This appeal raises the question, under the Nationality Act of 1940,
It is petitioner's contention that he automatically acquired derivative citizenship through the operation of section 314 of the Nationality Act of 1940, 54 Stat. 1145-1146, relevant portions of which are set out in the margin.
The major issue on this appeal is whether petitioner was "legitimated" in the Dominican Republic within the meaning of section 102(h). The answer involves a consideration of his precise status under relevant Dominican law and of the leeway, if any, contained in the federal statute.
Under the Civil Code of the Dominican Republic, the petitioner's domicile in 1937 when his mother acknowledged him, the only way to "legitimate" a child born out of wedlock was through the marriage of the natural parents, preceded or accompanied by an official acknowledgement of parentage. Article 331.
The law of the Dominican Republic concerning illegitimacy went through a series of revisions subsequent to the 1937 acknowledgement of petitioner. In 1939 the law was changed so that "Natural filiation established by voluntary acknowledgement produces the same effects of legitimate filiation." Law 121 of May 26, 1939. This statute contained an express nonretroactive clause so as to make the law inapplicable to acknowledgements effected before the date of its promulgation, May 26, 1939. Additional revision was made in 1940, repealing Law 121 of 1939, but expressly limiting the operation of the 1940 law to acknowledgements effected after May 26, 1939. Law 357 of October 31, 1940.
A third and final revision of the law in 1945 equated "natural filiation" and "legitimate filiation" "with the exception of the distinctions made in matters concerning successions". Law 985 of August 31, 1945. This statute, however, did not contain a non-retroactive clause. The practice in the preceding revisions, as noted above, had been to include such a provision if non-retroactivity was the intent of the law-making body.
We find it unnecessary to engage in an assessment of the retroactivity of Law 985. Even if this law were to apply to petitioner, it is clear that, unlike the two earlier revisions which unqualifiedly equated acknowledgement and legitimate filiation, Law 985 recognizes some differences in matters of succession. The question therefore is whether an acknowledged child, possessing most but not all of the filial rights of a fully legitimated child, falls within the federal statutory category of "legitimated".
The legislative history of sections 102(h) and 314 of the Act of 1940 suggests, however, that it was Congress' primary intent to remove the uncertainty then prevailing in the area of derivative citizenship. Neither the 1902 statute, 34 Stat. 1229, nor the 1934 revision, 48 Stat. 797, contained a provision defining "child". Representative Rees, Chairman of the subcommittee that drafted the 1940 Act, stated on the House floor that under the prior law "it is impossible to say with any degree of certainty what the law actually is on the subject of naturalization of minors through the naturalization of their parents." 86 Cong.Rec. 11947. The purpose of the 1940 alterations in the law, as noted by Representative Rees, was to make sure that the law was "stated in such a manner that individuals interested would be able to ascertain whether or not they are citizens of the United States." 86 Cong.Rec. 11947. The Congressional goal was to create a bright-line test so that those who fell without the derivative citizenship provision could recognize that fact and would be able to petition for citizenship on their own under other sections of the law of naturalization. 54 Stat. 1140-1144.
The Congressional purpose of adding certainty to the law of derivative citizenship requires a strict reading of the provisions in question. Section 102(h) states that an illegitimate child must be legitimated to effect derivative citizenship.
We have found no judicial precedent directly facing the question of the automatic derivative citizenship of an acknowledged, but not legitimated, child under the 1940 Act. The case primarily relied upon by respondent, Espindola v. Barber, 152 F.Supp. 829 (N.D.Calif. 1957), concerned a totally illegitimate child with no mention of a parental acknowledgement. On the other hand, petitioner's proposed precedent, Compagnie General Transatlantique v. United States, 78 F.Supp. 797, 111 Ct.Cl. 601 (1948), concerned an interpretation of the 1934 Act which, as was noted by that court, did not contain a limiting definition of "child".
We would add that this strict reliance on the letter of domiciliary law seems to have consistently characterized the decisions of the Board of Immigration Appeals, sometimes to the disadvantage of the foreign born child, see, e.g., Matter of C-, 9 IN 242 (1961); Matter of C-, 9 IN 597 (1962), and sometimes to his advantage, Matter of B-S-, 6 IN 305 (1955).
There is one additional point worthy of passing notice. In 1953, after petitioner had resided in the United States for seven years, he was issued a United States passport. A question arises whether the respondent is in some way estopped from denying petitioner's citizenship because of the issuance of the passport.
We note first the ancient and durable judicial precedent to the effect that a passport is not "competent evidence of the fact of citizenship." Urtetiqui v. D'Arcy, 9 Pet. 692, 34 U.S. 692, 699, 9 L.Ed. 276 (1835). Miller v. Sinjen, 289 F. 388, 394 (8th Cir. 1923); Gillars v. United States, 87 U.S.App.D.C. 16, 182 F.2d 962, 981 (1950). Such a conclusion is in accord with statutory law effective at the time petitioner was issued his passport. 22 U.S.C. § 212. Under its terms, to obtain a passport one does not have to be a citizen but merely owe his allegiance to the United States.