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MILLER v. CHRISTOPHER

April 29, 1994

LORELYN PENERO MILLER, Plaintiff,
v.
WARREN CHRISTOPHER, SECRETARY OF STATE, Defendant.


Lamberth


The opinion of the court was delivered by: ROYCE C. LAMBERTH

This matter comes before the court on defendant's motion to dismiss the complaint pursuant to 12(b)(1) of the Federal Rules of Civil Procedure. Upon consideration of the filings of counsel and the relevant law, defendant's motion to dismiss is GRANTED in accordance with this Memorandum Opinion and Order. This case is hereby DISMISSED.

 Plaintiff, Lorelyn Penero Miller, was born in the Republic of the Philippines on June 20, 1970. Her mother is a Philippine national, and her father, Charlie Miller, is an American citizen. *fn1" The birth record reflects, however, that plaintiff was born "illegitimate," and a father's name and nationality does not appear in the record. See Def.'s Mot. to Dismiss, Ex. A.

 In November, 1991, when she was twenty-one years old, plaintiff first filed an application for registration and documentation as a United States Citizen with the American Embassy in Manila. The application was denied in March, 1992. This decision was upheld in November, 1992 by Thomas W. Callow, Acting Director of the Office of Citizen Consular Services of the United States Department of State.

 Plaintiff initiated this civil action in the United States District Court for the Eastern District of Texas. After the defendant moved to dismiss or, in the alternative, to transfer venue, plaintiff filed an amended complaint adding her father, Charlie Miller, as a co-plaintiff. The district court dismissed the claims of plaintiff Charlie Miller and ordered that the case be transferred to this jurisdiction where venue over Lorelyn Penero Miller's claims would be proper. Lorelyn Penero Miller v. Secretary of State, Warren Christopher, No. 6:93CV39, (Order of E.D. Tex., June 2, 1993).

 The Fourteenth Amendment provides, "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." U.S. Const. amend. XIV, § 1. Accordingly, plaintiff does not have a constitutional right under the Fourteenth Amendment to acquire citizenship. Moreover, plaintiff's father, Charlie Miller, has no constitutional right to transmit citizenship. Rogers v. Bellei, 401 U.S. 815, 830, 28 L. Ed. 2d 499, 91 S. Ct. 1060 (1971). Plaintiff, therefore, must meet statutory requirements in order to acquire U.S. citizenship.

 8 U.S.C. § 1409(a) sets forth the requirements for the acquisition of citizenship by a child born out of wedlock whose father is a U.S. citizen. As originally enacted, the paternity of the child born outside of wedlock to a father possessing U.S. citizenship must have been established by legitimation while the child was under the age of twenty-one. Legitimation could take place under the laws of the child's domicile or that of the father.

 In 1986, § 1409(a) was amended and now contains the following provision:

 
(a) The provisions . . . shall apply as of the date of birth to a person born out of wedlock if -
 
(1) a blood relationship between the person and the father is established by clear and convincing evidence,
 
(2) the father had the nationality of the U.S. at the time of the person's birth,
 
(3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and
 
(4) while the person is under the age of 18 years -
 
(A) the person is legitimated under the law of the person's ...

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