Acquisition of Citizenship; Equal Treatment of Women in Conferring Citizenship on Children Born Abroad [61 FR 35111] [FR 40-96]

DOCUMENT NUMBER: FR 40-96

FEDERAL REGISTER CITE: 61 FR 35111

DATE PUBLISHED: July 5, 1996

BILLING CODE 4410-10-M

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 301

[INS No. 1736-95]

RIN 1115-AE19

Acquisition of Citizenship; Equal Treatment of Women in

Conferring Citizenship on Children Born Abroad

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

SUMMARY: This interim rule amends the Immigration and Naturalization Service (Service) regulations by establishing procedures for certain United States citizen women to confer citizenship on their children born outside of the United States before noon (Eastern Standard Time) May 24, 1934. The purpose of this rule is to ensure that all women receive equal treatment under laws relating to nationality. Implementation of the rule would allow for the issuance of certificates of citizenship to certain foreign-born chi ldren previously ineligible to acquire citizenship from their United States citizen mothers.

DATES: This interim rule is effective July 5, 1996. Written comments must be submitted on or before September 3, 1996.

ADDRESSES: Please submit written comments, in triplicate, to the Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC 20536. To ensure proper handling, please reference INS number 1736-95 on your correspondence. Comments are available for public inspection at the above address by calling (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Jane B. Barker, Adjudications Officer, Adjudications Branch, Immigration and Naturalization Service, 425 I Street, NW., Room 3214, Washington, DC 20536, telephone (202) 514-5014.

SUPPLEMENTARY INFORMATION:

Background

Prior to the enactment of the Immigration and Nationality Technical Corrections Act of 1994 (INTCA), Public Law 103-416, dated October 25, 1994, a child born abroad before noon (Eastern Standard Time (EST) May 24, 1934, to an alien father and United States citizen mother could not acquire United States citizenship through his or her mother. If, however, the mother was the alien and the father was the United States citizen, the child could become a citizen through his or her father, pursuant to Section 1993 of Revised Statutes, February 10, 1855, 10 Stat. 604.

On May 24, 1934, Congress amended Section 1993 of the Revised Statutes so that children born abroad to parents, only one of whom was a United States citizen, would become citizens regardless of whether the citizen was the father or the mother. The 1934 amendment, however, was not retroactive. Subsection 101(a)(2) of INTCA amended the Immigration and Nationality Act (the Act) by adding a new subsection 301(h) to provide for the acquisition of United States citizenship from either parent for persons born ab road before noon (EST) May 24, 1934, to parents, only one of whom is a United States citizen.

Section 301(h)

Under section 301(h) of the Act, a person born abroad before noon (EST) May 24, 1934, to a United States citizen mother and an alien father, may now acquire United States citizenship if his or her mother resided in the United States prior to the person's birth. A person who qualifies for United States citizenship under section 301(h) of the Act shall not be subject to any provisions of law that provided for loss of citizenship or nationality (including section 301(b) of the Act (as in effect before October 10, 1978) and the provisos of section 201(g) of the Nationality Act of 1940) if the person failed to come to, reside, or be physically present in the United States.

For purposes of transmission of citizenship, section 301(h) shall have no effect on the residence and retention requirements for those persons born abroad to a citizen parent and an alien parent between May 24, 1934, and October 10, 1978. Section 301(h) also shall have no effect on the validity of the citizenship of anyone who obtained United States citizenship under section 1993 of the Revised Statutes (as in effect before the enactment of the Act of May 24, 1934, 49 Stat. 797). Further, section 301(h) sh all not confer citizenship on, nor have any effect on, the validity of any denaturalization, deportation, or exclusion action against any person who is or was excludable from the United States for participation in Nazi persecution or genocide, or who was excluded from, or who would not have been eligible for admission to the United States under the Displaced Persons Act of 1948 or under section 14 of the Refugee Relief Act of 1953.

Procedures for Acquiring United States Citizenship Under Section 301(h)

A person who is eligible for benefits under section 301(h) may make his or her citizenship claim in the United States with the Attorney General or abroad with the Secretary of State. A person who currently resides in the United States may file Form N-600, Application for Certificate of Citizenship, accompanied by the fee specified in 8 CFR 103.7(b)(1), with the Service office having jurisdiction over the applicant's place of residence, or with such other Service office as the Commissioner may designate. Th e application shall be supported by documentary and other evidence essential to establish the claimed citizenship, such as birth, adoption, marriage, death, and divorce certificates. Applicants will be notified, in writing, of the date and time to appear for an interview. If an applicant fails to appear for a required interview without good cause, the application will not be approved and may be denied. Upon completion of the interview, if all requirements are met, the applicant will be required to take th e oath of allegiance, as prescribed under 8 CFR part 337, and will be issued a certificate of citizenship.

A person who currently resides abroad and is eligible for citizenship under section 301(h) may proceed to a United States embassy or consulate for an interview under oath concerning his or her claim of citizenship, in accordance with such regulations as may be prescribed by the Secretary of State.

The Service's implementation of this rule as an interim rule, with provisions for post-promulgation public comment, is based upon the "good cause" exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). The reason for immediate implementation of this interim rule is as follows: This rule provides a benefit to the public by ensuring that all women receive equal treatment under laws relating to nationality.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that the rule will not have a significant economic effect on a substantial number of small entities because of the following factors. This interim rule establishes procedures for certain United States citizen women to confer citizenship on their children born outside of the United States before May 24, 1934. The af fected parties are not small entities, and the effect of the regulation is not an economic one.

Executive Order 12866

This rule is not considered by the Department of Justice, Immigration and Naturalization Service, to be a "significant regulatory action" under Executive Order 12866, section 3(f), Regulatory Planning and Review, and the Office of Management and Budget has waived its review process under section 6(a)(3)(A).

Executive Order 12612

This regulation will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

Paperwork Reduction Act

The information collection requirements contained in this rule have been cleared by the Office of Management and Budget under the provisions of the Paperwork Reduction Act. The clearance number for this collection is contained in 8 CFR part 299.5, Display of Control Numbers.

List of Subjects in 8 CFR Part 301

Citizenship and naturalization, Reporting and recordkeeping requirements.

Accordingly, chapter I of title 8 of the Code of Federal Regulations is amended by adding a new part 301 to subchapter C to read as follows:

PART 301--NATIONALS AND CITIZENS OF THE UNITED STATES AT BIRTH

Sec.

301.0 Procedures.

Authority: 8 U.S.C. 1103, 1401; 8 CFR part 2.

§ 301.1 Procedures.

(a) Application . (1) A person residing in the United States who desires to become a United States citizen pursuant to section 301(h) of the Act shall submit an application on Form N-600, Application for Certificate of Citizenship, as provided in 8 CFR part 341. Such application shall be filed with the Service office having jurisdiction over the applicant's place of residence, or with such other Service office as the Commissioner may designate. It must be accompanied by the fee specified in 8 CFR 103.7(b)(1). The application also must be accompanied by supporting documentary and other evidence essential to establish the claimed citizenship, such as birth, adoption, marriage, death, and divorce certificates. The applicant will be notified in writing when and where to appear before a Service officer for examination on his or her application.

(2) A person residing outside of the United States who desires to become a United States citizen under subsection 301(H) of the Act shall make his or her claim at a United States embassy or consulate, in accordance with such regulations as may be prescribed by the Secretary of State.

(b) Oath of allegiance; issuance of certificate (1) Upon determination by the district director that a person is eligible for United States citizenship pursuant to section 301(h) of the Act, the person shall take the oath of allegiance, prescribed in 8 CFR part 337, before an officer of the Service designated to administer the oath of allegiance within the United States, and a certificate of citizenship shall be issued. The person shall be considered a United States citizen as of the date of his or her birth.

(2) A person residing outside of the United States who is eligible for United States citizenship under section 301(h) of the Act shall take the oath of allegiance abroad before any diplomatic or consular officer of the United States, in accordance with such regulations as may be prescribed by the Secretary of State. The person shall be considered a United States citizen as of the date of his or her birth.

May 23, 1996 _________________ Dated:

Signed _______________________________ Doris Meissner, Commissioner,Immigration and Naturalization Service.