Valerie Isabelle Wauchope Ellen Mary Kinahan v. United States Department of State, Secretary of State, James Baker

985 F.2d 1407 Valerie Isabelle WAUCHOPE; Ellen Mary Kinahan, Plaintiffs-Appellees, v. UNITED STATES DEPARTMENT OF STATE, Secretary of State, James Baker, Defendants-Appellants. No. 91-15482. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 12, 1992. Decided Feb. 16, 1993. John S. Koppel, U.S. Dept. of State, Washington, DC, for defendants-appellants. Susanna Igleheart, James M. Byrne, Byrne, Igleheart & Byrne, San Francisco, CA, for plaintiffs-appellees. Appeal from the United States District Court for the Northern District of California. Before FLETCHER, POOLE and T.G. NELSON, Circuit Judges. FLETCHER, Circuit Judge: 1 The United States Department of State and the Secretary of State appeal the decision of the district court declaring two foreign-born offspring of United States citizen mothers to be citizens of the United States. We affirm. I. 2 Valerie Wauchope was born in Canada, on July 11, 1931, to a United States citizen mother (Nora Greenaway Hunter, nee Armstrong, born in New York in 1904) and a Canadian citizen father. Both her parents are now deceased. On October 31, 1989, Wauchope applied for a United States passport in San Francisco, claiming…

The United States Department of State and the Secretary of State appeal the decision of the district court declaring two foreign-born offspring of United States citizen mothers to be citizens of the United States. We affirm.

I.

Valerie Wauchope was born in Canada, on July 11, 1931, to a United States citizen mother (Nora Greenaway Hunter, nee Armstrong, born in New York in 1904) and a Canadian citizen father. Both her parents are now deceased. On October 31, 1989, Wauchope applied for a United States passport in San Francisco, claiming that she was an American citizen by virtue of her mother’s citizenship. Her application was denied on the grounds that the relevant statute, Section 1993 of the Revised Statutes of 1874, awards United States citizenship to the foreign-born offspring of United States citizen fathers but not to the foreign-born offspring of United States citi *1410 zen mothers. 1 Section 1993 was amended in 1934 to provide that any child “hereafter born” outside of the United States to either a United States citizen father or mother is also a United States citizen given the fulfillment of certain residency requirements. Act of May 24, 1934, ch. 344, § 1, 48 Stat.…

dissenting:

I respectfully dissent. While I sympathize with the majority’s desire to fashion the remedy it did, I believe that remedy has been forbidden us by INS v. Pangilinan, 486 U.S. 875 , 108 S.Ct. 2210 , 100 L.Ed.2d 882 (1988). There, the Supreme Court spoke plainly when it said: “Once it has been determined that a person does not qualify for citizenship, ... the district court has no discretion to ignore the defect and grant citizenship.” Id. at 884 , 108 S.Ct. at 2216 (internal quotation marks omitted; quoting Fedorenko v. United States, 449 U.S. 490, 517 , 101 S.Ct. 737, 752-53 , 66 L.Ed.2d 686 (1981)). We are simply not empowered to confer citizenship as a remedy.

*1419 I would reverse the district court’s decision.