The Secretary of State to the Belgian Ambassador (Van der Straten-Ponthoz)
Excellency: I have the honor to acknowledge the receipt of your note, No. 1005, of March 23, 1936, in which you make inquiry concerning the status under the law of the United States of a Belgian child who is a resident of the United States at the time of his father’s naturalization as a citizen of this country, or who is not a resident of the United States at the time of his father’s naturalization as a citizen of this country but takes up residence herein before attaining the age of twenty-one years. You point out that under the provisions of [Page 14] Article 18 of the law on the acquisition, loss and recovery of Belgian nationality, which, it is assumed, is the law of May 15, 1922, “the un-emancipated minor children of a Belgian who has become a foreigner by application of this article and who exercises the right of custody over them if they acquired the foreign nationality at the same time as their author” lose their Belgian nationality. Under the provisions of this Article Belgian nationality is not lost by a Belgian child whose parent having custody over him is naturalized as a citizen of the United States unless such child is residing in the United States and acquires the citizenship of the United States coincidently with the parent. You request that you be advised whether the Government of the United States considers that a Belgian child who acquired the citizenship of the United States as a result of the naturalization in this country of the Belgian parent having custody of him has the status of a naturalized citizen or of an individual who has become a citizen of the United States as a matter of right, and you inquire whether such child should be considered as coming within the scope of Article 1 of the Treaty of November 16, 1868, between the United States and Belgium.
Article XIV of the Amendments to the Constitution of the United States provides that “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States …”. It will be seen from this provision that citizenship of the United States is acquired by birth in the United States or by some form of naturalization. It has long been held by the United States that citizenship acquired by a minor through the parent’s naturalization is in effect a process of naturalization, according to law. The matter was discussed by the Supreme Court of the United States in the case of the United States v. Wong Kim Ark (169 U. S. 649). In that case the Court stated that:
“Every person born in the United States and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of Congress exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.”
It will be observed that a person born outside of the jurisdiction of the United States can become a citizen of this country only in accordance with the provisions of a treaty or Federal law.[Page 15]
In the light of the Constitutional provision above mentioned, it is obvious that at the time of the negotiation of the treaty between the United States and Belgium the United States considered that Article 1 would be applicable to any Belgian child who acquired the status of a citizen of the United States by virtue of the naturalization in this country of his parent. The view that citizenship of the United Stateis acquired by a minor through the parent’s naturalization is in effect a process of naturalization according to the law of the United States has been so held by other countries which have been parties with the United States to naturalization treaties.
While in your note under acknowledgment reference is made only to the provisions of Section 2172 of the Revised Statutes of the United States as having relation to the acquisition of American citizenship by alien children through the naturalization in the United States of their parents, and for the purpose of your note it does not seem necessary to discuss other provisions of American law having a bearing upon the same subject, attention is nevertheless called to Section 5 of the Act of March 2, 1907,9 and that Section as amended by Section 2 of the Act of May 24, 1934.10 These Sections are quoted for your convenience:
Section 5, Act of March 2, 1907.
“That a child born without the United States of alien parents shall be deemed a citizen of the United States by virtue of the naturalization of or resumption of American citizenship by the parent: Provided, That such naturalization or resumption takes place during the minority of such child: And provided further, That the citizenship of such minor child shall begin at the time such minor child begins to reside permanently in the United States.”
Section 2, Act of May 24, 1934.
“Section 5 of the Act entitled ‘An Act in reference to the expatriation of citizens and their protection abroad’, approved March 2, 1907, as amended, is amended to read as follows:
“Sec. 5. That a child born without the United States of alien parents shall be deemed a citizen of the United States by virtue of the naturalization of or resumption of American citizenship by the father or the mother: Provided, That such naturalization or resumption shall take place during the minority of such child: And provided further, That the citizenship of such minor child shall begin five years after the time such minor child begins to reside permanently in the United States.”