0300-160724
Decided by Central Office February 8, 1950
Citizenship — Acquisition by statutory declaration — Interpretation of section 1 (d), act of February 25, 1927, as amended by section 5, act of June 28, 1932 — Child born out of wedlock abroad (April 1917) — Mother born in United States Virgin Islands (1897), father naturalized before marriage in 1919 — Eligibility for certificate of naturalization under section 339 of the Nationality Act of 1940, as amended.
1. Where a mother born in the Virgin Islands in 1897 (later United States Virgin Islands) acquired United States citizenship through marriage to a United States citizen in 1919 (R.S. 1994) (and in whose case the act of Feb. 25, 1927, section 1 (d), was not applicable merely because of her acquisition of United States citizenship in 1919), her child born out of wedlock abroad in April 1917 (who was admitted to the United States as a citizen in 1926 and remained here since) is deemed to have been the child of a native of the Virgin Islands such as described in section 5 of the act of June 28, 1932, and to have been declared to be a citizen of the United States by section 1 (d) of the act of February 25, 1927, as amended by section 5 of the act of June 28, 1932.
2. Such acquisition of citizenship does not entitle the subject to a certificate of citizenship, under the provisions of section 339 of the Nationality Act of 1940, as amended.
BEFORE THE CENTRAL OFFICE
Discussion: The subject was born out of wedlock in San Jose, Costa Rica, on April 25, 1917. His mother was born in St. Croix, V.I. of the United States on January 5, 1897, and on September 6, 1919, was married to his father, a United States citizen who had been naturalized in the United States District Court at New Orleans, La. on April 19, 1919. The subject was admitted to the United States as a United States citizen at New York, N.Y. on September 16, 1926. On two occasions, November 6, 1943, and October 3, 1947, applications for certificates of citizenship in which the subject claimed to have derived United States citizenship through the father's naturalization were denied because it was concluded the subject could not have derived United States citizenship under section 5 of the act of March 2, 1907, through his father's naturalization until after he had been lawfully admitted into the United States for permanent residence. His admission as a United States citizen without an immigration visa in 1926 cannot be considered such an admission.
Having served in the United States Army during World War II, the subject filed a petition for naturalization under section 324A of the Nationality Act after his applications for a certificate of citizenship were denied. However, the investigation in connection with his petition disclosed that he had been a member of the International Workers Order Flying School at Floyd Bennett Field in 1941. Inasmuch as under outstanding Central Office instructions all petitions for naturalization wherein the petitioners are or have been members of the International Workers Order are not to be presented to the court for a final hearing until further notice it appears that no final hearing can be held on the subject's petition at this time. The subject was an employee of the United States Post Office Department for several years but recently lost his position because he is unable to establish his United States citizenship.
It is to be noted that the subject's mother was born in the Virgin Islands of the United States. The question has arisen whether the subject may have been declared to be a United States citizen under section 1 (d) of the act of February 25, 1927, as amended by section 5 of the act of June 28, 1932.
That section reads as follows:
That the following persons and their children born subsequent to January 17, 1917, are hereby declared to be citizens of the United States:
All natives of the Virgin Islands of the United States who are, on the date of enactment of this subsection, 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 ( 47 Stat. 336; 8 U.S.C. 5b).
The investigation in this case has established that the subject's mother was born in the Virgin Islands of the United States; that she was living in the United States on the effective date of the amendment to the section; and that on that day she was not a citizen of a foreign country. It would appear, therefore, that she could be within the contemplation of section 1 (d) of the act of February 25, 1927. However, the act states in part "the following persons * * * are hereby declared to be citizens of the United States." The subject's mother married a citizen of the United States in 1919 and acquired United States citizenship by that marirage under section 1994 of the Revised Statutes of the United States. Being a citizen of the United States since that date the act of 1927 was inapplicable to her and she was not "a person" declared to be a citizen of the United States by it. The question remains was the subject, who was born subsequent to January 17, 1917, contemplated by the expression "the following persons and their children," notwithstanding that the parent was not declared a citizen of the United States by that act, as she was already a citizen.
Apparently this Service has not previously considered that question. Along that line, however, the United States Department of State has issued the following instructions in connection with passport instructions:
Children of persons who acquired citizenship under section 1, act of February 25, 1927. — Under the act of February 25, 1927, children born subsequent to January 17, 1917, of any of the persons who acquired American citizenship under the provisions of section 1 of the Act of February 25, 1927, were declared to be citizens of the United States, regardless of the place of their birth (Abstract of Passport Laws and Precedents, Passport Division Office Instructions, Section VI, Code 6.7).
It is apparent from that instruction that the Department of State interprets section 1 of the act of February 25, 1927, as granting United States citizenship to the children of persons who acquired citizenship under the act. However, the instruction makes no reference to the children of natives of the Virgin Islands who did not acquire citizenship under that act, and therefore, may not be cited as the Department of State's views on the problem.
The language of the act is ambiguous in that it is difficult to determine whether Congress contemplated two entirely separate sets of persons who would be declared citizens of the United States by the act, namely, one, certain natives of the Virgin Islands, and, two, the children of those natives or whether Congress merely intended to declare certain natives of the Virgin Islands to be citizens of the United States and at the same time declare the children of the persons who thus acquired citizenship to be United States citizens. In the absence of any previous decisions in the matter by this Service it becomes necessary to study the various committee reports and debates of Congress while considering the act to learn the congressional intent in passing such legislation. An inspection of those reports discloses that Congress was concerned with the fact that from the time the United States acquired the Virgin Islands the citizenship status of the natives of those islands was in doubt. To rectify the situation the act of Feb. ruary 25, 1927, was enacted. All the debates on the bill prior to the passage of that act were concerned with the natives of the Virgin Islands. Other than in the wording of the act itself no reference is made in the various debates to children of the natives except in a report that was introduced in a debate on February 16, 1927. That report reads in part as follows:
With this object in view, the passage of S. 2770 is recommended:
Section 1 provides that all former Danish citizens who have continued to reside in the Virgin Islands or in the United States and who did not preserve their Danish citizenship under the terms of article 6 of the convention, and also all natives of the islands who were temporarily absent at the time of the cession and who have since returned and now reside in the islands, and their children born subsequent to the date of transfer of sovereignty from Denmark to the United States, shall be citizens of the United States (p. 3982, vol. 68, pt. IV, Cong. Rec.).
There are no reported debates on section 5 of the act of June 28, 1932, which after its enactmen became section 1 (d) of the act of February 25, 1927. However, in a Senate report on that bill, the following was stated:
The following analysis explains the citizenship situation and indicates the reason for this bill being enacted at this time:
(A) By the treaty of cession Danish citizens and natives of the Virgin Islands who were residing in these islands on January 17, 1917, and who did not elect to preserve their Danish nationality within 1 year, became "citizens of the Virgin Islands entitled to the protection of the United States."
(1) Practically all natives believed that, if they did not make declaration within 1 year to retain their Danish citizenship, they became citizens of the United States.
(B) To correct this confusion, Congress on February 25, 1927, declared the following persons were granted full United States citizenship:
(1) Former Danes who resided in the Virgin Islands on January 17, 1917, who did not retain their Danish nationality and who resided in the Virgin Islands, the United States, or Puerto Rico on February 25, 1927.
(2) Natives of the Virgin Islands who resided in the Virgin Islands on January 17, 1917, who did not retain their Danish nationality and who resided in the Virgin Islands, the United States, or Puerto Rico, on February 25, 1927; and their children born after January 17, 1917.
(3) Natives of the Virgin Islands who resided in the United States on January 17, 1917, and who resided in the Virgin Islands on February 25, 1927; and their children born after January 17, 1917.
(4) Persons born in the Virgin Islands on or after January 17, 1917, and who were subject to the jurisdiction of the United States on February 25, 1927.
(C) The act of Congress of February 25, 1927, further provided the privilege of naturalization, if applied for prior to February 25, 1928, to the following natives of the Virgin Islands:
(1) Natives of the Virgin Islands who resided either in the Virgin Islands on January 17, 1917, and who resided either in the Virgin Islands or in the United States or in Puerto Rico on February 25, 1927.
(2) Natives of the Virgin Islands who resided in the United States on January 17, 1917, and who resided either in the United States or in Puerto Rico on February 25, 1927.
(D) No provision was made in the act of February 25, 1927, for the citizenship or naturalization of the following natives of the Virgin Islands:
(1) Natives of the Virgin Islands who, on January 17, 1917, resided anywhere else than ( a) in the Virgin Islands, ( b) in the United States; or
(2) Natives of the Virgin Islands who resided either in the Virgin Islands or in the United States on January 17, 1917, and who, on February 25, 1927, resided anywhere else than ( a) in the Virgin Islands, ( b) in the United States, or ( c) in Puerto Rico.
(3) Natives of the Virgin Islands regardless of date of birth, who on current date do not reside either ( a) in the Virgin Islands, or ( b) in the United States, or ( c) in Puerto Rico, regardless of their place of residence on either January 17, 1917, or February 25, 1927.
Notwithstanding the legislation contained in the acts referred to, there still remains considerable confusion, especially with regard to the present status of (1) natives of the Virgin Islands who are on current date residing in territory of, and territory under the jurisdiction of, the United States, other than Puerto Rico, the Virgin Islands, and the United States proper, i.e., the States and the District of Columbia, and (2) natives of the Virgin Islands who are on current date residing in any territory under the jurisdiction of any other nation than the United States (S. Rept. No. 641, 72d Cong., 1st sess., Senate Repts., vol. II).
It would appear from the punctuation in the paragraphs numbered 2 and 3 of part B of that Senate report that the Senate considered the natives and their children as separate groups, both of which were declared to be citizens of the United States by the act of February 25, 1927. The report did not in any way indicate that only the children of those natives who acquired citizenship were included in the act. The same impression is received from the afore-mentioned report that was introduced in the House debate on February 16, 1927. It is significant the Senate report did not mention children of natives in its discussion of the need for additional legislation to include certain natives who were not granted citizenship by the act of February 25, 1927. Being aware of the import of that act and by making section 5 of the act of June 28, 1932, an amendment to section 1 of the act of February 25, 1927, rather than a separate section of the act it must be concluded that Congress intended the significance of section 1 of the act of February 25, 1927, to be applied to the amendment of June 28, 1932, so that both the natives of the Virgin Islands named in the act of June 28, 1932 and their children were declared to be citizens by that act.
Further support is given to this view by the interpretations that have been placed on section 7 of the act of April 12, 1900, which conferred Puerto Rican citizenship on natives of Puerto Rico. That act read in part as follows:
That all inhabitants continuing to reside therein who were Spanish subjects on the 11th day of April, 1899, and then resided in Puerto Rico, and their children born subsequent thereto, shall be deemed and held to be citizens of Puerto Rico, and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the crown of Spain on or before the 11th day of April, 1900, in accordance with the provisions of the treaty of peace between the United States and Spain entered into on the 11th day of April, 1899 . . .
It will be noted in the phrase "and their children born subsequent thereto" contained in that act is very similar to the phrase "and their children born subsequent to January 17, 1917", which appears in the act of 1927 relating to the Virgin Islands. The Puerto Rican Act, it is to be noted, excepts from its provisions those persons who elected to preserve their allegiance to Spain. The Secretary of State on December 21, 1899, in discussing the status of children whose fathers elected to preserve Spanish allegiance under that act, expressed the opinion that the status as Spanish subjects of natives of the island could not be preserved or established by a declaration of the Spanish father (Hackworth Digest of International Law, vol. III, p. 142).
From that opinion, it would appear the Secretary of State considered the Spanish subjects who were inhabitants of Puerto Rico on April 11, 1899, and who had the right to preserve Spanish allegiance, as being one group within the contemplation of the act, and their children as another group. Accordingly, a Spanish father could retain Spanish nationality and his child could be a citizen of Puerto Rico. The logical conclusion from that state of facts is that the child took Puerto Rican citizenship under the act and not through his father. Inasmuch as the two groups are recognized, and, as indicated in the foregoing, inasmuch as the language of the Puerto Rican Act and the Virgin Island Act in reference to children is very similar, it is believed that two separate groups may be recognized in the act of 1927 relating to the Virgin Islands.
Since it has been established that the subject's mother was included in the description of natives of the Virgin Islands, appearing in section 5 of the act of June 28, 1932, it must be concluded that the subject, a child of such a native, was declared to be a citizen of the United States by section 1(d) of the act of June 25, 1927, as amended by section 5 of the act of June 28, 1932. In the absence of any evidence of the subject's expatriation it must be further concluded that the subject is a citizen of the United States. However, inasmuch as the act of February 25, 1927, is not included in the provisions of section 339 of the Nationality Act of 1940, as amended, the subject may not be issued a certificate of citizenship.
It is recommended that a copy of this memorandum be forwarded to the district director, New York, N.Y.
So ordered.