Immigration Article of the Day: Why No Deference Is Due: The Illegitimacy of the Board of Immigration Appeals’ Legitimation Jurisprudence by Laura Murray-Tjan

Why No Deference Is Due: The Illegitimacy of the Board of Immigration Appeals’ Legitimation Jurisprudence by Laura Murray-Tjan Boston College Law School

Abstract: Countless derivative citizenship cases turn on the question whether an out-of-wedlock child qualifies as “legitimated” under the Immigration and Nationality Act (INA) and state or foreign family law. Whether a child is “legitimated” determines whether she automatically obtains citizenship upon a parent’s naturalization under the INA’s derivative citizenship provisions. Currently, the circuits are split on the level of deference owed to the Board of Immigration Appeals’ interpretation of derivative citizenship statutes. Within this debate, the courts have assumed that Chevron deference applies to the Board’s interpretation of the term “legitimated,” perhaps because the provisions defining “legitimated” do not relate exclusively to citizenship. As indicated above, however, whether a child is “legitimated” is often outcome-determinative in a citizenship claim; such fundamental issues should not be abdicated to the Board of Immigration Appeals. Thus, no deference is owed to the Board’s interpretation of derivative citizenship statutes, or of the term “legitimated” in the INA and under state and foreign law.

KJ