For all these reasons, we construe § 201(i) as sufficient Congressional authority to confer citizenship upon a person (1) one of whose parents was a United States citizen serving in the Armed Services who had himself resided in the United States more than ten years and (2) who came to the United States at or before age 16 and resided here for five years. We read the § 201(i) proviso requiring the person to reside in the United States for five years before reaching majority as the only condition subsequent to attaining or Retaining American citizenship where the pre-condition of parentage has been met. The parties are in agreement that Y.T. meets the explicit requirements of § 201(i). She is therefore entitled to a judgment declaring her to be a United States citizen.
In her complaint, Y.T. asserted that the actions of the Immigration and Naturalization Service in denying her application for a certificate of citizenship denied her the equal protection of the laws of the United States. At oral argument we pursued the issue of whether a condition subsequent of legitimation would be unconstitutional. Although this case has been decided on the issue of statutory construction, we do not believe that the precedent cited precludes an equal protection challenge to the Government's proposed interpretation of §§ 201(i) and 205.
The Government correctly asserts that Congress' power over the admission of aliens is extremely broad and subject to limited judicial review. Fiallo v. Bell, 430 U.S. 787, 97 S. Ct. 1473, 52 L. Ed. 2d 50 (1977); Oceanic Navigation Co v. Stranahan, 214 U.S. 320, 329, 29 S. Ct. 671, 53 L. Ed. 1013 (1909). In Fiallo, the Supreme Court upheld a section of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1101(b), which gave preference to illegitimate foreign-born children of American mothers over illegitimate foreign-born children of American fathers when such children sought special immigration preference. There the Court deferred to Congress' judgment in classifying aliens, noting that legislative distinctions in the immigration area need not be so carefully tuned to alternative considerations as legislation relative to citizens. 430 U.S. at 799, n. 8, 97 S. Ct. 1473. Fiallo is distinguishable from the instant case in that the plaintiffs there were aliens and clearly non-citizens.
Neither is Rogers v. Bellei, 401 U.S. 815, 91 S. Ct. 1060, 28 L. Ed. 2d 499 (1971), controlling. There the Supreme Court denied the claim to citizenship of a plaintiff who had been born abroad of an American mother and a noncitizen father but had failed to meet subsequent residency requirements under the Immigration and Nationality Act of 1952. Denying plaintiff's constitutional challenge to the defeasance of citizenship upon failure of conditions subsequent, the Supreme Court held that since the plaintiff was born abroad, was never naturalized, and had not been subject to the jurisdiction of the United States, he could not claim the protections of the Fourteenth Amendment. 401 U.S. at 507, 91 S. Ct. 1060. However, that case did not involve the statutory scheme in issue here or an equal protection claim based on a classification of legitimacy. As a factual distinction, the plaintiff there had not complied with the statutory residency requirements whereas Y.T. has complied and has been subject to the jurisdiction of the United States for the last fifteen years.
Extending the holdings of Fiallo and Bellei beyond their particular facts might impinge upon other holdings of the Supreme Court to the effect that citizenship derived by naturalization is not inferior to that derived by native birth, Schneider v. Rusk, 377 U.S. 163, 165, 84 S. Ct. 1187, 12 L. Ed. 2d 218 (1964), and that citizenship, once granted, is presumably retained unless voluntarily relinquished, Afroyim v. Rusk, 387 U.S. 253, 262, 87 S. Ct. 1660, 18 L. Ed. 2d 757 (1967). The difficult question for purposes of Fourteenth Amendment analysis is exactly what kind of citizenship § 201 grants is it conditional from inception, thus placing the conditional "citizen" outside the protections of the Fourteenth Amendment, or is it vested subject to defeasance, thus arguably placing the statutory citizen on an equal footing with the native born? This is an open question
, one better left for another day. However, were the plaintiff here to qualify for Fourteenth Amendment citizenship, she might well succeed in overcoming the § 205 requirement of legitimization. See Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175, 92 S. Ct. 1400, 1407, 31 L. Ed. 2d 768 (1972) ("no child is responsible for his birth and penalizing the illegitimate child is an ineffectual as well as unjust way of deterring the parent"); Levy v. Louisiana, 391 U.S. 68, 88 S. Ct. 1509, 20 L. Ed. 2d 436 (1967) (state law denying wrongful death recovery by illegitimates was unconstitutional as denying a right to a child "when no action, conduct, or demeanor of (the child was) possibly relevant to the harm that was done"); Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1976) ("illegitimate children can affect neither their parents' conduct nor their own status"). Here, Y.T. has done all she could reasonably be expected to do to keep her American citizenship; we have held that her actions were sufficient to entitle her to a certificate of citizenship under § 201(i). Were we to find § 205 also applicable, we would place upon her a penalty for the failure of her parent.
Having met the express conditions of § 201(i), Y.T. is entitled to a certificate of American citizenship. We believe this result is dictated by the plain language of the statute. Moreover, this reading produces a result consistent with current equal protection analysis.
An appropriate order will be entered.