Interim Decision #2395
MATTER OF VARIAN
In Deportation Proceedings
A-18488785
Decided by Board Ante 11, 1975
(1) Respondent, born in the Philippines in 1943, -to parents who were natives of the
Philippines, requests reversal of the immignition judge's raiding of alienage. Respondent claims United States citizenship under section 201(e) of the Nationality Act of
1940, resting his claim of the alleged citizenship of his father under section 1993 of the
Revised Statutes. Respondent's grandfather was a citizen of the United States prior to
the birth of respondent's father; but respondent's father, being illegitimate and never
having been legitimated during his lifetime, did not acquire citizenship at birth under
section 1993 of the Revised StatUtes. He therefore could not pass on United States
citizenship to the respondent. California Civil, Code (Sec. 230) pnnitlea for legitimation,
but the grandfather never went to California unti1,1959 9r 1960, and respondent's father
had never lived in California (having died in the Philippines in 1952). [Matter of P , 4 I.
—
& N. Dec. 854 (C.O. 1951) is overruled, insofar as it indicates that California laW would
be applied regardless of 'whether the grandfather Eris domiciled there at the timo .
legitmancsokpe.]
(2) The Service requests reversal of the order of the immigratiori judge terminating these
proceedings pursuant to section 241(f) of the Immigration-and Nationality Act. Where
respondent is charged, as a nonimmigrant overstay under section 241(a)(2) of the Act,
section 241(f) relief is not available to hill. The Service's, appeal is sustained, the
immigration judge's order is reversed, and the record is remanded.
CHARGE:
Order: Act of 1952—Section 241(a)(2) (8 U.S.C. 1251(a)(2))—Nonimmigrant visitor-
—remained longer (
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Hartford Z. Smith, Esquire David L. Milhollan
615 Montgomery Street Appellate Thal Attorney
San Francisco, California 94111
Stephen A. Suffin
Trial Attorney
On August 4, 1971, after a reopened hearing, the immigration judge
found that the respondent was deportable as charged. However, the
immigration judge terminatdd proceedings under section 241(f) of the
Immigration and Nationality Act. Both the respondent and the Service
have appealed from that decision. The respondent's appeal will be dis-
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Interim Decision #2395
missed. The Service appeal will be sustained, and the record will be
remanded to the immigration judge for further proceedings.
The respondent has appealed the immigration judge's finding that he
is an alien. Ile contends that he acquired United States citizenship from
his father at birth in the Philippines in 1943 pursuant to section 201(e) of
the Nationality Act of 1940. 1
The respondent's grandfather, Morris Varian, was a United States
citizen who served with the United States Army in the Philippines
during the Spanish—American War. After the war, he returned to the
Philippines where he had a son, the respondent's father, born out of
wedlock in 1903. Later that year, Morris Varian married a native of the
Philippines who was not the mother of the respondent's father. He and
his wife evidently took the respondent's father into their home and
raised him along with the legitimate offspring of their marriage. Morris
Varian lived in the Philippines until 1959 or 1960, when he went to
California w:nere he died in 1967.
The legitimate sons of Morris Varian, the half brothers of the respondent's father, were admitted to the United States as citizens. However,
the respondent's father never left the Philippines, nor did he ever
pursue a claim to United States citizenship.
The respondent's father entered into a relationship with a woman in
the Philippines and had several children by her. Thereafter he went
through a in arriage ceremony with another native and citizen of the
Philippines, who was the respondent's mother. The respondent was
born of the latter relationship in the Philippines on September 3, 1943.
The respondent's father died in the Philippines in 1952.
The respondent's claim to United States citizenship under section
201(e) of the Nationality Act of 1940 depends on (1) whether the respondent's father was a United States citizen at birth, and (2) whether the
respondent was a legitimate child or a child legitimated during his
minority. 2
The question of the United States citizenship of the respondent's
father is determined under section 1998 of the Revised Statutes, which
was in effect on the date the respondent's father was born. That section
provides:
All children heretofore born or hereafter born out of the limits and jurisdiction of the
United States, whose fathers were or may be at the time of their birth citizens thereof
Section 201(e) of the Nationality Act of 1940 provides that United States nationality
and citizenship shall be acquired at birth by:
A person born in an outlying possession of the United States of parents one of whom
is a citizen of the United fitateg,whonsidtdballie.Uultod.States..or iu>E (tits outlYine"..
revandedlatimniromionatiouAndovalitir
2 See section 205 of the Nationality Act of 1940.
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Interim Decision #2395
are declared to be citizens of the United States; but the rights of citizenship shall not
descend to children whose fathers never resided in the United States.'
Section 1993 of the Revised Statutes makes no mention of its applicability to illegitimate children. Nevertheless, the Attorney General administratively recognized that the traditiona•rule barring the descent of
benefits from a father to his illegitimate child applied to section 1993. 32
Op. Att'y Gen. 162 (1920);
39 Op. Att'y Gen. 556 (1937); see Matter of
P—,
5 I. & N. Dec. 689 (BIA 1954). However, the Attorney General
also recognized the modern tendency of many jurisdictions to provide a
method for legitimation of illegitimate children. The Attorney General
noted the general rule that a child legitimated under the law of its
father's domicile at the time 'of the legitimating act took place was
entitled to have that status recognized everywhere, even in jurisdictions not providing for legitimation. The Attorney General found that
the foregoing rule violated no public policy, and he therefore expressed
the opinion that a child legitimated in the foregoing manner 'should be
considered to be a United States citizen from birth under section 1933 of
the Revised Statutes.
32 Op. Att'y Gen. 162, 164-65 (1920);
39 Op. Att'y
Gen. 556, 557-58 (1937).
The respondent claims that his father's status as the legItimaLed child
of Morris Varian became fixed under section 230 of the California Civil
Code when Morris Varian took up residence in California in 1959 or
1960. It should be muted that by this time the respondent's father was
dead, having passed away in 1952.
Section 230 of the California Civil Code states:
The father of an illegitimate child by publicly acknowledging it as his own, receiving it
as such, with the consent of his wife, if he is married, into his family, and otherwise
treating it as if it-were a legitimate child, thereby adopts it as such; and such child is
thereupon deemed for all purposes legitimate from the time of its birth. . . .
The respondent contends that by reason of Morris Varian's relocation
to California in 1959 or 1960, the respondent's father, who had already
died, would be considered retroactively legitimated to birth under section 230 of the California Civil Code. The legitimation under California
law would occur by reason of the legitimating acts which took place
while Morris Varian and the respondent's father were domiciled in the
Philippines in 1903. This in turn, argues the respondent, would retroactively confer citizenship upon his father pursuant to section 1993 of the
Revised Statutes. The respondent's father's retroactive citizenship
would in turn retroactively confer United States citizenship at birth
upon the respondent under section 201(e) of the Nationality Act of 1940.
In other words, we are asked to hold that because the respondent's
3 Amended by the Act of May 24, 1934, 48 Stat. 797. Repealed by section 604 of the Aet
of October 14, 1940,
54 Stat. 1178.
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Interim Decision #2395
grandfather took up residence in California in 1960, at the age of 80,
after an absence from the United States of 61 years, his grandchild (the
respondent) born in 1943 in the Philippines thereby became a United
States citizen at birth, through his deceased father.
The Attorney General's opinions interpreting section 1993 of the
Revised Statutes recognized legitimation accomplished under the law of
the father's domicile at the time the legitimating acts took place. The
legitimating act alleged in the present case was the taking of the respondent's father into the family of Morris Varian in 1903. At the time of
this alleged legitimating act, both father and child were domiciled in the
Philippines. Slch taking into the family did not effect legitimation under
the law of the Philippines.
The respondent, in effect, asks us to extend the Attorney General's
rulings on section 1993 of the Revised Statutes to include a situation
where the alleged legitimation was accomplished under the law of a
jurisdiction, California, that had no connection whatsoever with either
the father or the child at the time the alleged legitimating acts occurred.
We do not believe that any rule of law or consideration of policy requires
us to make such an extension. The fact that California may reach a
different result when determining how to distribute property left within
that state is not determinative with respect to this question of citizenship.
Onr present holding does not go contrary toLouie Wak You v. Naglo,
27 F.2d 573 (C.A. 9, 1928). That case merely recognized that where a
putative father was a lifelong domiciliary of California, the law of
California was applicable to determine whether legitimation had taken
place for the purpose of section 1993. Nothing in that decision indicated
that California law would be applied to a putative father who was not
domiciled in California at the time an alleged act of legitimation took
place. In fact, 'the court noted that "if his [the father's] home and settled
place of habitation was in China, his domicile would likewise be there,
and the statutes of California could have no application." (Emphasis
supplied.)
27 F.2d at 574.
Matter of P.—, 4 L & N. Dec. 354 (C.O. 1951), involved a situation
where a father had taken his illegitimate daughter into his family both in
France and later in California after he had established domicile in that
state. It was held that legitimation was accomplished under California
law, and that such legitimation was sufficient to confer retroactive
citizenship upon the daughter under section 1993 of the Revised Statutes. To the extent that this decision holds that a father who performed
legitimating acts while domiciled in California has legitimated his child
for the purposes of section 1993, it is consistent with the Attorney
General's opinions and our present decision. To the extent that Matter
of P—indicates that California law would be ,applied regardless of
,
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Interim Decision #2395
whether the father was domiciled there at the time legitimating acts
took place, it is inconsistent with the approach taken by the Attorney
General with respect to section 1993, and it will not be followed by us.
Decisions of this Board interpreting section 101(b)(1)(C) of the
Immigration and Nationality Act of 1952, relied upon by counsel, are
inapposite. We are concerned with the law in effect at the time of the
respondent's father's birth in 1903. However, we should point out that if
the applicability of the decisions rendered under the 1952 Act is seriously urged, legitimation under section 101(b)(1)(C) of that Act requires
that the parent or the child become a domiciliary or a resident of
California prior to the child's eighteenth•irthday. Matter of Singh, 15 I.
& N. Dec. (BIA November 11, 1974). We see no reason for a different
position with respect to nationality and citizenship, except that the age
limit under section 309(a) of the 1952 Act is 21.
We conclude that the respondent's father did not acquire United
States citizenship from his father, Morris Varian, under section 1993 of
the Revised Statutes. Consequently, the respondent couldnot have
acquired United States citizenship from his father under section 201(e)
of the Nationality Act of 1940. Our disposition of this issue makes it
unnecessary for us to reach the question of the respondent's legitimacy
for the purpose of section 201(e).
The respondent is a native and a citizen Of the Philippines by virtue of
his birth there in 1943. See Matter of Hermosa, 15 I. & N. Dec. (BIA
1973). We agree with the immigration judge that the respondent is an
alien and is therefore subject to the deportation provisions of the Act.
Consequently, we shall dismiss the respondent's appeal from the immigration judge's decision.
With respect to the section 241(f) issue, we agree with the Service's
contention that' an alien such as the respondent, who is charged with
deportability as a nonimmigrant overstay, is not entitled to the benefit
of section 241(f) of the'Act. Cabuco-Flores v. INS, 477 F.2d 108 (C.A. 9,
1973), cert. denied in companion ease, Mangabat v. INS,
414 U.S. 841
(1973). Moreover, in the recent case of Reid v. INS,
420 U.S. 619,
95 S.
Ct. 1164 (1975), the Supreme Court indicated that section 241(f) is not
available to an individual charged with deportabiliey as a nonimmigrant
overstay. . .
The Service appeal will be sustained and the immigration judge's
order terminating proceedings will be reversed. The record will be
remanded to the immigration judge for further proceedings.
4 ORDER: The respondent's appeal is dismissed.
Further order: The Service's appeal is, sustained, the order of the
immigration judge terminating proceedings is reversed, and the record
is remanded to the immigration judge for further proceedings.
• David L. Milhollan, Chairman, abstained from consideration of this case.
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