Forey-Quintero: Eleventh Circuit Court of Appeals Holds Defendant Could Be Prosecuted for Being in the US Because His Mother’s Status Did Not Make Him a Derivative Citizen

Last week, the Eleventh Circuit Court of Appeals decided United States v. Forey-Quintero. The Court held that Mr. Forey-Quintero, whose mother became a naturalized U.S. citizen while he was a minor, did not obtain derivative citizenship because he was not a lawful permanent resident before he turned 18.

Mr. Forey-Quintero came to the U.S. on a border crossing card when he was three years old. When he was 9, his mother filed a Petition for Alien Relative for him, but he was accidentally placed on the wrong list for obtaining a visa. When he was 16, his mother was naturalized and he applied for a visa. His application was approved 20 days after his 19th birthday. As such, he resided here permanently as a minor, but was not a “lawful permanent resident.”

Mr. Forey-Quintero later was kicked out of the country, and when he returned to be with his family he was charged with being found in the United States after removal. His attorney, Millie Dunn at the Federal Defenders Program for the Northern District of Georgia, argued that he was a citizen under the derivative citizenship statute. Before 2001, derivative citizenship was governed by Section 321(a) of the Immigration and Nationality Act (INA), which provided that a “child born outside of the United States of alien parents” automatically became a citizen upon the naturalization of the parent having legal custody if the child is or “begins to reside permanently in the United States while under the age of eighteen years.”

The Court held that “reside permanently” requires lawful permanent resident status. In doing so, the court looked to the rules of statutory construction and persuasive authority in similar cases in the Ninth Circuit and Board of Immigration Appeals (BIA). Because this young man had been placed on the wrong list when he was 3 years old, he did not “reside permanently” as a legal resident at the time when his mother became a citizen. As a result, the Courts allowed prosecutors to charge Mr. Forey-Quintero with illegally returning to this country when, if he had been placed on the correct list, he would have had every right to remain here as a derivative citizen.

Criminal defense lawyers must continually challenge both individual statutes and the system in general to help their clients. Although the argument in this case was unsuccessful, we applaud Millie Dunn for her work for Mr. Forey-Quintero.

The Eleventh Circuit’s opinion in this case is available here.