FULGENCIO

                                                            Interim Decision #2816




                              MATTER OF FULGENCIO

                           In Deportation Proceedings

                                      A-31363623
                       Decided by Board August 2A 1980

(1) Respondent, born in the Philippines in 1949, initially met the requirements for
  acquisition of citizenship set forth in section 201(g) of the Nationality Act of 1940 by
  virtue of his father's United. States citizenship and residence in the Philippines for 10
  years prior to the respondent's birth.
(2) In the Ninth Circuit, a child is considered legitimated for immigration purposes if,
  while the child was under the required age, his father performed acts in a foreign
  country which would constitute legitimation under section 230 of the California Code,
  and subsequently became domiciled in California. 8 crliski v. District Director, 

 (9 Cir. 1980).
(3) Section 205 of the Nationality Act of 1940 requires that a child born out of wedlock
  must be legitimated during his minority in order to acquire United States citizenship
  under section 201(g). Since the respondent was legitimated as a child pursuant to the
  laws of California, as a result of his father's acknowledgment of paternity and
  domicile in California, the respondent was found to have acquired United States
  citizenship.
(4) In order to retain United States citizenship under the provisos to section 201(g) of
  the Nationality Act of 1940, a person must reside in the United States or its outlying
  possessions for 5 years between the ages of 13 and 21, commencing his residence before
  the age of 16. Since the Philippines gained its independence prior to the respondent's
  birth and the respondent did not enter the United States before he was 16, he did not
  qualify for retention of citizenship under section 201(g).
(5) Section 301(b) of the Immigration and Nationality Act of 1952, 8 U.S.C. 1401(b),
  which was made applicable to all persons born abroad subsequent to May 24, 1934,
  provides that a child born abroad to a United States citizen and an alien will lose his
  United States citizenship unless he comes to the United States prior to the age of 23
  and is continuously present for 5 years between the ages of 14 and 28. Since the
  respondent entered the United States at age 22 and resided in this country for more
  than 5 years, he retained his United States citizenship pursuant to section 301(b), and
  deportation proceedings were terminated for failure to prove alienage.
CHARGE
  Order: Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at entry under
                           ceo 212(a)(20) [8 U.S.C. 1182(a)(20)1 — no valid visa
                         Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at entry under
                           sec. 203(a) [8 U.S.C. 1153(a)]—not of status specified in immigrant visa

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Interim Decision #2816
ON BEHALF OF RESPONDENT:         James Michael Hoffman, Esquire
                                 United States Catholic Conference
                                 528 Market Street, Room 518
                                 San Francisco, California 94104
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members


 In a decision dated January 12, 1979, the immigration judge determined that the respondent was not a United States citizen and found
him deportable as charged.' He further found that the respondent was
not eligible for relief from deportation pursuant to section 241(f) of the
Immigration and Nationality Act, 8 U.S.C. 1251(f), but granted him the
privilege of voluntary departure in lieu of deportation. The respondent
has appealed from that decision. The appeal will be sustained.
  The respondent is a native and citizen of the Philippines who was
born out of wedlock on July 31, 1949. The respondent entered this
country on April 15, 1972, as a' lawful permanent resident based on his
oatua as the unmarried son of a United. States citizen? It appears that
no attempt was made to establish his United States citizenship at that
time. At the deportation proceedings, however, the respondent denied
the allegation that he was an alien, claiming to be a United States
citizen by derivation through his father.
   Since the respondent was born in 1949, he is subject to the provisions
of the Nationality Act of 1940.. We believe that the section of that Act
which is applicable in this case is 201(g), 8 U.S.C. 1151(g), which grants
United States citizenship at birth to:
  A person born outside the.United States and its outlying possessions of parents one of
  whom is a citizen of the United States who, prior to the birth of such person, bets had
  ten years' residence in the United States or one of its outlying possessions, at least five
  of which were after attaining the age of sixteen years, the other being an alien:
  Provided, That in order to retain such citizenship, the child must reside in the United
  States or its outlying possessions for a period or periods totaling five years between
  the ages of thirteen and twenty one.years: Provided further, That, if the child has not
  taken up residence in the United States or its outlying possessions by the time he
  reaches the age of sixteen years, or if he resides abroad for such a time that it becomes
  impossible for him to complete the five years' residence in the United States or its

  ' We note that the second charge brought against the respondent alleged that he was
deportable under section 241(a)(1) of the Act, 8 U.S.C. 1251(a)(1), as an alien who was
excludable at entry because he was not of the status specified in his immigrant visa
according to section 203(a) of the Act, 8 U.S.C. 1153(a). Although a similar ground of
excludability was formerly included in the Act under section 211(a)(4), 8 U.S.C.
1181(a)(4), no such ground now exists. See Matter of C—, 

 (BIA 1960). In
light of our decision finding that the respondent is a United States citizen, this error in
the charge is inconsequential.
    The record reflects that the respondent's father was naturalized as a United States
citizen on August 26, 1946, following his service in the United States military.

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  outlying possessions before reaching the age of twenty one years, his American
  citizenship shall there upon cease....
   The record indicates that the respondent's father, who lived in the
Philippines while it was an outlying possession of the United States,
meets the above-stated requirements for a United States citizen
parent whose child may derive United States citizenship. However,
since the respondent was born out of wedlock, section 205 relating to
illegitimate children is also pertinent to a determination regarding the
respondent's acquisition of United States citizenship. That section
provides 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.
   The respondent argued at the hearing that he was legitimated in
accordance with the requirements of section 205 by virtue of the fact
that his father acknowledged paternity and took the respondent into
his home in The Philippines, and subsequently moved to California,
which recognizes such extraterritorial acts as constituting legitimation under its laws. The immigration judge rejected this claim, finding
that the respondent was not legitimated during minority as required
by section 205 since his father only became domiciled in California
after the respondent reached the age of 21. Thus, the immigration
judge concluded that the respondent failed to establish that he had
acquired United States citizenship by birth. As authority for his
decision he cited Matter of Varian, 

 (BIA 1975), in
which we declined to recognize legitimation under the law of
California where that state had no connection with either the father or
the child when the legitimating acts took place. See also Matter of
Buenaventura, 

 (BIA 1977), overruling Matter of
Garcia, 

 (BLA, 1968).
   The law ill effect in California at the time of the respondent's
claimed legitimation was section 230 of the California Civil Code.' That
statute provides as follows:
 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 the child is
 thereupon deemed for all purposes legitimate from the time of its birth....
  In a recent decision, the Ninth Circuit examined section 230 and its
interpretation under California law. Kaliski v. District Director, 

 (9 Cir. 1980). The court discussed In re Lund's Estata, 26 Cal.
 ' Section 230 as repealed in 1975 when the Uniform Parentage Act was adopted. See
California Civil Code, section 7000.

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Interim Decision #2816
2d 472, 

 (1945), where the California Supreme Court
determined that legitimating acts occurring outside the state and
prior to the father's domicile there were sufficient to legitimate a child
under section 230. The Ninth Circuit adopted that viewpoint and held
that a child could be legitimated for immigration purposes if, while the
child was under the required age, his father performed acts in a
foreign country which would constitute legitimation under California
law, and subsequently became domiciled in that state. See Matter of
Garcia, supra. In doing so, the court rejected our conclusion in Matter
of Varian, supra.
   Inasmuch as this case arises in the Ninth Circuit, we shall recognize
the respondent's legitimation under section 230 by virtue of his
father's acknowledgment of paternity while in the Philippines and his
domicile in California thereafter. Thus, we hold that the respondent
acquired United States citizenship under section 201(g) of the Nationality Act of 1940.
   We must next determine whether the respondent has retained his
United States citizenship in accordance with the proviso of section
201(g) of the 1940 Act. That proviso sets forth the mandate that a child
must reside in the United States or its outlying possessions for 5 years
between the ages of 13 and 21 years in order to retain his citizenship,
which is forfeited if he does not take up residence in the United States
by the time he reaches the age of 16.
   Inasmuch as the Philippines obtained independence from the United
States on July 4, 1946, it was no longer an outlying possession as of that
date. See 22 U.S.C. 1394. Therefore, since the respondent was born in
1949, his years of residence in that country will not satisfy the requirement of section 201(g). Furthermore, the respondent did not enter the
United States until 1972, when he was 22 years old. Thus, he cannot
qualify under the provisions of the 1940 Act for retention of
citizenship.
   On June 27, 1952, however, a new law was enacted, effective
December 24, 1952, which changed the requirements for retention of
citizenship.' Under section 301(b) of the 1952 Act, a child born abroad
to a United States citizen and an alien would lose his citizenship unless
he came to the United States prior to the age of 23 and was continuously physically present in this country for 5 years between the ages of
14 and 28. Section 301(c) of that Act made the provisions of section
301(b) applicable to persons born abroad subsequent to May 24, 1934,
   That provision was later amended by the Act of October 27, 1972, 

Slat. 1289, and again by the Act of October 10, 1978, Pub. L. 95432, 92 Stet. 1046, both of
which further liberalized the retention requirements. However, since the respondent
qualifies under the provisions of the 1952 Act, we need not discuss these amendments.
See section 301(d) of the 1972 Act.

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                                              Interim Decision If 2816
who were previously subject to the retention requirements of earlier
acts. See Lee You Fee v. Dulles, 

 (7 Cir. 1956), reed on
confession of error, 

 (1957); Matter of Navarrete, 12 I&N
nee. 138 (BIA 1967); Matter of S—, 

 (BIA 1958). Inasmuch as the respondent came to the United States at the age of 22 and
has remained here for more than 5 years, we conclude that his United
States citizenship was retained by virtue of his compliance with section 301(b) of the 1952 Act.
   Accordingly, deportation proceedings against the respondent will be
terminated.
   ORDER, The appeal is sustained, and the deportation proceedings
are terminated.




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