E-1062
Decided by the Board February 19, 1954
Citizenship — Acquisition by child born abroad — Legitimation under laws of Rhode Island.
A child born abroad out of wedlock of a United States citizen father and an alien mother derives citizenship under R.S. 1993 only when such child has been legitimated under the laws of the father's domicile. Therefore, the respondent has not been legitimated by reason of her natural father's acknowledgment of her as his child since under the laws of his domicile, Rhode Island, legitimation of a natural child can be accomplished only by the subsequent marriage of its natural parents to each other.
CHARGE:
Warrant: Act of 1924 — No immigration visa.
BEFORE THE BOARD
Discussion: This record relates to a 24-year-old female, born at San Pier Niceto, Messina, Italy, on February 2, 1929, of a United States citizen father and an Italian mother. Her father is a United States citizen through birth on August 7, 1907 at Negaunee, Mich., who was taken to Italy in 1910 by his mother and remained there until his return to the United States some time in 1928. He was married in 1930 at Providence, R.I., to a person other than the respondent's mother. They are now legally separated but not divorced. The respondent's mother was married in Italy in 1934 to one I---- S----, and has been legally separated from him since 1945. The respondent's mother and father have never been married to each other. The record indicates that the respondent's natural father, a resident of Rhode Island, on April 18, 1947, filed with the Italian authorities an affidavit acknowledging the respondent as his child, which was made a part of her record of birth.
The respondent's only entry into the United States occurred at New York, N.Y., on June 19, 1948, aboard the SS. Marine Perch, at which time she was admitted as a United States citizen in possession of a United States passport issued by the American consulate at Palermo, Italy. The present proceedings were instituted as a result of the respondent's having filed a petition for an immigration visa in behalf of her mother, A---- P---- S----, in May 1950, which occasioned investigation of the respondent's status as a citizen of the United States. After hearing conducted on November 7, 1952, the hearing officer found that the act of the respondent's natural father in acknowledging the respondent as his child was insufficient under Italian law to constitute legitimation, as under such law legitimation may be accomplished only by the subsequent marriage of a natural child's parents to each other; that the respondent has no claim to United States citizenship and is, in fact, an alien, namely, a citizen of Italy, and therefore at time of entry was an immigrant, and was not in possession of a valid immigration visa as required by law. He further concluded that the respondent is deportable from the United States under sections 13 and 14 of the Immigration Act of May 26, 1924, on the no visa charge, and ordered that she be granted the privilege of voluntary departure at her own expense in lieu of deportation.
On appeal to this Board from the decision and order of the hearing officer, counsel for respondent has excepted to the finding of fact that the respondent is an alien, a native and citizen of Italy, and to the conclusion of law that she is deportable on the charge stated in the warrant of arrest. Counsel urges that although the respondent was born in Italy, the subsequent act of her natural father in recognizing her as his child effected legitimation, and the action of the American consulate in issuing her an American passport recognized her United States citizenship, and therefore it was unnecessary for her to have an immigration visa in her possession at time of entry. Counsel's contentions cannot be sustained.
It has so long been established that citation of authority is considered unnecessary, that issuance of immigration visas or passports by American consuls abroad does not foreclose the immigration authorities upon arrival of the holders thereof at our gates, or subsequent thereto, from inquiring into the right of such persons to enter and remain in the United States.
Once deportation proceedings have been instituted, we are required to make a review de novo of the facts relevant to the question of whether the subject was entitled to enter the United States at the time of entry. Matter of M----, A-7099059, 4, I. N. Dec. 532 (B.I.A., 1952). In the instant case, it is our conclusion, after careful review of the record, that the respondent was not entitled to enter the United States as a United States citizen; was therefore an alien, and being such, required to present a valid immigration visa.
The respondent's claim to citizenship is based on R.S. 1993, as amended which provides:
All children born out of the limits and jurisdiction of the United States, whose fathers may be at the time of their birth citizens of the United States, are declared to be citizens of the United States; but the right of citizenship shall not descend to children whose fathers never resided in the United States.
This Board and the Department of State have for many years held that children born abroad out of wedlock of fathers who are citizens of the United States and alien mothers derive citizenship under R.S. 1993 only when such children have been legitimated under the laws of the father's domicile (32 Op. Atty. Gen. 162, at 164-165; 39 Op. Atty. Gen. 556, at 557-558). The respondent has not been legitimated by her father under the laws of Rhode Island, which laws provide that legitimation of a natural child can be accomplished only by the subsequent marriage of its natural parents to each other. Although unnecessary to decision, under the foregoing rule, it is noted that the act of respondent's father in acknowledging her as his child through recordation on the Italian birth records failed to accomplish legitimation under Italian laws.
The circumstances of the respondent's case have not met the conditions prescribed in section 205 of the Nationality Act of 1940. That section provides in part as follows:
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.
We do not find the provisions of section 205 applicable to the instant proceeding, as the respondent does not fall within the classes of persons described in either section 201 or section 204 of the Nationality Act of 1940. The appeal must therefore be dismissed.
Order: It is ordered that the appeal be, and the same is hereby, dismissed.