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The Court notes that i this instance, in order fr the respondent to have a successfl derivative citizenship claim
he must satisf subsections 3, 4 and 5. These statutory requirements are conjunctive in nature and not disjunctive as
subsections 1 and 2. See fner INA 32l{a).
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relevant part of subsection 3 clearly indicates that a child derives citizenship when "the
naturalization of the parent having legal custody of the child [occurs] when there has
been a legal separation of the parents . .. . " Former IA 321(a)(3) (emphasis added).
Here, the respondent ha filed to provide any proof of his parents' legal
separation or divorce, and he even concedes that "[he] does not have a copy of his
paent's divorce decree." See Exhibit 3 at 3. Furthermore, there is no evidence of a
legal separation. Legal separation has been defned as "a frmal, judicial alteration of
the marital relationship," Nehme v. INS, 252 F.3d 415, 425-26 (5th Cir. 2001);
"Domestic relations law in the United States treats 'legal separation' as the judicial
suspension or dissolution of a mariage," Wedderburn v. INS, 215 F.3d 795, 799 (7th
Cir. 2000). There is no evidence that there was a judicial alteration or suspension to the
respondent's parents' marriage, as merely abandoning the fmily alone, does not
constitute a dissolution or judicial marital alteration. Therefre, the respondent filed to
satisfy this prong and cannot demonstrate his derived citizenship through his mother.
Respondent wa under eigliteen-vears-old
While the Court fnds that the respondent filed to satisfy the afrementioned
clause, the Court also fnds that the respondent cannot demonstrate the furth
subsection, that his mother's naturalization took place while he was under eighteen
years-old. See Former IA 321(a)(4). Outside of mere argument, the respondent has
provided no proof as to when his mother was naturalized; much less that such
naturalization occurred when he was under eighteen-years-old as mandated by the
statute: "(4) [s]uch naturalization takes place while said child is under the age of 18
years." Id. The respondent merely posits that he and his brother attended their mother's
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naturaliztion ceremony in 1970 when he was sixteen-years-old. See Exhibit 3 at 3.
Furthermore, the respondent's mother's passport was issued in 1996, approximately
frty-two years afer the respondent's 1954 birth year. See Exhibit 3, Tab 1. Thus, the
respondent was well beyond eighteen-years-old when this pasport wa issued.
Therefre, the respondent has filed to prove that he derived citizenship through his
mother.
Respondent ha resided pursuant to a lawful admision
There is no dispute that per frmer IA 321(a)(5) that the respondent entered the
United States at furteen-yeas-old on September 4, 1968 as a lawfl permanent resident.
IV. Conclusion
The respondent ha filed to satisf the applicable statutory requirements to establish his
derivative citizenship claim. He has only profered a copy of his mother's United States passport
with a 1996 issuance date, which fails to indicate when she was naturalized and whether he was
under eighteen-years-old at the time. Furthermore, there is no proof that his parents were ever
legally separated or divorced, and the respondent has acknowledged the lack of such proof.
Accordingly, he has filed to meet his burden of proof to establish his derivative citizenship
claim. Therefre, the respondent has been properly placed into removal proceedings.
.-c?- r3
Date
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uQ Q ,- D'V ;osland
United States Immigration Judge
Baltimore, Maryland
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UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BALTIMORE, MARYLAND
File: A018-098-964
In the Matter of
March 13, 2013
RODRIGUE LAVENTURE
)
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IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGES: The charges are a violation of Section 237(a)(2)(A)(iii) and
237(a)(2)(A)(i) of the Immigration and Nationality Act.
APPLICATIONS: There is no application for relief before the Cour.
ON BEHALF OF RESPONDENT: ELIZABETH LAWRENCE
ON BEHALF OF OHS: CARRIE E. JOHNSTON
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is a citizen and national of Haiti. He was placed in
removal proceedings in a Notice to Appear dated November 20, 2012. It was filed with
the Immigration Cour.
The respondent appeared at master calendar and admitted the allegations
in the Notice to Appear. The Government submited conviction documents and the
Cour finds that the Government has shown by clear and convincing evidence based on
the admission of the respondent and based on the conviction documents, that the
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respondent is removable as charged.
The respondent raised a question through counsel of having derivative
claim to U.S. citizenship. The documents were fled which the Cour has considered
and the Cour entered a writen decision today which is incorporated by reference
finding that the respondent has not met his burden of proof of showing derivative
citizenship.
Counsel for respondent was asked if respondent had any relief that he
would be seeking other than a claim to derivative citizenship. The respondent's counsel
indicated that he does not but he is continuing to pursue proof that he has derivative
U.S. citizenship. The Cour declined to grant a furher continuance on that issue and
based upon the failure of the respondent to fle any application for relief and based upon
the finding that the respondent is a citizen or national of Haiti and not a citizen and
national of the United States. The respondent is ordered removed from the United
States for violating the to sections of the Immigration and Nationality Act law as
indicated.
ORDER
IT IS HEREBY ORDERED that the respondent be removed from the
United States to Haiti.
signature
A018-098-964
Please see the next page for electronic
DAVID W.CROSLAND
Immigration Judge
2 March 13, 2013
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/Isl/
Imigration Judge DAVID W.CROSLAND
crosland on May 15, 2013 at 1:44 PM GMT
AOlB-098-964 3
(
March 13, 2013
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CERTIFICATE PAGE
I hereby cerif that the atached proceeding before JUDGE DAVID
W.CROSLAND, in the matter of:
RODRIGUE LAVENTURE
A018-098-964
BALTIMORE, MARYLAND
was held as herein appears, and that this is the original transcript thereof for the fle of
the Executive Ofce fr Immigration Review.
JESSICA L. PINEDA (Transcriber)
DEPOSITION SERVICES, lnc.-2
MAY 4, 2013
(Completion Date)
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