(b)(6)

Date: JUN 0 3 2015

IN RE:

APPLICATION:

Office: OAKLAND PARK, FL

U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090

FILE:

Application for Certificate of Citizenship under Section 320 of the Immigration and

Nationality Act; 8 U.S.C. §1431.

ON BEHALF OF PETITIONER:

INSTRUCTIONS:

Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a non­precedent decision. The AAO does not announce new constructions of law or establish agency policy

through non-precedent decisions.

Thank you,

Ron Rosenberg

Chief, Administrative Appeals Office

www.uscis.gov

(b)(6)

NON-PRECEDENT DECISION Page 2

DISCUSSION: The Field Office Director, Oakland Park, Florida, denied the Application for Certificate of Citizenship (Form N-600) and the matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained.

Pertinent Facts and Procedural History

The applicant was born out of wedlock in Jamaica on and his parents never married. The applicant's father became a naturalized U.S. citizen on when the applicant was two years old. His mother is not a U.S. citizen. The applicant was admitted to the United States as a lawful permanent resident on , when he was 15 years old. On _

_ _he filed a Form N-600 with U.S. Citizenship and Immigration Services (USCIS), seeking a certificate of citizenship pursuant to section 320 of the Immigration and Nationality Act (the Act), 8 u.s.c. § 1431.

The Field Office Director found that the applicant had not been legitimated by his father, and that the applicant therefore did not meet the definition of"child" under section 101(c)(1) of the Act, 8 U.S.C. § 1101(c)(1), so did not qualify as his father's "child" for section 320 of the Act purposes. See Decision of the Field Office Director, December 16, 2013.

On appeal the applicant asserts that he was legitimated by his father in Jamaica, that he meets the definition of"child" under section 101(c)(1) of the Act, and that he derived U.S. citizenship through his father accordingly.

We conduct appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004).

Applicable Law

The applicable law for derivative citizenship purposes is "the law in effect at the time the critical events giving rise to eligibility occurred." See Minasyan v. Gonzales, 401 F.3d 1069, 1075 (9th Cir. 2005). Section 320 of the Act, as amended by the Child Citizenship Act of 2000 (the CCA), Pub. L. No. 106-395, 114 Stat. 1631 (Oct. 30, 2000), took effect on February 27, 2001, and provides for automatic derivation of U.S. citizenship upon the fulfillment of certain conditions prior to a child's 18th birthday. See Matter of Rodriguez-Tejedor, 23 I&N Dec. 153 (BIA 2001). Section 320 of the Act applies to the applicant's derivative citizenship claim.

Section 320 of the Act states, in pertinent part:

(a) 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.

(b)(6)

Page3 NON-PRECEDENT DECISION

(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.

For naturalization and citizenship purposes under subchapter III of the Act, section 10l(c) of the Act defines the term "child" as:

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[.]

The burden of proof is on the claimant to establish his or her claimed citizenship by a preponderance of the evidence. 8 C.F.R. § 341.2(c). The "preponderance of the evidence" standard requires that the record demonstrate that the applicant's claim is "probably true," based on the specific facts of each case. See Matter ofChawathe, 25 I&N Dec. 369,376 (AAO 2010) (citing Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r. 1989)).

Analysis

The issue in the present matter is whether the applicant qualifies as a "child" under section lOl(c) of the Act.

The Board of Immigration Appeals (the Board) recently issued a precedent decision which holds that a person born out of wedlock may qualify as a legitimated "child" of his or her biological parents under section 101(c)(l) of the Immigration and Nationality Act, 8 U.S.C. § 1101(c)(l) (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. In Matter of Cross, 26 I&N Dec. 485 (BIA 2015), the Board held that the Jamaican Status of Children Act (JSCA) of 1976 eliminated all distinctions between children born in and out of wedlock. Thus, under Cross, a child born out of wedlock who was under 18 years of age on the effective date of the JSCA, or born on or after that date, qualified as the legitimated child of his or her father if the requirements for acknowledgment under Jamaican law were met before the child's 18th birthday.

In the present matter the applicant, as in Cross, claims to have derived citizenship through his naturalized father under operation of section 320 of the Act. In Cross, the Board stated that legitimation may be established in Jamaica by the biological father's acknowledgment of the child on the child's birth certificate. /d. See Matter of Pagan, 22 I&N Dec. 547 (BIA 1999) The record demonstrates that the applicant's father added his name to the applicant's birth certificate, registered

(b)(6)

NON-PRECEDENT DECISION Page 4

on thus acknowledging the applicant as his child in accordance with Jamaican law. As such, the applicant has established that he is the legitimated child of his father for purposes of section 101(c)(1) of the Act. 1 The record reflects that the applicant was two years old when his father became a naturalized U.S. citizen; that he was admitted into the United States as a lawful permanent resident in , when he was 15 years old; and that he subsequently lived in the legal and physical custody of his U.S. citizen father in the United States prior to turning 18. The applicant therefore satisfies the conditions set forth in section 320 of the Act. Accordingly, the applicant's appeal will be sustained.

Conclusion

The applicant bears the burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; See also 8 C.P.R. § 320.3(b)(1) and Matter of Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). Here, the applicant has met his burden of establishing that he is a U.S. citizen.

ORDER: The appeal is sustained.

The applicant does not assert, and we shall not address, whether he was legitimated under the law in Florida, the place of his and his father's current residence, as we have determined that the applicant was legitimated under Jamaican law.

STATUS OF CHILDREN

THE STATUS OF CHILDREN ACT

ARRANGEMENT OF SECTIONS

Preliminary

1. Short title and commencement. 2. Interpretation.

Status of Children

3. All children of equal status. 4. Transitional provisions re wills. and other instruments and

in testacies. S. Protection of personal representatives and trustees.

Evidence re Parenthood

6. Presumptions re parenthood of child born during. marriage. 7. Recognition of paternity reqlllired in cases of succession. etc. 8. Evidence and proof of paternity. 9. Instruments of acknowledgement may be filed with Registrar­

General. 10. Power of Court to make declaration of paternity.

Blood Tests

11. Power of court to require use of blood tests. 12. Consents. etc., required for taking of blood samples. ·, ... 13. Failure to comply with directions for blood tests. 14. Penalty for personating another re blood tests. 15. Regulations re blood tests.

General

16. Regulations, general.

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1

STATUS OF CHILDREN

THE STATUS OF CHILDREN ACT

[Jst November, 1976.]

Preliminary

1. This Act may be cited as the Status. of Children Act.

2.-(1) In this Act-

"child" includes a child born out of wedlock;

"marriage" includes a void marriage;

"Registrar-General" means the Registrar-General under the Registration (Births and Deaths) Act and includes any person for the time being discharging the duties of that office;

"trustee" includes guardians, committees of lunatics, as well as all persons who are trustees within the meaning of the Trustee Act.

(2) For the purposes of sections 11 to 15 inclusive­

"blood samples" means blood taken for the purpose of blood tests;

"blood tests" means blood tests carried out and includes any test made with the object of ascertaining the inheritable characteristics ofblood;

"excluded" means excluded subject to the occurrence of mutation.

Status of Children

3.-(1) Subject to subsection (4) and to the provtstons of sections 4 and 7, for all the purposes of the law of Jamaica the relationship between every person and his father and mother shall be determined irrespective of

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3

Adll 36of1976, 6of1993

s.s. 30ofZ005

s.:zs.

Short title.

Interpreta­tion.

All children of equal status.

4

Transitional provisions re wills, and other instru­ments and intestacies.

STATUS OF CHILDREN

whether the father and mother are or have been married to each other, and all other relationships shall be determined accordingly.

(2) The rule of construction whereby in any instru­ment words of relationship signify only legitimate relationship in the absence of a contrary expression of intention is hereby abolished.

(3) Subject to subsection (4), this section shall apply in respect of every person, whether born before or after the 1st day of November, 1976, and whether born in Jamaica or not, and whether or not his father or mother has ever been domiciled in Jamaica.

(4) Nothing in this section shall affect or limit m any way any rule of law relating to-

( a) the domicile of any person;

(b) the provisions of the Children (Adoption ot) Act which determine the relationship to any other person of a person who has been adopted;

(c) the c;onstruction of the word "heir" or of any expression which is used to create an entailed interest in real or personal property.

4.-( 1) All dispositions made before the 1st day of November, 1976, shall be governed by the enactments and rules of law which would have applied to them if this Act had not been passed.

(2) Where any disposition to which subsection (1) applies creates a special power of appointment, nothing in this Act shall extend the class of person in whose favour the appointment may be made, or cause the exercise of the power to be construed so as to include any person who is not a member of that class.

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STATUS OF CHILDREN

(3) The estates of all persons who have died intestate as to the whole or any part thereof before the 1st day of November, 1976, shall be distributed in accordance with enactments and rules of law which would have applied to them if this Act had not been passed.

(4) In this section "disposition" means a disposition, including an oral disposition, of real or personal property whether inter vivos or by will or codicil; and notwithstand­ing any rule of law, a disposition made by will or codicil executed before the 1st day of November, 1976, shalt, notwithstanding the provisions of section 29 of the Wills Act, not be treated for the purposes of this section as made on or after that date by reason only that the will or codicil is confirmed by a codicil executed on or after that date.

Status of Children

5.-(1) For the purposes of the administration or distribu- Protection · f h f d d f h of personal bon o t e estate o any ecease person or o any ot er representa·

property held upon trust, every personal representative or ~~~~eae~d trustee shall, whenever it is material in the circumstances, make honest and reasonable inquiries as to the existence of any person who could claim an interest in the estate or other property by reason only of this Act, but shall not be obliged to pursue such inquiries further than he honestly and reasonably believes to be necessary.

(2) No action shall lie against any personal represent­ative or trustee, by any person who could claim an interest in the estate or other property aforesaid by reason only of this Act, to enforce any claim arising by reason of the fact that the personal representative or trustee has made any distribution of the estate or property or otherwise acted in the administration of the estate or property disregarding the claims of that person where, at the time of making the distribution or otherwise so acting, the trustee, having made

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s

6

Presump­tions re parenthood of child born during marriage.

STATUS OF CHILDREN

such inquiries as are required under subsection (1) had no notice of the relationship on which the claim is based.

(3) Nothing in this section shall prejudice the right of any person claiming an interest in the estate or property aforesaid, (which interest is alleged by the claimant to have existed at the time the trustee made the distribution or otherwise acted as aforesaid) to follow such estate or property, or any property representing it, into the hands of any person, other than a purchaser, who may have received it.

Evidence re Parenthood

6.-(1) Subject to subsections (2) and (3), a child born to a woman during her marriage, or within ten months after the marriage has been dissolved by death or other­wise, shall, in the absence of evidence to the contrary, be presumed to be the child of its mother and her husband, or former husband, as the case may be.

(2) Subsection (1) shall not apply if, during the whole of the time within which the child must have been con­ceived, the mother and her husband were living apart under an oral or written agreement for separation, or under a decree or order of separation, or decree nisi of divorce, made by a competent court or authority in Jamaica or elsewhere.

(3) Subsection (1) shall not apply where a child is born within ten months after the dissolution of the marriage of its mother by death or otherwise, and after she has married again, and in such case there shall be no presump­tion as between the husband of the mother and her former husband that either is the father of the child, and the question shall be determined on the balance of probabilities in each case.

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STATUS OF CHILDREN

7.--{1) The relationship of father and child, and any other relationship traced in any degree through that relationship shall, for any purpose related to succession to property or to the construction of any will or other testamentary disposition or of any instrument creating a trust, be recognized only if-

( a) the father and the mother of the child were married to each other at the time of its conception or at some subsequent time; or

(b) paternity has been admitted by or established during the lifetime of the father (whether by one or more of the types of evidence specified by section 8 or otherwise):

Provided that, if the purpose aforesaid is for the benefit of the father, there shall be the additional requirement that paternity has been so admitted or established during the lifetime of the child or prior to its birth.

(2) In any case where by reason of subsection (1) the relationship of father and child is not recognized for certain purposes at the time the child is born, the occurrence of any act, event, or conduct which enables that relationship, and any other relationship traced in any degree through it, to be recognized shall not affect any estate, right, or interest in any real or personal property to which any person has become absolutely entitled, whether beneficially or otherwise, before the act, event, or conduct occurred.

8.--{1) If, pursuant to section 19 of the Registration (Births and Deaths) Act or to the corresponding provisions of any former enactment, the name of the father of the child to whom the entry relates has been entered in the register of births (whether before or after the 1st day of November, 1976), a certified copy of the entry made or given in accordance with section 55 of that Act or sealed in accordance with section 57 of the said Act shall be prima .facie

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7

Recognition of paternity required in cases of succession, etc.

Evidence and pro:lfof paternity.

8

Instruments of acknowledge­ment maybe filed with Registrar­General.

STATUS OF CHILDREN

evidence that the person named as the father is the father of the child.

(2) Any instrument signed by the mother of a child and by any person acknowledging that he is the father of the child shall, if executed as a deed or by each of those persons in the presence of an attorney-at-law or a Justice of the Peace or a Clerk of the Courts or a registered medical practitioner or a minister of religion or a marriage officer or a midwife or the headmaster of any public educational institution as defined in the Education Act be prima facie evidence that the person named as the father is the father of the child.

(3) [Deleted by Act 30 of 2005, S. 28(2).]

( 4) Subject to subsection ( 1) of section 7, a declaration made under section 10 shall, for all purposes, be conclusive proof of the matters contained in it.

(5) An order made in any country outside Jamaica declaring a person to be the father or putative father of a child, being an order to which this subsection applies pursuant to subsection ( 6), shall be prima facie evidence that the person declared the father or putative father, as the case may be, is the father of the child.

(6) The Minister may from time to time, by order, declare that subsection (5) applies with respect to orders made by any court or public authority in any specified country outside Jamaica or by any specified court or public authority in any such country.

9.-(1) Any instrument of the kind described in subsection (2) of section 8, or a duplicate or attested copy of any such instrument, may in the prescribed manner and on payment of the prescribed fee (if any) be filed in the office of the Registrar-General, but it shall not be necessary to file any such instrument.

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STATUS OF CHILDREN

(2) The Registrar-General shall cause indices of all instruments and duplicates and copies of instruments filed with him under subsection ( 1) to be made and kept in his office, and shall upon the request of any person and on receipt of the prescribed fee (if any), cause a search of any index to be made, and shall permit any such person to inspect any such instrument or any such duplicate or copy.

(3) Where the Supreme Court, Resident Magistrate's Court or the Family Court makes a declaration of paternity under section 10, the Registrar of the Court or the Clerk of the Court, as the case may be, shall forward a copy of the declaration to the Registrar-General for filing in his office under this section, and on receipt of any such copy the Registrar­General shall file it accordingly as if it were an instrument described in section 8(2).

1 0.-( 1) Any person who-

( a) being a woman, alleges that any named person is the father of her child; or

(b) alleges that the relationship of father and child exists between himself and any other person; or

(c) being a person having a proper interest in the result, wishes to have it determined whether the relationship of father and child exists between two named persons,

may apply in such other manner as may be prescribed by rules of court for a declaration of paternity, and if it is proved to the satisfaction of the Court that the relationship exists the Court may make a declaration of paternity whether or not the father or the child or both of them are living or dead.

(2) Where a declaration of paternity under subsection (1) is made after the death of the father or of the child, the Court may at the same or any subsequent time make a declaration determining, for the purposes of paragraph (b) of subsection (1)

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9

30/2005 S. 28 (2)(b ).

Power of Court to make decla­ration of paternity.

10 STATUS OF CHILDREN

of section 7, whether any of the requirements of that paragraph have been satisfied.

30/2005 (3) An application under subsection (l)(a) may be made 8

· 28<2)(c)(ii). by a woman who is with child, before the birth of the child.

30/2005 (4) An application may be made under subsection (1) s. 28(2)(c)(ii). to-

Power of court to require use of blood tests.

( a) the Resident Magistrate's Court for the parish in which any of the parties reside or, as the case may be, the Family Court; or

(b) the Supreme Court.

Blood Tests

11.-(1) In any civil proceedings in which the paternity of any person (hereinafter referred to as "the subject") falls to be determined by the court hearing the proceedings, the court may, on an application by any party to the proceedings, give a direction for the use of blood tests to ascertain whether such tests show that a party to the proceedings is or is not thereby excluded from being the father of the subject and for the taking, within a period to be specified in the direction, of blood samples from the subject, the mother of the subject and any party alleged to be the father of the subject or from any, or any two, of those persons.

(2) A court may at time revoke or vary a direction previously given by it under this section.

(3) The person responsible for carrying out blood tests taken for the purpose of giving effect to a direction under this section shall make to the court by which the direction was given a report in which he shall state--

(a) the results of the tests;

(b) whether the person to whom the report relates is or is not excluded by the results from being the father ofthe subject; and

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STATUS OF CHILDREN

(c) if that person in not so excluded, the value, if any, of the results in determining whether that person is the subject's father,

and the report shall be received by the court as evidence in the proceedings of the matters stated therein.

( 4) Where a report has been made to a court under subsection (3), any party to the proceedings may, with the leave of the court, or shall, if the court so directs, obtain from the person who made the report a written statement explaining or amplifying any statement made in the report, and that statement shall be deemed for the purposes of this section to form part of the report made to the court.

( 5) Where a direction is given under this section in any proceedings, a party to the proceedings shall not be entitled to call as a witness the person responsible for carry­ing out the tests taken for the purpose of giving effect to the direction, or any person by whom anything necessary for the purpose of enabling those tests to be carried out was done, unless-

(a) within fourteen days after receiving a copy of the report he serves notice on the other parties to the proceedings, or on such of them as the court may direct, of his intention to call that person; or

(b) the court otherwise directs,

and where any such person is called as a witness the party who called him shall be entitled to cross-examine him.

( 6) Where a direction is given under this section the party on whose application the direction is given shall pay the cost of taking and testing blood samples for the purpose of giving effect to the direction (including any expenses reasonably incurred by any person in taking any steps required of him for the purpose), and of making a report to the court under this section, but the amount paid shall be treated

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11

12

Consents, etc., required for taking of blood samples.

Failure to comply with directions for blood tests.

STATUS OF CHILDREN

as costs incurred by him in the proceedings.

(7) [Deleted by Act 30/2005, S 28(2)(a).]

12.-(1) Subject to the provisions of subsections (3) and (4) and without prejudice to section 13, a blood sample which is required to be taken from any person for the purpose of giving effect to a direction under section 11 shall not be taken from that person except with his consent.

(2) The consent of a minor who has attained the age of sixteen years to the taking from himself of a blood sample shall be as effective as it would be if he were of full age; and where a minor has by virtue of this subsection given an effective consent to the taking of a blood sample it shall not be necessary to obtain any consent for it from any other person.

(3) A blood sample may be taken from a person under the age of sixteen years, not being such a person as is referred to in subsection (4), if the person who has the care and control of him consents.

(4) A blood sample may be taken from a person who is suffering from mental disorder and is incapable of under,. standing the nature and purposes of blood tests if the person who has the care and control of him consents and the medical practitioner in whose care he is has certified that the taking of a blood sample from him will not be prejudicial to his proper care and treatment.

13.-(1) Where a court gives a direction under section 11 and any person fails to take anr step required of him for the purpose of giving effect to the direction, the court may draw such inferences, if any, from that fact as appear proper in the circumstances.

(2) Where in any proceedings in which the paternity of any person falls to be determined by the court hearing

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STATUS OF CHILDREN

the proceedings there is a presumption of law that that person is born in wedlock, then if-

(a) a direction is given under section 11 in those proceedings; and

(b) any party who is claiming any relief in the proceed­ings and who for the purpose of obtaining that relief is entitled to rely on the presumption fails to take any step required of him for the purpose of giving effect to the direction,

the court may adjourn the hearing for such period as it thinks fit to enable that party to take that step, and if at the end of that period he has failed without reasonable cause to take it the court may, without prejudice to subsection (1), dismiss his claim for relief notwithstanding the absence of evidence to rebut the presumption.

(3) Where any person named in a direction under section 11 fails to consent to the taking of a blood sample from himself or from any person named in the direction of whom he has the care and control, he shall be deemed for the purposes of this section to have failed to take a step required of him for the purposes of giving effect to the direction.

13

14.-If for the purpose of providing a blood sample for Penalty for

a test required to give effect to a direction under section 11 =:=:S any person personates another, or proffers a child knowing blood testa.

that it is not the child named in the direction, he shall be liable on summary conviction in a Resident Magistrate's Court to imprisonment for a term not exceeding twelve months or to a fine not exceeding five hundred dollars.

15.-The Minister may by regulations make provision as ResulatioDa

to the manner of giving effect to directions under section 11 :S~ood and, in particular, any such regulations may-

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14 STATUS OF CHILDREN

(a) provide that blood samples shall not be taken except by such medical practitioners as may be designated by the Minister;

(b) regulate the taking, identification and transport of blood samples;

(c) require the production at the time when a blood sample is to be taken of such evidence of the identity of the person from whom it is to be taken as may be prescribed by the regulations;

(d) require any person from whom a blood sample is to be taken, or, in such cases as may be pre­scribed by the regulations, such other person as may be so prescribed, to state in writing whether he or the person from whom the sample is to be taken, as the case may be, has during such period as may be specified in the regulations suffered from any such illness as may be so specified or received a transfusion of blood;

(e) provide that blood tests shall not be carried out except by such persons, and at such places, as may be appointed by the Minister;

(/) prescribe the blood tests to be carried out and the manner in which they are to be carried out;

(g) regulate the charges that may be made for the taking and testing of blood samples and for the making of a report to a court under section 11;

(h) make provision for securing that so far ·as practic­able the blood samples to be tested for the purpose of giving effect to a direction under section 11 are tested by the same person;

(z) prescribe the form of the report to be made to a court under section 11.

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STATUS OF CHILDREN

General 16.-(1) The Minister may from time to time, make

regulations for all or any of the following purposes-(a) prescribing fees and forms for the purposes of this

Act; (b) providing for such matters as are contemplated by

or necessary for giving full effect to this Act and for its due administration.

(2) Where the Registrar-General is empowered to do any act for which a fee is payable, he may refuse to do the act until the fee is paid.

(3) Notwithstanding the provisions of any regula­tions under this Act, the Registrar-General may dispense with the payment of any fee payable under this Act.

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15

Regulations, general.