MONTANA V. KENNEDY, 366 U. S. 308 (1961)

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U.S. Supreme Court

Montana v. Kennedy, 366 U.S. 308 (1961)

Montana v. Kennedy

No. 198

Argued March 22, 1961

Decided May 22, 1961

366 U.S. 308


Petitioner's mother is a native-born citizen of the United States, and his father is an Italian citizen who has never been naturalized. They were married in the United States, and their marital relationship has never been terminated. Petitioner was born in Italy in 1906, while his parents were residing there temporarily, and his mother brought him to the United States later in the same year. He has since resided continuously in the United States, and has never been naturalized.

Held: Petitioner is not a citizen of the United States. Pp. 366 U. S. 309-315.

(a) R.S. § 2172, granting inherited citizenship to children born abroad of parents who "now are, or have been," citizens, applies only to children whose parents were citizens on or before April 14, 1802, when its predecessor became effective. When petitioner was born in 1906, R.S. § 1993 provided the sole source of inherited citizenship for foreign-born children, and it applied only to children whose fathers were citizens. Pp. 366 U. S. 309-312.

(b) Section 5 of the Act of March 2, 1907, which provided that

"a child born without the United States of alien parents shall be deemed a citizen of the United States by virtue of . . . resumption of American citizenship by the parent,"

is not applicable to petitioner, since mere marriage to an alien, without change of domicile, did not terminate the citizenship of an American woman either at the time of petitioner's birth or at the time of his mother's return to the United States, both of which occurred in 1906. Pp. 366 U. S. 312-314.

(c) A different conclusion is not required by the testimony of petitioner's mother that she had been prevented from returning to the United States prior to petitioner's birth by the wrongful refusal of an American Consular Officer to issue her a passport because of her pregnant condition. Pp. 366 U. S. 314-315.

278 F.2d 68 affirmed.

Page 366 U. S. 309

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