Before today, it was understood that "[a] child's acquisition of citizenship on a derivative basis occurs by operation of law and not by adjudication." Matter of Fuentes , 21 I. & N. Dec. 893, 896 (BIA 1997). That makes sense when the triggers for derivative citizenship are two legal events: a parent's naturalization and a child securing permission permanently to remain in the United States lawfully.

In re Hines, 24 I. & N. Dec. 544, 548 (B.I.A. 2008), overruled on other grounds by In re Cross, 26 I. & N. Dec. 485, 490-91 (B.I.A. 2015); see also Legitimation Act of Jamaica § 2 (June 3, 1909), available at http://moj.gov.jm/laws/legitimation-act. Marlon argues that, under BIA precedent, he was not required to satisfy in any particular order the relevant factors—i.e., his mother's naturalization, his birth out of wedlock, and his lack of legitimation—so long as he satisfied them all at any point before he turned 18. As support, he cites In re Douglas, 26 I. & N. Dec. 197 (B.I.A. 2013), In re Baires-Larios, 24 I. & N. Dec. 467 (B.I.A. 2008), and In re Fuentes-Martinez, 21 I. & N. Dec. 893 (B.I.A. 1997). Marlon's reliance on these cases is misplaced, because they all concern the first clause of subsection (3); his case is governed by the second clause.

An alien who acquires derivative citizenship under that provision does so by operation of law. In re Fuentes-Martinez, 21 I. & N. Dec. 893, 896 (B.I.A. 1997) ("No application is filed, no hearing is conducted, and no certificate is issued when such citizenship is acquired."). The statute also required that the child be under eighteen years of age and residing in the United States as a lawful permanent resident at the time of the custodial parent's naturalization, 8 U.S.C. § 1432(a)(4)-(5), neither of which conditions are in dispute here.

“No application is filed, no hearing is conducted, and no certificate is issued when such citizenship is acquired.” Matter of Fuentes–Martinez, 21 I. & N. Dec. 893, 896 (BIA 1997). If Belleri obtained derivative citizenship in 1999, he did not have to take any further action to secure his citizenship.

A child who achieves derivative citizenship through this provision does so automatically upon fulfilling the specified conditions. See Fuentes-Martinez, 21 I. N. Dec. 893, 896, 1997 WL 219496 (BIA 1997). The relevant text of § 321 is as follows:

"A child who achieves derivative citizenship through this provision does so automatically upon fulfilling the specified conditions," and not by adjudication. Ashton v. Gonzales, 431 F.3d 95, 97-98 (2d Cir. 2005); see also Matter of Fuentes-Martinez, 21 I. & N. Dec. 893, 896 (BIA 1997) ("No application is filed, no hearing is conducted, and no certificate is issued when such citizenship is acquired."). Accordingly, if Plaintiff obtained derivative citizenship before he turned eighteen, under Section 321(a) he did not have to take any further action to secure his citizenship.

A child's obtaining citizenship occurs by operation of law; there is no application filed, no hearing conducted and no certificate issued when such citizenship is acquired. See Charles v. Reno, 117 F. Supp. 2d 412, 416 (D.N.J. 2000), In re Fuentes-Martinez, 21 I N Dec. 893, 896 (BIA 1997). Further, Petitioner has the burden of proving his derivative citizenship claim, as The Supreme Court noted:

This factual distinction is the reason why it was the alleged alien, and not the INS, who took the initial step to claim derivative citizenship in the cases cited by the Defendant. See Charles v. Reno, 117 F. Supp.2d 412 (N.J. Dist. 2000); In re Julio Augusto Fuentes-Martinez, 1997 WL 219496. Defendant is correct in stating that once the INS demonstrated that the Plaintiff was born in Vietnam and the Plaintiff himself claimed to be a Vietnamese citizen, a rebuttable presumption of alienage arose and the burden shifted to the Plaintiff to prove his citizenship.

Petitioner claims that he derived citizenship through his father's naturalization in 1989 pursuant to section 321 of INA. A child's acquisition of citizenship on a derivative basis occurs by operation of law. See In re Julio Augusto Fuentes-Martinez, 1997 WL 219496, Interim Decision 3316 (BIA 1997) ("[t]he actual determination of derivative citizenship under section 321(a) of the Act may occur long after the fact, in the context of a passport application or a claim to citizenship made in deportation proceedings"). Section 321 of the INA provides as follows: