Matter of Villanueva, Interim Decision #2548

• Citation: 16 I&N Dec. 84
• Decision Date: 30 December 1976
• Docket Number: Interim Decision #2548,A-20687247
• Parties: MATTER OF VILLANUEVA In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

16 I&N Dec. 84

MATTER OF VILLANUEVA

In Deportation Proceedings

Interim Decision #2548

A-20687247

Board of Immigration Appeals.

Decided by Board December 30, 1976.

(1) An illegitimate child who acquired United States citizenship at birth pursuant to section 205 of the Nationality Act of 1940, as the child of a United States citizen mother, does not lose that citizenship upon legitimation.

(2) The rationale followed in Rogers v. Bellei, 401 U.S. 815 (1971), does not apply to the facts in this case because Bellei dealt with retention requirements for citizenship over which the individual has some control whereas the conditions envisioned in the Nationality Act of 1940 concern matters respecting retention of citizenship over which respondent has no control (i.e., whether his parents marry, and how long his mother resides in the United States prior to his birth).

CHARGE:

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Entry without inspection

ON BEHALF OF RESPONDENT: Robert Ramirez, Representative U.S. Catholic Conference 700 S. Santa Fe Street El Paso, Texas 79901

BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members

This is an appeal from the immigration judge's decision of December 22, 1975, in which he found the respondent deportable and granted to him the privilege of voluntary departure. The appeal will be sustained. The respondent contends that the proceedings should be terminated on the basis that he is a United States citizen. He claims citizenship through his mother who was born in New Mexico on March 3, 1925. The respondent's mother lived in the United States until about the age of 6 when she was taken to Mexico by her grandparents. She has never returned to the United States to reside. The respondent was born out of wedlock in Mexico on April 9, 1951. His parents were married to each other during 1953.

At the time of the respondent's birth the Nationality Act of 1940 was in effect. Section 205 thereof, entitled "Illegitimate Children" provided as follows The provisions of section 201, subsections (c)(d)(e) and (g), and section 204, subsections (a) and (b), hereof apply, as of the date of birth, to a child born out of wedlock, provided the paternity is established during minority by legitimation, or adjudication of a competent court.

In the absence of such legitimation or adjudication, the child, whether born before or after the effective date of this Act, if the mother had the nationality of the United States at the time of the child's birth and had previously resided in the United States or one of its outlying possessions, shall be held to have acquired at birth her nationality status.

Section 201(g) of the Act, to which section 205 refers, provides that a child of parents, only one of whom is a United States citizen, acquires United States citizenship at birth if the United States citizen parent, prior to the child's birth, had resided in the United States ten years, five of which were after attaining the age of 16.

Prior to the respondent's legitimation, the law changed and the present law was enacted. In a section entitled "Children Born Out of Wedlock", the present Act provides:

Section 309(b) Except as otherwise provided in section 405, the provisions of section 301(a)(7) shall apply to a child born out of wedlock on or after January 13, 1941, and prior to the effective date of this Act, as of the date of birth, if the paternity of such child is established before or after the effective date of this Act and while such child is under the age of twenty-one years by legitimation.

The provisions of section 301(a)(7) are similar to those of section 201(g), with the relevant difference that of the citizen parent's 10 years of residence in the United States, 5 had to be after the age of 14, rather than after the age of 16. The respondent's mother lacked sufficient residence under either of these provisions to pass...