On October 17, 2013, the BIA issued a precedent decision in Matter of Douglas, 26 I&N Dec. 197 (BIA 2013), clarifying a previously confusing issue regarding the acquisition of citizenship by a child under the age of 18, who enters as a permanent resident and whose parent gains citizenship through naturalization.

The BIA has now affirmed its 2008 finding from Matter of Baires, 24 I&N Dec. 467 (BIA 2008) that whether the parent who naturalizes has legal custody of the child before or after the naturalization does not matter.

A decision of the Third Circuit Court of Appeals, published before the decision in Baires, had held that the naturalizing parent needed to have custody of the child at the time she naturalized. Jordon v. Att’y Gen. of U.S., 424 F.3d 320, 330 (3d Cir. 2005).

Because the Board did not address that oddity in Baires, Immigration Judges in the Third Circuit were left with a quandary.  Matter of Anselmo says an IJ is supposed to follow the law of Circuit where the case arises if it differs from the BIA’s case law.  Because Baires was published after Jordon, one would think Baires would control.  But nevertheless, the Immigration Judge in Douglas followed Jordon.

In its precedent decision, the Board has now reversed that holding, concluding that Matter of Baires was controlling, even in the Third Circuit.

To get around the conflict with Jordon, the Board also explained why it was allowed to interpret the statute in a way contrary to the Third Circuit’s interpretation.  It said because the word “when” in the statute is ambiguous, the agency is permitted to fill the gaps left by Congress and to interpret the statute as long as it is reasonable.  Concluding its 2008 decision in Baires was reasonable, the Board affirmed it and rejected the Jordon rule.