0300-231285
Decided by Central Office, January 19, 1950
Citizenship — Derivation by child born abroad later legally admitted to the United States for permanent residence as a minor, an alien (1937) — de Coll case (37 Op. Atty. Gen., 90, 1933) — Where mother always a citizen — R.S. 2172 — Validity of divorce of the parents — Custody of the child — Conflict of State laws — Eligibility of child for certificate of citizenship — Section 339, Nationality Act of 1940, as amended.
1. A child, born abroad in 1928 of a citizen mother and of an alien father, whose parents were married in 1925, and whose mother was always a citizen (nativeborn), acquired United States citizenship in 1937 under the principle enunciated in the De Coll decision (37 Op. Atty. Gen., 90, 1933) and under the provisions of R.S. 2172, where the child was lawfully admitted to the United States for permanent residence in 1937, and where the parents were validly divorced in 1937, the subject's mother being awarded custody of the subject in 1937.
2. Though such child acquired citizenship as stated, through her mother, (father naturalized in 1947), she is not entitled to a certificate of citizenship because there was no naturalization of a parent as contemplated by section 339 of the Nationality Act of 1940, as amended.
3. Where a divorce decree in one State (Nevada, 1937) is procured by the father, followed by a decree of separation in another State (New York, 1938) procured by the mother (which latter court held the Nevada court without jurisdiction when granting its divorce decree), it will not be questioned where the father was before the Nevada court in 1937, both parents were before the Nevada court on a reopening of the case in 1946, and the Nevada court entered a divorce decree in 1947, reciting it was effective nunc pro tunc as of 1937. It is concluded the parents were validly divorced in 1937, insofar as these administrative proceedings are concerned.
4. Where the physical custody of the child was with the mother only since 1935, the 1937 Nevada divorce said custody was as per a written agreement of parties, the 1938 New York separation decree gave custody to the mother, a 1946 agreement between parties stated the custody of the child was to remain with the mother and the 1947 Nevada decree (reopened 1937 case) gave sole custody to mother, such decree reciting it was effective as of 1937, it is concluded that the mother was legally awarded the custody of such child in 1937.
BEFORE THE CENTRAL OFFICE
Discussion: Subject claims that she derived United States citizenship on July 1, 1937, through permanent residence therein from July 1, 1937, on which date she was a minor, her mother, a native-born citizen, having resumed citizenship on April 24, 1937, pursuant to the principle enunciated in the case of Fernando de Coll y Picard (37 Op. Atty. Gen., 90, Mar. 1, 1933), upon the termination of the mother's marriage by divorce on April 24, 1937.
The question presented is whether the marriage of subject's parents was legally terminated on April 24, 1937, so that the mother can be considered as having resumed her citizenship.
The record discloses that subject's parents were married on August 28, 1925, at Madison, Conn., that subject was born on March 29, 1928, at Florence, Italy, and that subject was lawfully admitted to the United States for permanent residence on July 1, 1937. Her mother, C---- P----, nee W---- was born in Brooklyn, N.Y., on August 2, 1896 and subject's father, G---- P---- was naturalized as a United States citizen on January 7, 1947.
Subject could not derive United States citizenship under the provisions of section 313 or 314 of the Nationality Act of 1940, inasmuch as she was over the age of 18 years at the time of her father's naturalization on January 7, 1947. However, under the provisions of section 2172, R.S., as it remained in effect after May 24, 1934, to January 13, 1941, and in accordance with the principle enunciated in the decision of Coll y Picard, supra, she could derive citizenship provided she establishes that the marriage of her parents was legally terminated and that she was in the legal custody of her mother, prior to the effective date of the Nationality Act of 1940 on January 13, 1941.
Subject's parents were separated sometime in 1935 and subject thereafter at all times resided with her mother. Subject had originally come to the United States in 1933 and had only been absent from the United States in July 1937 for the purpose of going to Canada and returning to the United States so that she might be lawfully admitted to the United States for permanent residence. On April 24, 1937, subject's father obtained a divorce decree in the State of Nevada, which decree recited that subject's mother did not appear in person and was not represented by an attorney but that certified copies of the summons and complaint were delivered to her in person in New York City. The mother, however, has testified that she did not know of this divorce decree until after she had read about it in the papers. At the time the divorce decree was entered subject was residing with her mother in New York City. The divorce decree further recited that all matters concerning and relating to the custody of subject and the proper rights of both parties had been settled by the terms of an agreement in writing made by the parties.
In June 1937 the mother began a proceeding in New York State for the purpose of obtaining a decree of separation from subject's father. On January 28, 1938, a decree of separation was granted to the mother by the Supreme Court of New York County, New York City, in which action both parties were represented by counsel. In this action, the issue was raised as to the validity of the Nevada decree of April 24, 1937, and the New York court held that the Nevada court was without jurisdiction to grant the divorce, that the plaintiff had not been a bona fide resident of the State of Nevada but had gone there solely for the purpose of obtaining a divorce. No appeal was taken from that ruling ( Pignatelli v. Pignatelli, 169 Misc. 534, 8 N.Y.S. (2d) 10 (1938)). In the decree entered January 28, 1938, by the Supreme Court, County of New York, New York City, subject's mother was awarded sole custody of subject, and at that time subject was residing with the mother in New York City.
On June 4, 1943, the mother instituted an action in the United States District Court at Washington, D.C., for support of subject. The complaint filed in that proceeding alleged that the mother had obtained custody of subject in a separation action in New York and that the father had obtained a divorce in Nevada which had been declared to be void. No hearing was held on this action, and it was subsequently dismissed with prejudice following an agreement made between the parties which was signed by the mother on May 7, 1946, and the father on May 25, 1946. This agreement provided for the support and maintenance of subject and agreed that the custody of subject should remain with the mother. The agreement was filed on December 20, 1946, in the same court in the State of Nevada in which the father had obtained his divorce decree. The original divorce proceedings were reopened, and the mother entered an appearance. On January 10, 1947, an order was entered by Nevada court granting a divorce to the father and incorporating the agreement entered into between the parties which was filed on December 20, 1946, with regard to the custody and support of subject. This decree further recited that it was effective nunc pro tunc as of April 24, 1937.
In the case of Estin v. Estin ( 334 U.S. 541, June 7, 1948) the following facts were presented to the United States Supreme Court. The parties to the action had been married in 1937 and lived together in New York until 1942 when the husband left the wife. In 1943 the wife brought an action in the State of New York for a separation, and the husband entered a general appearance. The court granted her a decree of separation and awarded $180 as permanent alimony. In January 1944 the husband went to Nevada, where in 1945 he instituted an action for divorce. The wife was notified of the action by constructive service but entered no appearance. In May 1945, the Nevada court granted the husband an absolute divorce but made no provision for alimony, although the Nevada court had been advised of the New York decree. Upon entry of the Nevada decree the husband ceased paying alimony. The wife instituted an action in New York for a supplementary judgment for the amount of the arrears, in which action the husband appeared and moved to eliminate the alimony provisions of the separation decree by reason of the Nevada decree. The Supreme Court of New York denied the motion and granted the wife judgment for the arrears. The Supreme Court of the United States affirmed the decision of the Supreme Court of New York and further stated that, while service in the Nevada divorce action was by publication and no appearance was made by the wife in the Nevada proceedings, the requirement of procedural process had been satisfied and the domicile of the husband in Nevada was foundation for a decree affecting a change in the marital status of both parties in all of the States in the Union, as well as in Nevada. The court, in its opinion, made the following statement:
The result of this situation is to make the divorce divisible — to give effect to the Nevada decree insofar as it affects marital status and to make it ineffective on the issue of alimony. It accommodates the interest of both Nevada and New York in this broken marriage by restricting each State to the matters of her dominant concern.
The court thus concluded that the divorce was a valid one in the State of Nevada but despite such fact the New York court could enforce the decree for alimony in New York State.
In the instant case, a situation is presented that is almost similar to the facts in the case of Estin v. Estin ( supra). Following the decision of the Supreme Court of the United States in that case, it must be concluded that subject's father obtained a valid divorce decree in Nevada and subject's mother obtained a valid decree in New York State in regard to the custody of subject. It should also be noted that the Service has adopted the viewpoint expressed in the opinion of the General Counsel on July 2, 1947 (56013/373 — B), that for the purposes of the Immigration Laws this Service must regard as valid a divorce regularly granted by the courts of Nevada and a subsequent remarriage formalized in conformity with the laws of Nevada or any other State. This view has also been extended to naturalization cases (A-3505006, A.N.E.----, July 28, 1949). Furthermore, the Nevada court, by its decree on January 10, 1947, made the divorce decree effective nunc pro tunc as of April 24, 1937.
It is, therefore, concluded that subject's parents were validly divorced on April 24, 1937, and that subject's mother was legally awarded the custody of subject as of that date.
In accordance with the decision in the case of the petition of G---- A---- D---- on behalf of G---- G----, petition No. 560902, filed in the United States District Court for the Southern District at New York on October 17, 1947 ( 77 F. Supp. 832), involving almost similar facts as in the instant case, it must be concluded that subject derived citizenship on July 1, 1937, under the provisions of section 2172, R.S., which remained in effect after May 24, 1934, and prior to January 13, 1941.
It is concluded that subject be deemed to be a citizen of the United States. However, in view of the decision of the Attorney General on December 3, 1943 in the case of J---- J---- T---- (file No. 23/86359), subject, although acquiring citizenship through her mother, is not entitled to a certificate of citizenship, since there was no naturalization of a parent as contemplated by section 339 of the Nationality Act of 1940, as amended.
It is ordered: That the application M---- E---- N---- P---- P---- for a certificate of citizenship be denied.