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Derivative Citizenship in the United States

  • Ernest J. Hover (a1)


Derivative citizenship may be defined as acquired citizenship; it is a status of nationality not fixed by birth, but conferred thereafter through the act of another. It is a form of indirect naturalization by operation of law. In the United States, nationality is acquired derivatively by foreign-born resident minors whose parents are naturalized, and prior to September 22,1922, it was acquired by alien women whose husbands were or became citizens.



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1 Fourteenth Amendment, Constitution. “All persons born in the United States, and not subject to any foreign power, are declared to be citizens of the United States“: Act of April 9, 1866, R. S. 1992; 14 Stat. 27; R. S. 1992; Comp. Stat. 3946; 8 U. S. C. A. 1. The exception excludes children born in the United States to a foreign diplomat from acquiring American nationality at birth. Case of Elsie Wolcott Ekengren, Solicitor, Dept. of State, Feb. 20, 1930.

2 Act of Feb. 10,1855; 10 Stat. 604; R. S. 1993; Comp. Stat. 3947; 8 U. S. C. A. 6; amending Act of April 14, 1802; 2 Stat. 153, adding the qualification: “but the rights of citizenship shall not descend to children whose fathers never resided in the United States.” This is a limitation upon the passage of citizenship by descent beyond the second generation born abroad, where there has been continuing foreign residence. The Supreme Court has decided that to confer citizenship upon the second generation born abroad, the father must be a citizen of the United States at the time of the birth of the child, and prior to such birth he must have resided in the United States; that is to say, residence in the United States by the father, after such child's birth, will not satisfy the statutory requirement. Weedin, Commr. of Imm. v. Chin Bow (1927), 274 U. S. 657, 71 L. Ed. 1284, 47 S. Ct. 772, reversing (C. C. A. Wash. 1925), 7 F. (2d), 369; also, contra, Johnson v. Sullivan (C. C. A. Mass. 1925), 8 F. (2d), 988; Ex parte Wong Fuey Sem (D. C. Wash. 1927), 20 F. (2d), 148. The descent is cast through the father only, and not through the mother; the child of a citizen father and an alien mother is a citizen, but one born of an alien father and a citizen mother is not a citizen by virtue of parentage. Borchard, Diplomatic Protection of Citizens Abroad, 612; State Dept. Memo., Nov. 27,1928. The statute does not provide for inheritable descent of citizenship through women. Moore, Dig., Ill, 285; Davis v. Hall (S. C. 1818), 1 Nott & McCord, 292; House Doc. 326, 1906-7, pp. 78 and 125.

3 And continuing: “In all courts, tribunals, and public offices of the United States, at home and abroad, of the District of Columbia, and of each State, Territory, or insular possession of the United States, the certificate of citizenship issued under this section shall have the same effect as a certificate of citizenship issued by a court having naturalization jurisdiction.” Sec. 9, Act of March 2, 1929, 45 Stat. 1515; 8 U. S. C. A. 399c (a), adding Sec. 33 to the Act of June 29, 1906, 34 Stat. 596. One claiming citizenship by naturalization of a parent is not entitled to a certified copy of such naturalization proceedings, the statute providing an exclusive method of evidencing such derived citizenship. In re Olanoff (D. C. Pa. 1930), 44 F. (2d), 188.

4 42 Stat. 1022; 8 U. S. C. A. 10.

5 10 Stat. 604; Comp. Stat. 3948.

6 34 Stat. 1229; Comp. Stat. 3961.

7 Note 24, infra.

8 2 Stat. 155; Sec. 2172, R. S.; Comp. Stat. 4367; 8 U. S. C. A. 7. The remainder of this section, reenacted in 1855, became Sec. 1993, R. S., cited note 2, supra. The last sentence of this act, applying to those proscribed by any State during the Revolutionary War, is omitted by the U. S. C. A. as obsolete.

9 Campbell v. Gordon (1810), 6 Cranch. 176, 3 L. Ed. 190; Boyd v. Nebraska (1892), 143 U. S. 135, 36 L. Ed. 103,12 S. Ct. 375; North Noonday Mining Co. v. Orient Min. Co. (C. C. Cal. 1880), 1 Fed. 522; Gribble v. Pioneer Press Co. (C. C. Minn. 1883), 15 Fed. 689; U. S. v. Kinkead (D. C. N. J. 1918), 248 Fed. 141, affirmed 250 Fed. 692; In re Tate (D. C. Penna. 1924), 1 F. (2d), 457; (1862) 10 Op. Atty. Gen. 329; Delaware L. & W. R. Co. v. Petrowsky (C. C. A. N. Y. 1918), 250 Fed. 554. State jurisdictions, chronologically, as follows: North v. Valk (S. C. 1838), Dud. Eq. 212; West v. West (1840), 8 Paige (N. Y.) 433; Calais v. Marshfield (1849), 30 Me. 511; State v. Penney (1850), 10 Ark. 621; O'Connor v. State (1860), 9 Fla. 215; In re Morrison (N. Y. 1861), 22 How. Prac. 99; Marshall v. Baldwin (Pa. 1875), 11 Phila. 403; State v. Andriano (1887), 92 Mo. 70,4 S. W. 263; Dorsey v. Brigham (1898), 52 N. E. 303,177111. 250,42 L. R. A. 809, 69 Am. Stat. Rep. 228; Rexroth v. Schein (1903), 69 N. E. 240, 206 111. 80; Rock Co. Sch. Dist. v. Bolstad (1913), 121 Minn. 376, 141 N. W. 801. And see, Gumm v. Hubbard (1888), 11 S. W. 61, 97 Mo. 311, writ of error dismissed (1890), 138 U. S. 496, 34 L. Ed. 1012,11 S. Ct. 385. That children entering the United States when over the age of twenty-one years are excluded from the benefit of the act: Boyd v. Nebraska, supra; In re Slobody (1918), 173 N. Y. S. 514; U. S. ex rel. Betty v. Day (C. C. A. N. Y. 1928), 23 F. (2d), 489; U. S. ex rel. Dallas v. Corsi (D. C. N. Y. 1932), 55 F. (2d), 941; In re Conway (1863), 17 Wis. 543; Berry v. Hull (1892), 6 N. M. 643, 30 P. 936; Dorsey v. Brigham, supra; Dryden v. Swinburne (1882), 20 W. Va. 89; Young v. Peck (N. Y. 1839), 21 Wend. 389, 26 Wend. 613; Van Dyne Naturalization, 201. The minor child of one who became a citizen under a treaty would derive citizenship thereby, as a treaty is to be regarded as much a law of the United States within the meaning of this provision as an Act of Congress. Crane v. Reeder (1872), 25 Mich. 303.

10 Boyd v. Nebraska, supra; Campbell v. Gordon, supra; U. S. v. Kellar (C. C. 111. 1882), 13 Fed. 82; State v. Penney, supra; O'Connor v. State, supra; State v. Andriano, supra; West v. West, supra. Conira, that this act related only to children of aliens naturalized before its passage: Brown v. Schilling (1856), 9 Md. 74.

11 That it did not affect the citizenship of a minor who came to the United States after his father had been naturalized, was held in Behrensmeyer v. Kreitz (1891), 26 N.E. 704, 135 111. 591. See Conover v. Old (1910), 77 A. 1070, 80 N. J. Law 535, for discussion of this mooted point; and compare, State v. Andriano, supra.

12 34 Stat. 1229; Comp. Stat. 3962; 8 U. S. C. A. 8: “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 parent; Provided, That such naturalization or resumption takes place during the minority of such child; And provided further, That the citizenship of such minor child shall begin at the time such minor begins to reside permanently in the United States.“

13 In re Camaras (D. C. R. 1.1913), 202 Fed. 1019. This provision was in accord with the construction earlier given the enactment of 1802 by the State Department For. Rel., 1900, 13-15; Mr. Hay, Sec'y of State, For. Rel., 1890, 301; Moore, Dig., I l l , 470; Hyde, Int. Law (1922), I, 647.

14 Solicitor, Dept. of State, Case of Elsie Wolcott Ekengren, Feb. 20,1930.

15 U. S. ex rel. Patton v. Tod (D. C. N. Y. 1923), 292 Fed. 243, affirmed (C. C. A. 1924), 297 Fed. 385, certiorari dismissed (1925), 267 U. S. 607, 69 L. Ed. 811, 45 S. Ct. 228.

16 U. S. ex rel. De Rienzo v. Rodgers (C. C. A. Pa. 1911), 185 Fed. 334, 107 C. C. A. 452, affirming (D. C. 1910), 182 Fed. 274; Conover v. Old, supra; U. S. ex rel. Dallas v. Corsi, supra. This interpretation had been enforced under the earlier statute. Mr. Frelinghuysen, Sec'y- of State, For. Rel., 1885, 394; Van Dyne, Naturalization, 214.

17 U. S. v. Wong Kim Ark (1898), 169 U. S. 649,42 L. Ed. 890,18 S. Ct. 456.

18 “The limitation to children dwelling in the United States was doubtless inserted in recognition of the principle that citizenship cannot be conferred by the United States on citizens of another country, when under such foreign jurisdiction; and is also in deference to the right of independent sovereignties to fix the allegiance of those born within their dominions, having regard to the principles of the common law which permits a sovereign to claim, with certain exceptions, the citizenship of those born within its territory.” To the same effect, U. S. ex rel. Abdoo v. Williams (C. C. N. Y. 1904), 132 Fed. 894.

19 U. S. v. Ju Toy (1905), 198 U. S. 253, 25 S. Ct. 644, 49 L. Ed. 1040; Chin Yow v. U. S. (1908), 208 U. S. 8, 52 L. Ed. 369, 28 S. Ct. 201.

20 The indulgence of immigration officers and of the Department of Labor in not deporting the defective minor alien who had been permitted to enter temporarily under bond, did not estop the government from claiming that such child was not dwelling in the United States so as to become a citizen on the naturalization of the father. U. S. ex rel. Goldman v. Tod (D. C. N. Y. 1924), 3 F. (2d), 836. While the minor was at Ellis Island, she was to be regarded as stopping at the boundary line and kept there unless and until her right to enter should be declared. Zartarian v. Billings, supra. Also, Nishimura Ekiu v. U. S. (1892), 142 U. S. 651, 35 L. Ed. 1146, 12 S. Ct. 336.

21 As amended by the Act of May 29, 1928, Sec. 2, 8 U. S. C. A. 204 (a), 45 Stat. 1009.

22 U. S. exrel. Gaudelli v. Maxwell (D. C. N. Y. 1932), 60 F. (2d), 655; U. S. ex rel. Dallas v. Corsi, supra.

23 Note 12, supra.

24 Sec. 3 was as follows: “Any American woman who marries a foreigner shall take the nationality of her husband. At the termination of the marital status she may resume her American citizenship, if abroad, by registering as an American citizen within one year with a consul of the United States, or, if residing in the United States at the termination of the marital relation, by continuing to reside therein.” 34 Stat. 1228; Comp. Stat. 3960. “Sec. 4. That any foreign woman who acquires American citizenship by marriage to an American shall be assumed to retain the same after the termination of the marital relation if she continue to reside in the United States, unless she makes formal renunciation thereof before a court having jurisdiction to naturalize aliens, or if she resides abroad she may retain her citizenship by registering as such before a United States consul within one year after the termination of such marital relation.” (Repealed, Sec. 6, Act of Sept. 22,1922.)

25 42 Stat. 1022; Comp. Stat., Sup. 1923, 4358a-4358d, 3961a, 3961b.

26 This was the rule observed by the Solicitor, Dept. of State, Feb. 20, 1930, in the case of Elsie Wolcott Ekengren, note 14, supra, holding that in the case of a child born in the United States of a native American woman who, at the time of the child's birth was the wife of a foreign diplomat, the child became a naturalized citizen after the husband's death, prior to Sept. 22, 1922, by which the wife, and mother, resumed American nationality.

27 The mother's citizenship arose from the Act of Feb. 10, 1855, as reënacted Aug. 9, 1888: “Any woman who is now or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen.” 10 Stat. 604; R. S. 1994; Comp. Stat. 3948; repealed, Sec. 6, Act of Sept. 22,1922, 42 Stat. 1022, 8 U. S. C. A. 9. That the mother's children so acquired citizenship through her re-marriage was decided in U. S. v. Kellar (C. C. 111. 1882), 13 Fed. 82; Gumm v. Hubbard (1889), 11 S. W. 61, 97 Mo. 311,10 Am. St. Rep. 312; People v. Newell (N. Y. 1885), 38 Hun. 78, affirming 1 How. Prac. (N. S.) 8; In re Cimorelli (N. Y. 1915), 155 N. Y. S. 509, 91 Misc. Rep. 604; In re Bishop (D. C. Wash. 1927), 26 F. (2d), 148.

28 The son of alien parents, whose father died an alien, but whose mother remarried, became a citizen if his step-father, during the mother's lifetime, and the son's minority, became a citizen. U. S. v. Rodgers (D. C. Pa. 1906), 144 Fed. 711; In re Graf (D. C. Md. 1922), 277 Fed. 969; Behrensmeyer v. Kreitz (1888), 125 111. 141, 17 N. E. 232; Hyde, Int. Law (1922), I, 647; Moore, Dig., III, 473-483; Van Dyne, Naturalization, 220-223; Case of John Haberacker, For. Rel., 1891-2; Mr. Hay, Sec'y of State, For. Rel., 1900, 13-15.

29 But this was not because the naturalization of the step-father (or his citizenship) was that of a ‘parent'; rather, because the mother thereby became a citizen, which status the minor acquired derivatively. That a step-father is not a ‘parent’ within the meaning of the Acts of April 14, 1802, and March 2, 1907, see In re Bishop, note 27, supra.

30 In re Page (D. C. Cal. 1926), 12 F. (2d), 135.

31 Considering the effect of the mother's re-marriage upon her foreign-born minor child of a former marriage, where the step-father is a citizen, or naturalized, the State Department has ruled: “Minor children by a former marriage also become citizens provided they reside in the United States during their minority, and subsequent to the marriage of the mother. It should be carefully observed, however, that Section 1994 of the Revised Statutes was repealed by the Act of September 22,1922, so that alien women married to American citizens after the passage of the Act just mentioned do not acquire American citizenship, and their children accordingly would not be naturalized by the act of marriage.” State Dept., Memo., Oct. 20, 1928.

32 Citizenship of R. Bryan Owen (1929), 36 Op. Atty. Gen. 197, citing In re Lazarus, infra; Petition of Drysdale, supra; Roa v . Collector of Customs (1912), 23 Philippine Rep. 315, 341; Brown v. Shilling, 9 Md. 74; Van Dyne, Citizenship, 118.

33a In re Fitzroy (D. C. Mass. 1925), 4 F. (2d), 541.

33 Citizenship of R. Bryan Owen, supra, concluding: “While the considerations herein suggested seem persuasive, if not conclusive, against the view that R. Bryan Owen acquired citizenship at the time his mother resumed her American citizenship, your inquiry does not require that point to be passed upon categorically.“

34 Cong. Doc. 7957, 67th Cong., 2d Sess. (H. R. 1110); and see, to the same effect, debate on the bill, Cong. Rec, 67th Cong., 2d Sess., Vol. 62, pt. 9, pp. 9044-9057.

35 In re Citizenship Status of Minor Children Where Mother Alone Becomes Citizen Through Naturalization (D. C. N. J. 1928), 25 F. (2d), 210: “The proper interpretation of the laws governing the status of minor children in naturalization matters is to limit their rights to those which will conform to the status of their father; this despite any apparent ambiguity appearing in the use of the word ‘parent’ in Section 5, Act of March 2,1907, and the word ‘parents’ in Section 2172, R. S.“

36 In re Lazarus (D. C. Ga. 1928), 24 F. (2d), 243. The resumption of American citizenship by the mother, through naturalization, which she had lost by marriage, was held to naturalize her minor daughter born abroad, then in the mother's legal custody in the United States, the divorced husband residing in Germany and retaining German nationality. The court pointed out that Sec. 5, Act of March 2,1907, was not repealed by the Act of Sept. 22, 1922, and limited its holding to the particular facts presented in the decision.

37 “The Department holds that a child does not acquire American citizenship through the naturalization of his mother unless the parents are separated and the child is legally in the custody of the mother.” Memo., State Dept., Feb. 10, 1933.

38 Powers v. Harten (1918), 167 N. W. 693, 183 Iowa 764; Moore, Dig., III , 484-5; Hyde, Int. Law, I, 648; For. Rel., 1906, I, 288-90; ibid., II, 1015; Mr. Freylinghuysen, Sec'y of State, Feb. 20, 1884. State Dept., Memo., Oct. 29, 1928: “Since naturalization cannot be acquired except in accordance with statute provisions, and as the effect of adoption in the United States depends upon the laws of the several states, it would seem clear that adoption of an alien minor by American citizens does not confer American citizenship upon the adopted child, there being no law of Congress providing for naturalization in that manner, and the several states being without authority to confer American citizenship by state law.“

39 Cabrillos v. Angel et ux. (C. C. A. 9th, 1922), 278 Fed. 174; In re Voluntary Adoption of Minor (1927), 226 N. Y. S. 445, 130 Misc. Rep. 793; Ex parte Kwock Seu Lum (D. C. Cal. 1922), 287 Fed. 363: the adopted son of native-born citizens, born in China, of Chinese parentage, is not an American citizen.

40 Illegitimate children born abroad of American fathers, do not in any case, acquire citizenship derivatively. In such case the law in point is the Act of Feb. 10,1855, Sec. 1993, R. S., note 2, supra, conferring citizenship at birth upon minors born abroad of American fathers. Without subsequent legitimation, an illegitimate child of an American father, the former born abroad, does not acquire American nationality. Guyer v. Smith (1864), 22 Md. 239, 85 Am. Dec. 650; Peck v. Venezuela, International Claims, 1885, Moore's Int. Arb., 2257. The children of an American citizen by “secondary wives”, if born abroad, are not citizens of the United States by birth. Mason ex rel. Chin Suey v. Tillinghast (C. C. A. Mass. 1928), 26 F. (2d), 588. The daughter of an American citizen born in China of a polygamous marriage is not entitled to enter as a citizen. Ng Suey Hi v. Weedin (C C. A. Wash. 1927), 21 F. (2d). 801, affirming Ex parte Hi, 20 F. (2d), 266. Illegitimate half-castes born in semibarbarous countries of an American father and a native woman are not American citizens. Moore, Dig., I l l , 287. Such decision was entered with express reference to half-castes born in Samoa of American fathers by Samoan women with whom the fathers lived “fa'a Samoa”. Senate Ex. Doc. 31, 50th Cong., 2nd. Sess., 1888, 55. An early view of the State Department was that children born in China of legitimate unions between native American citizens and Chinese women acquire American nationality at birth, with the qualification that such would not be the case if the father was a citizen of one of the States which prohibit marriage with Chinese. Mr. Bayard, Sec'y of State, For. Rel., 1885, 171. The effect of subsequent legitimation, as to descent of citizenship, appears to be in doubt, or at least dispute. Note Ng Suey Hi v. Weedin, supra, and Louie Wah You v. Nagle (C. C. A. Cal. 1928), 27 F. (2d), 573. Prior to these decisions there had been an earlier announcement that legitimation would remove the defects of illegitimacy, by a state supreme court, the State Department, and the Attorney General. Dale v. Irwin (1875), 78 111. 170; (1920), 32 Op. Atty. Gen. 162; Mr. Hay, Sec'y of State, For. Rel., 1901, 512. The difficulty of this position clearly appears from the determination of the Supreme Court in Weedin v. Chin Bow, supra, note 2, which is based on the principle that citizenship arising from foreign birth must be cast at birth. There is authority under the common law that legitimation does not confer nationality. Piggott, Nationality, 64. Mr. Borchard states: “This would appear to be the better opinion under the American law, since under Section 1993, R. S., citizenship must be cast at birth.” Op cit., 613.

41 Illegitimate children born abroad of a citizen mother, the father being an alien, may in some cases acquire American nationality derivatively. While it appears, under a strict view, such children may not claim through the mother under Sec. 1993, R. S., as has been pointed out by Flournoy, this Journal, Vol. 23 (1929), p. 36, citing Moore, Dig., Ill, 285, and Van Dyne, Citizenship (1907), 49 (and see, second paragraph, note 2, supra; also Acosta y Foster v. Spain (1871), Moore's Int. Arb. 2462), there is authority that the State Department, “on a free construction of the statute,” will recognize descent of citizenship in the minor, through the mother. Hyde, Int. Law, (1922), I, 617, citing Mr. Ames, Actg. Atty. Gen., April 7, 1920. The present rule of the State Department has been stated as follows: “The Department has repeatedly held that a child born abroad of an unmarried American mother acquires American citizenship. If, however, the child's father is an alien, and its birth is subsequently legitimated, in accordance with the laws of the foreign country wherein the legitimation is alleged to have occurred, the child loses its claim to American citizenship.” Memo., Oct. 27,1932.

42 Dale v. Irwin, supra; Blythe v. Ayres (1892), 96 Cal. 532.

43 Contra, Guyer's Lessee v. Smith (1864), 22 Md. 239, 85 Am. Dec. 650. But see, Sec'y of State Hay to Mr. White, March 3,1899.

44 Hyde, Int. Law (1922), I, 647; Van Dyne, Naturalization, 223.

45 Thus, in the case of a native-born woman's resumption of citizenship, or naturalization, after loss of American nationality, the State Department has ruled: “In respect of illegitimate children of an American woman born abroad of alien father, the mother's separate naturalization will vest citizenship in the child.” Memo., Nov. 27,1928.

46 Gribble v. Pioneer Press Co. (C. C. Minn. 1883), 15 Fed. 689; Prentice v. Miller (1890), 23 Pac. 189, 82 Cal. 570; Belcher v. Parren (1891), 26 Pac. 791, 89 Cal. 73.

47 Moore, Dig. III, 501; Hyde, Int. Law (1922), I, 651; Moore, Int. Arb., III, 2586, decision of Commander Bertinatti, as umpire of Costa Rican Commission; (1871), 13 Op. Atty. Gen. 376.

48 34 Stat. 601; Act of March 4, 1913, 37 Stat. 737; Act of May 9, 1918, 40 Stat. 544; Comp. Stat. 4374; 8 U. S. C. A. 405.

49 U. S. v. Norsch (C. C. Mo. 1890), 42 Fed. 417; Annual Message, Pres. Harrison, Dec. 1, 1890; Wallace v. Adams (1906), 204 TJ. S. 415, 51 L. Ed. 547, 27 S. Ct. 363, recognizing the constitutional power of Congress to authorize that all judgments of territorial courts conferring citizenship upon Indians be set aside, and inquired into de novo.

50 Pintsch Compressing Co. v. Bergin (C. C. Mass. 1897), 84 Fed. 140; In re McCarran (1894), 29 N. Y. S. 582; 23 L. R. A. 654, affirmed (1897), 44 N. Y. S. 695; Commonwealth v. Paper (Pa. 1868), 1 Brewst. 263; In re Shaw (1892), 2 Pa. Dist. R. 250; Raymond v. Raymond (C. C. A. 1896), 1 Ind. Terr. 334, 37 S. W. 202.

51 Petersen v. State (1905), 89 S. W. 81, 40 Tex. Civ. A. 175; U. S. v. Anderson (D. C. Idaho 1909), 169 Fed. 201; contra, In re Macoluso's Petition (1912), 85 A. 149, 237 Pa. 132.

52 Yamashita v. Hinkle (1922), 260 U. S. 199, 67 L. Ed. 209, 43 S. Ct. 69; In re Takuji Yamashita (1902), 70 Pac. 482, 30 Wash. 234, 59 L. R. A. 671; In re Gee Hop (D. C. Cal. 1895), 71 Fed. 274. And see, Ozawa v. U. S. (1922), 260 U. S. 178,67 L. Ed. 199,43 S. Ct. 65.

53 Great Britain, Portugal, Belgium, Norway, Sweden, Denmark, Bulgaria, and Czechoslovakia, to which should be added Germany, Austria, and Hungary, by reason of their enforced recognition of American naturalization of their nationals in the treaties of Versailles, St. Germain, and Trianon, respectively.

54 Moore, Dig., III , 532; For. Rel., 1892,189; For. Rel., 1907,1, 516.

55 Borchard, op. cit., 542; Hyde, Int. Law (1922), I, 665.

56 Writ of certiorari denied, (1928) 48 S. Ct. 560, 277 U. S. 598, 72 L. Ed. 1007.

57 Note 48, supra.

58 Rosenberg v. U. S. (C. C. A., 3d Circuit, 1932), 60 F. (2d), 475. Certiorari denied, 287 U. S. 645.

59 Citizenship of Wife and Minor Child of Pietro Mariani, July 16, 1931, 36 Op. Atty. Gen. 446.

60 For Sec. 1994, R. S., note 27, supra; Sec. 1993, R. S., note 2, supra.

61 “When a naturalization certificate has been canceled under the provisions of Section 15, Act of June 29, 1906, the person who procured it, and his wife and child claiming through him, must be regarded as never having acquired citizenship of the United States. This is true even though the wife and child are not parties to the cancellation suit.” State Dept., Memo., Sept. 22, 1931.

62 “The certificate of naturalization was simply a paper fraud and conferred at the time of its grant no rights whatever upon Louis Rosenberg… . To allege that Mrs. Rosenberg was ever an American citizen is to fly in the face of the fact that she never could have been an American citizen, because she was not the wife of a naturalized man.“

63 Luria v. U. S. (1913), 34 S. Ot. 10, 231 TJ. S. 9, 58 L. Ed. 101.

64 36 Op. Atty. Gen. 446, note 59, supra. That, in spite of this view of the purpose and effect of a decree of cancellation, minors may retain rights of derivative citizenship, notwithstanding the cancellation of the parent's naturalization, has been suggested in the Federal jurisdiction. Where cancellation was sought by reason of foreign residence, Judge Bourquin, District Court of Washington, speaking of the character of the naturalization grant, stated: “Valid in its inception, its termination thereafter does not invalidate its origin, and under it rights accrue, which ought not to be, as they cannot be, impaired by annulment of the grant.” U. S. v. Eliasen (D. C. Wash. 1926), 11 F. (2d), 785.

65 Citizenship of Ingrid Therese Tobiassen, June 1, 1932, 36 Op. Atty. Gen. 535. To the same effect, that a native-born minor's citizenship is defeasible through the act of the parent: Ostby v. Salmon (1929), 225 N. W. 158, 177 Minn. 289.

66 Note 27, supra,

67 Printed in this Journal, Vol. 26 (1932), p. 712.

Derivative Citizenship in the United States

  • Ernest J. Hover (a1)


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