56267/142
Decided by Central Office August 24, 1949
Citizenship — Acquisition as a native of the Virgin Islands, born of alien parents there before its acquisition by the United States, and who was residing in the United States on June 28, 1932 — Section 5 of the act of June 28, 1932, which added subdivision (d) to section 1 of the act of February 25, 1927 — Meaning of phrase "who are not citizens or subjects of any foreign country" — Effect of marriage to alien in 1931 (see 3 IN Dec. 262).
1. A child born in the Virgin Islands in 1893 of a Spanish national father, who left the Virgin Islands in 1910 for Puerto Rico and stayed there until 1911 when she came to continental United States, who remained, in continental United States since 1911, acquired United States nationality under the provisions of section 5 of the act of June 28, 1932, which added subdivision (d) to section 1 of the act of February 25, 1927.
2. The phrase "who are not citizens or subjects of any foreign country" in subdivision (d), supra, means foreign citizenship preserved or acquired by affirmative act of the person involved, and does not refer to the subject's acquisition of Spanish nationality through her father at birth. Her marriage to a Spanish national in 1931 is not an affirmative act as to foreign nationality, such as would affect her acquisition of United States nationality status under subdivision (d), supra.
BEFORE THE CENTRAL OFFICE
Discussion: The above-named subject has requested a determination of her citizenship status.
Subject has submitted her baptismal certificate, showing that one S---- A---- M----, daughter of A---- M---- and O---- B---- (maiden name), was born in St. Thomas, V.I., on February 9, 1893, and baptised in Sts. Peter and Paul's Church, St. Thomas, V.I., on April 2, 1893. According to the subject's testimony, her father was a native and citizen of Spain who, so far as she knew, remained a Spanish subject until his death. She was positive that he had not become a citizen or subject of Denmark. She believed that her mother had been born at Copenhagen, Denmark, and had been a Danish citizen. She was quite sure that they had been married. Both parents died about 1900. E---- D----, a sister of the subject, gave similar testimony concerning the parents but expressed no opinion concerning her father's citizenship, although she stated that he was a native of Spain.
The subject left the Virgin Islands about 1910 for Puerto Rico, remaining there until approximately September 1911, when she came to the United States. She has remained continuously in the United States since 1911. On September 5, 1931, she was married at New York, N.Y., to J---- L----, a native and citizen of Spain. The subject never made formal application to obtain or retain the nationality of any country.
Other than the testimony of the subject and her sister, there is no evidence as to the marital condition and nationality status of their parents. From their testimony it appears that their father was a native and citizen of Spain who married a native of Denmark.
Article 22 of the Spanish Civil Code of 1889 provided that a married woman would share the condition of her husband. Article 17 provided that the children of a Spanish father or Spanish mother, although born outside Spain, would be Spaniards (Flournoy and Hudson, Nationality Laws, 1929).
As an enclosure to despatch dated August 1, 1906, the American consul at St. Thomas, V.I., submitted a statement from the Government Secretary of the then Danish West Indies, in which the following appeared:
The birthright as Danish native is acquired:
( a) By every legitimate child whose father is a Danish native, whether the child is born in Denmark (including the Danish West Indies) or abroad. * * *
( b) By the children of foreigners born in Denmark (including the Danish West Indies), provided that these children from the time of their birth till they have completed their nineteenth year have been domiciled in Denmark (including the Danish West Indies), * * *
The birthright as Danish native is forfeited:
* * * * * * *
( b) By a native woman who married a foreigner. (H. Doc. No. 326, 59th Cong., 2d sess.)
From the foregoing it appears that the subject acquired Spanish nationality at birth through her father and did not acquire Danish nationality under Danish law, for the reason that her father was not a Danish native. The subject left the Virgin Islands in 1910, when she was 17 years of age. She could not, therefore, have acquired Danish nationality through Danish domicile until completion of her nineteenth year.
In the case of a child, who would have acquired Danish nationality by reason of domicile for 19 years in the Virgin Islands, except for the intervening acquisition of the Virgin Islands by the United States, it was determined that such child could be regarded as having been a Danish national for the purposes of the acts of Congress relating to natives of the Virgin Islands (File No. 23/102598, L---- M---- S----, April 14, 1944; also May 21, 1945; File No. 5/256, L---- G----, June 21, 1944). This rule cannot be applied in the instant case because the subject left the Virgin Islands before she was 20 years of age and attained the age of 23 years before Denmark relinquished sovereignty over the Virgin Islands. Accordingly, the subject could not have acquired anything in the way of Danish nationality by reason of birth or domicile in Danish territory.
Two statutes of the United States were enacted by Congress for the purpose of defining the political status of natives and former Danish citizens, residents of the Virgin Islands. Since the subject never acquired Danish nationality, the provisions relating to former Danish citizens have no application to her case. The act of February 25, 1927, with reference to natives of the Virgin Islands, required residence in the Virgin Islands either on January 17, 1917, or on February 25, 1927. Since the subject did not reside in the Virgin Islands on or after January 17, 1917, this statute has no application to her. The act of June 28, 1932, however, made provision for acquisition of United States citizenship by —
All natives of the Virgin Islands of the United States who are, on the date of enactment of this subdivision, residing in continental United States, the Virgin Islands of the United States, Puerto Rico, the Canal Zone, or any other insular possession or Territory of the United States, who are not citizens or subjects of any foreign country, regardless of their place of residence on January 17, 1917.
Since the subject is a native of the Virgin Islands and has resided in the United States continuously since 1911, the sole question presented under the latter statute is whether she comes within the purview of the phrase relating to persons "who are not citizens or subjects of any foreign country."
In an opinion dated October 15, 1936, 39 Op. Atty. Gen. 525, relating to the citizenship status of natives and residents of the Virgin Islands, the Attorney General said:
It is authoritatively stated to be "a universally recognized customary rule of the law of nations that the inhabitants of subjugated as well as ceded territory lose their nationality and acquire that (but not necessarily full citizenship) of the state which annexes the territory," subject only to any option expressly given concerning retention of former nationality.
Concerning persons, who were absent from the territory at the time of cession but were within other territory of the annexing nation, it was stated that they undoubtedly came within the rule; that submission to the new sovereign would be indicated equally by entry into other territory of the annexing state as by continued residence in the ceded territory. It was concluded by the Attorney General that there were excepted from the grant of United States citizenship "all persons who preserved their Danish nationality through authorized declaration of intention or other effective means recognized in international law and all persons who have acquired the nationality of any other foreign country." In the case of L---- M---- S----, File No. 23/102598, April 14, 1944, the Acting General Counsel pointed out that, although the Attorney General's opinion dealt primarily with the status of former Danish citizens, that part of the opinion concerning the phrase "who are not citizens or subjects of any foreign country" must mean foreign citizenship preserved or acquired by affirmative act on the part of the person rather than received through the citizenship of a parent (likewise in opinion of May 21, 1945).
From the available evidence it appears that the subject, who was a resident of the United States on January 17, 1917, acquired United States nationality when the Virgin Islands were ceded to the United States. Thereafter she did nothing to acquire the nationality of a foreign country by affirmative act, unless her marriage on September 5, 1931, can be so regarded.
Under the terms of the acts of September 22, 1922, and March 3, 1931, an American woman did not lose her nationality through marriage to an alien. It was the evident intention of Congress to make the citizenship of married women independent of their husbands and to give them a separate nationality. Under the provisions of the acts mentioned, marriage has not been regarded as a positive, affirmative act which would affect a woman's status as a national of the United States (see Hackworth, Digest of International Law; Volume III, pages 257-259; Matter of W----, C-3818328, Feb. 20, 1948). Consequently, in determining the status of the subject under the nationality laws of the United States, the fact that she was married on September 5, 1931, should not be regarded as an affirmative act affecting her nationality status.
Thus the case of the subject resolves itself into that of a native of the Virgin Islands who was residing in the United States on June 28, 1932, and who had done nothing affirmatively to preserve or acquire a foreign citizenship. In the light of the decision in the case of L---- M---- S----, supra, she must be deemed to have acquired United States citizenship under the provisions of the act of June 28, 1932.
It is ordered, that, from the evidence presented, the subject be deemed a citizen of the United States. She should be so informed.