ON August 13, 2018, the Second Circuit Court of Appeals, which is just below the U.S. Supreme Court, saved a person from deportation by concluding his “father” was a U.S. citizen at the time of his birth, even though his mother had cheated, and the U.S. citizen was not his biological father.  The court ultimately ruled that “a child born into a lawful marriage is the lawful child of those parents, regardless of the existence or nonexistence of any biological link.”

There may be many children who may not necessarily be the biological child of a U.S. citizen, but if they were born during the marriage, they would still be considered the U.S. citizen’s “child” and might be eligible for U.S. citizenship.

In that case, the person was born outside the U.S. in 1972.  His mother was married to a man who became a U.S. citizen in 1961, which was before the person’s birth.  Apparently, during the marriage, his mother cheated, and had an extramarital affair with a different man, who was even listed as the person’s father.  (Apparently, the U.S. citizen husband was very forgiving, as the couple had seven children together and remain married for 47 years, until the U.S. citizen died in 1999.)

Eventually, this person was convicted of criminal possession of drugs, and was placed in deportation/removal proceedings.  He argued he was not deportable/removable because his “parent” (father) was a U.S. citizen, thereby conferring U.S. citizenship on him.  Therefore the government cannot deport a U.S. citizen.  The government argued there must be some form of biological or blood relationship in order for the citizen to be considered the child’s parent.  The court disagreed.

In its ruling, the court pointed out that the law in effect when the person was born did not define the word “parent.”  Under ordinary or common law meaning, a child born into a lawful marriage is the lawful child of both parents, whether or not there is a biological and blood linkage.  There was no requirement in the law when this person was born that the U.S. citizen be a biological parent to transmit citizenship.  In other words, “a child born into a legal marriage is presumed to be the child of the marriage.”

If you know of someone with a situation similar to this, it could be possible they may have a claim to U.S. citizenship. (i.e. non-citizen wife cheats on U.S. citizen husband, or non-citizen husband cheats on US citizen wife, and has a child with someone else during the marriage.)  But it depends on the date they were born (as the law was constantly changing and you have to apply the law in effect at the time of their birth), and if other requirements are met.  That’s why you may want to consult with an attorney to determine if you may possibly be a U.S. citizen.

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Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.

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