A-8597270
Decided by Regional Commissioner July 2, 1957
Citizenship — Section 321 (a), Immigration and Nationality Act, is applicable where one of the requirements is satisfied after the effective date of the act.
Determinations involving derivative citizenship are controlled by the law in effect when the last material condition is met. Thus, an illegitimate child born abroad in 1938, whose mother became a citizen of the United States by naturalization in 1951, is held to have acquired United States citizenship pursuant to section 321 (a) of the act upon his lawful admission to the United States for permanent residence on December 4, 1953.
APPLICATION FOR CERTIFICATE OF CITIZENSHIP
BEFORE THE REGIONAL COMMISSIONER
Discussion: Subject was born out of wedlock on April 1, 1938, in Martinique. Subject's mother and father were never married. His mother was naturalized by the United States District Court for the Eastern District of New York on November 20, 1951. He was admitted to the United States for permanent residence on December 4, 1953, at the port of San Juan, Puerto Rico. He applied for a certificate of citizenship under the provisions of section 341 of the Immigration and Nationality Act, and the district director has denied the application.
Under the Nationality Act of 1940, a child born out of wedlock did not derive citizenship through the mother. It is patent, therefore, that if both the naturalization of the mother and the lawful admission of the applicant had occurred prior to the effective date of the Immigration and Nationality Act, the applicant would not have derived citizenship. It remains to be determined whether the lawful admission of the applicant subsequent to December 23, 1952, makes the present act applicable even though the mother had been naturalized prior thereto.
Section 321 (a) of the Immigration and Nationality Act reads, 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.
An analysis of this statute reveals the following basic requirements: (1) that the parent or parents be naturalized; (2) that such naturalization take place while the child is under the age of 16 years; and (3) that the child take up lawful permanent residence in the United States before reaching the age of 16 years.
It would be capricious administration of section 321 (a) to hold that the naturalization of the parents under clause (1) or the surviving parent under clause (2) or the parent having legal custody of the child under clause (3), referred to in clause (5) of section 321 (a), may occur prior to December 24, 1952, but that the naturalization of the mother of the illegitimate child under clause (3) must occur on or after December 24, 1952.
In administering various sections of law relating to derivation of citizenship, the Service has taken the position that the law in effect when the last material condition is met is controlling. It is not giving a retrospective construction to the 1952 act to consider it as applicable to a case where one of the requirements is satisfied after the effective date of that act. We would be ignoring the specific language of section 321 (a) (5) if we were to hold that a child who was not residing in the United States at the time of the relevant naturalization did not become a citizen of the United States when the child thereafter, and on or after December 24, 1952, began to reside permanently in the United States while under the age of 16 years.
We hold, therefore, that under the provisions of section 321 (a) of the Immigration and Nationality Act the subject did acquire United States citizenship upon his lawful admission to the United States for permanent residence on December 4, 1953, and that under the provisions of section 341 of the Immigration and Nationality Act is entitled to receive a certificate of citizenship.
Order: It is ordered that the decision of the district director be reversed and that the application for a certificate of citizenship be and is hereby granted.