MATFER OF L
Tn D r91POR.T A TION Proceedings
A-7205158
Decided by Board February 24, 1959
Citizenship—Section 321(a) of 1952 act—Acquisition by illegitimate child on
effective date of Immigration and Nationality Act.
Illegitimate child whose mother was naturalized while he was under 16 years
of age, who was still under 16 on the effective date of the Immigration and
Nationality Act and on that date was residing in the United States pursuant
to a lawful admission for permanent residence, is held to have acquired
United Nuites citizenship under section 351(a) or the loal act. tut. matter
of L—, 7 I. & N. Dec. 512, and Matter of T—,
7 I. & N. Dec. 879.)
CHARGE:
Order : Act of 1952—Section 241(a) (11) [8 U.S.C. 1251(a) (11)1—Convicted
of violation of law relating to narcotics, namely, possession of
narcotic drug.
BEFORE THE BOARD
Discussion: This case is before the Board on certification by the
special inquiry officer from his order of October Oa, 1958, folding
respondent to be an alien and ordering his deportation from the
United States. The special inquiry officer certified the case to the
Board in order that we might consider the applicability of precedents considered by him to be binding, and the interpretation of
section 321 of the Immigration and Nationality Act as it applies
to this case.
Respondent was born in Jamaica on September 21, 1938, the illegitimate child of T--L---B . He was lawfully admitted
to the United States for permanent residence June 2, 1949, when
he was 10 years of age. His mother was naturalized by the United
States District Court for the Southern District of New York on
December 12, 1949, when respondent was 11 years of age.
Respondent is found by the special inquiry officer to be an alien
and national of Great Britain. He was convicted on June 23,
1958, at Special Sessions Court, Manhattan, New York, for possession of a narcotic drug in violation of section 3305 of the New
York Public Health Law. If he is an alien, he is deportable on
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the charge stated in the order to show cause. It is contended for
respondent that the passage of section 321 of the Immigration and
Nationality Act bestowed United States citizenship upon him as a
derivative, resulting from his mother's naturalization in 1940, and
from the fact that he was under 16 years of age when the act became effective on December 24, 1952.
The special inquiry officer accurately states that there is no doubt
that under the law in effect at the time respondent entered the United
States and at the time of his mother's naturalization, section 314
of the Nationality Act of 1940, 8 U.S.C. 714, as an illegitimate child
he could not derive United States citizenship through the naturalization of his mother (Espindola v. Barber, 152 F. Supp. 829 (N.D.
Calif., 1957)). The special inquiry officer also discusses Matter of
L ,7 1. & N. Dec. 512 (Reg. Commr., July 2, 1957), and Matter
of T—,
7 I. & N. Dec. 679 (Reg. Commr., March 6, 1958, appvd.
by Ass't. Commr.). Each of these cases concerns an illegitimate
child born abroad who entered the United States legally for permanent residence. The mothers were all naturalized, and the question in each case was whether or not the illegitimate child derived
citizenship through the naturalization of the mnther,
Espindola v.
Barber, supra, concerned the citizenship of one who
was born in Mexico on October 22, 1935, and entered the United
States September 4, 1943. His mother was naturalized on March 7,
1950. Espindola was 17 years of age when the 1952 act became
effective. The court found that he was not a citizen, stating (1)
that an illegitimate child could not acquire citizenship from the
naturalization of either his father or mother under the 1940 act,
and (2) that he could not acquire citizenship under section 321(a)
of the Immigration and Nationality Act, which does not have retroactive effect because of the savings clause, section 405.
In Matter of L—, supra, the child was born in Martinique on
April 1, 1938. His mother was naturalized on November 20, 1951.
L was 14 years of age when the Immigration and Nationality
Act became effective. He entered the United States on December 4,
1953 (15 years of age at entry). It was found that L— was a
United States citizen, because the "last material condition"—his
entry into the United States—was met by L— after 1952 and
while he was still under 16 years of age.
Matter of T , aapra, concerned an illegitimate daughter born
in Germany on December 23, 1939. She entered the United States
with her mother on January 2, 1918, at eight years of age. Her
mother was naturalized on November 2, 1952, when T— was 12
years old. T went to Japan on June 27, 1953, with her mother
and stepfather and reentered the United States on August 1, 1955,
when she was 151/2 years old. T— was 13 when the Immigration
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and Nationality Act became effective. It was held that she had acquired derivative citizenship based on her second entry, which occurred after the act became effective and while she was still under
16 years of age.
It is stated in Matter of L , supra, that an analysis of section
321 of the act reveals the following basic requirements : (1) that
the parent or parents be naturalized; (2) that such naturalization
takes place while the child is under the age of 16 years; and (3)
that the eland takes up lawful permanent residence in the United
States before reaching the age of 16 years. The decision continues
by stating, "In administering various sections of law relating to
derivation of citizenship, the Service has taken the position that the
law in effect when the last material condition is met is controlling.
It is not giving a retrospective construction to the 1952 act to consider it as applicable to a case where one of the requirements is
satisfied after the effective date of that act."
The special inquiry officer stated that if it were not that he felt
himself bound by the Espinelola decision, he would hold that respondent, derived citieenship upon. the enactuteot of the 1052 act on
a theory, in part at least, that the "last material condition" necessary
to bring into being the applicant's citizenship, referred to in Matter
of I , supra could he the enactment of the 1930 act_ Tt seems
apparent to us that all the material conditions had not been met
when the act became effective, because respondent was still under
the age of 16. Therefore, he was not foreclosed from derivative
citizenship at that time. It was not necessarily the passage of the
act which was the last material condition, but the fact that No. 2
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 still under the age of 16 when the law was
passed. Espindola is not a binding precedent in the present situation, because Espindola was past 16 when the 1952 act became
effective and clearly could not have brought himself within the terms
of section 321.
The savings clause of the Immigration and Nationality Act
provides :
see. 405. (a) Nothing contained In this Act, unless otherwise specifically
provided therein, shall be construed to affect any prosecution, suit, action, or proceedings, civil or criminal, brought, or any elates, condition, right
in process of acquisition, act, thing, liability, obligation, or matter, civil or
criminal, done or existing, at the time this Act shall take effect … (Emphasis supplied.)
It is true that respondent had the status of condition of an alien
not eligible to claim derivative citizenship prior to the passage of
this act, but in our opinion section 321(a) (5) clearly changed his
status and condition inasmuch as he was an illegitimate child under
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the age of 16 years "residing in the United States pursuant to a
lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clause … (2) or (3)
of this subsection *." The act by lie terns thus confers citizenship on this alien. He did not have to "begin to reside permanently
in the United States" following the effective date of the act, because
he was already here and that satisfied the first condition of section
321(a) (5).
To recapitulate: We hold that under the provisions of section
821(e) of the. Tremigration and Nationality Act respondent acquired
United States citizenship at the time the Immigration and Nationality Act became effective on December 24, 1952, inasmuch as he was
an illegitimate child born outside the United States of alien parents,
whose mother was naturalized, whose paternity has not been established by legitimation, who was residing in the United States pursuant to a lawful admission for permanent residence at the time of
the naturalization of his mother, whose mother was naturalized while
he was still under the age of 16 years, and who was still under the
age of 16 years at the time of the effective date of the Immigration and Nationality Act,
Order: It is ordered that respondent is found to be a United
States citizen and that the proceeding be terminated.
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