Interim Decision #2268 

MATTER OF SEPULVEDA 

In Deportation Proceedings 

A-11345658 

Decided by Board March 12, 1974 

Respondent, who was born in Mexico on December 30, 1931, of a United States 

citizen mother and alien father, has no claim to citizenship at birth under 

section 1993, Revised Statutes, since his father never became a United States 

citizen. Neither did he acquire citizenship under section 301(a)(7) of the 

Immigration and Nationality Act, which was not retroactive; nor did he derive 

citizenship under section 5 of the Act of March 2, 1907, as amended by the Act 

of May 24, 1934, since he first entered the United States in 1948 and his case is 

governed by the provisions of section 314 of the Nationality Act of 1940, which 

were then in effect and which required the naturalization of both parents.' 

CHARGES: 

Order! Act of 1952—Sections 241(a)(1) i8 U.S.C. 1251(a)(1)] and 212(a)(17) [8 

U.S.C. 1182(a)(17)]—Alien excludable at time of entry 

by reason of having been previously arrested and 

deported and not thereafter having received consent 

to apply for readmission to the United States. 

ON BEHALF OF RESPONDENT: Gary H. Manulkin, Esquire 

International Institute of Los Angeles 

One Stop Immigration Center 

3609 North Mission Road 

Los Angeles, California 90031 

This is an appeal from the immigration judge's denial of the 

respondent's motion to reopen. At the time of the deportation 

hearing, deportability was conceded. In the motion to reopen, the 

respondent denied deportability and requested termination of the 

proceedings on the ground that he is a United States citizen. The 

appeal will be dismissed. 

The respondent's mother was born in Arizona on October 13, 

1903. She married the respondent's father, a citizen of Mexico, on 

October 10, 1920, in Arizona. Counsel alleges in his brief that she 

proceeded to Mexico immediately after her marriage for a temporary visit to see relatives, and that upon her intended return to 

the United States in 1921, she was prevented by a border official 

616 
Interim Decision #2268 

from reentering the country. She thereupon commenced living 

with her husband in Mexico, where they live together to this day. 

The respondent was born in Mexico on December 30, 1931. He has 

entered the United States numerous times. He was deported on 

June 22, 1965. He last entered the United States October 17, 1971 

without having secured permission from the Attorney General to 

reapply. 

The respondent claims that he acquired United States citizenship at birth by virtue of the fact that his mother is a native-born 

United States citizen. The law in effect on the date of birth 

governs acquisition of citizenship. At the time of the respondent's 

birth, acquisition of United States citizenship by children born 

abroad was limited to children of United States citizen fathers, 

Revised Statutes, § 1993, Montana V. :iennedy, 366 U.S. 308 (1961), 

Rogers v. Bellei, 401 U.S. 815 (1971). The respondent's father has 

never become a citizen of the United States. Accordingly, the 

respondent did not acquire United States citizenship at birth 

pursuant to Revised Statutes, § 1993. 

The respondent claims that he acquired citizenship according to 

the provisions of section 301(a)(7) of the Act (effective December 24, 

1952). This legislation was not retroactive, Wolf v. Brownell, 268 

F.2d 141 (C.A. 9, 1957). 

In the alternative, the respondent claims derivative naturalization as of 1948 (the date he first entered the United States), 

pursuant to the terms of section 5 of the Act of March 2, 1907, as 

amended by the Act of May 24, 1934 (48 Stat. 797). 1He claims that 

his mother resumed her United States citizenship on July 2, 1940, 

the date of a statutory amendment which extended repatriation to 

native-born women who had lost their United States citizenship by 

marriage and who had resided continuously in the United States 

since the date of the marriage, 54 Stat. 715. 

In order to claim citizenship by virtue of the Act of July 2, 1940, 

the respondent makes the following assumptions: (1) that his 

mother was expatriated by her marriage in 1920 to an alien; (2) 

that the Government is estopped from denying that she resided 

continuously in the United States from the date of her marriage, 

because it is the Government which erroneously prevented her 

from meeting this condition (counsel does not explain why, if the 

"Sec. 5. That a child born without the United States of alien parents shall be 

deemed a citizen of the United States by virtue of the naturalization of or 

resumption of American citizenship by the father or the mother: Provided, That 

such naturalization or resumption shall take place during the minority of such 

child: And provided further, That the citizenship of such minor child shall begin 

five years after the time such minor child begins to reside permanently in the 

United States." 

617 
Interim Decision #2268 

respondent's mother had lost her United States citizenship as per 

assumption (1), it was erroneous for the border official to prevent 

her return as a United States citizen); (3) that the respondent was 

residing permanently in the United States as of 1948, and that 

because the Government erroneously deported him, the Government is estopped from asserting that he did not reside five years 

thereafter in the United States; (4) that the provisions of the Act 

of May 24, 1934, supra, regarding derivation apply rather than the 

provisions of the Act of 1940. All four of these assumptions are 

questionable. We shall dispose of the case on the ground that the 

fourth assumption is erroneous. Accordingly, it will not be necessary for us to discuss the first thiee, and we shall not. 

Derivation of citizenship through naturalization of parents is 

governed generally by the statute in effect on the date that the 

last material condition is fulfilled, Matter of T—, 7 I. & N. Dec. 6'79 

(Reg. Corn. 1958). An exception has been created for derivation 

upon completion of required residence commenced pursuant to 

previous law, Bertoldi v. McGrath, 178 F.2d 977 (D.C. Cir., 1949). 

This exception is not applicable to the respondent who had not 

commenced residence while the prior act (the Act of May 24, 1934) 

was in effect; consequently he did not have a right in process of 

acquisition which fell within the savings clause of the Act of 1940. 

In 1948, when the respondent allegedly first entered the United 

States, the law in effect was section 314 of the Act of October 14, 

1940 (the Nationality Act of 1940), 54 Stat. 1145-1146; 8 U.S.C. 714, 2 

 which required naturalization of both parents unless the parents 

were legally separated or one was deceased, exceptions not applicable to the respondent. Even apart from the question as to 

whether the respondent was residing permanently in the United 

States in 1948,3he does not meet the requirement that both his 

parents have been naturalized. Accordingly, his claim must fail. 

2 "Sec. 314. A. child born outside of the United States of alien parents, or of an 

alien parent and a citizen parent who has subsequently lost citizenship of the 

United States, becomes a citizen of the United States upon fulfillment of the 

following conditions: 

(a) The naturalization of both parents; or 

(14 The naturalization of the surviving parent if one of the parents is deceased: 

(c) The naturalization of the parent having legal custody of the child when 

there has been a legal separation of the parents; and if— 

(d) Such naturalization takes place while such child is under the age of 

eighteen years; and 

(e) Such child is residing in the United States at the time of the naturalization 

of the parent last naturalized under subsection (a) of this section, or the parent 

naturalized under subsection (b) or (c) of this section, or thereafter begins to 

reside permanently hi the United States while under the age of eighteen years " 

a Counsel implies the Government is estopped from pursuing this issue, 

618 
Interim Decision #2268 

The respondent seeks to invoke the derivation provisions of the 

Act of May 24, 1934, supra, which permitted derivation of United 

States citizenship upon naturalization of or resumption of citizenship by only one parent. That statute provided that citizenship 

would begin five years after the minor child began to reside 

permanently in the United States. The respondent concededly did 

not begin to reside permanently in the United States during the 

period that the act was still in effect. The Government cannot be 

estopped from raising this point (assuming that the Government 

could ever be estopped) as there is no showing that before the 

statute was superseded by the Nationality Act of 1940 the respondent ever sought to come to the United States to reside 

permanently. 

Consequently, the respondent's case must be governed by the 

provisions of the Act of 1940, the conditions of which he did not 

meet. It has been held that the savings clause, section 347 of the 

Act of 1940, fails to set forth any conditions under which citizenship may be derived after its effective date (January 13, 1941) by 

virtue of previous laws, Matter of R—M—, 2 I. & N. Dec. 536 (C.O. 

1946). The exception later carved out for persons who had commenced their periud of five years residence, before the 1940 Act 

was passed, Bertoldi v. McGrath, supra, is of no benefit to the 

respondent because he did not commence residing in the United 

States while the previous act was still in effect. 

Accordingly, we conclude that the respondent has not established United States citizenship. It would serve no useful purpose, 

therefore, to grant his motion to reopen. 

ORDER: The appeal is dismissed. 

although he does not claim that the respondent ever applied to live permanently 

in the United States and was erroneously prevented from doing so. 

619