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CITIZENSHIP OF R. BRYAN OWEN

One R. Bryan Owen, whose mother was originally a citizen of the United States and whose father was a British subject, was born in England on April 14, 1913, and came to the United States with his parents in 1919, where he has continuously resided ever since. His mother became naturalized in 1925, and his father, who was never naturalized, died in 1927. Held that, if the said R. Bryan Owen did not acquire a citizenship status at the time of his mother's naturalization, there can be no doubt that he is now a citizen of the United States by reason of his father's death and the other existing conditions herein specifically mentioned, in accordance with the unequivocal terms of section 5 of the Act of March 2, 1907 (34 Stat. 1229).

DEPARTMENT OF JUSTICE,
October 8, 1929.

SIR: I have the honor to acknowledge the letter of your predecessor of November 19, 1928, in which it is stated that

"Mr. R. Bryan Owen, a student at Staunton Military Academy, Staunton, Virginia, has requested enrollment in the Reserve Officers' Training Corps at that institution. Under section 44 of the Act of June 3, 1916 (39 Stat. 192; U. S. C., Title 10, sec. 382), it is necessary, in order that his request may be granted that he be a citizen of the United States. His citizenship, however, is in doubt."

Thereupon, my opinion is requested as to the citizenship of R. Bryan Owen, the facts pertaining to which, I am advised, are as follows:

"Mr. Owen's parents were married May 3, 1910. His mother was originally a citizen of the United States, and his father was a British subject. The parents, after the marriage, went to England, where Mr. Owen was born on April 14, 1913. His parents, together with their son, came to the United States in 1919, and took up a residence in Florida, where Mr. R. Bryan Owen has continuously resided ever since. His mother became naturalized in 1925. His father was never naturalized, but died in 1927."

Section 3 of the Act of March 2, 1907 (34 Stat. 1228), which was in force at the time of the marriage of the

NOTE. The publication of this opinion was temporarily withheld.

parents and up to the time of their return to the United States with their son in 1919, provided:

"That any American woman who marries a foreigner shall take the nationality of her husband. At the termination of the marital relation she may resume her American citizenship, if abroad, by registering as an American citizen within one year with a consul of the United States, or by returning to reside in the United States, or, if residing in the United States at the termination of the marital relation, by continuing to reside therein."

The Act of September 22, 1922, commonly known as the Cable Act (42 Stat. 1022; U. S. C., Title 8, secs. 9 and 369) provides in part as follows:

66 SEC. 3. That a woman citizen of the United States shall not cease to be a citizen of the United States by reason of her marriage after the passage of this Act, unless she makes a formal renunciation of her citizenship before a court having jurisdiction over naturalization of aliens: Provided, That any woman citizen who marries an alien ineligible to citizenship shall cease to be a citizen of the United States. If at the termination of the marital status she is a citizen of the United States she shall retain her citizenship regardless of her residence.

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"SEC. 4. That a woman who, before the passage of this Act, has lost her United States citizenship by reason of her marriage to an alien eligible for citizenship, may be naturalized as provided by section 2 of this Act: * *

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SEC. 7. That section 3 of the Expatriation Act of 1907 is repealed. Such repeal shall not restore citizenship lost under such section nor terminate citizenship resumed under such section. * * *99

Section 2172 of the Revised Statutes (U. S. C., Title 8, Sec. 7) provides that

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The children of persons who have been duly naturalized under any law of the United States, * ** being un

der the age of twenty-one years at the time of the naturalization of their parents, shall, if dwelling in the United States, be considered as citizens thereof; and the children of persons who now are, or have been, citizens of the United States, shall, though born out of the limits and jurisdic

tion of the United States be considered as citizens thereof; * **

By section 5 of the above-mentioned Act of 1907 (U. S. C., Title 8, sec. 8) it is provided:

"That a child born without the United States of alien parents shall be deemed a citizen of the United States by virtue of the naturalization of or resumption of American citizenship by the parent: Provided, That such naturalization or resumption takes place during the minority of such child: And provided further, That the citizenship of such minor child shall begin at the time such minor child begins to reside permanently in the United States."

Section 1994 of the Revised Statutes, which was also repealed by the Act of 1922, provided:

"Any woman who is now or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen."

Prior to the Act of 1922 it had been authoritatively established under the provisions of the Act of February 10, 1855 (10 Stat. 604), which were carried into the Revision of 1878 as section 1994, that whenever an alien woman, unless she was of a race which would preclude her naturalization, "is in a state of marriage to a citizen, whether his citizenship existed at the passage of the Act or subsequently, or before or after the marriage, she becomes, by that fact, a citizen also." (Kelly v. Owen, 7 Wall. 496.) Consequently, by virtue of the two last-quoted sections, the naturalization of the husband and father conferred citizenship upon the wife, and upon minor children "if dwelling in the United States."

There had been uncertainty as to whether, under section 2172, the child had to reside in the United States at the time of the naturalization of the parent, or whether there was a compliance with the statute by his coming to the United States during minority. (Kaplan v. Tod, 267 U. S. 228, 230; United States ex rel. Patton v. Tod, 297 Fed. (C. C. A.) 385; United States v. Rodgers, 185 Fed. (C. C. A.) 334; United States v. Tod, 3 F. (2d) 836, 838; Van Dyne on Naturalization, p. 219; Cong. Doc. 5175 (House Doc. 326), 59th Cong., 2d Sess.)

It has been repeatedly held, both before the enactment of 1907 and since the repeal of section 3 of that Act, that where the father is not living, or where the marital relation has been otherwise terminated and the mother has custody of the minor child, the latter becomes a citizen through the naturalization of the mother. (In re Lazarus, 24 F. (2d) 243; Petition of Drysdale, 20 F. (2d) 957, and cases there cited; Roa v. Collector of Customs, 23 Philippine Reports 315, 341; Brown v. Shilling, 9 Md. 74.) Speaking in respect of section 2172, Van Dyne on Citizenship, says (p. 118):

"The naturalization of an alien woman, a widow, confers citizenship upon her minor son, under this section.

"When a woman, by the death of her husband, becomes the head of the family, her naturalization should carry with it the same consequences, as regards the children, as would have attended that of the father had he been living. (Cockburn, Nationality, p. 213.)"

The last-mentioned authorities plainly negative the idea that minor children acquire a citizenship status by reason of the naturalization of the mother during the lifetime of the father and while the family is living together, and I am aware of no instance where a court has so held. In this connection, attention is called to section 1993 of the Revised Statutes, which is as follows:

"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 are declared to be citizens of the United States;

The child of a citizen father and an alien mother is a citizen, but one born of an alien father and a citizen mother is not a citizen by virtue of parentage. (11 C. J. 780; Borchard's Diplomatic Protection of Citizens Abroad, p. 612.)

In the light of the last-quoted statute it could hardly be seriously questioned that a child born abroad since the enactment of 1922 of an American mother and an alien father would be an alien. This situation is, to my mind, analogous to that of a minor child born abroad of alien parents, whose mother has been, in pursuance of the Act

of 1922, naturalized during the life of her alien husband and while the marital status was unimpaired, which is the case we have here. (In re Page, 12 F. (2d) 135; Doyle v. Town of Diana, 203 App. Div. 239, 241; Campbell v. Wallace, 12 N. H. 362, 371; Ludlam v. Ludlam et al., 26 N. Y. 356; Davis v. Hall, 1 Nott & McCord's Reports (S. C.) 292; Moore's International Law Digest, Vol. III, p. 476.) The Report of the House Committee on the bill which was subsequently enacted September 22, 1922 (Cong. Doc. 7957, 67th Cong. 2d Sess. (H. R. 1110), contains the follow

ing statement:

66 This bill in nowise affects the status of children. Those born here are citizens of the United States, under the Constitution, regardless of the allegiance of their parents. Those born abroad will, as heretofore, take the nationality of their fathers."

Of like import is the debate on the bill (Cong. Rec., 67th Cong., 2d sess., Vol. 62, Pt. 9, pp. 9044, 9057). See also In re Citizenship Status of Minor Children Where Mother Alone Becomes Citizen Through Naturalization, 25 F. (2d)

210.

The Act of 1922 entitled, "An Act Relative to the naturalization and citizenship of married women," like section 3 of the Act of 1907 which it repealed, is silent upon the subject of the citizenship of minor children, with respect to which Congress saw fit to continue in force section 5 of the Act of 1907. The provision in section 3 of the lastmentioned Act, in pursuance of which a woman "at the termination of the marital relation" might resume her American citizenship simply "by returning to reside in the United States, or, if residing in the United States at the termination of the marital relation, by continuing to reside therein," has been superseded by a short form of naturalization without regard to the marital status, as provided by sections 2 and 4 of the Act of 1922. Title 8, secs. 368, 369.)

(U. S. C.,

Unless it be in respect of whether, in the circumstances of this case, the acquisition of citizenship by the minor occurred immediately upon the resumption of citizenship by the mother or not until the death of the father, section 5 is

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