Interim Decision #2548 

MATTER OF VILL,ANUEVA. 

In Deportation Proceedings 

A-20687247 

Decided by Board December 30, 1976 

(1) An illegitimate child who acquired United States citizenship at birth pursuant to 

section 205 of the Nationality Act of 1940, as the child of a United States citizen mother, 

does not lose that citizenship upon legitimation. 

(2) The rationale followed in Rogers v. Bellei, 401 U.S. 815 (1971), does not apply to the 

facts in this case because Bellei dealt with retention requirements for citizenship over 

which the individual has some control whereas the conditions envisioned in the Nationality Act of 1940 concern matters respecting retention of citizenship over which 

respondent has no control (i.e., whether his parents marry, and how long his mother 

resides in the United States prior to his birth). 

CHARGE: 

Order: Act of 1952—Section 241(a)(2) U.S.C. 1261(2)(2)}—Entry without inspection 

ON BEHALF OF RESPONDENT: Robert Ramirez, Representative 

U.S. Catholic Conference 

700 S. Santa Fe Street 

El Paso, Texas 79901 

BY: kralhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members 

This is an appeal from the immigration judge's decision of December 

22, 1975, in which he found the respondent deportable and granted to 

him the privilege of voluntary departure. The appeal will be sustained. 

The respondent contends that the proceedings should be terminated on 

the basis that he is a United States citizen. He claims citizenship 

through his mother who was born in New Mexico on March 3, 1025. The 

respondent's mother lived in the United States until about the age of 6 

when she was taken to Mexico by her grandparents. She has never 

returned to the United States to reside. The respondent was born out of 

wedlock in Mexico on April 9, 1951. His parents were married to each 

other during 1953. 

At the time of the respondent's birth the Nationality Act of 1940 was 

in effect. Section 205 thereof, entitled "Illegitimate Children" provided 

as follows: 

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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. 

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 nationality 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. 

Section 201(g) of the Act, to which section 205 refers, provides that a 

child of parents, only one of whom is a United States citizen, acquires 

United States citizenship at birth if the United States citizen parent, 

prior to the child's birth, had resided in the United States ten years, five 

of which were after attaining the age of 16. 

Prior to the respondent's legitimation, the law changed and the present law was enacted. In a section entitled "Children Born Out of Wedlock", the present Act provides: 

Section 309(b) Except as otherwise provided in section 405, the provisions of section 

301(a)(7) shall apply to a child born out of wedlock on or after January 13, 1941, and 

prior to the effective date of this Act, as of the date of birth, if the paternity of such child 

is established before or after the effective date of this Act and while such child is under 

the age of twenty-one years -by legitimation. 

The provisions of section 301(a)(7) are similar to those of section 

201(g), with the relevant difference that of the citizen parent's 10 years 

of residence in the United States, 5 had to be after the age of 14, rather 

than after the age of 16. The respondent's mother lacked sufficient 

residence under either of these provisions to pass citizenship to him. 

The issue before us is whether, in the face of the foregoing provisions, 

the respondent, nevertheless, retained the citizenship which he had 

acquired at birth. 

When previously confronted with the same issue, the Service has 

consistently taken the position that illegitimate children who acquired 

United States citizenship pursuant to section 205 of the 1940 Act as the 

children of United States citizen mothers did not lose that citizenship 

upon legitimation, Matter of M—, 4I. & N. Dee. 440 (CO 1951). See also 

Matter of P— , 7 1. & N. Dec. 523 (RC, CO 1957), and Matter of M—, 3 I_ 

& N. Dec. 485 (CO 190). The Service found that the purpose of the 

reference to section 201(g) in section 205 of the 1940 Act was to extend 

the acquisition of United States citizenship upon legitimation to children 

born out of wedlock whose fathers were United States citizens and 

whose mothers were aliens. The purpose was found to be an expansive 

one, rather than one intended to take citizenship away from children 

upon legitimation who had acquired citizenship at the time of birth out of 

wedlock pursuant to section 205. The Service decisions have been pro85 
Interim Decision #2548 

mulgated as Service policy, see INS Interpretation 309.1(a)(2), page 

5072 of the Service Book of Operations Instructions, 

In his decision below, the immigration judge acknowledged the Service decision in Matter of M—, 4 I. & N. Decision, supra, but declined to 

follow it on the ground that a subsequent United States Supreme Court 

decision, Rogers v. Bellei, 401 U.S. 815 (1971), validated the concept of 

divestiture of citizenship of children born abroad who acquired United 

States citizenship at birth. He stated that the statute clearly imposes an 

additional prior residence requirement. on the United States citizen 

mother in the event that a child is legitimated. 

The rationale of the Bellei decision, however, is not directly applicable to the situation before us. The Bellei case held that the retention 

requirements of the Act are constitutional. The retention requirements 

provide that certain persons who acquire United States citizenship at 

birth may lose their citizenship by failing to reside in the United States 

during specified periods of their formative years. The requirement at 

issue in that case was a condition for the person's retention of citizenship. The provisions here at issue do not explicitly require that illegitimate children of United States citizen mothers remain illegitimate in 

order to retain their United States citizenship. Furthermore, unlike the 

retention requirements, which is something over which one has some 

control, the condition envisioned here concerns matters over which the 

person has no control, i.e., whether his parents marry and for how many 

years his mother resided in the United States prior to his birth. 

While we are aware•hat the Service's interpretation discussed above 

is not free from controversy, we see no reason to disturb the settled 

administrative policy which has been in operation for many years. Any 

disruption of it now would result in confusion regarding the status of 

many persons previously admitted as citizens and that of their relatives. 

The reasons advanced by the Service for their decision in Matter of 

Ail—, supra (1951), are still valid. There appears to be no reason to take 

citizenship away from a person merely bacause he or she becomes 

Legitimated. 

ORDER: The appeal is sustained and the proceedings are terminated. 

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