*2 WRIGHT, except derivative that she was Before TANG and REIN- not “unmarried.” HARDT, Judges. Circuit 1, 1984, Mary On November obtained an TANG, Judge: Circuit marriage annulment of her from Supe- appeals The Attorney General the district rior Court of for Yakima grant summary judgment court’s declar- granted County. annulment was on ing Mary Ruth a citizen ground that she married while still a the United States under and of her minor without the consent Nationality annulment, guardian. Following her 1409(a)(1983). 1401(g) and We U.S.C. §§ 8, granted district court on her affirm. 60(b) pursuant motion to Fed.R.Civ.P. September 20, vacate its order of FACTS granted summary then judg- her Burgess (“Mary”) was born declaring a statutory ment motion Tijuana, Mexico. The Attorney zen of the States. Carrillo, is a native mother, Josefine Her appeals. We affirm. Colima, Mexico. Her Don L. Bur- (“Don”), Pikesville, a gess native of STANDARD OF REVIEW Tennessee, Mary’s parents USA. never le- granting summary judgment is gally together Tijua- lived but Haluapo de novo. Akashi na, Mexico death reviewable until Don’s KK, Kaiun, (9th Tijuana. Mary’s June Cir. 1984). Summary judgment proper registered by certificate was when mother Tijuana, genuine days 1963 in six there is no issue as material June moving party Don’s death. fact and the is entitled to matter of law. Fed.R.Civ.P. law the child’s residence or judgment as a domicile, or under the law of father’s whether in or out- States, legitima- side the United if such DISCUSSION tion takes the child reaches question whether presents This case eighteen years the child is Mexico, of a Mexican daughter *3 custody legitimating the of the States citizen who United citizen and a parents at the time of such satisfy can the re- legally never legitimation. under quirements for 1101(b)(1)(C)(1983) (emphasis 8 U.S.C. § Nationality and Act Immigration added). may Under the statute a child be 309(a), 1401(g) 8 U.S.C. 301(g) and §§ legitimated any potential under of four 1409(a)(1983). and recognizes legitimating sources of law that 1401(g), person a shall Under 8 U.S.C. § parent, acts of the and we have held that a of the and citizen a national be recognize legitimating state can acts occur- is: States at birth who ring before either the father or child have geographical limits of outside the born any contact with that state. Kaliski v. outlying posses- and its the United States Serv., Disk Dir. and Nat. of alien, one of whom is an of sions 620 F.2d 216 a citizen of the United and the other bar, Attorney In the case at who, prior to the birth of such States holding General contests the district court physically present person, was Mary’s legitimation of under outlying possessions its United States or law, and contends that the has periods totaling period or not less for a long required that occur under years, at least five of which than ten the law of the father’s which is attaining age of fourteen were Mexico or in the California instant case. years. opinions Attorney General, He cites found, undisput- it is and The district Immigration Appeals, Board of and the fed ed, physically present in the that Don was Civiletti, eral district court in 571 Rios v. period required by United States for (D.Puerto 1983), F.Supp. sup Rico 1401(g)so that child to him U.S.C. born § port position. interpretation of his This of may acquire out United States of wedlock 1409(a)by Attorney U.S.C. § citizenship. applicable is Section plain language the stat contradicts 1409(a) children out under section ute, 1101(b)(1)(C), pro 8 U.S.C. § ... wedlock “as of the date child, purposes vides that a for the of 8 of such child is established legitimated can under U.S.C. be § age twenty- while such child is under “the of the child’s or domi law residence years by legitimation.” one cile, resi or under law of the father’s 1409(a). Thus, citizenship Mary to obtain dence or domicile.” prove legitimation must took while age. twenty-one years was under Here, Washington state, the law of resides, legal concept, is the Legitimacy is a where law of domicile”, and under “child’s the law determines whether 1101(b)(1)(C), provides denom and it that a man what a child it has circumstances legitimate. presumed illegitimate may to be the natural father of a inated become (2d “[wjhile age child if the child is under the Lau Cir. Kiley, 1977). Nationality majority, he receives the child into his Immigration and his openly who is unmarried home and holds out the child as provides that a child child.” Ann. 26.26.040 twenty-one years can be Wash.Rev.Code (West 1986).1 operative are legitimated facts here apply law the father’s domicile to California law as the Even were we to Don, father, Mary’s lived with Josefine district court determined that these Carrillo, mother, years prior facts were Mary’s support sufficient to the conclu- Don, sion that death, during years Mary to his those Mary, daughter, purposes born to the union. Don continued to 1101(b)(1)(C). point We should live with Josefine after birth until out that the United States not inferentially his death and held out by the decree of the Washington Superior daughter. are the natural These Court and was collaterally estopped to explicitly facts found Court challenge and validity attack the of that County April for Yakima The Government, however, decree. offered implicitly-by 1983 and the district court no evidence to upon cast doubt that decree. 1984 and Neither was there disagreement be- legitimated Mary by receiving her into parties tween the as to the material facts. openly holding his home and her out as his in an independent, adver- child from her birth until his death. sarial proceeding with Gener- *4 The result here accords with our decision al and the Service in opposi- (California applied legiti- in Kaliski law to tion, properly concluded legitimation that mating Yugoslavia); acts that occured in place took when the father received the Immigration Appeals’ the Board of decision child into his home and held her out as his (1980) Fulgencio, In re 17 I & N Dec. 471 child, at a time before the child reached the (California applied legitimating law to acts eighteen years, and while the child Philippines) in the that occurred and the in custody legitimating district court’s decision in Rios v. Civiletti parent. Mary is entitled to derivative citi- (Puerto applied legitimating Rican law zenship under 1401(g) Mexico.) that took in In each 1409(a). grant summary judgment applied case the law of the forum state was by declaring Mary the district court acknowledging to acts of a father and Burgess a citizen of the United States is own, recognizing the child his and these AFFIRMED. acts occurred to either the child or the having father contact with the forum state. WRIGHT, Judge, EUGENE A. Circuit concurring: Attorney General’s final conten judgment I concur in the because Wash- tion is that improperly the district court it, ington compels law as do federal stat- Washington accorded deference to the Su Judge Tang’s utes. But recital of the facts- perior Court decree it as me some concern. I poten- causes see the serts was based the birth certificate entry tial for fraud in parte of ex days filed six by Mary’s after Don’s death paternity decrees and believe we need more in agree filing mother Mexico. We that the stringent procedures establishing legiti- by of the birth certificate the mother after disagree mation. also with the method the death of the qualify father cannot as a by which the reaches its conclu- by act dis father. We sion to affirm. It attributes to the district agree, however, that the de court of fact that were never cree is so based it recites nowhere made. registration the fact of the of the Mary Burgess certificate. Rather it found the child months old was born to the father and mother who when Don died. Not until several together days reg- were “never but in lived death did her mother Mexico, (10) Mexico, Tijuana, showing until ister the birth Don as Burgess’ later, Tijuana.” Twenty years Mary death 1963 in the father. se- Mexico, Parentage statutory language which occurred in Gener- Act. This same appeal al’s would fail because California and can be found in California Civil Code Ann. 7004(a)(4) (West adopted Supp.1986). have both the Uniform parte Mary paternity decree an ex is a United States citizen if cured a she was 1) States, Washington superior 2) court. outside the proceeding in a one of citizen, declaratory judgment 3) her was a then filed for U.S. She marriage prevented requirements her citizen met certain citizenship, but meeting physical presence her from the United States. 1401(g).1 of “child.” Not be dissuaded the U.S.C. Because was born marriage, wedlock, however, of a she had it out of inconvenience section annulled, alleging applies that she married paternity by while she established parent. still a minor without consent before she twenty-one. turned day eigh- 1409(a).2 one before her She had married 8 U.S.C. § birthday. teenth 1409(a) Section uses the term “child.” “legitimation,” defining child, For By qualified not to have as a 1409(a), Congress has invited fraud. The must person have been an unmarried potential twenty-one facts of this case demonstrate who was for fraudulent claims to United States citi- law of her residence or or her zenship. father’s residence or domicile.3 8 U.S.C. 1101(c)(1).4 paragraph majority opin- last says twenty-one ion that “the turned 28,1983. the decree of the To be valid under section Court nor was the United States must have been established collaterally estopped challenge judg- that de- before that date. The district court’s Majority Opinion cree.” ment Mary’s legitimacy 341. As a did not establish *5 matter, agree. problem complaint technical The was not filed in that matter, that, practical April as a court until Any action and the district court were bound. legitimacy district court to establish 1401(g) provides part: legitimation. 1. U.S.C. relevant Kaliski v. District Director lish See Service, and Naturalization following of F.2d The shall be nationals and citizens of the United States at birth: geographical (g) person born outside 1101(c)(1)provides part: 4. 8 U.S.C. § in relevant outlying of limits States and its possessions parents of one of (c) whom is an subchapters chap- As used in III of this alien, and the other a citizen of the United ter— who, prior person, (1) States to the of such The term "child” means an unmarried physically present in the United States or person twenty-one years age of outlying possessions period peri- its for a or includes a child under the law of totaling years, domicile, ods not less than ten at least the child’s residence or or under the attaining age five of which were after law of the father’s years____ elsewhere, fourteen whether in the United States or ... legitimation if such takes ... before the 1409(a) provides part: 2. 8 U.S.C. relevant age child reaches the of sixteen and the legal custody child is in the provisions paragraph (g) The [ ] ... ... at the time of such apply section 1401 of this title shall ... as of legitimation____ of birth to a date child out of wed- majority opinion erroneously refers to lock ... of such child is estab- 1101(b)(1)(C) providing section as the relevant age lished while such child is under the 339; Majority op. definition 340; "child.” at id. at twenty-one years by legitimation. ap- added.) and id. at 341. That definition does not (Emphasis ply to section 1401or 1409. majority opinion says 3. The that "we have held The differences between the two definitions recognize legitimating that a state can acts oc- 1) (c) prefaces are everything subsection curring before either the father or child have twenty-one years age” “under cludes,” with "and in- any Majority op. contact with state.” descriptive, which is rather them "who prece- of our is,” A more accurate statement restrictive; 2) (c) which is subsection law, legitimation that a state dent would be calls for teen, before the child turns six- occurring recognizes legitimating be- (b) requires while subsection it before have contact fore either the father or child eighteen. state, to estab- with that is sufficient under which enough expressly not have occurred soon sions of 1409 are inapplica- would ble____ 1409(a). Rather, bring Mary within section Accordingly, plaintiff has not the district court decided whether met statutory elements for citizen- established, already had been ship. Mexico, by either under the laws of 8, 1985, Similarly, in its order certificate, or late-filed birth under the granting Mary’s motion for summary judg- Washington, parte pater- laws of the ex reopening case, ment after the court nity only decree. Those were the two “le- held: gitimacy-establishing” acts that occurred This court’s September Order of twenty-one. legitimization stated that would have majority opinion holds that there plaintiff been valid had the not been mar- legitimacy-establishing was a third act: ried at the time of Washington Burgess’s living daughter with his un- decree____ This court further stated til his death months after she was plaintiff’s that the lack unmarried sta- (“[Don] Majority op. at 341 born. See tus was the granting bar inferentially held out as his natural request statutory citizenship un- daughter____ legitimated Mary by [He] der 8 U.S.C. 1409. receiving openly her into his home and Subsequent entry to the of the Order holding her out as his child from her birth 20,1984, September plaintiff has come death.”); (facts at 341 found until forward with substantial evidence dem- by the district court “sufficient were onstrating marriage that her was invalid Don, support its conclusion that laws the State of Wash- legitimated Mary, daughter”). ington____ refers to fact Plaintiff has therefore overcome the in the record. From the district court’s only obstacle to satisfaction of the re- two decisions it is clear that it relied entire- quirements for issuance of ly superior on the court decree as establish- zenship. She has met the definition of ing Mary’s legitimacy. 1101(c), “child” under 8 U.S.C. [§] grant- In its 1984 decision properly legitimized required by ing government summary judgment, *6 1409[, is therefore enti- [§] and] the court said: awarding statutory tled a decree plaintiff Defendants contend that as zenship prescribed by as was married at the time of the Yakima 1401(g). County Superior Court Order she was Nowhere either of its orders did the not within the definition of a child____ rely district court by action Don establishing Mary’s legitimacy. Plaintiff contends that she has fulfilled It did so in a derivative sense in that it statutory requirements all of the for citi- superior looked to paternity court de- zenship and properly legiti- that she was legitimacy cree to see whether was estab- mated to her twen- Mary lished twenty-ore. before turned ty-first birthday. deciding presented by In the issue majority position thus If the pater- is that the parties it, before the district court held: nity decree is pa- insufficient to establish (a) ternity, government either because the residency

Plaintiff’s (b) party proceeding, was not a to that permit State would a determination of allowing parte proceed- legitimacy Washington such an ex plaintiff sat- 1101(c). ing requirements isfied all the establish for of § However, fraud, plaintiff purposes opens (c) was married the door to granted time of the court decree and because decree was not plaintiff sixteen, statutory Mary proper thus is not within course is to provi- of a child and thus the remand to the district court to it to allow find in the first instance the facts which majority say like to it had found. would America, UNITED STATES Plaintiff-Appellee, legitimation,

With a broad definition of court superior decree bound the tightly government as as it would under McCOLLUM, Sr., James Dean judicata. res the doctrine of It is not that Defendant-Appellant. government by judicata was bound res No. 85-5153. estoppel by superior or collateral be, It could court’s decree. since it had United States Appeals, Court of opportunity nor an neither notice to be Ninth Circuit. Rather, heard. because the section 1409 Argued 8,May and Submitted requires a child born out of wedlock to paternity by legitimation establish Decided Oct. with- defining by how and out whom established, government

is to be court,

the district were in fact bound. The

superior decree established Since,

Mary’s legitimation. in the district

court, government adduced no evidence disprove legitimation prove or to court, superior defrauded the the dis-

trict not err in granting Mary court did

statutory citizenship. majority government would have by Burgess’s supposed accept

ance of in his home for months

twenty-three ago. hand, the other bound the

by superior court’s decree that legal daughter.

was Don’s natural problem is not with the court but with the

and Washington statutes as construed problem. courts. The no sees Congress do. panel Until or an en banc

of this stringent court establishes more

procedures establishing legitimacy, we

must See Kali procedures. abide state

ski v. District Director of Service,

and Naturalization 620 F.2d (9th Cir.1980) (California law which rec

ognizes legitimating acts before the father

and child have contact with the state is

applicable immigration cases).