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ICAZA v. SHULTZ

February 19, 1987

Marilyn G. Icaza, Plaintiff,
v.
George P. Shultz, Et Al., Defendants



The opinion of the court was delivered by: GASCH

 Oliver Gasch, Judge

 Upon consideration of defendants' motion for summary judgment, the memoranda and exhibits in support thereof, plaintiff's opposition thereto, the entire record herein, and for the reasons stated in the accompanying memorandum, it is by the Court this 19th day of February, 1987.

 ORDERED that defendants' motion for summary judgment be, and hereby is, granted; and it is further

 ORDERED that this action be, and hereby is, dismissed.

 MEMORANDUM

 I. INTRODUCTION

 This suit involves plaintiff's request for a declaration of United States citizenship pursuant to 28 U.S.C. § 2201 (1977). Plaintiff primarily contends that the United States government failed to advise her of statutory changes in immigration law which may have enabled her to retain permanently her U.S. citizenship. In response, defendants assert that plaintiff's claims are barred by the applicable statute of limitations. Alternatively, defendants argue that plaintiff's unawareness of a statutory amendment is no defense to her failure to follow the law as the government has no affirmative duty to advise plaintiff personally of developments in nationality laws.

 II. BACKGROUND

 Both parties concede the salient facts in this case. Plaintiff Marilyn Icaza was born on July 31, 1947, in the Republic of Panama to a Panamanian father and a U.S. citizen mother. Plaintiff acquired citizenship at birth under section 201(g) of the Nationality Act of 1940, as she was a person born abroad to one U.S. citizen parent and one alien parent. An individual gaining citizenship under the provisions of that law, however, could retain that citizenship permanently only if he or she were physically present in the United States for a continuous period of five years between the ages of 13 and 21. Congress subsequently modified these "retention requirements" by demanding physical presence in the United States for a continuous period of five years between the ages of 14 and 28. See § 301(b) of the Immigration and Nationality Act ("INA") of 1952. Under the 1952 Act, therefore, an individual must have commenced compliance with the retention requirements by his or her 23rd birthday in order to retain permanently the U.S. citizenship status acquired at birth.

 On October 2, 1964, plaintiff, at the age of 17, registered as a U.S. citizen at the U.S. Embassy in Panama and received a passport valid until January 1, 1965. See Defendants' Exhibits 1 & 2. At the time this passport was issued, plaintiff apparently was not told of the retention requirements discussed above. The State Department's Passport Office in Washington, D.C., later extended the expiration date of this passport until October 1, 1967.

 On October 28, 1969, plaintiff applied for and received another U.S. passport valid to July 30, 1970, the day before her 23rd birthday. At that time, plaintiff was informed of the INA retention requirements which necessitated that she reside within the United States continuously for at least five years before her 28th birthday. See Defendants' Exhibit 1; Plaintiff's Answers to Interrogatories, Nos. 17 & 18 [hereinafter "Plaintiff's Answers, No."]. Plaintiff did not take up residence in the United States prior to her 23rd birthday on July 31, 1970. *fn1"

 After her 23rd birthday had passed, plaintiff applied to the Immigration and Naturalization Service ("INS") for a certificate of U.S. citizenship. A hearing was held on this application on January 22, 1971, however, a final decision was delayed pending the outcome of a Supreme Court case concerning the constitutionality of the retention requirements in section 301(b) of the Immigration and Nationality Act. See Rogers v. Bellei, 401 U.S. 815, 28 L. Ed. 2d 499, 91 S. Ct. 1060 (1971). The Supreme Court, in Bellei, upheld the constitutionality of section 301(b). Subsequently, the INS issued a decision on June 23, 1971, denying plaintiff's application on the ground that plaintiff lost her citizenship by failing to meet the retention requirements of either section 201(g) of the Nationality Act of 1940 or section 301(b) of the INA of 1952. See Defendants' Exhibit 5.

 On October 27, 1972, Congress amended the retention requirements of section 301(b) by reducing the requisite time period for continuous physical presence in the United States from five years to two years. See 8 U.S.C. § 1401(b)(1). This amendment applied retroactively to individuals, such as plaintiff, who were born abroad after May 24, 1934. 8 U.S.C. § 1401(c). Theoretically, plaintiff would have been able to begin compliance with the new residency ...


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