E

MATTER OF E.--

In SECTIONS 341 Proceedings

A-12472325-6
Decided by Regio-nal Commissioner September 29, 1961
Approved by Avi,s.tant Commissioner October 13, 1961
Citizenship—Acquisition at birth—Section 205, Nationality Act of 1940—Illegiti-
mate child—U.S. residence of citizen mother.
Temporary visit to United States of short duration satisfies residence require-
went in section 205 of the Nationality Act of 1940. Illegitimate child born
abroad to United States ritizon mother Is held to have acquired United
States citizenship at birth pursuant to section 205 where the mother vis-
ited the United States prior to the child's birth for approximately two days.

BEFORE THE REGIONAL COMMISSIONER
( September 29, 1961)
DISCUSSION: These cases were certified by the Acting District
Director, Seattle, Washington, for an advisory opinion regarding
the applications of G—E-- and Y---E for certificates of citizen-
ship pursuant to the provisions of section 341 of the Immigration
and Nationality Act.
Applicants, who were born out of wedlock, claim that they ac-
quired United States citizenship under section 205 of the Nationality
Act of 1940 at birth in Mexico, on March 16, 1944, and October 8,
1945, respectively, through their mother, M—C E—, who `t-a9 then
a citizen of the United States who had resided in the United States
prior to their birth. The mother had acquired United States citi-
zenship at birth in Mexico on September 28, 1926, through her
father, W—K—E—, a native-born United States citizen. The only
visit to the United States by the mother prior to the birth of the
applicants was for approximately two days, about December 15
or 16, 1940. She was never in the United States thereafter until her
entry about June 8, 1949, with applicants.
The question presented is whether the mother's presence in the
United States prior to the birth of applicants constitutes the resi-
dence required by section 205 of the Nationality Act of 1940.
Applicants' citizenship is determined by said section 205 which
provides as follows:
 The provisions of section 201, subsections (c), (d), (e), and (g), and sec-
tion 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 minor-
ity, by legitimation, or adjudication of a competent court.
In the absence of such legitimation or adjudication, the child, whether born
before or after the effective date of this Act, if the mother had the nation-
ality of the United States at the time of the child's birth, and had previously
resided in the United States or one of its outlying possessions, shall be held to
have acquired at birth her nationality status. (54 Stat. 1139-1140; 8 U.S.C.
605.)
Before 1934, section 1993, U.S. Revised Statutes, provided the
sole source of inherited citizenship status for foreign-born children
of American parents. That statute applied only to children of
citizen fathers (Montana v. Kennedy, 366 U.S. 308 (1961) ). As
amended by the Act of May 24, 1934 (48 Stat..797), the pertinent
law provided as follows:
Any child hereafter born out of the limits and jurisdiction of the Tinitod
States, whose father or mother or both at the time of the birth of such child
Is a citizen of the United States, is declared to be a citizen of the United
States; but the rights of citizenship shall not descend to any such child un-
less the citizen father or citizen mother, as the case may be, has resided in
the United States previous to the birth of such child. . . .
Although the 1934 amendment permitted citizenship to descend
from mothers as well as fathers, it was only prospective in nature
and, therefore, did not affect the status of illegitimate children pre-
viously born to American citizen mothers. The prior residence re-
quired of the citizen parent under that statute was not required, to
be of a permanent nature (Matter of E—, 1 40 (1941)). Visits to
-

the United States of very short duration were held sufficient to satisfy
the residence requirements of that Act (Matter of V—, 6-1 (1954)).
As a part of the Nationality Act of 1940, effective at the time
of birth of the applicants, section 104 (8 U.S.C. 504) thereof pro-
vided that "for the purposes of sections 201, 307(b), 403, 404, 405,
406, and 407 of this Act, the place of general abode shall be deemed
the place of residence." This definition effectively prevented the
acquisition of "residence" by a mere temporary visit to the United
States (Matter nf 41 , 4 118 1 951 ) ).
(

Section 205, supra, in its retroactive aspect, intended to apply to
illegitimate children of United States citizen mothers born prior
thereto the same rules as previously had governed citizenship
acquired at birth before May 24, 1934 through United States citi-
zen fathers. Such rules included the holding that the requirement
of "residence" was satisfied by a temporary visit to the United
States of short duration. Furthermore, the definition of residence
in section 104 of the 1940 Act as "the place of general abode" was

480
expressly limited to the purposes of tile sections set forth in said
section 104. Section 205 was not included.
Since the 1940 statute expressly applied the new definition of
residence to certain sections of the law which did not include sec-
tion 205, it is reasonable to conclude that section 205 was intention-
ally omitted from such definition. Therefore, the previous meaning
of the word residence should still be applicable.
The record indicates that applicants' mother resided in the United
States, prior to their birth, within the meaning of section 205 of the
Nationality Act of 1940. Consequently, applicants became United
States citizens at birth and, not having expatriated, are entitled to
certificates of citizenship.
ORDER: It is ordered that certificates of citizenship be issued to
G—E— and Y—E—.

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