United States ex rel. Betty v. Day

23 F.2d 489, 1928 U.S. App. LEXIS 3195

• Court: Court of Appeals for the Second Circuit
• Decided: January 9, 1928
• Docket: No. 216
• Status: Published

Opinion

PER CURIAM.

It is settled law in these statutes that the residence of the father is not imputed to the child, like domicile. Kaplan v. Tod, 267 U. S. 228, 45 S. Ct. 257, 69 L. Ed. 585; U. S. ex rel. Patton v. Tod (C. C. A.) 297 F. 385. Therefore, when the alien entered, ho was not already a citizen. This had also been held under Revised Statutes, §' 2172, 8 USCA § 7, in Zartarian v. Billings, 204 U. S. 170, 27 S. Ct. 182, 51 L. Ed. 428, where indeed it was plainer, because an infant could scarcely have been said to “dwell” in the United States, even if the residence of his father was imputed to him. The question was indeed there left open whether an infant, who was abroad when his father was naturalized, could gain an imputed allegiance upon “dwelling” here subsequently, hut that was set at rest by section 5 of the Act of 1907 (8 USCA § 8). Certainly, after Zartarian v. Billings, it could not be supposed that the allegiance changed while the infant was abroad, whatever be the explanation of Peck v. Young, 26 Wend. 613.

It. is true that the alien in the case at bar had actually entered, as was not true in the eases cited. Whether his entry as a temporary visitor only could give him a “permanent residence,” whatever his intent, wé need not consider. It is enough that he was no longer an infant when he did enter. The proviso of section 5 of the act of 1907 reads that “the citizenship of such minor child shall begin at the time such minor child begins to reside permanently in the United States.” The repetition of the phrase “such minor child” was entirely unnecessary, unless it implied the acquisition of residence during minority. Congress cannot have meant to allow an adult to evade the qualifications of citizenship merely because his father had been accepted. With infants it was different; the law in general imputed to them their parents’ status. Moreover, their presence here during infancy may he thought to insure their assimilation with citizens generally, and to vouch for their qualifications. Whatever the reason, they were excepted, but only when they entered while incapable of personal naturalization.

We cannot see that the alien’s residence here between 1904 and 1910 was relevant. Whatever it was, it was abandoned by 16 years’ absence. To admit its competence would be to ibvite just those embarrassments which the statute was meant to avoid.

Order affirmed.