A-4412166
Decided by Central Office March 10, 1950
Citizenship Status of a Native of Puerto Rico (1895) — Child born of "alien" parents there — Opting by parents in name of child for Spanish nationality — Such child to signify election within one year of attaining majority — article 18 and article 19, Spanish Civil Laws of 1889 — Acquisition of Spanish nationality by denizenship — Article 17, Spanish Civil Laws of 1889 — Evidence — Doubt as to citizenship status — Eligibility to file a declaration of intention pursuant to section 322 of the Nationality Act of 1940.
(1) A child, born in Puerto Rico (in 1895), of "alien" parents is eligible to file a declaration of intention pursuant to section 322 of the Nationality Act of 1940, if the evidence leaves her citizenship in doubt.
BEFORE THE CENTRAL OFFICE
Discussion: The question presented is whether petitioner has established that she was born in Puerto Rico of alien parents, so as to be eligible to file a declaration of citizenship pursuant to the provisions of section 322 of the Nationality Act of 1940.
The record discloses that petitioner's father was born in Hamburg, Germany, in 1859, that he arrived in Puerto Rico on December 31, 1883, that he was engaged in the business of a merchant and also a banker while in Puerto Rico, that he was married to subject's mother on July 14, 1888, in Puerto Rico and that he resided there until the date of his death in July 1941. Petitioner's mother was born in Puerto Rico on 1866 of a Spanish father. Petitioner was born in San Juan, P.R., on June 28, 1895.
Petitioner has testified that her father was German consul in San Juan during the Spanish-American War in 1899, that he was named consul because he was one of the very few Germans living there at the time, that she did not believe that he was the consul at the time of her birth and that she didn't think that she was considered a Spanish subject by virtue of her birth in Puerto Rico in 1895. The record discloses that petitioner's father was naturalized as a United States citizen on January 29, 1923, by the District Court of the United States for the District of Puerto Rico at San Juan, and that petitioner's mother was naturalized as a United States citizen on October 18, 1943, by the same court.
In order to be eligible to the provisions of section 322, petitioner must establish that she was born in Puerto Rico of alien parents. If she was born in Puerto Rico of Spanish subjects, she may have a claim to United States citizenship pursuant to the provisions of the act of April 12, 1900, and the act of March 2, 1917. It is, therefore, pertinent to inquire into the provisions of Spanish law which were in effect at the time of her birth.
The Spanish Civil Laws of 1889 provided in part as follows (Flournoy and Hudson, Nationality Laws, p. 537):
Article 17. The following are Spaniards:
(1) Persons born in Spanish territory.
(2) The children of a Spanish father or Spanish mother, although born outside Spain.
(3) Aliens who have obtained a certificate of naturalization.
(4) Aliens, who, without such certificate, have acquired a denizenship (vecindad) in any town (pueblo) of the monarchy law of October 2, 1877, 12 to 16.
Article 18. Children, while they remain under the parental power (patria procestad) take the nationality of their parents.
In order that children born of alien parents in Spanish territory may enjoy the benefits accruing to them under clause I of Article 17, it shall be incumbent upon their parents to signify in the manner and before the officials specified in Article 19 that they opt in the name of their children for Spanish nationality, renouncing all other.
Article 19. The children of an alien born in the dominions of Spain shall signify within one year after attaining their majority or emancipation whether they desire to enjoy the rights of Spaniards granted to them by Article 17.
The record fails to disclose that petitioner's parents signified in any manner that they opted in the name of petitioner for Spanish nationality or that petitioner signified within 1 year after attaining her majority or emancipation that she desired to enjoy the rights of Spaniards granted by article 17. In view thereof, it does not appear that petitioner acquired Spanish nationality under the provisions of section I of article 17. While petitioner's mother was Spanish at birth, since she was married prior to petitioner's birth, the nationality of petitioner's mother followed that of petitioner's father, inasmuch as article 22 of the same Civil Laws provided that "A married woman shares the condition and nationality of her husband." Whether or not petitioner acquired Spanish citizenship under the provisions of section 2 of article 17 of the Civil Laws of 1889 would, therefore, depend upon the nationality of her father, which will be discussed later. There is no record of any naturalization as Spanish citizens either by petitioner or her parents and, therefore, there was no acquisition of Spanish nationality under the provisions of section 3, article 17 of the Civil Laws.
Section 4 of article 17 of the Civil Laws of 1889 provides for the acquisition of Spanish citizenship by aliens who have acquired a denizenship (vecindad) in any town (pueblo) of the monarchy (law of October 2, 1877, 12 to 16). However, section 4 of article 17 is shown in House Document No. 326, 59th Congress, Second Session, page 510, as reading as follows: "The following are Spaniards. (4) Those who, without them, may have gained a residence in any place in the monarchy." The case of Tristani v. Clark (Declaratory Judgment No. 4780, District Court of the United States for Puerto Rico, April 30, 1947, Central Office File A-6438573), contains a history of the Spanish law relating to the acquisition of Spanish nationality by persons born or residing in Puerto Rico. In the decision filed by the court in that case, the court stated that the only law dealing with the manner of acquiring denizenship until 1916 was the law of March 8, 1716. That law provided that the requirements which should be met by aliens to acquire vecindad (denizenship) was as follows:
There should be considered as a denizen (vecino) in the first place any foreigner who obtains the privileges of a native (naturaleza); he who was born in these kingdoms; he who becomes a convert to our Holy Catholic Faith; he who, living on his own resources, establishes his domicile; he who applied for and is granted denizenship (vecindad) in any town; he who marries a woman born in these kingdoms and has his domicile herein; and, if the wife is a foreigner that marries a native, she thereby acquires the same jurisdiction and domicile as her husband; he who settles and buys and acquires real estate and holdings; he who, having a profession, comes to stay and engage in that profession; and also in the same way he who settles and engages in mechanical employment or keeps a store in which to sell at retail; he who has functions municipal, honorary or of any kind that may be held by natives (naturales); he who has the enjoyment of pastures and advantages belonging to the denizens; he who lives ten years as a householder in these kingdoms; and likewise in all other cases where in accordance with the written law, the royal orders and laws, the foreigner acquires the privileges, of a native (naturaleza) * * * and all those who have any one of the features here expressed must be declared as included.
The German Law of June 1, 1870, sections 5, 21, which was extended to the rest of Germany by the German Constitutional Law of April 22, 1871, contained the following provisions of law which may be pertinent in determining the case at bar; namely, section 5 which provided that "Marriage with a North German confers the citizenship of the husband on the wife" and section 21 which provided "North Germans who leave the territory of the Confederation and reside abroad ten years uninterruptedly lose their citizenship thereby * * *. The period is interrupted by registration in the register of a consulate of the Confederation * * *. Loss of citizenship incurred according to this provision extends also to the wife and to the minor children who are under the paternal authority, provided they are with the husband or father" (House of Representatives Document No. 326, 59th Cong., 2d sess., p. 328, 330).
It might be argued that petitioner's father, being a German national at the time of his marriage to petitioner's mother in 1888 bestowed German nationality upon her in accordance with section 5 of the German law mentioned above and that both parents lost their German nationality upon the completion of 10 years' residence in Puerto Rico by petitioner's father in 1893 in accordance with the provisions of section 21 of the same law. Thereafter he acquired Spanish nationality pursuant to the provisions of section 4 of article 17 of the Spanish Civil Laws of 1889 by his having acquired denizenship in Puerto Rico, the mother following his nationality pursuant to article 22 of the same Spanish Civil Law. Therefore, at birth petitioner acquired Spanish nationality only, pursuant to section 2 of article 17 of the same Spanish law by being the child of a Spanish father or Spanish mother. In support of such contention are the facts that petitioner's father established domicile in Puerto Rico and lived on his own resources there, that he married a woman born in the kingdom and had his domicile in Puerto Rico, that he may have kept a store in which to sell at retail and that he lived 10 years as a householder in Puerto Rico.
On the other hand, the record discloses that petitioner testified that her parents never declared themselves to hold allegiance to the Spanish Crown, that the father registered himself, his wife and petitioner as German nationals prior to 1899 and that the father was made German consul in 1899. It does not appear from the record when the registration as German nationals took place and particularly whether such registration took place between the 10-year period from 1883 to 1893. It might be argued that the father, in view of his affirmative action in regard to German nationality, retained such nationality which he had acquired at birth and, therefore, he did not lose his German nationality or acquire Spanish nationality. Having retained German nationality, he would have bestowed German nationality upon petitioner's mother, in accordance with section 5 of the German law mentioned above. The conclusion that petitioner's parents did not have Spanish nationality at the time of petitioner's birth is corroborated by the fact that the father was naturalized as a United States citizen in 1923 and the mother was naturalized on October 18, 1943. Had the parents been deemed to have Spanish nationality on April 11, 1899, they would have become Puerto Rican nationals on April 12, 1900, in accordance with the provisions of the act of that date ( 31 Stat. 79; 48 U.S.C. 733) and United States nationals on March 2, 1917, pursuant to the provisions of the act of that date ( 39 Stat. 953; 8 U.S.C. 5) and there would have been no need for them to become naturalized as United States citizens in order to acquire United States citizenship. Consequently, it must be deemed that the parents had not acquired Spanish nationality on or before April 11, 1899.
Thus, whether or not petitioner acquired Spanish nationality on or before April 11, 1899, is not free from doubt. Accordingly, the question of whether petitioner acquired United States nationality, pursuant to the acts of April 12, 1900, and March 2, 1917, is not free from doubt. 8 C.F.R. 373.10 provides in part that "where doubt of citizenship exists, the case shall be treated by the Service as though the applicant were an alien."
Since petitioner has not established that she was a Spanish national at the time of the acquisition of Puerto Rico by the United States, she is unable to establish that she acquired United States citizenship pursuant to the provisions of the act of April 12, 1900, and March 2, 1917, or any other act. The evidence of record establishes that petitioner was born in Puerto Rico of alien parents and she is, therefore, eligible to file a declaration of citizenship pursuant to the provisions of section 322 of the Nationality Act of 1940.
The case, however, is not as yet ready for presentation to the court, inasmuch as no recommendation has been made by the field office in regard to petitioner's attachment to the principles of the Constitution and favorable disposition to the good order and happiness of the United States. The facts, findings, and conclusions contained in the memorandum of the District Director are hereby adopted.
It is ordered, That a copy of this memorandum be forwarded to the field office so that appropriate action may be taken in accordance with the foregoing.