VP-410484
Decided by Central Office August 3, 1951
Citizenship — Acquisition at birth by illegitimate child born abroad after January 12, 1941, of a native-born citizen mother — Section 205 of the Nationality Act of 1940 — Effect of subsequent legitimation through marriage of parents.
(1) A child born abroad out of wedlock after January 12, 1941, acquires the nationality status of the mother at the time of such birth if the mother was then a national of the United States who previously had resided in the United States or in any of its outlying possessions.
(2) United States nationality so acquired (as in (1) above) is not-divested by subsequent establishment of paternity by legitimation or by adjudication of a competent court.
(3) A child, born in Portugal in 1942, of a native-born citizen mother who married the putative alien father in 1947, acquired United States citizenship at birth under the provisions of the second paragraph of section 205 of the Nationality Act of 1940, and such citizenship status was not divested by the apparent legitimation of the child through the marriage in 1947 of the actual parents.
(4) A child born abroad out of wedlock on or after May 24, 1934, and before January 13, 1941, acquired United States citizenship at birth if the mother was then a United States citizen who had previously resided in the United States (sec. 1, act of May 24, 1934). See Interim Decision #195, 3 IN Dec. 485.
(5) A child born abroad out of wedlock before January 13, 1941, to whom citizenship did not descend at birth under the act of May 24, 1934, did acquire on January 13, 1941 (whether over 21 or not on January 13, 1941), the nationality status of the mother as of the date of such birth, if the mother was a United States national when he was born and had previously resided in the United States or in one of its outlying possessions, provided the paternity of the child was not established prior to January 13, 1941, and during the child's minority by legitimation or adjudication of a competent court.
(6) Citizenship status so acquired (under (5) above) on January 13, 1941, is not affected by the subsequent (to January 13, 1941), establishment of paternity by legitimation or adjudication of a competent court.
BEFORE THE CENTRAL OFFICE
(a) Facts
Discussion: The above-named subject has filed a petition for issuance of immigration visa on behalf of her husband, A---- M----, and her daughter, M----, and her son, I----.
The question presented is whether the children are citizens of the United States.
The record shows that the petitioner was born in Massachusetts on September 29, 1919; that she was taken to Portugal in 1921; that she had two children born out of wedlock in Portugal, M---- H----, born on November 12, 1937, and I----, born on September 14, 1942; that the father of said children was A---- P---- M----, whom the petitioner married in Portugal on December 7, 1947; that petitioner's husband is an alien, having been born in Portugal; that under the law of Portugal, both children are considered to have been legitimated through the marriage of the petitioner to her husband, A----, the father of said children; that the petitioner resided and was domiciled in Portugal from 1921 until December 23, 1947, when she reentered the United States as a United States citizen, not having been expatriated since her birth in this country.
The record further shows that this Service on May 13, 1949, approved the subject's visa petition in behalf of her husband, according him a nonquota status under section 4 (a) of the Immigration Act of 1924, as amended, but rejected her visa petition in behalf of the two children on the ground that they were citizens of the United States at birth, the daughter, H----, who was born on September 12, 1937, being a citizen under section 1993, Revised Statutes, as amended, and the son, I----, born on September 14, 1942, being a citizen under the provisions of section 205 of the Nationality Act of 1940.
On February 23, 1950, a letter was written to this Service in behalf of the petitioner, enclosing a copy of a memorandum dated February 15, 1950, addressed to the subject's husband from the American consulate at Oporto, Portugal. This memorandum stated that the child, I----, did not appear to be a citizen of the United States under section 201 (g) of the Nationality Act of 1940 because the subject, the child's mother, had not been a resident of the United States for 10 years prior to the birth of said son. The memorandum suggested that since the subject had already petitioned regarding said son, that this Service be informed of the substance of the aforesaid memorandum and that inquiry should be made as to what procedure should be followed to receive approval for a nonquota status in behalf of said son.
On April 21, 1950, the subject was informed by this Service that upon review of her case, her son, I----, had a claim to United States citizenship under the provisions of section 205 of the Nationality Act of 1940; that the Department of State was being informed of the Service opinion; that, however, the determination of the son's citizenship status was within the province of the Department of State, since he was residing abroad; and suggesting that the subject's husband again communicate with the American Consul at Oporto, Portugal to ascertain whether a United States passport might be issued to the son.
In the Service letter of April 21, 1950, to the Department of State the Service concluded that since the child's mother had the nationality of the United States at the time of the child's birth and had previously resided in the United States, the child, I----, acquired American citizenship at the time of his birth under the second paragraph of section 205 of the Nationality Act of 1940 and that it was not considered by this Service that he would be divested of his citizenship because of his apparent legitimation in 1947 through the marriage of his parents. The Department of State was at the same time requested to inform this Service as to the basis for its conclusion that the child I----, was not a citizen of the United States in order that further consideration might be given to the visa petition insofar as the child was concerned.
On November 17, 1950, the Department of State informed this Service as follows:
While the Department concurs in the holding of the Immigration and Naturalization Service that the child, M---- H---- P---- M----, acquired American citizenship under the provisions of section 1993 of the Revised Statutes of the United States, as amended, it does not concur in the conclusion that the child, I---- P---- M----, has a valid claim to the nationality of the United States. With reference to the statements in the letter of April 21, 1950, from the Immigration and Naturalization Service to the effect that since the mother of I---- P---- M---- was an American citizen at the time of the child's birth in Portugal on September 14, 1942 and had previously resided in the United States, the child acquired American citizenship at birth under the second paragraph of section 205 of the Nationality Act of 1940 and that such child would not be considered as having been divested of his citizenship because of his apparent legitimation in 1947 through the marriage of his alien father and citizen mother, this Department takes the view that I---- P---- M---- was not divested of his claim to the nationality of the United States by the establishment of his paternity by legitimation, but rather that since the statutory requirement of the first paragraph of section 205 of the Nationality Act, requiring that the American citizen parent of a child who is born abroad out of wedlock and whose paternity is established during minority by legitimation or adjudication of a competent court must fulfill the residence requirements of section 201 (g) of the same act in order to confer American citizenship upon the child, has not and cannot be met by Mrs. M----, there is no basis for concluding that I---- P---- M---- can be considered as having acquired the nationality of the United States under the provisions of section 201 (g) of the Act.
In view of the foregoing, the Department concurs in the findings of the American Consular Officer at Oporto, Portugal, that the child I---- does not appear to be an American citizen. Accordingly, this child would not be entitled to receive a passport of this Government. In the circumstances, the Immigration and Naturalization Service may desire to give further consideration to the visa petition of Mrs. M---- to include the name of her child, I----.
Since there is no question as to the status of the husband and the daughter, M----, the only issue involved is the status of the son, I----. It is evident from the foregoing that there is now a definite difference of opinion between the Department of State and this Service as to the interpretation to be placed upon the second paragraph of section 205 of the Nationality Act of 1940.
(b) Law Involved
Section 205, which appears under the heading "Illegitimate Children," provides that —
The provisions of section 201, subsections (c), (d), (e), and (g), and section 204, subsections (a) and (b), hereof apply, as of the date of birth, to a child born out of wedlock, provided the paternity is established during minority, by legitimation, or adjudication of a competent court.
In the absence of such legitimation or adjudication, the child, whether born before or after the effective date of this act, if the mother had the nationality of the United States at the time of the child's birth, and had previously resided in the United States or one of its outlying possessions, shall be held to have acquired at birth her nationality status ( 54 Stat. 1139-1140; 8 U.S.C. 605).
It is significant to note that these provisions of sections 201 and 204 mentioned in section 205 specifically refer to "parents," and therefore of necessity mean both legal parents and apply only to legitimate children thereof. They do not refer to "mother" or "father" as such, but to "one parent," or "both parents".
(c) Service View
It is the view of this Service that a child born out of wedlock outside of the United States and its outlying possessions on or after January 13, 1941, acquires the nationality status of the mother, at the time of such birth, if the mother was then a national of the United States who previously had resided in the United States or in any of its outlying possessions and furthermore, that United States nationality so acquired is not divested by subsequent establishment of paternity by legitimation or by adjudication of a competent court.
It is also the view of the Service that a child born out of wedlock outside of the United States and its outlying possessions on or after May 24, 1934, and before January 13, 1941, acquired United States citizenship at birth if the mother was then a United States citizen who had previously resided in the United States (sec. 1, act of May 24, 1934). Furthermore, it is also the Service view that a child born out of wedlock outside the United States and its outlying possessions, prior to January 13, 1941, to whom United States citizenship did not descend at birth under the Act of May 24, 1934, acquired on January 13, 1941, the nationality status of the mother, as of the date of such birth, if the mother was then, at the time of the child's birth, a national of the United States who had previously resided in the United States or in one of its outlying possessions, provided the paternity of the child was not established prior to January 13, 1941, and during the child's minority by legitimation or adjudication of a competent court. The Service further holds that this status is assured by the retrospective provisions of the Nationality Act of 1940, notwithstanding the contrary principle, which previously was established for births prior to May 24, 1934, and on January 13, 1941, it operated to bestow United States nationality, as of the date of birth, upon children previously born out of wedlock to mothers of that nationality status, whether or not such children were beyond their minority on January 13, 1941. As to these cases it is the Service view that when nationality has been so conferred on January 13, 1941, the child's status is not affected by subsequent establishment of paternity by legitimation or adjudication of a competent court.
It appears clear from the language of section 205 of the Nationality Act of 1940, that the first paragraph thereof is applicable only to persons born on or after January 13, 1941. The language "provided the paternity is established during minority, by legitimation or adjudication of a competent court" in the first paragraph means no more than that if the identity of the father is established by legitimation or adjudication, such father shall be regarded as one of the parents for the purpose of the designated subsections in sections 201 and 204. Insofar as the second paragraph of section 205 is concerned, an illegitimate child born before January 13, 1941, to an American mother of the class specified became an American citizen as of the date of birth if it was not legitimated before January 13, 1941. Obviously too, a child born to such a mother on or after January 13, 1941, became a citizen at birth, and subsequent legitimation would not divest it of citizenship because that status had already vested at birth.
Prior to the Nationality Act of 1940 the Department of Justice and State were not in agreement as to the citizenship of an illegitimate child born of an American mother outside of this country. It was undoubtedly the purpose of the second paragraph of section 205 of the Nationality Act of 1940 to conclude that disagreement and give to such child, at birth, the nationality status of its mother.
The foregoing Service view was followed in the case of Matter of M---- D----, A-6910783, C.O., February 1, 1949 ( 3 IN Dec. 485), which held, among other things, that the subsequent legitimation of the applicant, who was born in 1933 to a United States citizen mother, by the 1944 civil marriage of the parents had no expatriatory effect upon the child since the child acquired United States citizenship at birth.
(d) Conclusion
In view of the foregoing, it is concluded that the child, I----, acquired United States citizenship at birth on September 14, 1942, under the second paragraph of section 205 of the Nationality Act of 1940. The subsequent legitimation by the parents' marriage on December 7, 1947, had no effect upon the child's vested status since he acquired United States citizenship at birth. It is not believed that it was the intent of Congress to first bestow United States citizenship status upon such child at birth and then, because of legitimation or adjudication of paternity during minority, take that citizenship status away and make the child an alien. There can be no disagreement with the congressional intent in making it possible, however, for such illegitimate child, whose mother was an alien and whose father was a United States citizen, to claim United States citizenship through the father, under the first paragraph of section 205 where legitimation or adjudication takes place during minority, for in that manner, it permits an alien child to acquire United States nationality through the citizen parent. There is no apparent reason to take away United States citizenship once given at birth, where the mother of such child was a United States citizen at the time of the child's birth and had previously resided in the United States or one of its outlying possessions. To hold otherwise would undoubtedly lead to many strange results. For example, such illegitimate child, while a minor, could have been coming in and out of the United States as a United States citizen on numerous occasions; could have enlisted in the Armed Forces of the United States as a United States citizen and been stationed in a foreign country, etc., then suddenly, just before his 21st birthday, his mother could marry his father and that legitimation would result in converting the child into an alien, if the view of the Department of State applied. It does not seem plausible that Congress would intend that such child would have to apply for admission to the United States as an alien immigrant, after having enjoyed United States citizenship from the time of birth.
Accordingly, since the child, I----, acquired United States citizenship at birth, the visa petition executed in his behalf must necessarily be denied. It is believed that the view of the Department of State in denying said child the status of a United States citizen, is not proper.
Order: It is hereby ordered that the visa petition executed in behalf of the petitioner's son, I----, be denied.
It is further ordered that the Department of State be informed of the foregoing.