27 I. & N. Dec. 52
BIA2017Background
- Respondent (born Nigeria 1981) obtained LPR status in 1996 as the claimed adoptive stepchild of a U.S. citizen; claimed derivative citizenship based on that custodian's naturalization in 1995 and received a Certificate of Citizenship (Form N-560) in 1998.
- INS issued a Notice of Intent to Cancel (NOIC) the Certificate in 2002 alleging fraud: the putative adoptive father was actually the respondent’s biological brother and the adoption documents (and a death certificate) were fraudulent; a federal criminal investigation supported those findings.
- District Director canceled the Certificate under INA § 342 (8 U.S.C. § 1453) in 2003; AAO dismissed respondent’s appeal in 2004. The respondent was later convicted in federal court of related offenses.
- In removal proceedings an IJ denied respondent’s claim to U.S. citizenship, found him removable, and denied termination of proceedings; respondent appealed to the BIA.
- Respondent argued cancellation did not affect his citizenship status and that administrative cancellation was improper—urging that denaturalization procedures or federal court review (per Gorbach) should apply.
Issues
| Issue | Falodun’s Argument | DHS/Agency’s Argument | Held |
|---|---|---|---|
| Whether respondent established U.S. citizenship by derivation | Derivative citizenship survived administrative cancellation; cancellation affects only the document, not citizenship (rely on §342 and Gorbach) | Certificate of Citizenship is evidence only; where derivative claim was based on fraud, respondent never had valid citizenship so cancellation was proper | Held: Certificate was void due to fraud; respondent failed to prove citizenship and is removable |
| Whether cancellation under §342 requires judicial denaturalization procedures | Argued §340 denaturalization/Federal court process applies (Gorbach) | §342 cancellation is administrative and differs from denaturalization under §340; Gorbach addressed naturalization revocation, not derivative certificates | Held: Gorbach inapplicable; administrative cancellation under §342 is permissible for derivative certificates |
| Whether IJ had to defer to federal court on citizenship question | Claimed IJ should defer pending federal determination | Agency contends no such requirement for §342 cancellations of derivative certificates | Held: No deferral required; BIA reviews de novo and respondent bore burden to prove citizenship |
| Whether respondent met burden to prove derivative citizenship | Claimed evidence (attorney letter, death certificate) rebutted fraud allegations | Agency relied on NOIC, investigation, and AAO cancellation finding; respondent presented no additional evidence at hearing | Held: Respondent failed to meet burden; evidence showed fraud and insufficient proof of a qualifying custodial parent |
Key Cases Cited
- Gorbach v. Reno, 219 F.3d 1087 (9th Cir. 2000) (en banc) (addressing limits on administrative denaturalization and requirement of federal court proceedings for revocation of naturalization)
- Friend v. Reno, 172 F.3d 638 (9th Cir. 1999) (administrative duty to institute cancellation proceedings when a certificate appears illegally or fraudulently obtained)