Cite as 24 I&N Dec. 609 (BIA 2008) Interim Decision #3621
1 Although the Immigration Judge has also certified his decision for our review, we review
the decision on appeal rather than on certification.
609
Matter of Kelechi Gerald NWOZUZU, Respondent
File A046 651 723 – York
Decided September 10, 2008
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
To obtain derivative citizenship under former section 321(a) of the Immigration and
Nationality Act, 8 U.S.C. § 1432(a) (1994), an alien must acquire the status of an alien
lawfully admitted for permanent residence while he or she is under the age of 18 years.
FOR RESPONDENT: Troy J. Mattes, Esquire, Lancaster, Pennsylvania
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jon D. Staples, Assistant Chief
Counsel
BEFORE: Board Panel: COLE, PAULEY, and HESS, Board Members.
PAULEY, Board Member:
In a decision dated October 6, 2006, an Immigration Judge terminated the
proceedings against the respondent, finding that the Department of Homeland
Security (“DHS”) failed to meet its burden of establishing the respondent’s
alienage. The DHS has appealed from the Immigration Judge’s decision.1
The
appeal will be sustained and the record will be remanded to the Immigration
Judge for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Nigeria who was born on March 8,
1977. He first entered the United States in 1982 at the age of 4 as the child of
an F-1 nonimmigrant student. His father became a naturalized citizen of the
United States on October 4, 1994, and his mother was naturalized on
November 15, 1994. The respondent was 17 years old when his parents
naturalized, but he was not admitted to the United States as a lawful permanent
resident until December 1998, well after his 18th birthday.Cite as 24 I&N Dec. 609 (BIA 2008) Interim Decision #3621
2 The DHS also claims that even if former section 321(a)(5) of the Act allows something less
than lawful permanent resident status, the respondent has not shown that he meets this lesser
requirement. Because we find that the statute does require lawful permanent resident status,
it is unnecessary to address the DHS’s alternate argument. We also find no need to remand
for consideration of the new evidence the DHS has offered, which relates to the date on
which the respondent filed his first application for adjustment of status. The parties did not
dispute this date before the Immigration Judge, and the new evidence does not appear to
impact the outcome of the proceedings before us.
610
The respondent claims that he is entitled to derivative citizenship through
his parents pursuant to former section 321(a) of the Immigration and
Nationality Act, 8 U.S.C. § 1432(a) (1994), because he began to “reside
permanently” in the United States while he was under the age of 18 years. The
Immigration Judge agreed and found that although the respondent was not
“residing in the United States pursuant to a lawful admission for permanent
residence at the time of the naturalization of the parent last naturalized,” he
had submitted sufficient evidence to show that he began “to reside
permanently in the United States while under the age of eighteen years.”
Section 321(a)(5) of the Act. The Immigration Judge therefore found that the
DHS had not met its burden of establishing the respondent’s alienage and
terminated the proceedings.
On appeal, the DHS contends that the Immigration Judge erred in finding
that the respondent had derived citizenship through his parents under former
section 321(a) of the Act. Specifically, the DHS claims that the Immigration
Judge erred in finding that the respondent had “resided permanently” in the
United States while he was under the age of 18, because he had not been
admitted as a lawful permanent resident during that time.
The DHS maintains that an alien can derive citizenship pursuant to former
section 321(a) of the Act only if three things occur while the alien is under the
age of 18: (1) the naturalization of both parents, (2) the residence or presence
of the alien in the United States, and (3) the lawful admission of the alien as
a permanent resident. According to the DHS, interpreting the statute to allow
the acquisition of citizenship when an alien has less than lawful permanent
resident status essentially nullifies that portion of section 321(a)(5) that does
require lawful permanent resident status. Moreover, the DHS contends that the
fact that the language of former section 321(a)(5) tracks section 101(a)(20) of
the Act, 8 U.S.C. § 1101(a)(20) (2006), which defines the term “lawfully
admitted for permanent residence,” demonstrates that Congress intended to
require lawful permanent residence in both portions of section 321(a)(5).
Therefore the DHS claims that the Immigration Judge’s ruling should be
vacated and that the record should be remanded for further proceedings.2Cite as 24 I&N Dec. 609 (BIA 2008) Interim Decision #3621
3 Former section 321 of the Act was repealed by section 103(a) of the Child Citizenship Act
of 2000, Pub. L. No. 106-395, 114 Stat. 1631, 1632. However, the statute still applies to the
respondent because it was the law in effect both when he turned 18 and when he was
admitted as a lawful permanent resident. See, e.g., Matter of Rodriguez-Tejedor, 23 I&N
Dec. 153 (BIA 2001) (finding that the Child Citizenship Act of 2000 is not retroactive);
Matter of L-, 7 I&N Dec. 512 (R.C. 1957) (noting that determinations involving derivative
citizenship are controlled by the law in effect when the last material condition is met).
611
The respondent, on the other hand, contends that the Immigration Judge
acted properly in terminating the proceedings. He maintains that the second
half of former section 321(a)(5) of the Act does not require that a child be
“residing” in the United States “lawfully” or with some form of authorized
residence prior to his 18th birthday. Moreover, he argues that Congress
would not have included the second clause in section 321(a)(5) unless it
intended for something less than lawful permanent resident status to satisfy the
requirements for derivative citizenship. Accordingly, he claims that his
evidence shows that he resided here permanently for purposes of establishing
that he is entitled to derivative citizenship.
II. STATUTE
Former section 321(a) of the Act provides, in pertinent part, as follows:
A child born outside the United States of alien parents, or of an alien parent and
a citizen parent who has subsequently lost citizenship of the United States, becomes
a citizen of the United States upon fulfillment of the following conditions:
(1) The naturalization of both parents; . . .
. . .
. . . and if
(4) Such naturalization takes place while such child is under the age of eighteen
years; and
(5) Such child is residing in the United States pursuant to a lawful admission
for permanent residence at the time of the naturalization of the parent last
naturalized under clause (1) of this subsection . . . or thereafter begins to reside
permanently in the United States while under the age of eighteen years.3

III. ISSUE
Both parties agree that the respondent’s parents naturalized while he was
under 18 years of age. The parties also agree that the respondent was not
residing in the United States pursuant to a lawful admission for permanent
residence at the time of the naturalization of his mother, his last parent to
naturalize. The key issue, then, is whether the respondent began to “reside
permanently” in the United States while under the age of 18 years. To resolveCite as 24 I&N Dec. 609 (BIA 2008) Interim Decision #3621
612
this question, we must determine whether the phrase “begins to reside
permanently in the United States while under the age of eighteen years” in
former section 321(a)(5) of the Act allows an alien to derive citizenship while
in a status other than lawful permanent resident status. Because we find that
it does not, we will sustain the DHS’s appeal.
IV. ANALYSIS
Our interpretation of the phrase “begins to reside permanently in the
United States while under the age of eighteen years” starts with the terms of
the statute itself. If these terms constitute a plain expression of congressional
intent on their face, then they must be given effect. See Chevron, U.S.A., Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). But
when Congress’s intent is not plainly expressed, we must find a reasonable
interpretation of the language and fill any gap left, either implicitly or
explicitly. Id. at 843-44. The rules of statutory construction dictate that we
take into account the design of the statute as a whole. K Mart Corp. v. Cartier,
Inc., 486 U.S. 281, 291 (1988). Moreover, we must bear in mind that the
paramount index of congressional intent is the plain meaning of the
words used in the statute when they are taken as a whole. See INS
v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987).
Section 321 of the Act does not define the phrase “reside permanently,” and
both the definition put forth by the respondent and that proposed by the DHS
are plausible if the terms “reside” and “permanently” are considered in the
abstract. However, we must consider the terms in the context of the Act as a
whole. To do so, we must interpret the definitions of the terms “permanent,”
“residence,” and “lawfully admitted for permanent residence” in section 101(a)
of the Act, the structure of former section 321(a) of the Act, and the concept
of permanent residence under the immigration laws. Taking these factors into
consideration, we find that the phrase “begins to reside permanently in the
United States while under the age of eighteen years” is most reasonably
interpreted to mean that an alien must obtain the status of lawful permanent
resident while under the age of 18 years to acquire derivative citizenship.
Section 101(a)(31) of the Act states that the term “permanent” “means a
relationship of continuing or lasting nature, as distinguished from temporary,
but a relationship may be permanent even though it is one that may be
dissolved eventually at the instance either of the United States or of the
individual, in accordance with law.” The word “permanent” is also defined as
“[l]asting or meant to last indefinitely,” “enduring,” and “[n]ot expected to
change in status, condition, or place.” Webster’s II New Riverside University
Dictionary 875 (1994). Both of these definitions indicate that something is
“permanent” if it is lasting or is at least intended to last indefinitely.Cite as 24 I&N Dec. 609 (BIA 2008) Interim Decision #3621
4 The definition of the term “permanent” in section 101(a)(31) of the Act does acknowledge
that a permanent relationship “may be dissolved eventually at the instance either of the
United States or of the individual, in accordance with law,” but this dissolution is distinct
from the termination of an alien’s unlawful presence. An alien lawfully admitted for
permanent residence is guaranteed that status, provided he or she complies with the laws of
this country. Thus, an alien will lose permanent resident status only if he or she violates the
law or voluntarily elects to abandon the status. An alien residing in this country without
authorization, on the other hand, may be required to leave at any time.
613
Section 101(a)(33) of the Act states that the term “residence” means “the
place of general abode; the place of general abode of a person means his
principal, actual dwelling place in fact, without regard to intent.” The concept
of “residing permanently” would therefore seem to require the maintenance of
a lasting principal dwelling place. At first glance, it might appear that an alien
could maintain a lasting principal dwelling place without obtaining lawful
permanent resident status. A dwelling place, however, cannot be “permanent”
or lasting under the immigration laws if it is unauthorized.
An alien who entered this country illegally or remains without authorization
might maintain a home or residence here, but there is no guarantee that he or
she will be able to do so for any length of time.4
The concept of “residing
permanently” therefore includes an implied requirement that the residence be
lawful. An alien cannot reside in this country in a permanent, lasting sense
unless the residence is lawful. Similarly, an alien admitted for a temporary
period cannot be considered to be residing permanently in this country, even
if he or she maintains lawful status. Accordingly, we find that the phrase
“begins to reside permanently in the United States while under the age of
eighteen years,” when considered in light of the definitions of “permanent”
and “residence” and the realities of the immigration laws of this country, is
most reasonably interpreted to mean that the alien must acquire lawful
permanent resident status while under the age of 18 years.
This finding is bolstered by the similarity between the language contained
in the phrase “begins to reside permanently” and that in the definition of
“lawfully admitted for permanent residence,” which means “the status of
having been lawfully accorded the privilege of residing permanently in the
United States as an immigrant in accordance with the immigration laws, such
status not having changed.” Section 101(a)(20) of the Act (emphasis added).
As the DHS notes, the “residing permanently” language of section 101(a)(20)
closely tracks the phrase “begins to reside permanently” that Congress
employed in former section 321(a)(5) of the Act. This similarity stronglyCite as 24 I&N Dec. 609 (BIA 2008) Interim Decision #3621
5 The respondent suggests that Congress’s use of the phrase “begins to reside permanently”
in the second clause of section 321(a)(5), rather than a phrase specifically including the
lawful permanent residence requirement, implies that it intended to allow something less
than lawful permanent residence. However, the similarity in language between the second
clause and section 101(a)(20) strongly indicates that Congress intended to carry the lawful
permanent residence requirement into the second clause, whose phraseology is best
explained as a shorthand reference to the requirement of the first clause.
614
suggests that Congress intended to impose a requirement that an alien must
obtain lawful permanent residence before the age of 18 to acquire derivative
citizenship.5

Interpreting the second clause of section 321(a)(5) of the Act as requiring
an alien to have lawful permanent resident status before the age of 18 does not
render it surplusage, as the Immigration Judge implied. When read to require
lawful permanent residence, the second clause clarifies that an alien does not
have to be a lawful permanent resident at the time his or her parent naturalizes
to qualify for derivative citizenship. Instead, it establishes that as long as the
alien is admitted as a lawful permanent resident before he or she turns 18,
citizenship may be derived from a naturalized parent. Therefore, the second
clause is not surplusage but is necessary to explain the time by which the
lawful permanent residence requirement of section 321(a)(5) must be satisfied.
On the other hand, if we were to allow something less than lawful
permanent residence to satisfy the requirements for derivative citizenship, the
second clause would effectively negate the lawful permanent residence
requirement of the first clause. An alien would rarely if ever need to be
“residing in the United States pursuant to a lawful admission for permanent
residence” because he or she could simply show that some lesser form of
residence was “thereafter” acquired before the alien reached the age of 18. We
cannot conclude that Congress intended this result. See United States v.
Menasche, 348 U.S. 528, 538-39 (1955) (stating that it is a court’s “duty ‘to
give effect, if possible, to every clause and word of a statute’” (quoting
Inhabitants of Montclair Tp. v. Ramsdell, 107 U.S. 147, 152 (1883))); see also
2A Norman J. Singer, Sutherland Statutory Construction § 46.06, at 104 (4th
ed. 1984) (indicating that a statute or regulation should be construed to give
effect to all its provisions so that no part of it will be inoperative, superfluous,
void, or insignificant). Accordingly, we find that the second clause of former
section 321(a)(5) of the Act is most reasonably read to require that an alien
must acquire lawful permanent resident status while he or she is under the age
of 18 years.
In reaching our conclusion, we note that this interpretation of section
321(a)(5) is not inconsistent with the historical approach to derivative
citizenship. Federal court cases reviewing earlier versions of the Act that usedCite as 24 I&N Dec. 609 (BIA 2008) Interim Decision #3621
615
the phrases “dwelling in the United States” or “begins to reside permanently
in the United States” found that, at the very least, an alien had to be lawfully
admitted to this country before he or she could be considered to be dwelling
or residing here permanently. See Schneider v. U.S. INS, 65 F. Supp. 377,
379-80 (D. Wash. 1946); United States ex rel. Goldman v. Tod, 3 F.2d 836,
838-40 (N.D.N.Y. 1924). Moreover, in Matter of T-, 7 I&N Dec. 679 (R.C.
1958), the regional commissioner implied that former section 321 of the Act
required lawful permanent residence. Id. at 680-81 (stating that “[o]ne of the
conditions of section 321 set forth in subsection 5 is that the child must begin
to reside permanently in the United States or must have been lawfully admitted
to the United States for permanent residence while under the age of 16 years”
and finding that the alien in that case “was lawfully admitted to the
United States for permanent residence, which accorded her the privilege of
residing permanently in the United States as an immigrant”). In Matter of C-,
8 I&N Dec. 421, 422 (R.C. 1959), the regional commissioner also stated that
“[l]awful permanent residence has always been a prerequisite to derivative
citizenship.”
Morever, our ruling is not controlled by the statements of the United States
Court of Appeals for the Second Circuit in Ashton v. Gonzales, 431 F.3d 95
(2d Cir. 2005), which was cited by the Immigration Judge and the respondent.
In that case the Second Circuit found that Ashton did not meet the
requirements for derivative citizenship under former section 321(a) of the Act
because his subjective intent to reside permanently in the United States,
coupled with his presence here, was not sufficient to establish that he began to
reside permanently in the United States while he was under the age of
18 years. Id. at 98. The court went on to express doubts regarding the
Government’s contentions that section 321(a)(5) required lawful permanent
residence but concluded its discussion of this issue by stating that
“[u]ltimately, the proper interpretation of INA § 321(a) is a question we need
not reach.” Id. at 99. Therefore the court did not specifically hold that the
conditions of section 321(a) can be satisfied by something other than lawful
permanent residence.
Even if the Second Circuit had reached this issue, however, its ruling
would not be binding on us because the respondent’s case arises within the
jurisdiction of the Third Circuit, and because Ashton did not purport to treat
the statute as unambiguous. See Matter of Anselmo, 20 I&N Dec. 25 (BIA
1989) (stating that we historically follow the precedent of the circuit in which
a case arises); see also Nat’l Cable & Telecomms. Ass’n v. Brand X Internet
Servs., 545 U.S. 967 (2005) (finding that a court’s prior judicial construction
of a statute trumps an agency construction that is otherwise entitled toCite as 24 I&N Dec. 609 (BIA 2008) Interim Decision #3621
616
deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., supra, only if the prior court decision holds that the construction follows
from the unambiguous terms of the statute and thus leaves no room for agency
discretion).
V. CONCLUSION
In conclusion, we find that to satisfy former section 321(a)(5) of the Act and
obtain derivative citizenship, an alien must acquire the status of an alien
lawfully admitted for permanent residence while he or she is under 18 years
of age. The respondent did not meet this requirement. He therefore does
not qualify for derivative citizenship and appears to be subject to removal
proceedings. Accordingly, the DHS’s appeal from the Immigration Judge’s
decision terminating the proceedings against the respondent will be sustained,
and the record will be remanded to the Immigration Judge for completion of
removal proceedings.
ORDER: The appeal of the Department of Homeland Security is sustained,
the decision of the Immigration Judge is vacated, and the removal proceedings
against the respondent are reinstated.
FURTHER ORDER: The record is remanded to the Immigration Judge for
further proceedings consistent with the foregoing opinion and for the entry of
a new decision.