VP-404827
Decided by Board, June 16, 1949 Decided by Board, May 17, 1950
Citizenship — Derivative — Acquisition after birth by alien child born abroad of alien parents through parental naturalization and the child's residence in the United States, while yet a minor — Residential prerequisite under act of March 2, 1907, as amended by act of May 24, 1934 — Operation of section 2172 of the Revised Statutes — Effect of repeal of these statutes by the Nationality Act of 1940 (sec. 504) — Applicability of "savings clause" in section 347 of the Nationality Act of 1940, where citizenship status not acquired before effective date of that act (January 13, 1941)
1. A child born abroad on July 20, 1920 of alien parents, whose father was naturalized here in 1929, and whose mother did not become naturalized until 1943, did not acquire United States citizenship by derivation through parental naturalization after admission to the United States for permanent residence on December 23, 1936 and residence here thereafter.
2. The law which obtained as to derivative citizenship when she took up residence here in December 1936 is found in section 2172 of the Revised Statutes and section 5 of the act of March 2, 1907, as amended by the act of May 24, 1934.
3. This child did not come within the provisions of section 2172 of the Revised Statutes because the second parent didn't become naturalized while the child was yet a minor and before this statute was repealed on January 13, 1941.
4. This child did not come within the provisions of section 5 of the act of March 2, 1907, as amended by the act of May 24, 1934, because she was admitted for permanent residence here in December 1936, when she was over 16 years of age, and, therefore, could not complete during minority (before the twenty-first birthday) the 5-year period of residence here, which is a prerequisite to acquisition of citizenship under section 5, as amended (supra).
5. The courts have ruled on the "savings clause" in section 347 of the Nationality Act of 1940, in the case of a child which could meet the requirement in (4) above (i.e., complete 5 years of residence here as a minor), but the residence to be considered began before January 13, 1941 and was not completed until after that date, at which latter date the citizenship status might be acquired.
BEFORE THE BOARD
(June 16, 1949)
Discussion: This is an appeal from an order entered by the Commissioner March 3, 1949, denying a petition for an immigration visa filed in behalf of S---- M----, a native of Rumania, now residing in France, by his wife M---- M----, who alleges United States citizenship. The issue presented is the citizenship status of the petitioner.
The petitioner alleges birth at Borsa, Rumania, on July 20, 1920. She originally entered the United States on December 23, 1936, and was admitted for permanent residence upon presentation of a nonquota section 4 (a) immigration visa. At this time she was accompanied by her mother, R---- M----. Her father, L---- M----, was naturalized a citizen of the United States at New York, N.Y., on January 7, 1929. Her mother was naturalized at New York, N.Y., on August 12, 1943.
Section 5 of the act of March 2, 1907 ( 34 Stat. 1229), as amended by section 2 of the act of May 24, 1934 ( 48 Stat. 797), provides as follows: "That a child born without the United States of alien parents shall be deemed a citizen of the United States by virtue of the naturalization of resumption of American citizenship by the father or the mother: Provided That such naturalization or resumption shall take place during the minority of such child; and provided further, That the citizenship of such minor child shall begin 5 years after the time such minor child begins to reside permanently in the United States."
The courts have held that section 347, the so-called savings clause of the Nationality Act of 1940 ( 8 U.S.C. 747) merely preserves the validity of a declaration of intention, petition for naturalization, certificate of naturalization, or other document valid on the effective date of the Nationality Act, or any prosecution, suit, or action brought, or any act, thing, or matter done or existing on that day, and does not cover a mere condition unattended by any affirmative action by an alien or by anyone else ( U.S. ex rel. Aberasturi v. Cain, 147 F. (2d) 749 (C.C.A. 2d, January 4, 1945)). Accordingly, a child born outside the United States of alien parents, whose father or mother was naturalized or resumed United States citizenship before May 24, 1934, became a citizen of this country upon taking up permanent residence in the United States on or after May 24, 1934, while under the age of 16 years, and the completion by the child of 5 years' residence in the United States prior to the effective date of the Nationality Act of 1940 (January 13, 1941) and before reaching the age of 21 years ( U.S. ex rel. Aberasturi v. Cain ( supra); Petition of Donsky, 77 F. Supp. 832, 833, D.C., S.D., N.Y. May 13, 1948; Schaufus v. Attorney General (D.C., D., Md., May 7, 1942). Since the petitioner entered the United States subesquent to May 23, 1934, and had not completed 5 years of residence in this country before January 13, 1941, she is not a citizen of the United States. Nor did she acquire United States citizenship under section 2172 of the Revised Statutes, which remained in force from May 24, 1934, to January 13, 1941, because her mother, who accompanied her to the United States in December 1936, was not naturalized a citizen until August 12, 1943, subsequent to the effective date of the Nationality Act of 1940.
R.S. 2172 was expressly repealed by sec. 504 of the Nationality Act of 1940 ( 8 U.S.C. 904, 54 Stat. 1172).
Order: It is directed that the appeal be and the same is hereby dismissed.
Discussion: The applicant's representative has filed a motion seeking our reconsideration of this case based on a recent decision by the United States Court of Appeals for the District of Columbia at variance with the decision of the Court of Appeals for the Second Circuit cited in our decision of June 16, 1949, wherein we dismissed appeal from the order of the Assistant Commissioner.
Bertoldi v. McGrath, Attorney General; 178 F. 2d 977; December 5, 1949.
Briefly, the case concerns a petition, based on the assumed American citizenship of the applicant, for a preference under the quota in behalf of her alien husband. She was born on July 20, 1920; her father was naturalized in the United States on January 7, 1929; she began to reside in the United States on December 23, 1936; her mother was naturalized on August 12, 1943; and the applicant and the prospective immigrant were married on December 30, 1948. The issue is whether the applicant is a citizen of the United States.
Our decision of June 16, 1949, cited United States ex rel. Aberasturi v. Cain, C.C.A.-2, 1947 F. 2d 749, which holds that the repeal on January 13, 1941 ( 8 U.S.C. 904) of section 2 of the act of May 24, 1934 ( 48 Stat. 797; formerly 8 U.S.C. 8) operated against persons contemplated by the repealed provision from thereafter deriving citizenship thereunder notwithstanding one of their parents had been naturalized and the child was then residing in the United States and in the process of completing the required period of 5 years' residence in the United States. The decision relied upon by counsel is at variance with the Aberasturi case.
If the provisions of the repealed statute, as construed by the decision relied upon, were satisfied, the motion should be granted and appeal from the decision of the Assistant Commissioner sustained; but, as pointed out in the decision from which appeal is taken, the requirements were not fulfilled. The statute in question provides:
That a child born without the United States of alien parents shall be deemed a citizen of the United States by virtue of the naturalization of or resumption of American citizenship by the father or the mother: Provided, That such naturalization or resumption shall take place during the minority of such child: And provided further, That the citizenship of such minor child shall begin 5 years after the time such minor child begins to reside permanently in the United States. [Italics supplied.]
The repealed statute has been administratively construed to require that its requirements, viz, the naturalization of the parent and completion of the 5 years' residence in the United States, must be satisfied before the child attains majority. (General Order No. 211, August 2, 1934.) The applicant was of the age of 16 years, 5 months, and 3 days when she took up residence in the United States; consequently when she had completed 5 years of residence, she had passed her twenty-first birthday. The foregoing interpretation seems consistent with the wording of the statute; it has been uniformly followed throughout the life of the law; and we are not aware of any judicial interpretation at variance therewith.
As it is obvious that the applicant's claim to having derived citizenship in the United States has not been established, there should be no change in the decision heretofore rendered and the motion should be denied.
Order: It is ordered that the motion for reconsideration be denied.