Redefining “Paternity Established by Legitimation” – The Parental-Rights Test under former INA § 321(a)(3) after Lainez v. Bondi

Introduction

Case: Lainez v. Bondi, United States Court of Appeals for the Second Circuit, No. 21-6386, decided 23 June 2025.

The appeal juxtaposed United States immigration law with El Salvador’s evolving family law. Petitioner Roger Alberto Lainez, born in El Salvador in 1970 to unmarried parents, entered the United States as a lawful permanent resident (LPR) in 1979. His mother naturalised in 1985, potentially bestowing derivative U.S. citizenship upon him under former § 321 of the Immigration and Nationality Act (INA).

Removal proceedings commenced after Lainez’s criminal convictions. The core legal question became whether his “paternity was established by legitimation” within the meaning of former INA § 321(a)(3). If not, he derived citizenship through his mother, rendering the removal order void.

The majority (Judge Pérez, joined by Judge Calabresi) held that El Salvador’s 1983 constitution—although it eliminated distinctions between “legitimate” and “illegitimate” children—did not itself establish the father’s parental rights; therefore Lainez’s paternity was never “established by legitimation.” The court granted the petition, vacated the removal order, and ordered termination of proceedings. Judge Cabranes dissented, urging remand to district court for further foreign-law fact-finding.

Summary of the Judgment

• The phrase “paternity … established by legitimation” in former INA § 321(a)(3) requires a specific act that confers enforceable parental rights upon the father, not merely a statute that grants children equal rights.
• El Salvador’s 1983 constitution equalised children’s rights but left parental-rights issues to “secondary law” and did not in itself grant the father custodial or legal authority.
• Because Lainez’s father never obtained such rights (the parents never married, made no formal acknowledgement, and the relevant Civil Code provisions remained unmet), Lainez’s paternity was not “established by legitimation.”
• Accordingly, Lainez automatically derived U.S. citizenship upon his mother’s naturalisation in 1985, pre-empting removal jurisdiction.
• The petition for review was therefore GRANTED; the 2012 removal order was VACATED; and the case REMANDED with instructions to TERMINATE.

Analysis

3.1 Precedents Cited and their Influence

The panel surveyed a constellation of precedent to delineate the boundary between legitimation and establishment of paternity:

• De Los Santos v. INS (2d Cir. 1982) & Gil v. Sessions (2d Cir. 2017) – confirmed that a jurisdiction can “legitimate” children en masse by abolishing discriminatory categories.
• Lau v. Kiley (2d Cir. 1977) – distinguished universal legitimation statutes from procedures that affirmatively identify the father.
• BIA decisions: In re Moraga (2001) and In re Cross (2015) – explicitly separated legitimation under INA § 101 from “paternity established by legitimation” under former § 321.
• Pierre v. Holder (2d Cir. 2013) – interpreted § 321 as designed to safeguard a non-citizen father’s parental rights.
• Lewis v. Gonzales (2d Cir. 2007) – emphasised that fathers who have not cemented a legal connection to the child possess no veto over citizenship.

These authorities convinced the court that Congress’s deliberate use of additional language (“paternity … established by”) signals a requirement beyond mere legitimation. The majority also relied on the Supreme Court’s Loper Bright Enterprises v. Raimondo (2024) abrogation of Chevron deference to conduct its own textual analysis of § 321.

3.2 Legal Reasoning

1. Textual Distinction. Congress elsewhere used “legitimated” alone (INA § 101(b)(1)(C)), but in § 321(a)(3) it added the phrase “paternity … established by legitimation.” The surplusage canon suggests added meaning: the father must acquire parental rights.
2. Purpose of § 321. The statute’s architecture balanced competing parental interests. Allowing a father with no legally recognised rights to block derivative citizenship would thwart legislative intent.
3. Application to Salvadoran Law. Article 36 of the 1983 constitution elevated children’s status but left the “forms of investigating and establishing the paternity” to statutory law. The only statutory path extant in 1985 was Civil Code § 214 (subsequent parental marriage). Because Lainez’s parents never utilised that mechanism, the father never gained custody, support, or inheritance rights vis-à-vis the child.
4. No implicit parental rights. Equalising children’s rights does not automatically grant fathers rights over children. Absent such rights, § 321(a)(3)’s barrier vanishes.

3.3 Impact of the Decision

The judgment crystallises a parental-rights test for former § 321(a)(3) that will influence a significant cohort of derivative-citizenship claims, especially those arising from jurisdictions that prospectively abolished legitimacy distinctions (common in Latin America, parts of Europe, and several U.S. states).

• Immigration courts within the Second Circuit are now bound to ask: “Did the father obtain enforceable parental rights through a specific legitimation act?” Absence of such rights triggers automatic citizenship derivation.
• The decision narrows the universe of individuals still vulnerable to removal for past crimes despite having a naturalised mother, potentially affecting thousands of LPRs from countries with modern equality clauses.
• By explicitly rejecting Chevron-style agency deference in this domain, it invites de novo judicial scrutiny of foreign-law questions in citizenship disputes.
• It creates a potential circuit split with the Ninth Circuit’s Anderson v. Holder (2012) reading of former § 309, foreshadowing possible Supreme Court review to harmonise derivative-citizenship jurisprudence.

Complex Concepts Simplified

• Derivative Citizenship: Automatic acquisition of U.S. citizenship by operation of law, rather than individual naturalisation, when statutory conditions are met.
• Legitimation: A process or law that equalises the civil status of a child born out of wedlock with that of a child born in wedlock, without necessarily designating the father’s rights.
• “Paternity Established by Legitimation” (former § 321): Proof that the father, through a recognised legal act (e.g., marriage to the mother, judicial acknowledgement), acquired parental rights that could be impeded by unilateral conferral of U.S. citizenship.
• Parental Rights: Legal bundle including custody, decision-making authority, support obligations, and inheritance rights – distinct from a child’s rights vis-à-vis the parent.
• Secondary Law (El Salvador): Statutes (Civil Code 1860; Family Code 1993) that operationalise constitutional principles such as those in Article 36.

Conclusion

Lainez v. Bondi establishes a clear, nationally significant rule: a child’s paternity is “established by legitimation” under former INA § 321(a)(3) only when a concrete legal mechanism grants the father enforceable parental rights. General statutes that merely abolish discrimination between legitimate and illegitimate children do not suffice.

In practical terms, the ruling releases Lainez from removal and secures his recognised status as a U.S. citizen. Doctrinally, it re-anchors derivative-citizenship analysis in the constitutional value of protecting authentic parental interests, while preventing obsolete legitimacy concepts from stripping individuals of citizenship. The Second Circuit thus realigns immigration adjudication with contemporary family-law realities, setting a persuasive template for other circuits and for Congress should it again revisit the INA’s derivative-citizenship provisions.