In 1977 Mr. A. R. Mackay, Acting Chief of the Legal Division of the Passport Office in the Department of State, responded to the inquiry of an attorney at law acting on behalf of U.S. citizens who were seeking, inter alia, to ascertain that their foreign born daughter was documented as a U.S. citizen. The parents of the daughter had received a marriage blessing from the abbot of a monastery in one foreign country and then lived in a second foreign country where their daughter was born and where they attempted to document her citizenship at the U.S. Embassy. After receiving a communication from the authorities of the country where the parents received the marriage blessing to the effect that the parents had not presented sufficient evidence of a valid marriage in accordance with local custom, the Department of State determined that the marriage of the parents was deemed not proved due to lack of evidence. Upon receipt of further information from the U.S. Library of Congress to the effect that the marriage may have been performed in accordance with local custom, the Department reversed its decision concerning the marriage of the parents and amended the daughter's Report of Birth to show that she was born in wedlock.

Subsequently, the attorney at law for the parents suggested in a letter that his clients might bring suit against the Department, alleging in essence that the Department had nullified the parents' marriage by its negligent action, "retroactively bastardized their child," and caused them great economic hardship. Set forth below are portions of Mr. Mackay's letter of response in which he outlines how U.S. parents may present evidence to establish the U.S. citizenship of their children and how these evidentiary standards were met in this case:

A person seeking documentation as a United States citizen has the burden of proving acquisition of United States citizenship (22 CFR 51.40). If the [parents] were considered legally married at

the time of their daughter's birth, she acquired United States citizenship under section 301 (a) (3) (8 U.S.C. 1401) of the Immigration and Nationality Act of 1952. If they were not legally married at the time of [the daughter's] birth, she acquired citizenship under section 309 (c) (8 U.S.C. 1409) of the Act. If the [parents] felt that their daughter should acquire under section 301(a)(3) the burden was, therefore, upon them to present sufficient evidence of a valid marriage (22 CFR 50.7). When, in fact, they did not do so it was duly indicated on [the daughter's] Report of Birth Abroad that her natural parents were not married.

A Report of Birth Abroad is a Department of State document in affidavit form which sets forth the facts of a child's birth.

Setting forth the existence of a valid marriage binding such a child's natural parents, or the lack of a marriage, on a Report of Birth is a fact of the child's birth which serves to indicate the provision of law under which such child has acquired United States citizenship. Requiring a notation of the existence of a valid marriage of the natural parents, or the lack thereof, is therefore a valid function of the Department under section 104 (a) (3) of the Immigration and Nationality Act of 1952. No stigma attaches to such a notation; the provisions of the Privacy Act of 1974 and Freedom of Information Act, 5 U.S.C. 552 (a) and (b), guarantee, with few exceptions, that Reports of Birth remain confidential.

The notation in question, indicating lack of a valid marriage of her parents, on [the daughter's] Report of Birth did not "retroactively bastardize" her. It has no such legal effect, in and of itself. In any court proceeding in which [the daughter's] legitimacy might be at issue, the notation would be irrelevant; rather, with regard to [the parents'] marriage, the court would seek more probative evidence that the marriage had taken place in compliance with the marriage laws of [the foreign country where the parents were married]. The ultimate issue, [the daughter's] legitimacy, would be decided according to the appropriate State laws.... As it appears that [the daughter] and her father are domiciliaries of California, and that she was informally acknowledged in accordance with section 230 of the Civil Code of California (1954), her acquisition of United States citizenship under section 301 (a) (3) of the Immigration and Nationality Act of 1952, as made applicable by section 309 (a) of the Act, is guaranteed. . . .

While it is regrettable that the status of the [parents'] marriage was the subject of a lengthy inquiry, it is apparent from a review of our files that the difficulty of resolution is attributable to the type and locale of the [parents'] marriage and the type of evidence presented by them. In order to change the name on her passport [the wife] was asked to submit a marriage document and a letter from the ecclesiastical authority, the abbot of the monastery, indicating that the marriage blessing (emphasis added) had been performed in accordance with the local custom. The name on her passport was changed, but the Department's inquiry continued, in fulfillment of its statutory obligation, into the validity of the [parents']

marriage in order to assure a correct decision for children who might be born subsequently. The continuation of such inquiry was due in part also to the lack of a recorded marriage certificate.

When the appropriate authorities of [the foreign country where the marriage took place] were queried concerning this fact and the [parents'] case, they answered by saying that all of the evidence of marriage submitted by the [parents] indicated only that a blessing (emphasis added) had taken place in accordance with local custom and that no evidence of compliance with the . . . formalities of a marriage [of the country where the marriage took place] had been presented by the [parents]. When the [parents] attempted to document the citizenship claim of [the daughter at the U.S. Embassy in the second country] this was the only information concerning their marriage held by the Department. Based upon this statement and analysis by the... authorities [of the country where the marriage took place, the [parents'] marriage was deemed not proved, for lack of evidence thereof. This decision was made, for citizenship purposes only, as required by section 104 (a) (3) of the Immigration and Nationality Act, in order to establish the United States citizenship of the child and the section or sections of law under which it acquired that citizenship.

The Department's final decision relied upon a statement of the law obtained from the appropriate . . . authorities by the Library of Congress as well as the totality of the evidence of record. However, in view of the paucity of the evidence in the file and the inconclusiveness of the evidence from [the country where the marriage took place] we still cannot state as a certainty that the [parents] were legally married in [the country where the marriage took place]. Despite this uncertainty the Department resolved all doubts in favor of the validity of the [parents'] marriage.

Dept. of State File No. P77 120–2161.

The text of 22 CFR 51.40 reads as follows:

$51.40 Burden of Proof

The applicant has the burden of proving that he and any persons to be included in the passport are nationals of the United States.

Sec. 301(a)(3) of the Immigration and Nationality Act of 1952, 8 U.S.C. 1401 (a) (3), reads as follows:

§ 1401. Nationals and citizens of United States at birth

(a) The following shall be nationals and citizens of the United States at birth:

(3) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

Sec. 309 (a) and (c) of the Immigration and Nationality Act of 1952, 8 U.S.C. 1409 (a) and (c), read as follows:

§ 1409. Children born out of wedlock

(a) The provisions of paragraphs (3) to (5) and (7) of section 1401(a) of this title, and of paragraph (2) of section 1408, of this title shall apply as of the date of birth to a child born out of wedlock on or after the effective date of this chapter, if the paternity of such child is established while such child is under the age of twenty-one years of legitimation.

(c) Notwithstanding the provision of subsection (a) of this section, a person born, on or after the effective date of this chapter, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person's birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.

The text of 22 CFR 50.7 reads as follows:

§ 50.7 Report of birth

(a) Upon submission of satisfactory proof of birth and nationality, and at the time of the recording of the birth, the consular officer shall issue to the parent or person in interest, when requested and upon payment of the prescribed fee, a consular report of birth. The Authentication Officer of the Department may issue additional copies of the report of birth.

(b) When it records a birth under § 50.6, the Department shall furnish a copy of the "Report of Birth" without fee to the parent or person in interest. Sec. 104(a)(3) of the Immigration and Nationality Act of 1952, 8 U.S.C. 1104 (a) (3), reads as follows:

§ 1104. Secretary of State-Powers and duties

(a) The Secretary of State shall be charged with the administration and the enforcement of the provisions of this chapter and all other immigration and nationality laws relating to... (3) the determination of nationality of a person not in the United States

Northern Mariana Islands

The Constitution of the Northern Mariana Islands, proclaimed on October 24, 1977, by President Carter, as coming into full force and effect on January 9, 1978, contains a section entitled "Interim Definition of Citizenship" in its Schedule of Transitional Matters. Section 8 defines the term "U.S. citizen" or "U.S. national" as used in the Constitution of the Northern Mariana Islands as follows:

For the period from the approval of the Constitution by the people of the Northern Mariana Islands to the termination of the Trusteeship Agreement, the term United States citizen or United States national as used in the Constitution includes those persons who, on the date of the approval of the Constitution by the people of the Northern Mariana Islands, do not owe allegiance to any foreign state and who qualify under one of the following criteria:

a) persons who were born in the Northern Mariana Islands, who are citizens of the Trust Territory of the Pacific Islands on the date. of the approval of the Constitution by the people of the Northern Mariana Islands, and who on that date are domiciled in the Northern Mariana Islands or in the United States or any territory or possession thereof;

257-179 O 79 - 9

b) persons who are citizens of the Trust Territory of the Pacific Islands on the date of the approval of the Constitution by the people of the Northern Mariana Islands, who have been domiciled continuously in the Northern Mariana Islands for at least five years immediately prior to that date, and who, unless under age, registered to vote in elections for the Mariana Islands District Legislature or for any municipal election in the Northern Mariana Islands prior to January 1, 1975; or

c) persons domiciled in the Northern Mariana Islands on the date of the approval of the Constitution by the people of the Northern Mariana Islands who, although not citizens of the Trust Territory of the Pacific Islands, on that date have been domiciled continuously in the Northern Mariana Islands beginning prior to January 1, 1974.

Dept. of State File IO/UNP.

For further information concerning the Constitution of the Northern Mariana Islands, see ante, Ch. 2, § 6, pp. 71–72, 82-88.

The Trusteeship Agreement for the former Japanese Mandated Islands was approved by the U.N. Security Council on Apr. 2, 1947, and by the United States on July 18, 1947 (TIAS 1665; 61 Stat. 3301; 12 Bevans 951; 8 UNTS 189; entered into force on July 18, 1947). This Trusteeship Agreement remains in effect and the Northern Mariana Islands will not achieve full commonwealth status until the Trusteeship has been terminated.

Dual Nationality and Loss of Nationality

On March 24, 1977, Julia W. Willis, attorney-adviser in the Office of the Assistant Legal Adviser for European Affairs, wrote a memorandum to Mr. Robert Mosher of the Office of Eastern European Affairs of the Department of State, setting forth a legal opinion on the issue of whether the provisions regarding dual nationals in the Exchange of Letters appended to the U.S.-Bulgarian Consular Convention signed on April 15, 1974 (TIAS 8067; 26 UST 687; entered into force on May 29, 1975), supersede the U.S.-Bulgarian Naturalization Treaty signed on November 23, 1923 (TS 684; 43 Stat. 1759; 5 Bevans 1083; 25 LNTS 238; entered into force on April 5, 1924). She concluded that these two agreements "are fully compatible and consistent, and that each stands alone as fully valid in force." A portion of her memorandum setting forth the reasons for her conclusion follows:

Article 1, paragraph 2 of the Naturalization Treaty which provides that "nationals of Bulgaria who have been or shall be naturalized in territory of the United States shall be held by Bulgaria to have lost their original nationality and to be nationals of the United States"; and paragraph 1 of the Exchange of Letters appended to the Consular Convention which provides that "A person entering the People's Republic of Bulgaria for a temporary visit with an American passport which contains a valid Bulgarian entry visa or other document authorizing entry into Bulgaria shall, during the