Dear Atty. Lou,
I was born in 1943 of a Filipina mother and a US citizen father who is an American soldier and escaped from the Death March. I am now 65 years old (as old as World War 2) and my father found me when I was already 19.
My problem is: the Department of Foreign Affairs would not issue me a regular Philippine passport since according to them I should have made a choice before I got to be 18. So I was declared stateless and had to get a card from the Bureau of Immigration here as a “NATIVE RESIDENT” with a stateless identity. When that was done, the DFA gave me a travel document, which was accepted by the US Embassy and the second time I had to go the US, the Embassy gave me a 10-year visa.)
I found my half-sister and half-brother in the USA and the TV show Probe team even featured us when I finally was able to fulfill my father’s request that his ashes be spread all over Bataan. Anyway, to make a long (epic) story short, the consul I last talked to said I should apply for US Citizenship derivative through one US CITIZEN parent. I have the complete military records of my father, sent to me by NARA. I even have his birth certificate from Melrose, Massachusetts. I also have letters from my American siblings and relatives acknowledging me as their blood relative.
If I were to choose Filipino citizenship, I just found out that I cannot afford the monetary aspects of this long and arduous process. Perhaps, as my half sister said it was my father’s desire that I choose US citizenship.
I am writing to you with the hope that you may give me some advice on how to go about this. I have no wish to gain this citizenship for the benefits that may come with it, but I would like to be able to live the remaining years of my life as a US citizen. HELP!
Stateless Amerasian
Dear Stateless Amerasian,
It is disheartening to know that you are still confronted with your nationality issue. While it is not your fault that you are “stateless”, there were legal steps that needed to take place in order to relieve you of becoming stateless.
Birth in the Philippines does not confer automatic Filipino citizenship unlike in the US where birth in the US results in the child being a US citizen. In the Philippines, citizenship is actually conferred based on descent or parents cititizenship. The 1935 Philippine constitution was in effect at the time of your birth. Under the constitutional provision, if a person was born of a foreign citizen parent and a Filipino mother, you were mandated to elect Philippine citizenship before the age of majority or before you reached 21 years old. Taking this affirmative step would have afforded you Philippine citizenship. This actually requires registration of your birth in the civil registrar before your turned 21 years old. Since this act was not performed, you lost the opportunity to be a Philippine citizen. The only way then to obtain Philippine citizenship is to be a “resident” of the Philippines and later on maybe obtain naturalization as a Filipino citizen. As mentioned in your letter, you decided not to proceed with this route because of monetary constraints.
You now want to derive US citizenship because you were able to locate your father when you were 19 years old. Unfortunately, since you were born between 1941 and 1952, pertinent US nationality law under the old Section 309 of the Immigration and Nationality Act requires children born out of wedlock to be legitimated before they turn 18 years old. This is a requirement to acquire citizenship through your father. Legitimation by your US citizen father should have occurred before your 18th birthday. The legitimation laws of the state where your US citizen father was a resident or domicile will govern whether he had taken steps to legally “legitimized” or acknowledged you as his child.
For out of wedlock children claiming through a father, the claim may be based on the legitimation laws of any jurisdiction where the father or the child resided or was domiciled between the date of the child’s birth to his or her 18th birthday. Acquisition of citizenship for a child born out of wedlock is also provided for under INA Section 309, 8 USC Section 1409. Unfortunately, under Massachussetts law of which your US citizen was a resident prior to his death recognizes legitimation only by intermarriage of the natural parents. In this case, there is no indication in your letter which shows that “legitimation” or marriage of your parents took place.
Different states have different sets of rules on what “legitimation” of out of wedlock children is considered legal. Some states may be more liberal while others are truly restrictive like the Massachusetts law.
It is too late to derive citizenship through your father absent evidence to show that your parents married as proof of your legitimation and as required by Massachussetts law. You may want to explore other options of obtaining a resident visa (green card) either through family petition (through your siblings petition) or employment petition. As soon as you obtain a resident card, you may then apply for naturalization to US citizenship after five years of becoming a resident.
Atty. Lou
(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com)
