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IN RE DONSKY

May 13, 1948

Petition of DONSKY. In re GONZALEZ


The opinion of the court was delivered by: HULBERT

After having read the minutes of a preliminary hearing before a designated Examiner at 70 Columbus Avenue, New York, N.Y., on the 17th day of October, 1947, and after a final hearing before this Court on May 10, 1948, the petition is denied, upon the ground that Gloria Gonzalez is a citizen of the United States of America.

The reason for my determination is as follows:

 Gloria Alvarez Donsky was born Gloria Alvarez y levy, at Tampa, Florida, on August 30, 1909; her father was a native and citizen of Spain and her mother was a native and citizen of France. When Mrs. Donsky was about 5 years old she removed with her parents to Cuba and continued to reside there until 1936. In the interim she made many trips to the United States on her mother's passport until she was 18 years of age; at that time she was in Paris and went to the American Embassy where she took the oath as an American citizen and received, and thereafter traveled on her own United States passport and has never renounced her American citizenship or expatriated herself, but has always continued to be, and is, a citizen of the United States of America.

 On July 30, 1932, the petitioning child's mother married Marcos Gonzalez y Valls, a native and citizen of the Republic of Cuba, and of that union a daughter was born at Havana, Cuba, on August 30, 1933, and is the Gloria Gonzalez, the petitioning child herein.

 That on or about November 30, 1936, the petitioning child's mother was divorced from the child's father in the Court of First Instance of the Northern District of Havana, and the custody of said child was awarded to the mother and she thereupon came to the United States and was admitted for permanent residence on December 11, 1936, and has ever since resided with and was in the same household with her mother up to April 10, 1945, when her mother remarried to one Donsky. Since that date the child has continued to live with her maternal grand-parents at 2 Beekman place, Borough of Manhattan, New York City.

 It appears, since the mother's remarriage, she and her husband have been unable to obtain only a one room apartment, but the proof is that the child visits her every day, and as soon as a larger apartment can be procured the child will become a member of the household of her mother and step-father.

 In the case of Fernando Jorge Coll y Picard the opinion of the Attorney General of the United States (37 Op.Atty.Gen. 90) concerned a child born in Spain in 1927 to a native American woman who had been married in 1923 to a Spanish citizen and returned to the United States with her minor child and secured a divorce in 1931 and the decree awarded her custody of the child. It was the determination of the Attorney General that the child in that case had derived United States citizenship under the provisions of Section 5 of the Act of March 2, 1907, 34 Stat. 1229, which provided that a child born without the United States of alien parents shall be deemed a citizen by virtue of the naturalization of or resumption of American citizenship by the parent, provided such naturalization or resumption takes place during the minority of the child, the citizenship to begin at the time such minor child begins to reside permanently in the United States. The Attorney General wrote:

 'While under Section 5 of that statute Congress is dealing with cases of resumption of American citizenship, there seems to be no good reason for supposing that the Congress intended to decline to grant citizenship to the minor child merely because its mother never lost her American citizenship, having married after the effective date of the Act of 1922 (42 Stat. 1022). I think, therefore, that so far as the citizenship of her children is concerned, Mrs. de Coll should be treated as in precisely the same situation as one who had resumed her citizenship.'

 In the present case, the mother may be considered to have resumed citizenship in 1936 upon her divorce from her husband and her return to this country. The child did not enter the United States until December 11, 1936.

 Section 5 of the Act of March 2, 1907, was amended by Section 2 of the Act of May 24, 1934, 48 Stat. 797, which required completion of five years residence in the United States by the child before derivative citizenship can be acquired. That amendment was in effect at the time of the entry of the child in the instant case, on December 11, 1936. It has been held that such five years residence in the United States must hav been completed before the effective date of the Nationality Act of 1940, 8 U.S.C.A. § 501 et seq., that is, January 13, 1941. U.S. ex rel Aberasturi v. Cain, 2 Cir., 149 F.2d 449. Since the child in the instant case could not complete five years residence in the United States prior to January 13, 1941, she cannot be regarded as having derived United States citizenship under Section 5 of the Act of March 2, 1907, as amended by the Act of May 24, 1934.

 There is, however, another statute under which the child in the present proceeding may be regarded as having derived United States citizenship (i.e. according to the interpretation in the case of Coll y Picard), namely, Section 4 of the Act of April 14, 1802, 2 Stat. 155, R.S. § 2172, which reads in part, as follows:

 'The children of persons who have been duly naturalized under any law of the United States, or who, previous to the passing of any law on that subject, by the Government of the United States, may have become citizens of any one of the States, under the laws thereof, being under the age of twenty-one years at the time of the naturalization of their parents, shall, if dwelling in the United States, be considered as citizens thereof; * * * '

 While the foregoing statute was expressly repealed by Section 504 of the Nationality Act of 1940, 8 U.S.C.A. § 904, it may be said that the general rule is that R.S. § 2172 was regarded as continued in effect until January 13, 1941, the effective date of the Nationality Act, notwithstanding the Act of March 2, 1907, and the Act of May 24, 1934, neither of which specifically repealed R.S. § 2172 and the effect of these Acts upon the derivation of citizenship under the Act of April 14, 1802, gave rise to much judicial interpretation with results that were not entirely uniform.

 This Court believes the general rule to be that R.S. § 2172 continued in effect after the adoption of Section 5 of the Act of March 2, 1907 (Hackworth, Dig. Int. Law, Vol. 3 pp. 72-74, 76), particularly in the absence of an express repealer in the Acts of 1907 or 1934. Furthermore, since R.S. § 2172 was expressly repealed by Section 504 of the Nationality Act of 1940, it would seem that the intent of Congress was definitely established, viz., that R.S. § 2172 was in effect until January 13, 1941. Therefore, it follows, that since the child's mother resumed her American citizenship in 1936, and her child arrived in the United States for permanent residence on December 11, 1936, that the required completion of five years ...


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