Interim Decision #2816 

MATTER OF FULGENCIO 

In Deportation Proceedings 

A-31363623 

Decided by Board August 2A 1980 

(1) Respondent, born in the Philippines in 1949, initially met the requirements for 

acquisition of citizenship set forth in section 201(g) of the Nationality Act of 1940 by 

virtue of his father's United. States citizenship and residence in the Philippines for 10 

years prior to the respondent's birth. 

(2) In the Ninth Circuit, a child is considered legitimated for immigration purposes if, 

while the child was under the required age, his father performed acts in a foreign 

country which would constitute legitimation under section 230 of the California Code, 

and subsequently became domiciled in California. 8 crliski v. District Director, 620 F.2d 

214 (9 Cir. 1980). 

(3) Section 205 of the Nationality Act of 1940 requires that a child born out of wedlock 

must be legitimated during his minority in order to acquire United States citizenship 

under section 201(g). Since the respondent was legitimated as a child pursuant to the 

laws of California, as a result of his father's acknowledgment of paternity and 

domicile in California, the respondent was found to have acquired United States 

citizenship. 

(4) In order to retain United States citizenship under the provisos to section 201(g) of 

the Nationality Act of 1940, a person must reside in the United States or its outlying 

possessions for 5 years between the ages of 13 and 21, commencing his residence before 

the age of 16. Since the Philippines gained its independence prior to the respondent's 

birth and the respondent did not enter the United States before he was 16, he did not 

qualify for retention of citizenship under section 201(g). 

(5) Section 301(b) of the Immigration and Nationality Act of 1952, 8 U.S.C. 1401(b), 

which was made applicable to all persons born abroad subsequent to May 24, 1934, 

provides that a child born abroad to a United States citizen and an alien will lose his 

United States citizenship unless he comes to the United States prior to the age of 23 

and is continuously present for 5 years between the ages of 14 and 28. Since the 

respondent entered the United States at age 22 and resided in this country for more 

than 5 years, he retained his United States citizenship pursuant to section 301(b), and 

deportation proceedings were terminated for failure to prove alienage. 

CHARGE 

Order: Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at entry under 

ceo 212(a)(20) [8 U.S.C. 1182(a)(20)1 —no valid visa 

Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at entry under 

sec. 203(a) [8 U.S.C. 1153(a)]—not of status specified in immigrant visa 

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Interim Decision #2816 

ON BEHALF OF RESPONDENT: James Michael Hoffman, Esquire 

United States Catholic Conference 

528 Market Street, Room 518 

San Francisco, California 94104 

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members 

In a decision dated January 12, 1979, the immigration judge determined that the respondent was not a United States citizen and found 

him deportable as charged.' He further found that the respondent was 

not eligible for relief from deportation pursuant to section 241(f) of the 

Immigration and Nationality Act, 8 U.S.C. 1251(f), but granted him the 

privilege of voluntary departure in lieu of deportation. The respondent 

has appealed from that decision. The appeal will be sustained. 

The respondent is a native and citizen of the Philippines who was 

born out of wedlock on July 31, 1949. The respondent entered this 

country on April 15, 1972, as a' lawful permanent resident based on his 

oatua as the unmarried son of a United. States citizen? It appears that 

no attempt was made to establish his United States citizenship at that 

time. At the deportation proceedings, however, the respondent denied 

the allegation that he was an alien, claiming to be a United States 

citizen by derivation through his father. 

Since the respondent was born in 1949, he is subject to the provisions 

of the Nationality Act of 1940.. We believe that the section of that Act 

which is applicable in this case is 201(g), 8 U.S.C. 1151(g), which grants 

United States citizenship at birth to: 

A person born outside the.United States and its outlying possessions of parents one of 

whom is a citizen of the United States who, prior to the birth of such person, bets had 

ten years' residence in the United States or one of its outlying possessions, at least five 

of which were after attaining the age of sixteen years, the other being an alien: 

Provided, That in order to retain such citizenship, the child must reside in the United 

States or its outlying possessions for a period or periods totaling five years between 

the ages of thirteen and twenty one.years: Provided further, That, if the child has not 

taken up residence in the United States or its outlying possessions by the time he 

reaches the age of sixteen years, or if he resides abroad for such a time that it becomes 

impossible for him to complete the five years' residence in the United States or its 

' We note that the second charge brought against the respondent alleged that he was 

deportable under section 241(a)(1) of the Act, 8 U.S.C. 1251(a)(1), as an alien who was 

excludable at entry because he was not of the status specified in his immigrant visa 

according to section 203(a) of the Act, 8 U.S.C. 1153(a). Although a similar ground of 

excludability was formerly included in the Act under section 211(a)(4), 8 U.S.C. 

1181(a)(4), no such ground now exists. See Matter of C—, 8 I&N Dec. 665 (BIA 1960). In 

light of our decision finding that the respondent is a United States citizen, this error in 

the charge is inconsequential. 

The record reflects that the respondent's father was naturalized as a United States 

citizen on August 26, 1946, following his service in the United States military. 

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Interim Decision #2816 

outlying possessions before reaching the age of twenty one years, his American 

citizenship shall there upon cease.... 

The record indicates that the respondent's father, who lived in the 

Philippines while it was an outlying possession of the United States, 

meets the above-stated requirements for a United States citizen 

parent whose child may derive United States citizenship. However, 

since the respondent was born out of wedlock, section 205 relating to 

illegitimate children is also pertinent to a determination regarding the 

respondent's acquisition of United States citizenship. That section 

provides as follows: 

The provisions of section 201, subsections (c), (d), (e), and (g), and section 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 minority, by legitimation, or 

adjudication of a competent court. 

The respondent argued at the hearing that he was legitimated in 

accordance with the requirements of section 205 by virtue of the fact 

that his father acknowledged paternity and took the respondent into 

his home in The Philippines, and subsequently moved to California, 

which recognizes such extraterritorial acts as constituting legitimation under its laws. The immigration judge rejected this claim, finding 

that the respondent was not legitimated during minority as required 

by section 205 since his father only became domiciled in California 

after the respondent reached the age of 21. Thus, the immigration 

judge concluded that the respondent failed to establish that he had 

acquired United States citizenship by birth. As authority for his 

decision he cited Matter of Varian, 15 I&N Dec. 341 (BIA 1975), in 

which we declined to recognize legitimation under the law of 

California where that state had no connection with either the father or 

the child when the legitimating acts took place. See also Matter of 

Buenaventura, 16 I&N Dec. 456 (BIA 1977), overruling Matter of 

Garcia, 12 I&N Dec. 628 (BLA, 1968). 

The law ill effect in California at the time of the respondent's 

claimed legitimation was section 230 of the California Civil Code.' That 

statute provides as follows: 

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 the child is 

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

In a recent decision, the Ninth Circuit examined section 230 and its 

interpretation under California law. Kaliski v. District Director, 620 

F.2d 214 (9 Cir. 1980). The court discussed In re Lund's Estata, 26 Cal. 

' Section 230 as repealed in 1975 when the Uniform Parentage Act was adopted. See 

California Civil Code, section 7000. 

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Interim Decision #2816 

2d 472, 159 P.2d 643 (1945), where the California Supreme Court 

determined that legitimating acts occurring outside the state and 

prior to the father's domicile there were sufficient to legitimate a child 

under section 230. The Ninth Circuit adopted that viewpoint and held 

that a child could be legitimated for immigration purposes if, while the 

child was under the required age, his father performed acts in a 

foreign country which would constitute legitimation under California 

law, and subsequently became domiciled in that state. See Matter of 

Garcia, supra. In doing so, the court rejected our conclusion in Matter 

of Varian, supra. 

Inasmuch as this case arises in the Ninth Circuit, we shall recognize 

the respondent's legitimation under section 230 by virtue of his 

father's acknowledgment of paternity while in the Philippines and his 

domicile in California thereafter. Thus, we hold that the respondent 

acquired United States citizenship under section 201(g) of the Nationality Act of 1940. 

We must next determine whether the respondent has retained his 

United States citizenship in accordance with the proviso of section 

201(g) of the 1940 Act. That proviso sets forth the mandate that a child 

must reside in the United States or its outlying possessions for 5 years 

between the ages of 13 and 21 years in order to retain his citizenship, 

which is forfeited if he does not take up residence in the United States 

by the time he reaches the age of 16. 

Inasmuch as the Philippines obtained independence from the United 

States on July 4, 1946, it was no longer an outlying possession as of that 

date. See 22 U.S.C. 1394. Therefore, since the respondent was born in 

1949, his years of residence in that country will not satisfy the requirement of section 201(g). Furthermore, the respondent did not enter the 

United States until 1972, when he was 22 years old. Thus, he cannot 

qualify under the provisions of the 1940 Act for retention of 

citizenship. 

On June 27, 1952, however, a new law was enacted, effective 

December 24, 1952, which changed the requirements for retention of 

citizenship.' Under section 301(b) of the 1952 Act, a child born abroad 

to a United States citizen and an alien would lose his citizenship unless 

he came to the United States prior to the age of 23 and was continuously physically present in this country for 5 years between the ages of 

14 and 28. Section 301(c) of that Act made the provisions of section 

301(b) applicable to persons born abroad subsequent to May 24, 1934, 

That provision was later amended by the Act of October 27, 1972, Pub. L. 92-584, 86 

Slat. 1289, and again by the Act of October 10, 1978, Pub. L. 95432, 92 Stet. 1046, both of 

which further liberalized the retention requirements. However, since the respondent 

qualifies under the provisions of the 1952 Act, we need not discuss these amendments. 

See section 301(d) of the 1972 Act. 

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Interim Decision If 2816 

who were previously subject to the retention requirements of earlier 

acts. See Lee You Fee v. Dulles, 236 F.2d 885 (7 Cir. 1956), reed on 

confession of error, 355 U.S. 61 (1957); Matter of Navarrete, 12 I&N 

nee. 138 (BIA 1967); Matter of S—, 8 I&N Dec. 221 (BIA 1958). Inasmuch as the respondent came to the United States at the age of 22 and 

has remained here for more than 5 years, we conclude that his United 

States citizenship was retained by virtue of his compliance with section 301(b) of the 1952 Act. 

Accordingly, deportation proceedings against the respondent will be 

terminated. 

ORDER, The appeal is sustained, and the deportation proceedings 

are terminated. 

475