In Re Bishop , 26 F.2d 148 ( 1927 )

26 F.2d 148 (1927)

In re BISHOP.

District Court, W. D. Washington, N. D.

December 31, 1927.

John Speed Smith, District Director of Naturalization, of Seattle, Wash., for the United States.

NETERER, District Judge.

Naturalization is the act of adopting an alien and clothing him with the privileges of citizenship. Osborn Bank, 22 U. S. (9 Wheat.) 738-801, 6 L. Ed. 204. Congress has the power to effect naturalization by legislative act. Boyd v. Nebraska ex rel. Thayer, 143 U. S. 135, 12 S. Ct. 375, 36 L. Ed. 103; Elk v. Wilkins, 112 U. S. 94, 5 S. Ct. 41, 28 L. Ed. 643.

The political status of the applicant must be derived through the mother, and not the stepfather. Weedin v. Mon Hin (C. C. A. 9th Circuit) 4 F.(2d) 533. The legal acceptance of the term "parent" does not include "stepfather." Marshall v. Macon Sash, Door & Lumber Co., 103 Ga. 725, 30 S. E. 571, 41 L. R. A. 211, 68 Am. St. Rep. 140.

Section 1994, R. S. (Act Feb. 10, 1855, amending Act April 14, 1802; Comp. St. § 3948), provides: "Any woman who is now or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen."

Section 2172, R. S. (Act April 14, 1802; 8 USCA § 7), provides that "children of persons who have been duly naturalized under any law of the United States * * * under the age of twenty-one years at the time of the naturalization of their parents, shall, * * * be considered as citizens thereof. * * *"

Act March 2, 1907, § 5 (8 USCA § 8), provides that "a child born without the United States of alien parents shall be deemed a citizen of the United States by virtue of the naturalization of or resumption of American citizenship by the parent: Provided, that such naturalization or resumption takes place during the minority of such child: And provided further, that the citizenship of such minor child shall begin at the time such minor child begins to reside permanently in the United States." This expression qualifies parents to confer citizenship upon minor children by the act of naturalization.

The mother, being qualified for citizenship and having married a citizen, became a naturalized citizen under the provisions of law, and thereby conferred citizenship upon her son. See Kelly v. Owen, 7 Wall. (74 U. S.) 496, 19 L. Ed. 283; also the decision of Justice Harlan in U. S. v. Kellar (C. C.) 13 F. 82; In re Graf (D. C.) 277 F. 969.

The expression, "resumption of American citizenship by the parent," has no application to the mother, as she never removed from the United States, and resumption was not necessary. The applicant, on entering the United States and establishing a permanent residence after the naturalization by marriage of his mother, became a citizen, and, being a citizen, could not expatriate himself by joining the Canadian Expeditionary Forces in May, 1917, because war was declared with Germany by the United States on April 6, 1917, and under the provisions of section 2, Act March 2, 1907 (8 USCA § 16), which provides that no American citizen shall be allowed to expatriate himself when this country is at war, applicant could not expatriate himself. See, also, In re Grant (D. C.) 289 F. 814.

Applicant is therefore a citizen of the United States, and the application to repatriate is denied.