concurring:
I concur in the judgment because Washington law compels it, as do federal statutes. But Judge Tang’s recital of the facts-causes me some concern. I see the potential for fraud in the entry of ex parte paternity decrees and believe we need more stringent procedures for establishing legitimation. I also disagree with the method by which the majority reaches its conclusion to affirm. It attributes to the district court findings of fact that were never made.
Mary Burgess was eight months old when Don Burgess died. Not until several days after his death did her mother register the birth in Mexico, showing Don as the father. Twenty years later, Mary se*342cured a paternity decree in an ex parte proceeding in a Washington superior court. She then filed for a declaratory judgment of citizenship, but her marriage prevented her from meeting the statutory definition of “child.” Not to be dissuaded by the inconvenience of a marriage, she had it annulled, alleging that she married while still a minor without consent of her parent. She had married one day before her eighteenth birthday.
By not defining “legitimation,” 8 U.S.C. § 1409(a), Congress has invited fraud. The facts of this case demonstrate the potential for fraudulent claims to United States citizenship.
The last paragraph of the majority opinion says that “the district court was not bound by the decree of the Washington Superior Court nor was the United States collaterally estopped to challenge that decree.” Majority Opinion at 341. As a technical matter, I agree. The problem is that, as a practical matter, the government and the district court were bound.
Mary is a United States citizen if she was 1) born outside the United States, 2) one of her parents was a U.S. citizen, and 3) the citizen parent met certain requirements of physical presence in the United States. 8 U.S.C. § 1401(g).1 Because Mary was born out of wedlock, however, section 1401(g) applies only if she established paternity by legitimation before she turned twenty-one. 8 U.S.C. § 1409(a).2
Section 1409(a) uses the term “child.” For Mary to have qualified as a child, she must have been an unmarried person under twenty-one who was legitimated under the law of her residence or domicile, or her father’s residence or domicile.3 8 U.S.C. § 1101(c)(1).4
Mary turned twenty-one on September 28,1983. To be valid under section 1409(a), her legitimacy must have been established before that date. The district court’s judgment did not establish Mary’s legitimacy because her complaint was not filed in that court until April 27, 1984. Any action by the district court to establish legitimacy *343would not have occurred soon enough to bring Mary within section 1409(a). Rather, the district court decided whether Mary’s legitimacy had already been established, either under the laws of Mexico, by the late-filed birth certificate, or under the laws of Washington, by the ex parte paternity decree. Those were the only two “legitimacy-establishing” acts that occurred before Mary was twenty-one.
The majority opinion holds that there was a third legitimacy-establishing act: Don Burgess’s living with his daughter until his death eight months after she was born. See Majority op. at 341 (“[Don] inferentially held Mary out as his natural daughter____ [He] legitimated Mary by receiving her into his home and openly holding her out as his child from her birth until his death.”); and at 341 (facts found by the district court were “sufficient to support its conclusion that Don, the father, legitimated Mary, the daughter”).
The majority refers to fact findings not in the record. From the district court’s two decisions it is clear that it relied entirely on the superior court decree as establishing Mary’s legitimacy.
In its September 19, 1984 decision granting the government summary judgment, the court said:
Defendants contend that as plaintiff was married at the time of the Yakima County Superior Court Order she was not within the statutory definition of a child____
Plaintiff contends that she has fulfilled all of the statutory requirements for citizenship and that she was properly legitimated in Washington prior to her twenty-first birthday.
In deciding the issue thus presented by the parties before it, the district court held:
Plaintiff’s residency in Washington State would permit a determination of legitimacy in Washington if plaintiff satisfied all the requirements of § 1101(c). However, plaintiff was married at the time of the Washington court decree and thus plaintiff is not within the statutory definition of a child and thus the provisions of § 1409 are expressly inapplicable____ Accordingly, plaintiff has not met the statutory elements for citizenship.
Similarly, on April 8, 1985, in its order granting Mary’s motion for summary judgment after reopening the case, the court held:
This court’s Order of September 20, 1984 stated that legitimization would have been valid had the plaintiff not been married at the time of the Washington court decree____ This court further stated that the plaintiff’s lack of unmarried status was the only bar to the granting of her request for statutory citizenship under 8 U.S.C. § 1409.
Subsequent to the entry of the Order of September 20,1984, plaintiff has come forward with substantial evidence demonstrating that her marriage was invalid under the laws of the State of Washington____
Plaintiff has therefore overcome the only obstacle to satisfaction of the requirements for issuance of statutory citizenship. She has met the definition of “child” under 8 U.S.C. [§] 1101(c), was properly legitimized as required by 8 U.S.C. [§] 1409[, and] is therefore entitled to a decree awarding statutory citizenship as prescribed by 8 U.S.C. § 1401(g).
Nowhere in either of its orders did the district court rely on any action by Don Burgess as establishing Mary’s legitimacy. It did so only in a derivative sense in that it looked to the superior court paternity decree to see whether legitimacy was established before Mary turned twenty-ore.
If the majority position is that the paternity decree is insufficient to establish paternity, either (a) because the government was not a party to that proceeding, (b) because allowing such an ex parte proceeding to establish legitimacy for citizenship purposes opens the door to fraud, or (c) because the decree was not granted before Mary was sixteen, the proper course is to remand to the district court to allow it to *344find in the first instance the facts which the majority would like to say it had found.
With a broad definition of legitimation, the superior court decree bound the government as tightly as it would under the doctrine of res judicata. It is not that the government was bound by res judicata or collateral estoppel by the superior court’s decree. It could not be, since it had neither notice nor an opportunity to be heard. Rather, because the section 1409 requires a child born out of wedlock to establish paternity by legitimation without defining how and by whom legitimation is to be established, the government and the district court, were in fact bound. The superior court paternity decree established Mary’s legitimation. Since, in the district court, the government adduced no evidence to disprove legitimation or to prove that Mary defrauded the superior court, the district court did not err in granting Mary statutory citizenship.
The majority would have the government bound by Don Burgess’s supposed acceptance of Mary in his home for eight months twenty-three years ago. The district court, on the other hand, bound the government by the superior court’s decree that Mary was Don’s natural and legal daughter. The problem is not with the findings of the district court but with the Immigration Act and Washington statutes as construed by the courts. The majority sees no problem. I do. Until Congress or an en banc panel of this court establishes more stringent procedures for establishing legitimacy, we must abide by state procedures. See Kaliski v. District Director of Immigration and Naturalization Service, 620 F.2d 214, 216 (9th Cir.1980) (California law which recognizes legitimating acts before the father and child have any contact with the state is applicable in immigration cases).
. 8, U.S.C. § 1401(g) provides in relevant part: The following shall be nationals and citizens of the United States at birth:
(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years____
. 8 U.S.C. § 1409(a) provides in relevant part:
The provisions of paragraph [ ] ... (g) of section 1401 of this title ... shall apply as of the date of birth to a child born out of wedlock ... if the paternity of such child is established while such child is under the age of twenty-one years by legitimation.
(Emphasis added.)
. The majority opinion says that "we have held that a state can recognize legitimating acts occurring before either the father or child have any contact with that state.” Majority op. at 340. A more accurate statement of our precedent would be that a state legitimation law, which recognizes legitimating acts occurring before either the father or child have any contact with that state, is sufficient under which to establish legitimation. See Kaliski v. District Director of Immigration and Naturalization Service, 620 F.2d 214, 216 (9th Cir.1980).
. 8 U.S.C. § 1101(c)(1) provides in relevant part: (c) As used in subchapters III of this chapter—
(1) The term "child” means an unmarried person under twenty-one years of age and includes a child legitimated under the law of the child’s residence or domicile, or under the law of the father’s residence or domicile, whether in the United States or elsewhere, ... if such legitimation ... takes place before the child reaches the age of sixteen years and the child is in the legal custody of the legitimating ... parent or parents at the time of such legitimation____
The majority opinion erroneously refers to section 1101(b)(1)(C) as providing the relevant definition of "child.” Majority op. at 339; id. at 340; and id. at 341. That definition does not apply to section 1401 or 1409.
The differences between the two definitions are 1) subsection (c) prefaces everything after “under twenty-one years of age” with "and includes,” which is descriptive, rather them "who is,” which is restrictive; and 2) subsection (c) calls for legitimation before the child turns sixteen, while subsection (b) requires it before age eighteen.