56048/740
Decided by the Board February 15, 1941. Reversed by the Acting Attorney General March 20, 1941.
Citizenship — Children born abroad — Section 1993, Revised Statutes as amended.
A child born abroad of a citizen parent is a citizen of the United States under Section 1993 of the Revised Statutes, as amended by the Act of May 24, 1934, if the parent has resided in the United States prior to the birth of the child, although such residence was not of a permanent nature.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
(I---- E----.)
Act of 1917 — Accompanying an inadmissible alien.
(D---- E---- E----.)
Act of 1924 — Immigrant without immigration visa.
Executive Order 8430 — No passport.
BEFORE THE BOARD
STATEMENT OF THE CASE: The appellants applied at the port of Detroit, Mich., on November 17, 1940, for admission for permanent residence. The mother applied as a nonquota immigrant under section 4 (c) of the act of 1924; the child as a citizen of the United States. The board of special inquiry regarded the child as an alien and found him inadmissible under section 13 of the act of 1924, section 30 of the Alien Registration Act, 1940, and Part II of Executive Order No. 8430. The mother was found inadmissible under section 18 of the act of 1917. The appellants were excluded on the grounds above stated. They appealed from this action. The port paroled them.
After consideration of this appeal, the Board of Immigration Appeals ordered that the son be regarded as an alien. It was further ordered that the excluding decision be affirmed with reference to both mother and son, without prejudice to their reapplying for admission within 1 year of the date of exclusion if the son was in possession of a valid immigration visa and a valid passport. It was further ordered that the mother be permitted to re-present her immigration visa within the period of its validity ending March 16, 1941. It was further ordered that the action of the port in paroling the aliens be approved, but that such parole be terminated as soon as possible in the discretion of the port. Under date of December 30, 1940, this decision was communicated to the port. In reply, the port stated that the mother took the son to the American consul at Windsor, Ontario, on January 7, 1941, and that the consul there refused to issue an immigration visa on the ground that in his opinion the boy was a citizen of the United States. The consul said that he would refer the matter to the State Department for an opinion. The communication of the port indicates that the mother was permitted to re-present her immigration visa and that she was admitted for permanent residence; that this action was taken in consideration of the possibility that her visa might expire before the citizenship status of the son was finally determined.
There has now been received through the Secretary of State a report of the American consul at Windsor, Ontario, Canada, concerning the present status of the case of the son. The case is being reconsidered in the light of the consul's communication.
DISCUSSION: As stated in the decision and order of December 23, 1940, the mother is 21 years of age, married, a native and citizen of Canada. Her son is 1 year of age and a native of Canada. They are coming from Chatham, Ontario, Canada, and are destined to the husband-father in Detroit, Mich., for permanent residence. The mother presented the required passport and immigration visa. The mother states that the consul advised her that the child was not required to have an immigration visa.
The husband-father was admitted by a board of special inquiry on October 12, 1940, as a citizen of the United States. The wife testifies that her husband was born in Canada, but that he is a citizen of the United States through his father. The wife agrees that her husband had not lived in the United States prior to October 12, 1940; however, she testifies that he visited in the United States prior to that date.
On the day following the appearance of the wife before the board of special inquiry, her husband appeared as a witness and was identified as having been admitted as a United States citizen by the same board of special inquiry on October 12, 1940, on which date his father had appeared as a witness. The testimony shows that the husband was born in Canada and had made his home there until October 15, 1940. He has testified that he visited Kentucky for about 29 days about 11 or 12 years ago and again for 3 days about 4 or 5 years ago. He has testified that on another occasion he stayed in Detroit, Mich., with his sister for a short time. His answers indicate that no record was made of these entries, and that he was probably admitted on primary inspection as a United States citizen. He has testified that on these occasions he came to this country as a visitor with the intention of returning to his home in Canada. He has testified that he never sought employment and that he was not employed in this country prior to October 1940. He has said that he came to this country as soon as he learned that he would be regarded as a citizen here, and that he would have taken up residence here at an earlier date had he known of his citizenship rights.
The sole issue is the citizenship of the Canadian-born appellant child of 1 year of age. Section 1993 of the Revised Statutes of the United States, as amended by the Act of May 24, 1934, provides insofar as pertinent:
Any child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of birth of such child is a citizen of the United States, is declared to be a citizen of the United States; but the rights of citizenship shall not descend to any such child unless the citizen father or citizen mother, as the case may be, has resided in the United States previous to the birth of such child.
In the present case the mother of the child is an alien, and the father has been found to be a citizen of the United States. The question is whether prior to the birth of the child, the citizen father had resided in the United States within the construction given Section 1993 by the Supreme Court in the case of Weedin v. Chin Bow, 46 S. Ct. 120, 274 U.S. 657.
The phraseology used in the Chin Bow case seems to indicate that the court believed that the residence in question should have been accompanied by the intention of the father of making his home in this country rather than a mere visit with no intention of remaining. This Board is of the opinion that in order for a child to have a valid claim to American citizenship under Section 1993, it is necessary that the father of such child at sometime have had an actual residence in the United States, such residence occurring prior to the birth of the child. The duration of such residence is not material, but it is the judgment of this Board that there must have been an intention on the part of the father to reside in this country. In the present case there has never been an intention on the part of the father to reside here. His only presence here has been as a visitor. He has spent comparatively little time in the United States. He maintained residence in Canada until he was formally admitted as a United States citizen on October 12, 1940, which date was subsequent to the date of birth of the appellant son.
The communication of the American consul, Windsor, Ontario, of January 14, 1941, states that an immigration visa was issued to the mother there on November 16, 1940, and that she applied at the same time for an immigration visa for her minor son, born September 27, 1939, at Chatham, Ontario; that inasmuch as the child's father was an American citizen, Mrs. E---- was advised that no visa would be required in connection with her son's entry into the United States. In his report the consul reviews the subsequent transactions before the board of special inquiry and refers to the affirmation of the excluding decision as a result of the appeal. The consular report indicates that the mother and other members of the family furnished the consul with substantially the same information as given to the board of special inquiry. The consulate has expressed the opinion that the son is an American citizen. The consul says that he is satisfied that the father resided in the United States in conformity with Section 1993 of the Revised Statutes prior to the birth of his minor son. The consul takes the position that the father was a youth at the time he sojourned in Kentucky for about 1 month and at the time that he spent short periods in Detroit with relatives. The consul expresses the opinion that the father was incompetent to state whether he was permanently residing or whether he was visiting. The consul asserts that in his opinion the purpose of the father's presence in the United States is of no material import inasmuch as the father was physically in the United States on occasions prior to the birth of the son in question. The consul requests that the Department of Justice reconsider its ruling as to the citizenship status of the child.
We have constantly adhered to the view that mere physical presence in the United States is not sufficient. It is our view that Section 1993 of the Revised Statutes intended that the father's presence in the United States prior to the birth of the child must be characterized by permanency. The length of the residence here is not deemed material, but we do hold that an intention to reside is essential. In the present case there is every indication that the father spent a few short periods in the United States prior to the birth of the child without any intention, on his part or the part of any older person who may have accompanied him, of taking up permanent residence in the United States. It is the judgment of the Board of Immigration Appeals that the child is not a citizen of the United States.
This is an instance of disagreement between the Consular Service of the Department of State and the Board of Immigration Appeals to which the Attorney General has delegated the authority to consider and determine appeals from decisions of boards of special inquiry in exclusion cases. A disagreement of this sort is contemplated in Section 1 of Reorganization Plan V. The pertinent provision therein is as follows:
"In event of disagreement between the head of any department or agency and the Attorney General concerning the interpretation or application of any law pertaining to immigration, naturalization, or nationality, final determination shall be made by the Attorney General."
Therefore, this case may be referred to the Attorney General for final determination.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing, it is found:
(1) That the appellant, D---- E---- E----, was born in Canada on September 27, 1939;
(2) That he seeks to enter the United States to reside;
(3) That he does not present a valid passport or official lieu document in the nature of a passport;
(4) That he does not present an immigration visa;
(5) That L---- E---- E----, the father of D---- E---- E----, was born in Canada;
(6) That L---- E---- E---- has been found to be a citizen of the United States under the provisions of Section 1993 of the Revised Statutes of the United States;
(7) That L---- E---- E---- had entered the United States for short visits prior to the birth of D---- E---- E----;
(8) That L---- E---- E---- had not resided in or intended to reside in the United States previous to the birth of D---- E---- E----.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under Section 1993 of the Revised Statutes of the United States, as amended, D---- E---- E---- is not a citizen of the United States;
(2) That under Section 13, Immigration Act of 1924, he is inadmissible as an immigrant not in possession of an immigration visa;
(3) That under Part II, Executive Order No. 8430, he is inadmissible as an immigrant not in possession of a passport or an official document in the nature of a passport.
ORDER: It is ordered that D---- E---- E---- be regarded as an alien and that the decision of the board of special inquiry excluding him from the United States be affirmed without prejudice to his reapplying for admission within 1 year of the date of exclusion if in possession of a valid immigration visa and a valid passport.
MEMORANDUM FOR THE ACTING ATTORNEY GENERAL
(Bart W. Butler, Chief Attorney)
This case involves the question of the United States citizenship of this 1-year-old infant, who with his mother applied for admission to the United States at the Port of Detroit on or about November 17, 1940.
It seems that the mother has been ordered admitted as a Canadian alien in possession of the proper documents required under the Immigration Act of 1924. The infant child can also be admitted to this country except for a difference of opinion between the Immigration and Naturalization Service and the Department of State. The Immigration and Naturalization Service is of the view that the infant child is an alien and must be in possession of an immigration visa. The consular officers and the State Department hold that the child is not an alien, and, therefore, not required to have any documents under the immigration laws, and should be admitted as a citizen of the United States. The father of the infant is a citizen of the United States and has entered the United States as such, and is permanently residing in this country.
The question of the citizenship of the infant child arises under Section 1993 of the Revised Statutes of the United States, as amended May 24, 1934, which declares that any child, born out of the limits of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States, but, and this is the particular clause involved, "the rights of citizenship shall not descend to any such child unless the citizen father or citizen mother, as the case may be, has resided in the United States previous to the birth of such child." In this case the citizen father of this infant child did reside in the United States on two different occasions. The Immigration and Naturalization Service holds that, on the occasions when the father was in the United States, he did not have here a permanent residence in this country and, hence, was not "residing" in the United States within the meaning of the law. The State Department, on the other hand, holds that the purpose of the father's "presence in the United States is of no material import inasmuch as he was physically in the United States." The Chin Bow case, 274 U.S. 657, is referred to in the file in connection with this matter, but serves no useful purpose in view of the fact that the court was not required to consider what was meant by the term "residing" as used in the act.
In my judgment, the conclusion reached by the State Department is correct. In 13 Op. Atty. Gen. 90, the Attorney General considered the question of citizenship of a person whose father, being a citizen of the United States, had at one time resided or lived in the United States. The Attorney General held that if the father of the applicant who was a citizen of the United States at the time of the birth of the third generation was a citizen of the United States and "had at some time resided within the United States" the applicant became a citizen of the United States at the time of birth.
It is my view that the word "resided" as used in the statute is used in the sense of "lived" in the United States. For example, the purpose of the statute was primarily that the second generation citizen should have lived in the United States and become acquainted with American conditions and life. The best time in which the citizen could become acquainted with such conditions would be during his minority. To say, then, that a citizen of the United States being under age could not have resided in the United States would be to result in an unreasonable construction. For that reason, it is believed that the construction of the State Department is the proper one.
It is my recommendation that the Attorney General should sign the order prepared for his signature which reverses the order of the Board of Immigration Appeals and directs that D---- E---- E---- be admitted as a United States citizen.
The proposed decision and order of the Board of Immigration Appeals are hereby reversed, and it is directed that D---- E---- E---- be admitted as a United States citizen.