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Overview of meaning of 'Naturalization' for purposes of Derivative Citizenship

Posted by attorney Brian Lerner

Under the pre-Child Citizenship Act case law, any form of naturalization, be it by the Agency, a court, or by operation of law under treaty or statute, could be the basis for derivative citizenship. This includes both the vesting of citizenship upon women when they married U.S. citizens, and collective naturalization when a territory became a state. Naturalization of a noncitizen national is also the basis for derivation of citizenship, even under those statutes where derivative citizenship was worded in terms of naturalization of noncitizens. Until 1941, derivative citizenship could also be based on what, for want of a better phrase, will be referred to as constructive resumption of citizenship. Under the Act of 1907, and under common law, U.S. citizen women who married foreigners automatically expatriated themselves. U.S. citizen women who divorced noncitizens were deemed to be "resuming" U.S. citizenship for derivative citizenship purposes. In 1922, however, Congress repealed that expatriating provision of the 1907 act and thereafter women who married a foreigner no longer forfeited their U.S. citizenship. As a consequence, when those women returned to the United States, they no longer "resumed" their U.S. citizenship, since they had not lost it. Children born abroad to those women were not U.S. citizens at birth because before 1934, only children born abroad to U.S. citizen fathers and children born out-of-wedlock acquired U.S. citizenship at birth abroad. According to a literal interpretation of the law, children of women who married noncitizens after 1922 would not acquire U.S. citizenship upon their return to the U.S. since their mothers never lost their U.S. citizenship and thus were not "resuming" citizenship upon their return to the United States. The Attorney General in the case of Fernando de Coll y Picard expressed the view that there was no basis for distinguishing women who had been expatriated from those who had not in terms of conferring benefits upon their children. Therefore, women who returned to the United States after divorcing a noncitizen were deemed to be resuming U.S. citizenship for purposes of their children's right to derive citizenship, even when such women married after 1922 and never expatriated themselves. This is known as the "De Coll" doctrine and it was in effect until 1941.

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Filed under: Divorce US citizenship