The opinion of the court was delivered by: Sarokin, District Judge.
Plaintiff, born in France, the daughter of an American World
War II soldier, has been denied United States citizenship.
Plaintiff's parents were unmarried, and her father returned to
the United States after the war. Plaintiff's mother, a French
citizen, remained in France with her daughter.
In order for plaintiff to have been eligible for
citizenship, it was necessary that she be recognized and
acknowledged by her father before she became 21. Plaintiff was
not "legitimated" by her father until 1981, the year that he
died, at which time she was then 35 years old. In addition to
the legitimacy requirement, under the then-applicable law,
plaintiff could not become a citizen unless she had already
resided in the United States for five years between the ages
of 13 and 21 or five years between
the ages of 14 and 28. Not unsurprisingly, plaintiff did not
meet these requirements, because her father had not
acknowledged his parenthood. The requirements no longer exist,
but nonetheless they have been applied to deny plaintiff's
application for citizenship. Thus, in effect, plaintiff's
father, by his delay in acknowledging his parenthood of
plaintiff, has denied her the opportunity for citizenship in
this country, and the Immigration and Naturalization Service
("INS") has condoned his conduct by denying plaintiff's
The court concludes that the applicable law discriminates
against "illegitimate" children, and thereby violates the
Equal Protection Clause of the United States Constitution. The
law as it then existed and as applied in this matter served to
make the citizenship of children born out of wedlock to
American fathers, particularly those serving in the armed
forces, subject to the personal vagaries and consciences of
their fathers. Those who chose to act with honor could confer
such citizenship, and those who chose not to, could deny
citizenship to their offspring. Even the dilatory father, as
in this case, could defeat his child's claim to citizenship
merely by delaying the recognition of his responsibility,
until it was too late to satisfy the residency requirements.
Those who have no choice in the marital state of their
parents should not be so penalized or stigmatized, and their
rights to citizenship should not be dependent on the moral
fortitude (or lack thereof) of one of their parents. The
unfairness is exacerbated by placing such power solely in the
hands of the male parent. The law was thus discriminatory in
its impact upon children born out of wedlock and sexist in
making citizenship dependent upon the acquiescence of the male
Before the court is defendants' motion for summary judgment.
Plaintiff was born on August 3, 1945, in Paris, France. Her
natural parents, who were not legally married at the time,
were Renee Foucher, a citizen and national of France, and
Frank Pasek, Jr., a citizen and national of the United States.
Amended Complaint, ¶¶ 5-7; admitted in Answer. According to the
Department of State Passport Agency, records indicate that
plaintiff's father acknowledged paternity in correspondence to
plaintiff's mother dated November 15, 1945. See Amended
Complaint, Exh. D1.*fn1 It was not until April 10, 1981, that
plaintiff's natural father filed an acknowledgment of his
paternity of plaintiff in France, thereby "legitimating"
plaintiff in accordance with the laws of his domicile, New
Jersey. Amended Complaint, ¶ 9. Four months later, Frank Pasek,
Jr., died on August 20, 1981.
In November, 1985, plaintiff filed for a Certificate of
Citizenship. Plaintiff's application was denied by the INS,
District of New York, on November 20, 1986. Amended Complaint,
Exh. B. On December 3, 1986, plaintiff appealed the denial to
the Regional Commissioner; on July 29, 1987, Thomas W.
Simmons, Chief of the INS Administrative Appeals Unit ("AAU"),
denied the appeal. Id., Exh. C. Plaintiff had also applied for
a passport, in 1986. That application was denied by the
Regional Director for the U.S. Passport Agency on March 31,
1987. Id., Exh. D.*fn2
An exclusion proceeding which was begun earlier was
adjourned several times pending plaintiff's application for a
Certificate of Citizenship. Administrative Law Judge ("ALJ")
Elstein, on March 7, 1989, terminated the exclusion
proceedings against plaintiff, and ordered that she be
admitted to the United States as a temporary visitor for
business or pleasure, until June 30, 1989. See Def. Reply
Brief, Exh. A, at 5. On March 21, 1989, plaintiff appealed to
the Board of Immigration Appeals ("BIA"). The BIA denied
plaintiff's application on July 18, 1990.
On August 13, 1990, plaintiff filed the instant action. In
the First Count of the Amended Complaint, plaintiff asks that
she be admitted to citizenship, that Section 301 of the
Immigration and Nationality Act of 1952 (the "Act"), 8 U.S.C. § 1401,
not be applied to her, and/or that § 301 be declared
unconstitutional. Id. at Exh. E. That section requires a
citizen born abroad to reside in the United States for a
certain period of time in order to retain citizenship rights.
Plaintiff challenges these retention requirements as violative
of her Equal Protection and Due Process rights.
Plaintiff raises an additional challenge to the denial of
her citizenship rights in the Second Count of the Amended
Complaint. Plaintiff alleges that when she was 19 years old
went to the U.S. Embassy in Paris, France, to
find out what she had to do to come to the United
She was told by an agent employee at the U.S.
Embassy that she had nothing to worry about; that
the United States takes care of its "war babies."
She was told that she was a citizen and that she
would have no problem going to the United States
when she was ready.
Relying on this information the plaintiff never
sought to enter the United States within the then
retention period. Had she been told accurately,
it is urged here that she would today be a full
fledged United States Citizen.
Amended Complaint, Second Count, ¶¶ 2-4.
Defendants now move for summary judgment, asking this court
to dismiss the complaint.
In plaintiff's applications for a Certificate of Citizenship
and a passport, her claim has been interpreted under the
following provisions of the relevant statutes.
The residency requirements for the retention of citizenship
for a foreign born citizen that was initially applicable to
plaintiff was contained in the Nationality Act of 1940.
Section 201(i), codified at 8 U.S.C. § 601, was enacted July
31, 1946. Sec. 201. The following shall be nationals and
citizens at birth:
(i) A person born outside the United States and
its outlying possessions of parents one of whom
is a citizen of the United States who has served
or shall serve honorably in the armed forces
after December 7, 1941, and before the date of
termination of hostilities in the present war as
proclaimed by the President or determined by the
joint resolution by the Congress and who, prior
to the birth of such person, has had ten years
residence in the United States or one of its
outlying possessions, at least five of which were
after attaining the age of twelve years, the
other being an alien: Provided, that in order to
retain such citizenship, the child must reside in
the United States or its outlying possessions for a
period or periods totaling five years between the
ages of thirteen and twenty-one years: Provided
further, that, if the child has not taken up
residence in the United States or its outlying
possessions by the time he reaches the age of
sixteen years, or if he ...