Matter of P-

Cite as 7 I&N Dec. 523

MATTER OF P-

In SECTION 341 Proceedings A-10215146

Decided by Regional Commissioner July 26, 1957 Approved by Central Office August 19, 1957

Citizenship-Section 1993, Revised Statutes, as amended-Acquisition at birth through unwed citizen mother not affected by subsequent marriage of mother and alien father .

Citizenship was acquired at birth, on May 22, 1936, in Italy, by the child of an unwed United States citizen mother pursuant to section 1993 of the Revised Statutes, as amended by the Act of May 24, 1934. Legitimation of the child in 1940 through the marriage of her citizen mother and alien father did not affect the vested status which the child had acquired at birth ; hence, the residence requirements for retention of citizenship which are involved when one of the parents is an alien did not become applicable to her case.

BEFORE THE REGIONAL COMMISSIONER (July 26, 1957)

Discussion : This record relates to a 21-year-old married female who was born on May 22, 1936, in Italy as the child of an unwed United States citizen mother. The applicant's mother was born in New York, New York, on June 5, 1917, and was taken to Italy when she was 5 years old. She married the applicant's father on May 13, 1940, thereby legitimating the applicant. The father is a native and citizen of Italy. The applicant arrived in the United States on December 16, 1953, with her mother. The father has never come to this country. On November 16, 1956, the District Director at Boston denied the applicant's application for a certificate of citizenship on the ground that the legitimation of the applicant by the marriage of her parents in 1940 made necessary for retention of citizenship under sections 201 (g) and 201 (h) of the Nationality Act of 1940 that the applicant reside in the United States for 5 years between the ages of 13 and 21. As the applicant did not come to this country until after May 22, 1952, her 16th birthday, this condition was not satisfied. On December 3, 1956, this office affirmed the denial decision of the district director. The case is again before this office for consideration. It is now our view that the denial decision of the district director and the affirmation

523

Cite as 7 I&N Dec. 523

thereofby this office are in error. We believe that the applicant's citizenship status is firmly bottomed on the provisions of section 1993 of the Revised Statutes as amended by the Act of May 24, 1934. The second sentence of section 1 of that act reveals that the residence requirement for retention of citizenship is only involved where one of the parents is an alien. As this child was born of an unwed citizen mother, the retention clause does not apply. The subsequent legitimation of the child by the marriage of the parents does not affect the case since the applicant had acquired a vested status at the time of her birth. Matter ofM—, VP-410484, 4, I. & N. Dec. 440, 443, lends support to our present position. Order : It is ordered that the order of this office dated December 3, 1956, affirming the denial decision of the district director be withdrawn. It is further ordered that the decision of the district director be, and hereby is, reversed and the applicant be issued a certificate of citizenship. BEFORE THE CENTRAL OFFICE (August 19, 1957)

The decision and order of the Regional Commissioner are hereby approved.

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