On June 18, 2021, the U.S. District Court for the EDNY issued a memorandum opinion confirming its oral ruling from June 16th, where the judge denied Mr. Al Saidi’s motion to issue a temporary restraining order that directed the U.S. Embassy in Djibouti to adjudicate his application for his two children’s derivative U.S. citizenship (Form I-130). One child turns age 18 on June 29th. The other turns 18 the following year. Both children were born in Yemen, and have lived in Yemen their entire lives. Mr. Al Saidi is a U.S. citizen and resides in the United States. He began the process of completing the Form I-130 process on March 10, 2021.
Because Mr. Al Saidi’s two children are nearing age 18, they are at risk of losing their ability to apply for derivative U.S. citizenship. For children born outside of the United States, derivative citizenship is acquired when three conditions are met: (1) at least one parent of the child is a U.S. citizen; (2) the child is under age 18; and (3) the child is residing in the U.S. in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence. Derivative citizenship is automatic when these conditions exist. Neither parent nor child needs to request it or even want it. But, in the case of Mr. Al Saidi’s children, they cannot fulfill the third condition. They have never been in Mr. Al Saidi’s legal and physical custody pursuant to a lawful admission for permanent residence.
In this case, the delay was entirely of the Plaintiff’s own making. Mr. Al Saidi had 17 years to investigate and learn that his children needed to reside in his care in the United States in order to qualify for derivative citizenship. Furthermore, Mr. Al Saidi cannot prove that the the consular staff in Djibouti must process and decide visa applications the same day as the applicant’s interview. Here, at their interview appointment, the consular staff informed Mr. Al Saidi that it needed to send their applications to USCIS in the United States for processing. USCIS, in its discretion, may delegate the ability to adjudicate applications to consular staff, but does not need to do so, and the State Department has broad discretion to determine the priorities for its consular resources. Courts have consistently found that delays even as long as five years in adjudicating applications is not unreasonable. It is also not appropriate to bump this particular application to the front of the line, and move everyone else back.
*As a side note, there is additionally a USCIS policy memorandum, issued on May 25, 2012, providing guidance for adjudicating family-based petitions when those petitions are supported by documents issued by a civil authority in Yemen. There are procedures for requesting additional corroborating evidence to assist in the applications adjudicating petitions based on State Department findings that “civil records available to Yemeni applicants are particularly susceptible to error or fraud because they are not created contemporaneously with the events that they purport to document.”