A-6837301
Decided by Regional Commissioner March 6, 1958 Approved by Assistant Commissioner
Citizenship — Acquisition after birth by child born abroad — Section 321 (a) of the 1952 act — Permanent residence may begin from date of original admission or from date of readmission as returning resident.
(1) A child born out of wedlock who could not derive citizenship under the Nationality Act of 1940 is held to have acquired citizenship under section 321 (a) of the Immigration and Nationality Act when she has reentered the United States as a returning resident in 1955, prior to her sixteenth birthday, her mother having been naturalized as a United States citizen in November 1952.
(2) The requirement in section 321 (a) of the act that the child must have begun to reside permanently in the United States while under the age of 16 is satisfied either at the time of an original admission for permanent residence or, after a temporary absence, at the time of readmission as a returning resident.
APPLICATION:
Certificate of citizenship pursuant to the provisions of section 341 of the Immigration and Nationality Act.
BEFORE THE REGIONAL COMMISSIONER
Discussion: This case has been certified to this office for consideration as to the issuance of a certificate of citizenship. The issue raised is whether subject derived United States citizenship under section 321 (a) (3) of the Immigration and Nationality Act as a result of her reentry into the United States on August 1, 1955.
Applicant was born out of wedlock in Germany on December 23, 1939, and was lawfully admitted to the United States for permanent residence on January 2, 1948. Her mother, married to a member of the United States Air Force on October 13, 1947, also was lawfully admitted to the United States for permanent residence on that date and was naturalized as a United States citizen on November 7, 1952. Thereafter, applicant was absent from the United States from June 27, 1953, to August 1, 1955. She had accompanied her mother and stepfather to Japan and returned to the United States in possession of a returning resident alien's immigrant visa.
At the time of the mother's naturalization on November 7, 1952, there was in effect section 314 of the Nationality Act of 1940, which, under certain circumstances, permitted the derivation of citizenship by children under the age of 18. However, under that provision applicant did not derive United States citizenship, since it has been held that under that act a child born out of wedlock could not derive United States citizenship through the naturalization of the mother ( Espindola v. Barber, 152 F. Supp. 829 (N.D. Calif., 1957)).
Section 314 of the Nationality Act of 1940 was repealed by the provisions of the Immigration and Nationality Act and replaced by section 321 of the latter act which was in effect at the time of applicant's reentry into the United States on August 1, 1955. This section provides as follows:
SEC. 321. (a) A child born outside of the United States of alien parents, or of an alien parent and a citizen parent who has subsequently lost citizenship of the United States, becomes a citizen of the United States upon fulfillment of the following conditions:
(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent if one of the parents is deceased; or
(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if
(4) Such naturalization takes place while such child is under the age of sixteen years; and
(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of this subsection, or thereafter begins to reside permanently in the United States while under the age of sixteen years.
(b) Subsection (a) of this section shall not apply to an adopted child.
Thus, while under section 314 of the Nationality Act of 1940 a child born out of wedlock could not derive citizenship through her mother, section 321 (a) (3) of the present act permits such derivation. The law in effect when the last material condition is met is controlling ( Matter of L----, A-8597270, Int. Dec. No. 872 (Reg. Comm'r., 1957)). One of the conditions of section 321 set forth in subsection 5 is that the child must begin to reside permanently in the United States or must have been lawfully admitted to the United States for permanent residence while under the age of 16 years. Had the applicant been lawfully admitted for permanent residence in 1955 for the first time, there is no question that she would have derived United States citizenship under section 321 ( Matter of L----, supra). In the present case there is an original entry by the applicant on January 2, 1948, and a second entry on August 1, 1955. The question, therefore, resolves itself into the determination of whether the applicant's status is so fixed by virtue of her first entry into the United States and her mother's naturalization before the effective date of the Immigration and Nationality Act as to preclude her deriving citizenship under section 321 (a) of that act.
When the applicant returned to the United States on August 1, 1955, she was lawfully admitted to the United States for permanent residence, which accorded her the privilege of residing permanently in the United States as an immigrant (section 101 (a) (20), Immigration and Nationality Act). She had already been granted that status upon her admission to the United States in 1948. Had she abandoned her original residence in the United States and again entered the United States as an immigrant other than a returning resident and while under sixteen years, there would be no question that on her 1955 entry she began to reside in the United States under the terms of section 321 (a) (5). The issue in the instant case arises from the fact that the applicant did not abandon her residence in the United States, but instead maintained it during her temporary absence abroad. Must she, as a consequence, be held not to have begun to reside in the United States within the meaning of section 321 (a) (5) upon her readmission in 1955? We think not. It is sufficient for the purposes of that section that a lawful admission for permanent residence is made prior to the age of 16 years and on or after December 24, 1952, regardless of whether such admission is a first entry into the United States or an entry as a returning resident. To require an applicant in such circumstances to abandon his residence in the United States before reentering would impose a condition not specified by the statute. The application is accordingly granted.
Order: It is ordered that the application of H---- M---- T---- for a certificate of citizenship be granted and that a certificate of citizenship be issued to her.