Friend v. Holder

Summarized by:

  • Court: 9th Circuit Court of Appeals Archives
  • Area(s) of Law: Immigration
  • Date Filed: 04-30-2013
  • Case #: 10-55906
  • Judge(s)/Court Below: Circuit Judge Watford for the Court; Circuit Judge Berzon and Senior District Judge Carr
  • Full Text Opinion

The controlling law governing transmittal of citizenship is generally the statute in place at the time of the child’s birth unless the child is born out of wedlock to a mother who was a U.S. citizen at the time of the child’s birth and previously resided in the U.S. or one of its territories, if so, the Nationality Act of 1940 may be applied retroactively.

Horace Friend contended that he was a United States Citizen. The Ninth Circuit first rejected his citizenship claim under Revised Statute § 1993 because although his father was a United States citizen, he never resided in the United States as required in the statute, only the Philippines. Although the panel acknowledged that if the claim was governed by the Nationality Act of 1940, he would be a citizen since it allowed the citizen parent to reside in the U.S. or its outlying possessions, which included the Philippines at the time of Mr. Friend’s birth. However, the panel noted that Revised Statute § 1993 governed the claim because that statute was in effect at the time of his birth. Mr. Friend next tried to apply for citizenship basing his claim on the 1940 Act, claiming that because he was born out of wedlock §201(e) allowed the 1940 act to be applied retroactively. The district court ruled against Mr. Friend. On appeal Mr. Friend’s first obstacle was showing that the 1940 Act can be applied retroactively. He failed to do so based on the legislative intent. The paragraph regarding a citizen mother includes the phrase “whether born before or after the effective date of this Act” whereas the paragraph Mr. Friend relies on lacks this specific retroactive language. A second obstacle involves the requirement that the child born out of wedlock establish paternity during minority, which at the time was up to 21. Mr. Friend admits he cannot satisfy this requirement because his paternity was established when his parents married in 1958, when he was 27. The panel held that Mr. Friend was unable to meet the requirements of §205 of the 1940 Act and is not a U.S. citizen.

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