MATTER OF VILLANUEVA In Deportation Proceedings A-20687247 Decided by Board December 30, 1976 (1) An illegitimate child who acquired United States citizenship at birth pursuant to section 205 of the Nationality Act of 1940, as the child of a United States citizen mother, does not lose that citizenship upon legitimation. (2) The rationale followed in Rogers v. Bellei, 401 U.S. 815 (1971), does not apply to the facts in this case because Bellei dealt with retention requirements for citizenship over which the individual has some control whereas the conditions envisioned in the Nationality Act of 1940 concern matters respecting retention of citizenship over which respondent has no control (i.e., whether his parents marry, and how long his mother resides in the United States prior to his birth). CHARGE: Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Entry without inspection ON BEHALF OF RESPONDENT: Robert Ramirez, Representative U.S. Catholic Conference BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members This is an appeal from the immigration judge's decision of December 22, 1975, in which he found the respondent deportable and granted to him the privilege of voluntary departure. The appeal will be sustained. The respondent contends that the proceedings should be terminated on the basis that he is a United States citizen. He claims citizenship through his mother who was born in New Mexico on March 3, 1925. The respondent's mother lived in the United States until about the age of 6 when she was taken to Mexico by her grandparents. She has never returned to the United States to reside. The respondent was born out of wedlock in Mexico on April 9, 1951. His parents were married to each other during 1953. At the time of the respondent's birth the Nationality Act of 1940 was in effect. Section 205 thereof, entitled "Illegitimate Children" provided as follows: The provisions of section 201, subsections (c) (d) (e) and (g), and section 204, subsections (a) and (b), hereof apply, as of the date of birth, to a child born out of wedlock, provided the paternity is established during minority by legitimation, or adjudication of a competent court. In the absence of such legitimation or adjudication, the child, whether born before or after the effective date of this Act, if the mother had the nationality of the United States at the time of the child's birth and had previously resided in the United States or one of its outlying possessions, shall be held to have acquired at birth her nationality status. Section 201(g) of the Act, to which section 205 refers, provides that a child of parents, only one of whom is a United States citizen, acquires United States citizenship at birth if the United States citizen parent, prior to the child's birth, had resided in the United States ten years, five of which were after attaining the age of 16. Prior to the respondent's legitimation, the law changed and the present law was enacted. In a section entitled "Children Born Out of Wedlock", the present Act provides: Section 309(b) Except as otherwise provided in section 405, the provisions of section 301(a)(7) shall apply to a child born out of wedlock on or after January 13, 1941, and prior to the effective date of this Act, as of the date of birth, if the paternity of such child is established before or after the effective date of this Act and while such child is under the age of twenty-one years by legitimation. The provisions of section 301(a)(7) are similar to those of section 201(g), with the relevant difference that of the citizen parent's 10 years of residence in the United States, 5 had to be after the age of 14, rather than after the age of 16. The respondent's mother lacked sufficient residence under either of these provisions to pass citizenship to him. The issue before us is whether, in the face of the foregoing provisions, the respondent, nevertheless, retained the citizenship which he had acquired at birth. When previously confronted with the same issue, the Service has consistently taken the position that illegitimate children who acquired United States citizenship pursuant to section 205 of the 1940 Act as the children of United States citizen mothers did not lose that citizenship upon legitimation, Matter of M-, 4 I. & N. Dec. 440 (CO 1951). See also Matter of P-, 7 I. & N. Dec. 523 (RC, CO 1957), and Matter of M-, 3 I. & N. Dec. 485 (CO 1949). The Service found that the purpose of the reference to section 201(g) in section 205 of the 1940 Act was to extend the acquisition of United States citizenship upon legitimation to children born out of wedlock whose fathers were United States citizens and whose mothers were aliens. The purpose was found to be an expansive one, rather than one intended to take citizenship away from children upon legitimation who had acquired citizenship at the time of birth out of wedlock pursuant to section 205. The Service decisions have been pro mulgated as Service policy, see INS Interpretation 309.1(a)(2), page 5072 of the Service Book of Operations Instructions. In his decision below, the immigration judge acknowledged the Service decision in Matter of M-, 4 I. & N. Decision, supra, but declined to follow it on the ground that a subsequent United States Supreme Court decision, Rogers v. Bellei, 401 U.S. 815 (1971), validated the concept of divestiture of citizenship of children born abroad who acquired United States citizenship at birth. He stated that the statute clearly imposes an additional prior residence requirement on the United States citizen mother in the event that a child is legitimated. The rationale of the Bellei decision, however, is not directly applicable to the situation before us. The Bellei case held that the retention requirements of the Act are constitutional. The retention requirements provide that certain persons who acquire United States citizenship at birth may lose their citizenship by failing to reside in the United States during specified periods of their formative years. The requirement at issue in that case was a condition for the person's retention of citizenship. The provisions here at issue do not explicitly require that illegitimate children of United States citizen mothers remain illegitimate in order to retain their United States citizenship. Furthermore, unlike the retention requirements, which is something over which one has some control, the condition envisioned here concerns matters over which the person has no control, i.e., whether his parents marry and for how many years his mother resided in the United States prior to his birth. While we are aware that the Service's interpretation discussed above is not free from controversy, we see no reason to disturb the settled administrative policy which has been in operation for many years. Any disruption of it now would result in confusion regarding the status of many persons previously admitted as citizens and that of their relatives. The reasons advanced by the Service for their decision in Matter of M-, supra (1951), are still valid. There appears to be no reason to take citizenship away from a person merely bacause he or she becomes legitimated. ORDER: The appeal is sustained and the proceedings are terminated. MATTER OF WONG In Deportation Proceedings A-31222365 Decided by Board January 12, 1977 (1) Respondent was admitted to the United States as a lawful permanent resident without a labor certification under section 203(a)(2) of the Immigration and Nationality Act as the unmarried child of a lawful permanent resident. However, two weeks before she entered the United States, she married. The immigration judge found her deportable under section 241(a)(1) of the Act as an alien who was excludable at the time of entry. Subsequent to this decision, respondent obtained an annulment of this marriage and moved to reopen deportation proceedings. (2) Notwithstanding the grant of a judgment of nullity by the Superior Court of California rendering this marriage void ab initio, the doctrine of relation back which would ordinarily apply in a situation such as this will be deemed not to apply here because it does not promote the intended purpose. Although the annulment might be given retroactive effect by the California court annulling the marriage ab initio, it will not be given retroactive effect for immigration purposes. (3) Since the respondent married before leaving Burma, she was in violation of the immigration laws at the time of her entry into the United States. The Board is not obliged to give retroactive effect to the California decree of annulment to cure a violation of the immigration laws and the respondent was deportable as charged. CHARGES: Order: Act of 1952-Section 241(a)(1) [8 U.S. C. 1251(a)(1)]—Excludable by law existing at time of entry (sec. 212(a)(19) of the Act) Lodged: Act of 1952-Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable-no valid immigrant visa (sec. 212(a)(20) of the Act) ON BEHALF OF RESPONDENT: Thomas N. Saldin, Esquire 4676 Admiralty Way, #632 Marina Del Rey, California 90291 BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members In a decision dated August 28, 1974, the immigration judge found the respondent deportable as an alien who was excludable at the time of entry under section 241(a)(1) of the Immigration and Nationality Act and granted her voluntary departure in lieu of deportation. The respondent had obtained an immigrant visa by representing herself to be the unmarried daughter of a lawful permanent resident. However, she had married two weeks before actually entering the United States. Subsequent to the immigration judge's decision, the respondent obtained an annulment of her disqualifying marriage and thereupon moved to reopen her deportation proceedings. The motion to reopen was granted by the immigration judge and a hearing held. In a decision dated June 10, 1976, the immigration judge denied a motion to terminate the deportation proceedings, finding that the annulment should not be given a retroactive effect for immigration purposes. Although the voluntary departure was reinstated, the respondent has appealed the decision. The appeal will be dismissed. The respondent was born on December 25, 1942, and she is a native of Burma and a citizen of China. She entered the United States on May 20, 1973, without a labor certification as the unmarried child of a lawful permanent resident. Section 203(a)(2). During reopened proceedings, counsel moved to terminate, contending that the respondent is not deportable because her marriage was judicially annulled by the Superior Court of California on October 30, 1975; and that the annulment rendered her marriage void ab initio, as of the date of the marriage, May 11, 1973. The record contains a Judgment of Nullity in support of her contention. The record also contains a notice from the Department of State (FS-548) which informed the respondent that she would lose her preference status if she married prior to her application for admission to the United States, and that she would also be subject to exclusion. That notice was signed by the respondent and dated September 29, 1972. Although the testimony is unclear, we find that the respondent entered into a marriage prior to her admission into the United States despite the fact that she had been previously warned that she would lose her preference status if she married. Counsel cites Matter of Samedi, 14 I. & N. Dec. 625 (BIA 1974) and Matter of V-, 6 I. & N. Dec. 153 (BIA 1954), as requiring that the California decree of nullity be given a retroactive effect to void the marriage as though it had never existed. Accordingly, the respondent would be the unmarried daughter of a lawful permanent resident at the time of entry. However, the immigration judge cites a more recent Board decision, Matter of Castillo, Interim Decision 2427 (BIA 1975), wherein we held that the "relation back" doctrine should not be blindly followed where to do so would result in a gross miscarriage of justice. That decision was based on a California case, Sefton v. Sefton, 45 Cal. 2d 872, 291 P.2d 439 (1955), wherein it was held that the "relation back" doctrine was a legal fiction designed to fashion substantial justice between the parties to a voidable marriage. Thus, in keeping with the decision in Castillo, supra, we will not give the California annulment |