Derived or Acquired Citizenship as a Defense to Deportation

A U.S. citizen cannot be deported. That sounds obvious, but some people in removal proceedings, including long-time green card holders with criminal convictions, are citizens without knowing it. They acquired citizenship at birth abroad through a U.S. citizen parent, or derived it automatically as children when a parent naturalized.

Automatic citizenship through a parent

Section 320 of the INA, 8 U.S.C. § 1431, provides that a child born outside the United States automatically becomes a citizen when all of these conditions are met: at least one parent is a U.S. citizen by birth or naturalization; the child is under 18; and the child is residing in the United States in the legal and physical custody of the citizen parent after a lawful admission for permanent residence. The section took effect on February 27, 2001, and applies to children who were under 18 on that date or born later. Older cases are governed by the law in effect when the conditions were met, including former section 321. The USCIS Policy Manual, Volume 12, Part H explains the different rules by date.

Children who live abroad do not derive citizenship under section 320. They may apply for naturalization under section 322, 8 U.S.C. § 1433, a process explained in INA § 322 vs. § 320: two paths to child citizenship.

Raising citizenship in removal proceedings

When DHS shows that a person was born abroad, the person is presumed to be a noncitizen and must prove citizenship. Documents matter: the parent's naturalization certificate, the child's green card, custody orders and proof of residence. If the claim is rejected and the case reaches a court of appeals, 8 U.S.C. § 1252(b)(5) directs the court to decide the nationality claim itself if no genuine issue of material fact exists, and to transfer it to a district court for a new hearing if one does.

Proving citizenship with USCIS

A person who believes he or she acquired or derived citizenship can apply for a certificate of citizenship on Form N-600. Children who reside abroad use Form N-600K instead; the difference between Form N-600K and Form N-600 explains which applies. Common issues include:

• Age limits: the conditions must be met before age 18; see aging out of N-600K eligibility.
• Adoption: adopted children qualify only if they meet the statutory definition; see the N-600K for adopted children.
• Physical presence of the citizen parent for acquisition at birth or under section 322; see proving the physical presence requirement.
• Documents: birth, marriage, custody and residence records; an N-600K document checklist lists what USCIS typically asks for.

Why this matters in criminal cases

A conviction that would make a noncitizen deportable has no immigration consequence for a citizen. Before conceding removability, defense counsel should ask about parents' citizenship and the client's age when a parent naturalized. See defense strategies in criminal immigration cases, how green card holders become deportable and eligibility for citizenship. The legal framework is summarized in our guide to the INA.

Related Guides on This Site

See also N-400 Delays in 2025 How Backlogs Can Derail Your Citizenship Timeline. See also How to Perfectly Size Your Photo for a Green Card Application. See also Form I-797D and Your Green Card Understanding the Notice of Action.

Disclosure: Criminal Immigration Law collaborates with the law firm that publishes Mandamus.com and N600K.com; some articles link to their guides. General information only, not legal advice.