Matter of G-

Cite as 3 I&N Dec. 794

IN THE MATTER OF G

In STATUS- DETERMINATION Proceedings

0300-210803

Decided by Central Office, November 18, 1949

Citizenship-Child born abroad (1947) to alien mother, who married the citizen father after the child's birth-Acquisition, as of date of birth, by child born out of wedlock, in certain cases-Section 205 of the Nationality Act of 1940- Requirements as to father's residence here before birth of child--Section 201 (g) of the Nationality Act of 1940-Applicability of section 201 (g) (supra)-Applicability of section 201 (i) of the Nationality Act of 1940, as amended.

1. A person born abroad after January 12, 1941, who is illegitimate at birth, but later legitimated, can acquire United States citizenship at birth only under the provisions of section 205 of the Nationality Act of 1940 ( which act became effective January 13, 1941) . 2. Section 205 ( supra) includes as beneficiaries those falling within the provisions of section 201 ( g) of that act, but where the citizen father (the mother being an alien) is under 21 at the time of such child's birth, the prerequisite for acquisition, i. e., the citizen parent must have resided in the United States 10 years, at least 5 of which were after reaching the age of 16, cannot be met. 3. Section 205 ( supra) does not include as beneficiaries those falling within section 201 ( i) of the Nationality Act of 1940, as amended, so that though this father can meet the United States residential prerequisite under section 201 (i ) , there is no acquisition of citizenship by such child, at birth. 4. The presumption that section 201 (i ) ( supra) ( added in 1946) would have been included among the beneficiaries specified in section 205 ( in act of 1940) had section 201 (i) been in the original act of 1940, cannot be indulged. (See 3, I. & N. Dec. 225 and Interim Decision No. 304) .

BEFORE THE CENTRAL OFFICE

Discussion : The subject was born out of wedlock in Vienna, Austria, on January 7, 1947, his mother being a citizen of Austria, and his father being a native and citizen of the United States who was born in the State of Wyoming on August 6, 1927, and who was serving in the United States Army at the time of subject's birth. The parents were married in Vienna on August 16, 1947. On December 4, 1947, the subject was admitted into the United States at New York, N. Y., under section 3 (2) of the Immigration Act of 1924, in accordance with the provision of O. I. 175.48 V, being considered an alien child born of a relationship which existed prior to the marriage of his mother to

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Cite as 3 I&N Dec. 794

a United States citizen serviceman. He was accompanied at that time by his mother, who was admitted under Public Law 271. The district director, New York, N. Y., in a memorandum dated April 29, 1948, reported that the investigation in the case had established that the subject was a United States citizen under the provisions of section 201 (i) of the Nationality Act of 1940, as amended, and recommended that authority be granted to amend the record of his arrival to show admission as a United States citizen. The question presented is whether the subject acquired United States citizenship at birth under the provisions of section 201 (i) of the Nationality Act of 1940, as amended. The evidence in the case establishes the facts set forth in the opening paragraph of this memorandum, as well as the fact that the subject's father resided in the United States until he was sent overseas by the Army. He was inducted into the United States Army on September 28, 1945, was honorably discharged on December 4, 1945, and thereupon reenlisted for 3 years in the Regular Army. In addition, evidence has been submitted in the form of a document written in the German language which allegedly establishes the legitimacy of the subject. That document has not been translated but for reasons hereinafter noted it is believed a translation thereof is unnecessary. Under the provisions of section 201 (g) of the Nationality Act, a person born outside the United States and its outlying possessions acquired United States citizenship at birth if one of his parents at the time of his birth was a citizen of the United States who, prior to the birth of the child, had 10 years residence in the United States or one of its outlying possessions, at least 5 of which were after attaining the age of 16 years, the other being an alien. Under the provisions of section 201 (i) of the Nationality Act (supra) , a person acquired United States citizenship at birth outside the United States and its outlying possessions if one of his parents was a citizen of the United States who served in the United States Army subsequent to December 7, 1941, and prior to December 31, 1946, who, prior to the birth of the child, had 10 years residence in the United States or one of its outlying possessions, at least 5 of which were after attaining the age of 12 years, the other parent being an alien. Section 205 of the Nationality Act of 1940 reads 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. The subject was born prior to his father's twenty-first birthday. Under such circumstances it was not possible for his father to have resided in the United States for at least 5 years after attaining the

795

Cite as 3 I&N Dec. 794

age of 16 years, prior to the subject's birth. Since the subject's mother was an alien at the time of his birth it is concluded the subject could not have acquired United States citizenship at birth under section 201 ( g) of the Nationality Act ( O. I. 800.2 I) . However, his father served in the United States Army between December 7, 1941, and December 31, 1946, and, therefore, it would appear that the subject, being born after his father had resided in the United States for 10 years, 5 years of which were subsequent to his twelfth birthday and prior to the applicant's birth, might have a claim to United States citizenship at birth under the provisions of section 201 (i) of the Nationality Act, as amended. On facts similar to the instant case the Central Office in an order in the case of E - GD- ( 0502-4421) dated December 31, 1948, held that the subject therein did so acquire United States citizenship at birth under section 201 (i ) of the Nationality Act of 1940, as amended. However, it is believed an erroneous conclusion was reached in that case. In the D - case, as well as in the instant case, the subject was an illegitimate child at birth. Illegitimate children born outside the United States who are legitimated subsequent to birth are included within the benefits of certain parts of section 201 of the Nationality Act by section 205 thereof. Without the latter section there would be no authority for the acquisition of United States citizenship at birth by such persons. To hold that such persons would acquire United States citizenship at birth without the provisions of section 205 would be to hold that that section is surplusage. It is not believed that Congress would have passed such legislation had it not believed it was necessary. Under those circumstances it would appear that persons born abroad after January 12, 1941, who are illegitimate at birth, and who are subsequently legitimated, can acquire United States citizenship only under the provisions of section 205. It is noted that section 201 (i) (supra) is not mentioned in section 205. It is true that section 201 ( i) was added to the Nationality Act on July 31, 1946, long after the passing of the act as a whole. Therefore, it could be presumed that section 201 (i) would have been included in section 205 had it been in existence at the time the balance of the act was passed. However, such presumptions are not to be indulged in the administration of a law. The language of section 205 is clear and unambiguous. Its benefits may be granted only to persons who are specifically included therein. Such a line of reasoning is consistent with the Central Office order dated December 16, 1947 (500/2 sec. 339, 500/2 sec. 201) in which it was held that a person who acquired United States citizenship under section 201 ( i) ( supra) is not entitled to a certificate of citizenship because section 201 (i) ( supra) is not mentioned in section 339 of the

796

Cite as 3 I&N Dec. 794

Nationality Act, the section which authorizes the issuance of certificates of citizenship to certain persons. Inasmuch as the facts in this case establish that the subject was an illegitimate child at birth who could have acquired United States citizenship at birth only under section 201 (i) of the Nationality Act of 1940, as amended, and since that section is not included within the provisions of section 205 of the act, it is concluded that the subject did not acquire United States citizenship at birth and was an alien at the time of his admission to the United States. Accordingly, the record of his arrival at the port of New York, N. Y., may not be changed to show that he was lawfully admitted to the United States as a citizen. It is recommended That a copy of this memorandum be sent to the District Director, New York, N. Y., with instructions to take such steps as necessary to adjust the subject's immigration status. So ordered. Editor's Note.-The first paragraph of section 205 of the Nationality Act of 1940 has been held applicable only to persons born on or after January 13, 1941, the effective date of that act. It has been held also that an illegitimate child born to an American mother specified in the second paragraph of section 205, supra, before January 13, 1941, who was not legitimated before January 13, 1941, became an American citizen at birth (but that the provisions of the second paragraph of section 205, supra, do not operate upon a child legitimated before January 13, 1941) . It has been held also that such a child born after January 13, 1941, of a mother specified in the second paragraph of section 205 (supra) acquired citizenship at birth of which it would not be divested by a subsequent legitimation (Matter of A , unreported, C. O. Mar. 2, 1945, 56213/973, 55850/636 ; also, Matter of O- B-, unreported, B. I. A. Jan. 18, 1945 ; also Matter of S-, unreported, B. I. A., 55996/214, Dec. 26, 1941.

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