Thomas Esparza Jr

Thomas Esparza Jr., P.C. Attorney at Law

1811 South First Street Tel (512) 441-0062

Austin, Texas 78704 Fax (512) 441-0725

Vermont Service Center

Attn: VAWA / I-485

75 Lower Welden

St. Albans, VT 05479-0001

Re: Beneficiary / Applicant Silvia Del Guadalupe Saenz DOB 09/06/1980

Request for Evidence

SRC ?????????????

Dear Sir or Madam,

I hope this letter finds you in good health and spirits. I represent the individual above named individual. Please accept this as our reply to the Service Request for Evidence. This I-360 Special Immigrant Widow petition that is based on a marriage to a USC spouse.

At issue is the citizenship of the spouse, Miguel Mario Ruiz, who we allege automatically acquired citizenship through the naturalization of his mother, Reina Isabel Ruiz. Unfortunately Miguel Mario Ruiz recently committed suicide. Exhibit 1 Though I have searched extensively in the regulations, operations instructions and the Act, I have been unable to find a form for applying for proof of the citizenship of person who has passed away. The one exception in the Act provides for posthumously awarding citizenship to a Serviceman or Servicewoman and even then under limited circumstances.

The children of naturalized citizens are a major category whose status as American citizens does not result from their own solicitation. In a sense, of course, their status usually emerges from the naturalization process, since the naturalization of the parent ordinarily is a prerequisite to its establishment. But unlike the judicial or, now, administrative, naturalization of the parent, the child's citizenship vests automatically upon the satisfaction of the prescribed qualifications. [1]

His citizenship does not depend upon his submission of any application, or the satisfaction of the substantive or procedural requirements applicable to those who seek naturalization.

A child who has automatically derived citizenship under this section can obtain a certificate in his own name, verifying his status as an American citizen.

The Act of 1952 lowered the maximum age for derivation of citizenship from 18 to 16, added specific provision for acquisition of derivative citizenship by children born out of wedlock, and specifically precluded the acquisition of derivative citizenship by adopted children.[2] A 1978 amendment of the statute reinstated the maximum age of 18 for derivation of citizenship.[3] 1986 amendments specified that these derivation provisions would apply only if the child was unmarried and under the age of 18 at the time of the parent's naturalization.[4]

Conditions for Acquisition of Derivative Citizenship for a Child Born February 15, 1977

Derivative citizenship can be acquired by a child through the naturalization of his paren,t only if the conditions prescribed by Congress are satisfied.[5]

Child Born Out of Wedlock

In the instant matter, the Petitioner alleges that her deceased spouse, Miguel Mario Ruiz was born out of wedlock. Exhibit XX

In the absence of statutory definition it was ruled that an unlegitimated child born out of wedlock could derive American citizenship through the naturalization of its mother.[6] The same result is required by a specific directive of the Act of 1952.[7] In the instant matter, the birth certificate Exhibit xx, only states the mother of Miguel Mario Ruiz and does not list any father. No mention is made whatsoever of a father, nor is there any mention of any legitimation of the child. Further, a copy of the death certificate illegitimate father, does not list any marital status. Exhibit XX.

Finally, I have produced a complete copy of the file of the mother of the deceased, Miguel Mario Ruiz that traces his mother’s immigration from the initial visa petition. We have produced a complete copy of the FOIA and paginated it. Exhibit xx, page, through the biographic data sheet, Exhibit xx, page, appointment at the American Consul, Exhibit xx, page, and finally her citizenship application Exhibit xx, page xx. In none of the applications or supporting documentation is does the deceased spouse’s mother list a prior spouse. This is so, even though the mother’s file contains the illegitimate father’s death certificate. Exhibit xx, page xx. This evidence was obtained through the FOIA. The I believe that the Petitioner has conclusively established that her husband was an illegitimate child at birth who never was legitimated throughout the immigration process. This position is supported by BIA precedent. In re Lawrence ROWE, I.D. 3536, 2006 BIA 23 I. & N. Dec. 962.[8]

Age of Child

Every statute dealing with derivative citizenship has directed that citizenship could be derived through the naturalization of a parent only if the prescribed statutory conditions were satisfied before the child attained a specified age of maturity. Thus, citizenship was not derived if the parent was naturalized or the child's lawful admission to the United States occurred after the child had attained the prescribed age of maturity. Thus, citizenship can not be derived if the parent was naturalized[9] or the child's lawful admission to the United States[10] occurred after the child had attained the prescribed age of maturity. This was not the case in the instant matter.

Status of Child-Request for the Service to take Judical Notice

Of the Lawful admission of the child to the United States for permanent residence we have no document. However, after an INFOPASS appointment, I discovered that the deceased entered the United States as a lawful permanent resident on April 19, 1994. His alien registration number is A 44 471 023. He was 17 years old when he immigrated. In essence, he immigrated before he turned 18 and after 1978 and therefore became a United States citizen at his entry as all the condition precedent were complied with at entry as a lawful permanent resident. The fact that the deceased’s mother naturalized before his immigration does not seem to vary the ultimate outcome.[11]

It is at this juncture that we ask the Examiner to take judicial notice of the fact off the deceased’s date of entry as a permanent resident. It is but a simple matter to verify the status of Miguel Mario Ruiz. We have provided his alien registration number. This move on your part would expidite the processing of this application. You have to put this application into context; the petitioner is a widower. Neither she, nor her mother in law have the authority to obtain the record absent an order of probate court in Texas.

This application is the appropriate place to determine the citizenship of the deceased. The Operations Instructions state as much. [12]

Since derivative citizenship is acquired automatically, upon the satisfaction of prescribed conditions, it follows that the acquisition of such citizenship entails no application, administrative decision, court order, oath of allegiance, or other preliminary procedure.[13] A person who acquires citizenship derivatively can support his title to such citizenship at any time thereafter by establishing his relationship to the naturalized citizen or citizens and his compliance with the statutory conditions.

Miguel Mario Ruiz acquired citizenship when, and did not obtain a certificate or citizenship. An alien child born outside the United States automatically acquired derivative citizenship upon fulfillment of the following conditions on or after December 24, 1952, while the child was under the age of 16 (before October 5, 1978) or 18 (on and after October 5, 1978)[14]

He may prove his citizenship independently by establishing the following:[15]

- Proof of Illegitimate birth.

- Proof of legal relationship between the mother and the deceased.

- Proof of citizenship of transmitting parent or parents.

- Proof of compliance with any applicable conditions for transmission of citizenship.

- Proof of lawful entry for permanent resident status.

In the instant matter, the Petitioner has established that he established he became a citizen when he entered the United States as a permanent resident. [16]

Enclosed you will also find the evidence that the Service requested. They are listed by the corresponding number on the RFE

I thank you in advance for your kind attention to this matter.

Sincerely,

Thomas Esparza Jr.

Attorney at Law

Board Certified Immigration & Nationality Specialist

29 years experience

[1] See H. Doc. 46, 59th Cong., 1st Sess. 34 (1905); Zartarian v. Billings, 204 U.S. 170, 27 S. Ct. 182, 51 L. Ed. 428 (1907).

[2] INA §§ 320 and 321, 8 U.S.C. §§ 1431 and 1432. In the 1952 Act, children born out of wedlock were referred to as ''illegitimate'' children. Congress has since adopted the phrase ''children born out of wedlock.''

[3] Id., as amended by Secs. 4 and 5, Act of Oct. 5, 1978, Pub. L. 95-417, 92 Stat. 917. These revisions were made by legislation conferring additional benefits on adopted children. See H. Rep. 95-1301

[4] Secs. 320(a) and 321(a), 8 U.S.C. §§ 1431(a) and 1432(a) as amended by Secs. 14 and 15, Act of Nov. 14, 1986, Pub. L. 99-653, 100 Stat. 3655.

[5] Zartarian v. Billings, n.16 supra; Kaplan v. Tod, n.16 supra; Patton v. Tod, n.24 supra; Montana v. Kennedy, 366 U.S. 308, 81 S. Ct. 1336, 6 L. Ed. 2d 313 (1961); Di Rienzo v. Rodgers, 185 Fed. 334 (3d Cir. 1911); Dallao v. Corsi, 55 F.2d 941 (S.D.N.Y. 1932).

[6] INS Interpretations 320.1(c).

[7] INA § 321(a)(3), 8 U.S.C. § 1432(a)(3).

[8] Where the respondent was born out of wedlock in Guyana and his natural parents were never married, his paternity has not been established by legitimation, so he is not ineligible to obtain derivative citizenship under former section 321(a)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1432(a)(3) (1994).

[9] Bufalino v. Irvine, 103 F.2d 830 (10th Cir. 1939) (over 21); Fracassi v. Karnuth, 19 F. Supp. 581 (W.D.N.Y. 1937) (same).

[10] Dallao v. Corsi, 55 F.2d 941 (S.D.N.Y. 1932) (child under 21 at time of naturalization, over 21 at time of entry)

[11] Matter of L., 7 I. & N. Dec. 512 (R.C. 1957) (born out of wedlock, mother naturalized 1951, lawful residence established 1953, Act of 1952 conferred derivative citizenship); Matter of T., 7 I. & N. Dec. 679 (A.C. 1958) (birth out of wedlock 1939, mother naturalized 1952; readmitted for permanent residence 1955, 1952 Act conferred derivative citizenship); Matter of L., 8 I. & N. Dec. 272 (BIA 1959) (born out of wedlock and mother naturalized before 1952 Act, under 16 when 1952 Act became effective, 1952 Act conferred derivative citizenship); INS Interpretations 320.1(a); Matter of Sepulveda, 14 I. & N. Dec. 616 (BIA 1974) (did not acquire citizenship at birth abroad in 1931 to citizen mother, entry in 1948 did not confer citizenship, since 1940 Act then required naturalization of both parents).

[12] Operations Instruction (OI) Section 103.7 Determination of citizenship status. Generally, a determination of an individual's status as a citizen of the United States shall not be made unless the question of his citizenship status is an issue in a proceeding or function authorized by statute, regulation, or operations instruction. Where, for example, the citizenship claimant is the subject of pending exclusion or deportation proceedings, or seeks to initiate visa petition proceedings as a citizen, the determination shall be made in such proceedings. Similarly, if the circumstances are such that an application pursuant to section 341 or 343 of the Act, or an application for a citizen identification card under 8 CFR 235.10, would afford an appropriate means of resolving the citizenship question, the determination is required to be made in proceedings initiated by such applications.

[13] INS Interpretations 320.1(a)(1).

[14] INA §§ 320 and 321, 8 U.S.C. §§ 1431 and 1432.

[15] See 8 C.F.R. § 204.2(a)(2);22 C.F.R. § 51.44(b); Instructions on Form N-600.

[16] Matter of L., 7 I. & N. Dec. 512 (R.C. 1957) (born out of wedlock, mother naturalized 1951, lawful residence established 1953, Act of 1952 conferred derivative citizenship); Matter of T., 7 I. & N. Dec. 679 (A.C. 1958) (birth out of wedlock 1939, mother naturalized 1952; readmitted for permanent residence 1955, 1952 Act conferred derivative citizenship); Matter of L., 8 I. & N. Dec. 272 (BIA 1959) (born out of wedlock and mother naturalized before 1952 Act, under 16 when 1952 Act became effective, 1952 Act conferred derivative citizenship); INS Interpretations 320.1(a); Matter of Sepulveda, 14 I. & N. Dec. 616 (BIA 1974) (did not acquire citizenship at birth abroad in 1931 to citizen mother, entry in 1948 did not confer citizenship, since 1940 Act then required naturalization of both parents).