U.S. Citizens by Birth Abroad

We briefly discussed in the last article the current rules for acquiring U.S. citizenship by birth abroad to U.S. citizen (USC) parents. Today, we’ll see some examples that illustrate both current and past acquisition laws.

Let’s say A was an American soldier who remained in the Philippines after the end of the Philippine-American War in 1903. He married a Filipino woman. In 1910, their son B was born in the Philippines. Under Section 1993 of the Revised Statutes of 1878, a child born abroad to a USC father is a USC if the father had resided in the U.S. prior to the child’s birth. B is a USC because his father A was a USC who resided in the U.S. prior to B’s birth.

Let’s assume that B never left the Philippines and married a Filipino woman. In 1930, B’s son C was born in the Philippines. C would not be a USC because Section 1993 requires that the USC father had resided in the U.S. prior to the child’s birth. In this case, B had only resided in the Philippines. Some would argue that, since the Philippines was a U.S. possession from the conclusion of the Treaty of Paris in 1898 until its independence in 1946, residence in the Philippines should be considered residence in the U.S. for purposes of citizenship acquisition laws.

A similar argument was raised by the petitioner in Friend v. Reno, 172 F.3d 638 (9th Cir. 1999). The petitioner in that case was born in 1931 in the Philippines to a USC father who had never resided outside the Philippines. The Ninth Circuit held that Section 1993 required residence in the U.S. but not in an outlying possession like the Philippines at that time. Thus, residence in the Philippines then did not qualify as residence in the U.S.

Let’s go back to our example and change the facts a little bit. If C was born on January 13, 1941, he might acquire citizenship because from this date until December 24, 1952, Section 201(g) of the Nationality Act of 1940 was in effect. Under Section 201(g), a child born abroad to one USC parent and an alien parent is a USC if the USC parent had resided in the U.S. or its outlying possession for 10 years prior to the child’s birth, 5 years of which was after the age of 16. Since C’s father B had resided in the Philippines from his birth in 1910 until C’s birth in 1941 and the Philippines was an outlying possession during that period, B has met the residence requirement and has transmitted citizenship to C. Additionally, C must reside in the U.S. for a certain period to retain the citizenship he had obtained at birth.

Let’s say that after C’s birth in 1941, B moved the entire family to the U.S. in 1942. C lived in the U.S. until he returned to the Philippines in 1964. C soon married a Filipino woman. In 1965, C’s son D was born in the Philippines. Under INA 301(a)(7), which was in effect from December 24, 1952 until November 13, 1986, a child born abroad to one USC parent and an alien parent is a USC if the USC parent had been physically present in the U.S. or its outlying possession for 10 years prior to the child’s birth, 5 years of which was after the age of 14. The child is no longer required to reside in the U.S. in order to retain the citizenship obtained at birth. Thus, D is a USC because his father C was physically present in the U.S. for the required period.

So far, we have examined cases where the parents are married. What if the parents are not married? How would the requirements be different?

Let’s now assume that C did not marry but had a son out of wedlock with a Filipino woman. Their son D was born in the Philippines in 1965. D would be a USC if he could show that his father C had been physically present in the U.S. or its outlying possession for 10 years prior to the D’s birth, 5 years of which was after the age of 14. In addition, under the old INA 309(a) which was in effect prior to November 14, 1986, D must also be legitimated while he was under the age of 21. Legitimation refers to the process by which a child born out of wedlock acquires the status of a child born in wedlock.

Citizenship acquisition rules are among the most complex in immigration law but those who could navigate these rules could save themselves a lot of trouble. Imagine you’re fighting removal and you don’t seem to qualify for any relief but then you find out you’re a USC. That would be a terrific way to end your removal proceedings.