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Derivative Citizenship Flip-Flopping Leads to Court Confusion

By William Peacock, Esq. on March 15, 2013 | Last updated on March 21, 2019

One of the many provisions of the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 removed federal courts' jurisdiction to hear lawsuits brought "by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien."

Julien Belleri is a citizen. Or maybe he isn't. They still haven't figured it out yet. You see, until 1994, he lived with both of his parents in Columbia and the United States.

In 1994, his parents signed a "Conciliation Agreement" which in practice was a written custody arrangement that provided for shared custody, though his primary residence would be with his father. The document refers to his parents as "spouses", though it is apparently unclear whether the document amounts to legal separation under Columbian law.

By 1999, Belleri was living with his mother in the United States. She obtained citizenship at this time. He argues that he did so as well, though derivative citizenship, as was the law at the time (the court notes that the statutory provision referred to was repealed in 2000). If he is correct, no further action was necessary on his part.

In 2000, he filed for citizenship on his own. However, he missed the interview. He later claimed that he didn’t receive notice of the date until it had passed.

In 2005, his parents divorced.

Which brings us to 2007, when he was arrested for a handful of illegal activities. When he finished his prison term, Immigration stepped in, alleging that he was an alien unlawfully in the United States. He was detained for eight months before being granted bond. He is suing over this time period.

To make things more complicated, he was granted a retroactive certificate of citizenship back to 1999. After he filed his lawsuit, but before the resolution, the Department of Homeland Security moved to cancel his recently-issued certificate on the ground that it was obtained illegally or through fraud. Belleri never showed up to the hearing (again) and his citizenship certificate was withdrawn. It was also non-appealable.

The court remained oblivious to this entire matter and took jurisdiction, but dismissed his claims for various reasons, including sovereign immunity. While the appeal to the Eleventh Circuit was pending, the parties became aware of the cancelled certificate. Now, the Eleventh Circuit is kicking the case back to the District Court.

Why? It all goes back to derivative citizenship, which depends on whether that “Conciliation Agreement” was tantamount to legal separation under Columbian law. Plus, by the time his parents legally divorced, he was already past the age of majority and no longer eligible for derivative citizenship.

What a mess, right? If his parents were not legally separated, derivative citizenship fails. Of course, we could also point out that had he shown up to either of his previous immigration hearings, he might have already had the citizenship question handled, and this whole mess would be avoided.

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