Matter of L-

Cite as 3 I&N Dec. 225

IN THE MATTER OF L ( Brothers) In STATUS DETERMINATION Proceedings 0500-23945

0501-9733

Decided by Central Office, May 3, 1948

Citizenship-Acquisition by child born abroad-Section 5, act of March 2, 1907- Effect of legitimation of child by marriage in 1947 of natural parents.

(1) A child born abroad (1913 and 1916 in these cases) who lawfully took up permanent residence here in 1925, and whose natural father was naturalized here on September 30, 1931, acquired citizenship under section 5, act of March 2, 1907, on September 30, 1931, though the child's legitimation was effected by marriage of the natural parents in 1947 when the child was over 21 years of age.

(2) The effect of legitimation is retroactive and confers the full status and rights of a legitimate child as of the date of birth .

(3) The provisions of section 102 (h) of the Nationality Act of 1940 (which act became effective January 13, 1941 ) , apply only to cases arising under chapter III of that act.

BEFORE THE CENTRAL OFFICE

Discussion : H— WL-- was born in Canada on July 20, 1913. W- J L was born in Canada on February 15, 1916. Both lawfully entered the United States for permanent residence on October 2, 1925. Their natural father, S-- L--, was naturalized as a United States citizen on September 30, 1931, in the United States District Court, Chicago, Ill. When the two subjects were born, their parents were not validly married for the reason that a prior marriage of their mother was subsisting. On April 15, 1941, the mother's prior marriage was legally terminated. On January 18, 1947, the subject's parents were legally married at Chicago, Ill. The field office has found that, under Illinois law, the marriage had the effect of legitimating their children born out of wedlock. Denial of the applications was recommended for the reason that legitimation occurred after the effective date of the Nationality Act of 1940 and that consequently these cases were governed by section 102 (h) of that act which contains a proviso that, for the purposes of chapter III of the act, legitimation must take place before a child reaches the age of 16 years. In 1947, when legitimation occurred,

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Cite as 3 I&N Dec. 225

both subjects were over 21 years of age. Section 102 (h) , however, applies only to cases arising under chapter III of the Nationality Act; * it has no application to the cases of the subjects whose claims to citizenship rest upon section 5 of the act of March 2, 1907. The effect of legitimation is retroactive and confers the full status and rights of a legitimate child as of the date of birth (32 Op. Atty. Gen. 162) . Consequently, the subjects must now be deemed to have been legitimate as of their dates of birth and consequently legitimate when their father was naturalized on September 30, 1931. Both subjects, therefore, derived citizenship on that date, pursuant to section 5 of the act of March 2, 1907. Derivation of citizenship under the act of March 2, 1907, is not affected, retrospectively, by the provisions of the Nationality Act. It is ordered that the applications be granted. Citizenship in each case was derived on September 30, 1931.

* 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. March 2, 1945, 56213/973, 55850/636. (See Interim Decision # 304 and 3, I. & N. Dec. 794. )

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