## Facts

- A child was born in Czechoslovakia in 1929 to alien parents who had married in 1927.
- After the Sudetenland came under German control, a German provincial court in 1940 annulled (dissolved) the parents’ marriage based on racial-law grounds.
- The father was admitted to the United States for permanent residence in 1941 and naturalized in 1946.
- The child was admitted to the United States for permanent residence in 1947 (age 17) to live with her father.
- The parents did not execute formal custody papers, but the father stated the mother transferred custody to him; the mother later confirmed by affidavit that the father had assumed the child’s care, education, and support.
- No postwar proceeding was brought in the foreign jurisdiction to invalidate the 1940 annulment decree.

## Issues

1. Whether the foreign annulment decree constituted a “legal separation” of the parents under § 314(c) of the Nationality Act of 1940.
2. Whether the child was “legitimate” for purposes of § 314(c).
3. Whether the naturalized father had “legal custody” of the child when she began to reside permanently in the United States while under 18.

## Decision

- The BIA held the parents were legally separated within the meaning of § 314(c).
- The BIA held the child was legitimate because she was born during a valid marriage, and the later dissolution did not retroactively change that status.
- The BIA held the father had legal custody at the time the child began permanent residence in the United States, based on the parents’ agreement and the uncontested custodial arrangement.
- The BIA concluded the child derived U.S. citizenship under § 314(c) upon her 1947 admission for permanent residence while under age 18.

## Legal Principles

- “Legal separation” under § 314(c) turns on whether the marital relationship was legally terminated under applicable law; a foreign decree styled as an annulment may satisfy the requirement if it has the operative effect of dissolving the marriage and remains legally effective.
- A child born in wedlock is legitimate for derivative-citizenship purposes, and subsequent dissolution of the parents’ marriage does not render the child illegitimate.
- “Legal custody” under § 314(c) may be established without a formal custody order where the custodial arrangement is recognized by both parents, is implemented in fact, and is not contested, including in legal systems where dissolution courts are not required to enter custody orders.
- Derivative citizenship under § 314(c) requires that the naturalized parent have legal custody following the parents’ legal separation and that the child begin permanent residence in the United States before turning 18.

## Conclusion

The BIA recognized derivative U.S. citizenship under § 314(c) where a legally effective foreign dissolution qualified as a legal separation, the child’s legitimacy was preserved by birth in wedlock, and legal custody was shown through an uncontested parental custody arrangement when the child entered for permanent residence before age 18.


In re M-, 3 I. & N. Dec. 850 (B.I.A. 1950)