A-6194852, A-6194853.
Decided by Central Office April 15, 1946.
Citizenship — Derivative — Section 314 of the Nationality Act of 1940. Naturalization — Section 315 of the Nationality Act of 1940 — Parental residence.
1. A child born abroad of a native-born citizen parent (not a resident of the United States for 10 years previous to birth of child) after January 13, 1941, the other parent remaining an alien, does not derive citizenship under the provisions of section 314 of the Nationality Act of 1940 through the citizen parent, though the parents are divorced after child's birth, the citizen spouse has custody of such child, and the child becomes a legal resident of the United States, all before the child reaches its 18th birthday.
2. The theory used by the Attorney General in 1933 in the De Coll case (37 Op. Atty. Gen.) is not deemed applicable and the provisions of the Nationality Act of 1940 govern.
3. Section 315 of the Nationality Act of 1940 does not require that the parents of the child be living together in marital union.
BEFORE THE CENTRAL OFFICE.
Discussion: The San Antonio office of this Service has requested a determination of the citizenship status of the above-named subjects. In the event it is determined that subjects are aliens, the field office desires to know whether they may be naturalized under section 315 of the Nationality Act of 1940.
The record discloses that O---- R---- R---- M---- was born in Mexico on March 6, 1942, and that I---- R---- R---- M---- was born in Mexico on June 2, 1945. They were admitted to the United States for permanent residence on November 29, 1945. The mother of the subjects was born in the United States. She married the subjects' father, a Mexican citizen, in 1941, and divorced him on November 2, 1945, the decree providing that she should have absolute custody of the subjects until they attain the age of 7 years, after which time custody shall alternate yearly between her and the subjects' paternal grandparents. Prior to the birth of the subjects their mother had only resided in the United States for an aggregate period of 4 years.
It is urged that although the subjects did not acquire citizenship at birth since their mother had not resided in the United States for the requisite period of time prior to their birth (sec. 201 (g), Nationality Act of 1940), they may nevertheless be regarded as having derived citizenship under section 314 of the Nationality Act of 1940 by virtue of the principle enunciated in the De Coll case (37 Op. Atty. Gen. 90 (1933)).
The De Coll case was decided on the theory of resumption of citizenship under the conditions originally set forth in the act of March 2, 1907, and by virtue of the provisions relating to derivation of citizenship contained in section 5 of the same act. The act of March 2, 1907, was repealed by the Nationality Act of 1940 (sec. 504). New conditions upon which derivative citizenship may be acquired were introduced into the law, indicating a departure from previous laws. Furthermore, section 301 (d) of the Nationality Act provides that acquisition of citizenship must be accomplished under the act and not otherwise and section 347 (the saving clauses) fails to set forth any conditions under which citizenship may be derived after January 12, 1941, by virtue of previous laws. The provisions of section 315 of the Nationality Act of 1940 also evidence an intention that alien children having one citizen parent should be naturalized in accordance therewith. It is concluded, therefore, that the subjects did not acquire citizenship by virtue of the principles enunciated in the De Coll case and must be regarded as aliens.
As to the second question it is to be observed that section 315 requires only that the children be residing permanently in the United States with the citizen parent. No mention is made of the necessity that the parents be living together in marital union. In light thereof it appears that subjects are eligible to have a petition filed in their behalf by their mother.
Order: It is ordered that the field office be advised of the foregoing.