Interim Decision #2395 

MATTER OF VARIAN 

In Deportation Proceedings 

A-18488785 

Decided by Board Ante 11, 1975 

(1) Respondent, born in the Philippines in 1943, -to parents who were natives of the 

Philippines, requests reversal of the immignition judge's raiding of alienage. Respondent claims United States citizenship under section 201(e) of the Nationality Act of 

1940, resting his claim of the alleged citizenship of his father under section 1993 of the 

Revised Statutes. Respondent's grandfather was a citizen of the United States prior to 

the birth of respondent's father; but respondent's father, being illegitimate and never 

having been legitimated during his lifetime, did not acquire citizenship at birth under 

section 1993 of the Revised StatUtes. He therefore could not pass on United States 

citizenship to the respondent. California Civil, Code (Sec. 230) pnnitlea for legitimation, 

but the grandfather never went to California unti1,1959 9r 1960, and respondent's father 

had never lived in California (having died in the Philippines in 1952). [Matter of P—, 4 I. 

& N. Dec. 854 (C.O. 1951) is overruled, insofar as it indicates that California laW would 

be applied regardless of 'whether the grandfather Eris domiciled there at the timo . 

 legitimating acts tookplace.] 

(2) The Service requests reversal of the order of the immigratiori judge terminating these 

proceedings pursuant to section 241(f) of the Immigration-and Nationality Act. Where 

respondent is charged, as a nonimmigrant overstay under section 241(a)(2) of the Act, 

section 241(f) relief is not available to hill. The Service's, appeal is sustained, the 

immigration judge's order is reversed, and the record is remanded. 

CHARGE: 

Order: Act of 1952—Section 241(a)(2) (8 U.S.C. 1251(a)(2))—Nonimmigrant visitor-

—remained longer ( 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Hartford Z. Smith, Esquire David L. Milhollan 

615 Montgomery Street Appellate Thal Attorney 

San Francisco, California 94111 

Stephen A. Suffin 

Trial Attorney 

On August 4, 1971, after a reopened hearing, the immigration judge 

found that the respondent was deportable as charged. However, the 

immigration judge terminatdd proceedings under section 241(f) of the 

Immigration and Nationality Act. Both the respondent and the Service 

have appealed from that decision. The respondent's appeal will be dis341 ' 
Interim Decision #2395 

missed. The Service appeal will be sustained, and the record will be 

remanded to the immigration judge for further proceedings. 

The respondent has appealed the immigration judge's finding that he 

is an alien. Ile contends that he acquired United States citizenship from 

his father at birth in the Philippines in 1943 pursuant to section 201(e) of 

the Nationality Act of 1940. 1 

The respondent's grandfather, Morris Varian, was a United States 

citizen who served with the United States Army in the Philippines 

during the Spanish—American War. After the war, he returned to the 

Philippines where he had a son, the respondent's father, born out of 

wedlock in 1903. Later that year, Morris Varian married a native of the 

Philippines who was not the mother of the respondent's father. He and 

his wife evidently took the respondent's father into their home and 

raised him along with the legitimate offspring of their marriage. Morris 

Varian lived in the Philippines until 1959 or 1960, when he went to 

California w:nere he died in 1967. 

The legitimate sons of Morris Varian, the half brothers of the respondent's father, were admitted to the United States as citizens. However, 

the respondent's father never left the Philippines, nor did he ever 

pursue a claim to United States citizenship. 

The respondent's father entered into a relationship with a woman in 

the Philippines and had several children by her. Thereafter he went 

through a in arriage ceremony with another native and citizen of the 

Philippines, who was the respondent's mother. The respondent was 

born of the latter relationship in the Philippines on September 3, 1943. 

The respondent's father died in the Philippines in 1952. 

The respondent's claim to United States citizenship under section 

201(e) of the Nationality Act of 1940 depends on (1) whether the respondent's father was a United States citizen at birth, and (2) whether the 

respondent was a legitimate child or a child legitimated during his 

minority. 2 

The question of the United States citizenship of the respondent's 

father is determined under section 1998 of the Revised Statutes, which 

was in effect on the date the respondent's father was born. That section 

provides: 

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 

Section 201(e) of the Nationality Act of 1940 provides that United States nationality 

and citizenship shall be acquired at birth by: 

A person born in an outlying possession of the United States of parents one of whom 

is a citizen of the United fitateg,whonsidtdballie.Uultod.States..or iu>E (tits outlYine".. 

revandedlatimniromionatiouAndovalitir 

2See section 205 of the Nationality Act of 1940. 

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Interim Decision #2395 

are declared to be citizens of the United States; but the rights of citizenship shall not 

descend to children whose fathers never resided in the United States.' 

Section 1993 of the Revised Statutes makes no mention of its applicability to illegitimate children. Nevertheless, the Attorney General administratively recognized that the traditiona•rule barring the descent of 

benefits from a father to his illegitimate child applied to section 1993. 32 

Op. Att'y Gen. 162 (1920); 39 Op. Att'y Gen. 556 (1937); see Matter of 

P—, 5 I. & N. Dec. 689 (BIA 1954). However, the Attorney General 

also recognized the modern tendency of many jurisdictions to provide a 

method for legitimation of illegitimate children. The Attorney General 

noted the general rule that a child legitimated under the law of its 

father's domicile at the time 'of the legitimating act took place was 

entitled to have that status recognized everywhere, even in jurisdictions not providing for legitimation. The Attorney General found that 

the foregoing rule violated no public policy, and he therefore expressed 

the opinion that a child legitimated in the foregoing manner 'should be 

considered to be a United States citizen from birth under section 1933 of 

the Revised Statutes. 32 Op. Att'y Gen. 162, 164-65 (1920); 39 Op. Att'y 

Gen. 556, 557-58 (1937). 

The respondent claims that his father's status as the legItimaLed child 

of Morris Varian became fixed under section 230 of the California Civil 

Code when Morris Varian took up residence in California in 1959 or 

1960. It should be muted that by this time the respondent's father was 

dead, having passed away in 1952. 

Section 230 of the California Civil Code states: 

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 such child is 

thereupon deemed for all purposes legitimate from the time of its birth. . . . 

The respondent contends that by reason of Morris Varian's relocation 

to California in 1959 or 1960, the respondent's father, who had already 

died, would be considered retroactively legitimated to birth under section 230 of the California Civil Code. The legitimation under California 

law would occur by reason of the legitimating acts which took place 

while Morris Varian and the respondent's father were domiciled in the 

Philippines in 1903. This in turn, argues the respondent, would retroactively confer citizenship upon his father pursuant to section 1993 of the 

Revised Statutes. The respondent's father's retroactive citizenship 

would in turn retroactively confer United States citizenship at birth 

upon the respondent under section 201(e) of the Nationality Act of 1940. 

In other words, we are asked to hold that because the respondent's 

3Amended by the Act of May 24, 1934, 48 Stat. 797. Repealed by section 604 of the Aet 

of October 14, 1940, 54 Stat. 1178. 

343 
Interim Decision #2395 

grandfather took up residence in California in 1960, at the age of 80, 

after an absence from the United States of 61 years, his grandchild (the 

respondent) born in 1943 in the Philippines thereby became a United 

States citizen at birth, through his deceased father. 

The Attorney General's opinions interpreting section 1993 of the 

Revised Statutes recognized legitimation accomplished under the law of 

the father's domicile at the time the legitimating acts took place. The 

legitimating act alleged in the present case was the taking of the respondent's father into the family of Morris Varian in 1903. At the time of 

this alleged legitimating act, both father and child were domiciled in the 

Philippines. Slch taking into the family did not effect legitimation under 

the law of the Philippines. 

The respondent, in effect, asks us to extend the Attorney General's 

rulings on section 1993 of the Revised Statutes to include a situation 

where the alleged legitimation was accomplished under the law of a 

jurisdiction, California, that had no connection whatsoever with either 

the father or the child at the time the alleged legitimating acts occurred. 

We do not believe that any rule of law or consideration of policy requires 

us to make such an extension. The fact that California may reach a 

different result when determining how to distribute property left within 

that state is not determinative with respect to this question of citizenship. 

Onr present holding does not go contrary toLouie Wak You v. Naglo, 

27 F.2d 573 (C.A. 9, 1928). That case merely recognized that where a 

putative father was a lifelong domiciliary of California, the law of 

California was applicable to determine whether legitimation had taken 

place for the purpose of section 1993. Nothing in that decision indicated 

that California law would be applied to a putative father who was not 

domiciled in California at the time an alleged act of legitimation took 

place. In fact, 'the court noted that "if his [the father's] home and settled 

place of habitation was in China, his domicile would likewise be there, 

and the statutes of California could have no application." (Emphasis 

supplied.) 27 F.2d at 574. 

Matter of P.—, 4 L & N. Dec. 354 (C.O. 1951), involved a situation 

where a father had taken his illegitimate daughter into his family both in 

France and later in California after he had established domicile in that 

state. It was held that legitimation was accomplished under California 

law, and that such legitimation was sufficient to confer retroactive 

citizenship upon the daughter under section 1993 of the Revised Statutes. To the extent that this decision holds that a father who performed 

legitimating acts while domiciled in California has legitimated his child 

for the purposes of section 1993, it is consistent with the Attorney 

General's opinions and our present decision. To the extent that Matter 

of P—indicates that California law would , be ,applied regardless of 

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Interim Decision #2395 

whether the father was domiciled there at the time legitimating acts 

took place, it is inconsistent with the approach taken by the Attorney 

General with respect to section 1993, and it will not be followed by us. 

Decisions of this Board interpreting section 101(b)(1)(C) of the 

Immigration and Nationality Act of 1952, relied upon by counsel, are 

inapposite. We are concerned with the law in effect at the time of the 

respondent's father's birth in 1903. However, we should point out that if 

the applicability of the decisions rendered under the 1952 Act is seriously urged, legitimation under section 101(b)(1)(C) of that Act requires 

that the parent or the child become a domiciliary or a resident of 

California prior to the child's eighteenth•irthday. Matter of Singh, 15 I. 

& N. Dec. (BIA November 11, 1974). We see no reason for a different 

position with respect to nationality and citizenship, except that the age 

limit under section 309(a) of the 1952 Act is 21. 

We conclude that the respondent's father did not acquire United 

States citizenship from his father, Morris Varian, under section 1993 of 

the Revised Statutes. Consequently, the respondent couldnot have 

acquired United States citizenship from his father under section 201(e) 

of the Nationality Act of 1940. Our disposition of this issue makes it 

unnecessary for us to reach the question of the respondent's legitimacy 

for the purpose of section 201(e). 

The respondent is a native and a citizen Of the Philippines by virtue of 

his birth there in 1943. See Matter of Hermosa, 15 I. & N. Dec. (BIA 

1973). We agree with the immigration judge that the respondent is an 

alien and is therefore subject to the deportation provisions of the Act. 

Consequently, we shall dismiss the respondent's appeal from the immigration judge's decision. 

With respect to the section 241(f) issue, we agree with the Service's 

contention that' an alien such as the respondent, who is charged with 

deportability as a nonimmigrant overstay, is not entitled to the benefit 

of section 241(f) of the'Act. Cabuco-Flores v. INS, 477 F.2d 108 (C.A. 9, 

1973), cert. denied in companion ease, Mangabat v. INS, 414 U.S. 841 

(1973). Moreover, in the recent case of Reid v. INS, 420 U.S. 619, 95 S. 

Ct. 1164 (1975), the Supreme Court indicated that section 241(f) is not 

available to an individual charged with deportabiliey as a nonimmigrant 

overstay. . . 

The Service appeal will be sustained and the immigration judge's 

order terminating proceedings will be reversed. The record will be 

remanded to the immigration judge for further proceedings. 

4 ORDER: The respondent's appeal is dismissed. 

Further order: The Service's appeal is, sustained, the order of the 

immigration judge terminating proceedings is reversed, and the record 

is remanded to the immigration judge for further proceedings. 

• David L. Milhollan, Chairman, abstained from consideration of this case. 

345.