Gil v. Sessions, 851 F.3d 184

Background

Gil was born in the Dominican Republic in 1968 out of wedlock; his parents never married. His father publicly acknowledged paternity in 1974. Gil entered the U.S. as an LPR in 1978 and lived with his father.
Gil’s father naturalized in 1980 when Gil was 11; Gil later received a Certificate of Citizenship claiming derivative citizenship from his father.
USCIS canceled Gil’s Certificate in 2010, concluding he was not a qualifying “child” under the INA; removal proceedings followed based on criminal convictions.
The IJ and BIA found Gil did not qualify as a legitimated “child” under 8 U.S.C. § 1101(c)(1) because he was not legitimated before age 16 and denied termination of removal; the BIA affirmed.
Gil argued Dominican law’s 1994 Code eliminated distinctions between marital and nonmarital children retroactively, making him legitimated from birth; he alternatively relied on New York law. The courts rejected both arguments.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Gil was a “child” for derivative citizenship because he was legitimated before age 16	Gil: Dominican 1994 Code retroactively legitimated him from birth, so he was legitimated before father’s 1980 naturalization	Government: Legitimation under Dominican law occurred when the 1994 Code took effect (1995), after Gil turned 16; New York law did not eliminate distinctions before age 16	Court: Held Gil was not legitimated before age 16; Dominican law’s change occurred in 1995 (too late) and New York law did not eliminate distinctions—no derivative citizenship
Whether courts should look to the law in effect when the last requirement for derivative citizenship was fulfilled	Gil: Relies on substantive effect of later law to establish retroactive legitimation	Government: Use the law as of the time of the parent’s naturalization/when last requirement was fulfilled	Court: Applies precedent requiring examination of the law in effect when last requirement was met and finds legitimation did not occur before age 16
Burden of proof on derivative citizenship claim	Gil: Met burden via expert and electoral board opinions showing retroactive effect	Government: Burden rests with Gil to show legitimation occurred before 16; offered contrary legal interpretation	Court: Reiterates burden on petitioner and finds evidence insufficient to show timely legitimation
Whether New York law could supply legitimation before age 16	Gil: Alternative argument that New York law treats him as legitimated	Government: New York retains distinctions for inheritance and requires proof of paternity; no wholesale elimination	Court: New York law did not eliminate distinctions; does not qualify Gil as legitimated

Key Cases Cited

Morales-Santana v. Lynch, 804 F.3d 520 (2d Cir.) (standards for de novo review of nationality claims)
Poole v. Mukasey, 522 F.3d 259 (2d Cir.) (look to law in effect when last requirement for derivative citizenship was fulfilled)
Ashton v. Gonzales, 431 F.3d 95 (2d Cir.) (same principle on timing of applicable law)
Smart v. Ashcroft, 401 F.3d 119 (2d Cir.) (Child Citizenship Act not retroactive to benefit those already over 18)
De Los Santos v. INS, 690 F.2d 56 (2d Cir.) (definition of ‘‘legitimation’’ as conferring same legal rights as marital children)
Grant v. U.S. Dep’t of Homeland Sec., 534 F.3d 102 (2d Cir.) (burden on alien to show legitimation for derivative citizenship)
Berenyi v. Dist. Dir., INS, 385 U.S. 630 (U.S.) (applicant bears burden to prove eligibility for citizenship)
Anderson v. Holder, 673 F.3d 1089 (9th Cir.) (when laws eliminate distinctions, legitimation is deemed to occur as of the law change)
Lalli v. Lalli, 439 U.S. 259 (U.S.) (New York law distinguishes inheritance rights for nonmarital children without proof of paternity)