Litigation

Citizenship of Child After Legal Separation of Parents

A resident alien may not establish United States citizenship if she cannot establish that, while a minor, she actually resided with a parent who was naturalized. Morgan v. Attorney General of the United States, No. 04-3254, United States Court of Appeals for the Third Circuit, Dec. 21, 2005.

Morgan was born in Jamaica in 1968. Her parents were married in 1974, and her mother entered the United States in 1978 by herself as a lawful permanent resident. Morgan came to the United States in 1981, also entering as a lawful permanent resident. Morgan's mother was naturalized in 1984 when Morgan was 16. Morgan's father entered the United States in 1984 and resided with Morgan's mother. The parties later separated and sought legal proceedings regarding their separation. Neither Morgan nor her father was ever naturalized. Thereafter, Morgan was convicted of an aggravated drug felony and, consequently, was subject to an Order of Removal under Section 237(a)(2)(A)(iii) of the Immigration and Naturalization Act. Morgan argued that she was not removable because she was a United States citizen , having obtained derivative citizenship through her mother's naturalization. Under the applicable law, a child born outside the United States automatically acquires United States citizenship if, while the child is under the age of eighteen, the parent with legal custody of the child is naturalized while that child's parents are legally separated. The Immigration Judge denied Morgan's petition, rejecting her argument that, because she was born out of wedlock, Morgan could was eligible for derivative citizenship when her mother was naturalized. Morgan appealed to the Board of Immigra-tion Appeals (BIA), contending that she was eligible because her mother and father were legally separated at the time of the naturalization. The BIA dismissed Morgan's appeal, holding that Morgan failed to establish derivative citizenship because there was no evidence that Morgan's parents were ever legally separated through judicial proceedings. Morgan appealed to the Third Circuit, and the circuit court also denied the motion. It held that there was no evidence that her parents had obtained a legal separation under the laws of either Jamaica or Pennsylvania, and therefore her parents were not legally separated at the time of her naturalization. Thus it could not grant derivative citizenship to Morgan because there was no way to prove that Morgan actually resided with her mother at the time of her mother's naturalization.

Change in Circumstances

Where the payor spouse cannot demonstrate a change in circumstances, the court will not grant a request for a downward modification, even if the failure to grant that request may result in the payor's filing for bankruptcy. Twomey v. Twomey, Docket: CUM-05-141, Supreme Judi-cial Court of Maine, Dec. 21, 2005.

The husband and wife were divorced, and the husband agreed to pay child support in the amount of $2000 per month for the first 3 months, and $1200 per month thereafter. Under the child support guidelines, the amount of child support should have been $490 per month. Four years after the divorce, the husband moved for a downward modification of child support and unilaterally reduced his payment to $600 per month. He argued that he only agreed to pay child support outside the guidelines because he believed that a new business he was starting would draw between $120,000 and $250,00 per year as compared with his salary of $60,000 at his former employment. He further argued that the business failed, and he had to seek employment drawing a salary of $58,500 per year. Consequently, he would be forced to file for bankruptcy if he was required to continue to pay child support as required under the order. The wife was an unemployed full-time student seeking to become a teacher. The trial court denied the husband's motion for a downward modification, and the husband appealed. The appellate court affirmed and held that a party seeking to decrease the amount of child support in an existing support order must prove that the decrease is necessary due to a substantial change in circumstances that either reduces the payor's ability to pay or the payee's need to receive. In this case, the husband's debt load was irrelevant because his salary was substantially the same as it was at the time of the divorce. It further held that the debt load was the sole responsibility of the husband and it was the failure of his business, not his child support obligation, that pushed him to consider bankruptcy.

Citizenship of Child After Legal Separation of Parents

A resident alien may not establish United States citizenship if she cannot establish that, while a minor, she actually resided with a parent who was naturalized. Morgan v. Attorney General of the United States, No. 04-3254, United States Court of Appeals for the Third Circuit, Dec. 21, 2005.

Morgan was born in Jamaica in 1968. Her parents were married in 1974, and her mother entered the United States in 1978 by herself as a lawful permanent resident. Morgan came to the United States in 1981, also entering as a lawful permanent resident. Morgan's mother was naturalized in 1984 when Morgan was 16. Morgan's father entered the United States in 1984 and resided with Morgan's mother. The parties later separated and sought legal proceedings regarding their separation. Neither Morgan nor her father was ever naturalized. Thereafter, Morgan was convicted of an aggravated drug felony and, consequently, was subject to an Order of Removal under Section 237(a)(2)(A)(iii) of the Immigration and Naturalization Act. Morgan argued that she was not removable because she was a United States citizen , having obtained derivative citizenship through her mother's naturalization. Under the applicable law, a child born outside the United States automatically acquires United States citizenship if, while the child is under the age of eighteen, the parent with legal custody of the child is naturalized while that child's parents are legally separated. The Immigration Judge denied Morgan's petition, rejecting her argument that, because she was born out of wedlock, Morgan could was eligible for derivative citizenship when her mother was naturalized. Morgan appealed to the Board of Immigra-tion Appeals (BIA), contending that she was eligible because her mother and father were legally separated at the time of the naturalization. The BIA dismissed Morgan's appeal, holding that Morgan failed to establish derivative citizenship because there was no evidence that Morgan's parents were ever legally separated through judicial proceedings. Morgan appealed to the Third Circuit, and the circuit court also denied the motion. It held that there was no evidence that her parents had obtained a legal separation under the laws of either Jamaica or Pennsylvania, and therefore her parents were not legally separated at the time of her naturalization. Thus it could not grant derivative citizenship to Morgan because there was no way to prove that Morgan actually resided with her mother at the time of her mother's naturalization.