. We also conclude that

Hines and Rowe improperly overruled Clahar and Goorahoo, which were visa petition

cases that interpreted the “legitimation” concept for purposes of the definition of

a “child” in section 101(b)(1) of the Act. Accordingly, our holdings in Clahar and

Goorahoo are reinstated and reaffirmed.

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The remaining question is what “legitimation” in section 101(c)(1)

means. Given this section’s express provision that “legitimation” is

determined by the law of the child’s (or his father’s) residence or domicile,

any satisfactory answer to that question is complicated by the growing

consensus—both in the United States and abroad—against labeling children

“legitimate” and “illegitimate” by virtue of the marital status of their

parents. In recent decades, many countries have legally marginalized the

legitimation concept, retaining some of its features for purposes of settling

inheritance disputes but enacting legislation that otherwise places the

children of unmarried parents on the same legal footing as those born

to married couples. 7 Any coherent understanding of legitimation as

a stand-alone concept—rather than as a mechanism for establishing

paternity, as in former section 321(a)(3)—must take this reality into

account.8

In light of the foregoing, we interpret section 101(c)(1) of the Act to

mean that a person born abroad to unmarried parents can be a “child” for

purposes of section 320(a) if he or she is otherwise eligible and was born in

a country or State that had eliminated legal distinctions between children

based on the marital status of their parents or had a residence or domicile in

such a country or State (including a State within the United States).

7

See, e.g., Iracheta v. Holder, 730 F.3d 419, 425 (5th Cir. 2013) (Tamaulipas, Mexico);

Matter of Goorahoo, 20 I&N Dec. at 782 (Guyana); Matter of Hernandez, 19 I&N Dec.

14, 16 (BIA 1983) (Colombia); Matter of Clarke, 18 I&N Dec. 369, 371–72 (BIA 1983)

(Barbados); Matter of Mesias, 18 I&N Dec. 298, 299 (BIA 1982) (Haiti); Matter of

Espinoza, 17 I&N Dec. 522, 523–24 (BIA 1980) (Bolivia); Matter of Sanchez, 16 I&N

Dec. 671, 672 (BIA 1979) (Honduras); Matter of Maloney, 16 I&N Dec. 650, 651–52

(BIA 1978) (Panama); Matter of Wong, 16 I&N Dec. 646, 648 (BIA 1978) (China);

Matter of G-, 9 I&N Dec. 518, 519 (BIA 1961) (Hungary); Matter of K-, 8 I&N Dec. 73,

75–76 (1958) (Poland). Similarly, a number of States within the United States have

enacted statutes placing the children of unwed parents on equal legal footing with those

born to married couples. See, e.g., Ariz. Rev. Stat. Ann. § 25-1401 (2014) (West); Cal.

Fam. Code § 7602 (West 2014); Mass. Gen. Laws Ann., ch. 209C, § 1 (West 2014); N.J.

Stat. Ann. § 9:17-40 (West 2014); Or. Rev. Stat. Ann. § 109.060 (West 2014); 23 Pa.

Cons. Stat. Ann. § 5102(a) (West 2014).

8

By tying the meaning of “legitimation” to the requirements of the law of the child’s

residence or domicile (or that of the father), Congress anticipated that the meaning of the

term would vary depending upon (1) the law in the country or State of residence or

domicile and (2) the child’s date of birth. “Legitimation” is thus an evolving, rather than

a fixed, concept. See, e.g., Matter of Campuzano, 18 I&N Dec. 390, 392 (BIA 1983)

(holding that whether a child born out of wedlock in Ecuador qualifies as a “legitimate”

child in visa petition proceedings depends on whether he was born before or after the

August 7, 1970, change of Ecuadorean law); cf. Matter of Gomez, 16 I&N Dec. 72

(BIA 1976) (governing questions of legitimation of persons born out of wedlock in

Ecuador before the August 7, 1970, change of law).

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Applying this rule to the facts of this case, we conclude that the

respondent is his father’s “child” within the meaning of sections 101(c)(1)

and 320(a) of the Act. There is no dispute that the respondent is the

biological child of the man through whom he seeks to derive United States

citizenship or that he was born in Jamaica after the 1976 effective date of

the JSCA. Further, the record contains no evidence to suggest that the

respondent was not in his father’s legal custody at the time of his birth. See

8 C.F.R. § 322.1 (2014) (establishing a rebuttable presumption that a

biological parent has legal custody of his or her child); see also Matter of

Rivers, 17 I&N Dec. 419 (BIA 1980). Accordingly, the respondent’s

appeal will be sustained and the removal proceedings against him will be

terminated.

ORDER: The appeal is sustained and the removal proceedings are

terminated.

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