Matter of Pikkarainen
| Decision Date | 10 December 1963 |
| Docket Number | Interim Decision Number 1311,A-6705794 |
| Citation | 10 I&N Dec. 401 |
| Parties | MATTER OF PIKKARAINEN In DEPORTATION Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
The case comes forward on appeal from the decision of the special inquiry officer dated May 23, 1963 ordering respondent deported to Finland on the charge contained in the order to show cause.
The first issue is that of alienage. The respondent was born out of wedlock on January 1, 1932 in Finland. The respondent's mother was naturalized on January 15, 1945 in the United States District Court at New York. The respondent was admitted to the United States for permanent residence on June 16, 1947. At the time of his admission to the United States he was under 16 years of age, being 15 years and five months old. Since the mother's naturalization and the respondent's lawful admission for permanent residence occurred subsequent to the effective date of the Nationality Act of 1940 on January 13, 1941, the respondent could not acquire United States citizenship under the provisions of section 2172 of the Revised Statutes of the United States.
Counsel urges that respondent is a United States citizen under section 314(a) or section 314(b) of the Nationality Act of 1940 or, in any event, under section 321(a)(3) of the Immigration and Nationality Act. Section 314 of the Nationality Act of 1940 provides that a child born outside the United States of alient parents, or of an alien parent and a citizen parent who has subsequently lost citizenship of the United States, becomes a citizen upon fulfillment of the following conditions:
(a) The naturalization of both parents; or
(b) The naturalization of the surviving parent if one of the parents is deceased; * * *
(c) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents; and if—
(d) Such naturalization takes place while said child is under the age of eighteen years; and
(e) Such child * * * thereafter begins to reside permanently in the United States while under the age of eighteen years.
Counsel concedes that the respondent is an illegitimate child and that there has never been any adjudication of paternity. He argues that in this case the mother is to be considered as the parent or that there should be a presumption of death of the putative father and that the surviving parent is the mother. He cites several cases dealing with legitimate children where the surviving parent was divorced with the right of custody which was sufficient for derivation of citizenship and another case involving a widowed mother who became a citizen while her legitimate child was a minor residing in the United States.1
It may be pointed out that the cited cases involve legitimate children and there is no evidence in the instant case that the mother is the surviving parent or that the putative father has died.2 In the report of the Committee on the Judiciary pursuant to Senate Resolution 137 it was recognized that under the 1940 Act a child born out of wedlock and never legitimated could not derive United States citizenship either through the naturalization of the putative father or through his mother.3 However, in granting naturalization to a foreign born illegitimate child, who was born on July 13, 1944, was admitted to the United States for permanent residence on July 26, 1947 and whose mother became naturalized on September 1, 1950 petitioned for her illegitimate child under section 322 of the 1952 Act, the court by granting such naturalization indicated that automatic derivative citizenship would not have been available to such a child under the 1940 Act.4
Counsel also urges that the respondent derived citizenship under the provisions of section 321(a)(3) of the Immigration and Nationality Act. This section provides for acquisition of citizenship upon the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimization and if such naturalization takes place while such child is under the age of 16 years; and such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of such parent or thereafter begins to reside permanently in the United States while under the age of 16 years.
In Matter of L----, 7 I. & N. Dec. 512, after first noting that under the Nationality Act of 1940 a child born out of wedlock did not derive citizenship through its mother, the facts were that the subject was born out of wedlock on April 1, 1938 in Martinique, the mother was naturalized on November 20, 1951 and the subject was admitted for permanent residence on December 4, 1953. In analyzing section 321(a) of the Immigration and Nationality Act, the following basic requirements were set forth: (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 was held that the subject acquired United States citizenship upon his lawful admission to the United States for permanent residence on December 4, 1953. Likewise, in Matter of T----, 7 I. & N. Dec. 679, a child born out of wedlock was held to have acquired citizenship under section 321(a) of the Immigration and Nationality Act when she reentered the United States as a returning resident in 1955 prior to her 16th birthday, her mother having been naturalized a United States citizen in November 1952. It was held that the law in effect when the last material condition is met is controlling; that one of the conditions of section 321 set forth in subsection (5) is that the child must begin to reside permanently in the United States or must have been lawfully admitted to the United States for permanent residence while under the age of 16 years. The original entry of the applicant in 1948, prior to the Immigration and Nationality Act of 1952, did not operate to confer upon her any derivative citizenship under section 321(a) of the Act. However, her reentry in 1955 while she was still under 16 years of age operated to confer derivative citizenship under section 321(a) of the 1952 Act.
In Matter of L----, 8 I. & N. Dec. 272, the respondent, an illegitimate child, was born in Jamaica on September 21, 1938. He was lawfully admitted to the United States for permanent residence on June 2, 1949 when about 10 years of age. His mother was naturalized on December 12, 1949 when respondent was 11 years of age. The Board quoted with approval the special inquiry officer's order that there was no doubt that under the law in effect at the time the respondent entered the United States and at the time of his mother's naturalization, section 314 of the Nationality Act of 1940 did not provide for derivation of United States citizenship through the naturalization of his mother because he was an illegitimate child. The Board then went on to restate the holding in Matter of L----, 7 I. & N. Dec. 512, that the basic requirements of section 321 of the 1952 Act were that: (1) the parents or parent be naturalized; (2) such naturalization take place while the child is under the age of 16 years; and (3) the child takes up lawful permanent residence in the United States before reaching the age of 16 years. It was not necessarily the passage of the Act which was the last material condition but the fact that number two of the three material conditions is an "open condition", a continuing situation, permitting the statute to bestow citizenship on respondent so long as he was under the age of 16 when the law was passed. The Board referred to the case of Espindola v. Barber, 152 F. Supp. 829 (N.D. Cal., 1957), as not a binding precedent because Espindola was past 16 when the 1952 Act became effective and clearly could not have brought himself within the terms of section 321 of the Immigration and Nationality Act.
The case of Espindola v. Barber, supra, involved an alien illegitimate son, born October 22, 1935 whose mother became a naturalized citizen on March 7, 1950. The plaintiff was lawfully admitted to the United States for permanent residence on September 4, 1943. The court then cited the legislative history contained in Senate Report No. 1515, 81st Cong., 1st Sess., 708, for recognition of the fact that under the 1940 Act a child born out of wedlock and never legitimated could not derive United States citizenship under the naturalization of either his f...
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