1300-94053
Decided by Central Office September 22, 1949
Citizenship — Acquisition by child after birth abroad, through residence in the United States and a parent's naturalization before the child's eighteenth birthday — Section 314 (c) of the Nationality Act of 1940 — Significance of phrase "legal separation."
1. "Legal separation" of the parents as used in section 314 (c) of the Nationality Act of 1940 means either a limited or absolute divorce obtained through judicial proceedings, and where the actual "parents" of the child were never lawfully married, there could be no "legal separation" of such "parents."
2. A child born in Costa Rica on August 31, 1942, of an alien mother (who still is an alien residing in Costa Rica, and who never married the child's father), and of an alien "father" who became naturalized here on January 6, 1944, did not acquire United States citizenship upon her admission to the United States for permanent residence on September 8, 1948, under section 314 (c) of the Nationality Act of 1940.
3. That a legitimation of such child by the natural father, under section 230 of the Civil Code of California, may have occurred after the "father" was naturalized, does not alter the above conclusion.
BEFORE THE CENTRAL OFFICE
Discussion: Subject was born on August 31, 1942, at Puntarenas, Costa Rica. According to the subject's birth certificate, her birth was registered on March 2, 1944, by her mother, who declared that the subject was the legitimate daughter of H---- H----, engineer, and of T---- P---- B----, a housewife. The subject, however, was not named in the petition for naturalization of H---- H----, who was admitted to citizenship on January 6, 1944, in the United States District Court, San Francisco, Calif. H---- H---- alleged in his petition for naturalization that he was not married and that he had no children.
In letter dated June 6, 1949, H---- H---- stated the following:
In connection with the application for certificate of citizenship of my minor daughter H---- M---- H----, born out of wedlock on August 31, 1942, in Puntarenas, Costa Rica, I wish to state that when filing my own petition for naturalization I failed to list her name, as at that time I was not certain that she was my daughter.
I also wish to state that when her mother, T---- P---- B---- registered her birth with the proper Costa Rican authorities she registered her as legitimate. My name on her birth certificate appears as her father. This was done without my knowledge.
According to the subject's application, her mother is now residing in Costa Rica, The subject's mother was never married to H---- H----.
On January 12, 1949, a decree was entered in the First Civil Court, San Jose, Costa Rica, giving the "definite" custody of the subject to her natural father, H---- H----.
The subject lawfully entered the United States for permanent residence on September 8, 1948, and is now residing with her natural father in the State of California as his daughter.
The question presented is whether the subject derived United States citizenship, under the provisions of section 314 of the Nationality Act of 1940, through the naturalization of but one parent.
The field office has recommended that the application be granted and has found that the subject became legitimated under section 230 of the Civil Code of California, which provides as follows:
SECTION 230 — ADOPTION OF ILLEGITIMATE CHILD
The father of an illegitimate child by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth.
Section 314 of the Nationality Act is the only provision of the Nationality Act relating to derivation of United States citizenship by children born outside the United States of alien parents. Consequently, the subject's case can be considered only under this section of the law. The conditions relating to parental naturalization set forth in this section are:
(a) The naturalization of both parents; or
(b) The naturalization of the surviving parent if one of the parents is deceased; or
(c) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents.
Neither subsection (a) nor (b) is applicable to this case since the available evidence indicates that the subject's mother is living and has not been naturalized as a United States citizen.
Whether subsection (c) is applicable depends on whether there has been a legal separation of the parents. In the case of A---- F----, 0300-43294, March 27, 1946, it was held that the term "legal separation," used in section 314 (c) meant either a limited or absolute divorce obtained through judicial proceedings. It is thus apparent that the term "legal separation," can refer only to a situation where there has been a termination of the marital status. Since the subject's parents were not lawfully joined in wedlock, they could not have been legally separated. Consequently, there is no provision of the law under which the subject could have derived citizenship.
It is ordered that the application for a certificate of citizenship be denied.