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November 19, 1991


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 application.

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 parent only.


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 she

  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.

Statutory Framework

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 ...

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