Hughes Hubbard Defends US Citizenship of Salvadorian Man Facing Removal Order

June 26, 2025 - On a pro bono basis, Hughes Hubbard successfully defended a Salvadorian man in the U.S. Court of Appeals for the Second Circuit facing a decade-old deportation order, arguing he derived U.S. citizenship when his mother was naturalized 40 years ago.

Roger Lainez was born in El Salvador and arrived in the U.S. as the minor child of a single mother in 1979. His mother was naturalized in 1984, when Lainez was 14 years old. That should have resulted in Lainez also becoming a derivative citizen through his mother’s naturalization under the Immigration and Nationality Act (INA). However, decades later in 2009, Lainez was placed in removal proceedings as the result of criminal convictions.

Representing himself largely pro se in the immigration courts, Lainez’s claim to citizenship was rejected on the grounds of a now-repealed exception to derivative citizenship. That exception was intended to protect the parental rights of alien fathers. It provided that children born out of wedlock could not obtain derivative citizenship solely through their birth mother’s naturalization if their paternity was “established by legitimation,” traditionally understood to mean the subsequent marriage of the child’s parents, something which did not happen in Lainez’s case.

However, the immigration judge pointed to Board of Immigration Appeals (BIA) precedent and reasoned that because El Salvador’s constitution had abolished legal discrimination between children based on their birth status – something that many countries and jurisdictions had done since the 1960s to prevent the stigmatization of out-of-wedlock children and their families – Lainez had been functionally “legitimated” within the meaning of the INA, and thus fell under the exception. Lainez was ordered to be removed from the country in 2012.

In 2017, still incarcerated, Lainez filed a pro se complaint in district court seeking declaratory judgment that he was a citizen. That case was dismissed on the basis of subject matter jurisdiction because Lainez had not timely followed the procedural mechanisms for appealing immigration court decisions. In 2018, Lainez appealed his dismissal to the Second Circuit and Hughes Hubbard was appointed as his counsel.

The Second Circuit ultimately upheld the dismissal on jurisdictional grounds, but acknowledged that Lainez had a “nonfrivolous citizenship claim” and permitted Lainez to cure his procedural misstep by seeking to reopen his immigration case with the immigration courts, whereupon he could appeal any adverse decisions back to the Second Circuit. Hughes Hubbard subsequently sought to do exactly that, but the immigration courts and BIA denied Lainez’s attempt, resulting in the instant case being brought back to the Second Circuit.

Back before the court, Lainez and Hughes Hubbard explained that the immigration courts’ decisions had misapplied their own precedent and confused the phrase “legitimation” as it appears throughout the INA, with the phrase “paternity. . . established by legitimation” as used in the derivative citizenship context. Hughes Hubbard highlighted BIA and federal case law which tracked the evolution of “legitimation” as interpreted by the courts as social and legal attitudes towards familial status changed over time. Ultimately, the firm argued that to have paternity “established by legitimation” required some affirmative act under Salvadoran law, and that the laws of El Salvador continued to distinguish between parental rights based on birth status, even if the rights of children remained equal. The paradoxical result reached by the immigration court meant that Lainez was being tethered to the nationality of a virtual stranger – his birth father – instead of his U.S. citizen mother, a result that neither the plain language of the statute nor Congress could have possibly intended.

On June 23, the Second Circuit agreed in a split decision penned by Judge Myrna Pérez. The court held that to have “paternity…established by legitimation” requires some affirmative act to establish parental rights and that Lainez’s father had done no such thing under Salvadoran law. A dissenting opinion from Judge José A. Cabranes did not challenge Hughes Hubbard’s interpretation of the INA, but believed there was insufficient evidence in the record on Salvadoran law and thus would have remanded the case for further development. The majority decision directed the BIA to vacate Lainez’s removal order of Lainez and held that he was indeed a U.S. citizen. The firm will continue assisting Lainez to ensure he obtains adequate documentation confirming his citizenship status.

Law360 reported on the case.

The Hughes Hubbard team representing Lainez included Malik Havalic, Dustin Smith, Vilia Hayes and Ana Mello.