A-10673230
Decided by Regional Commissioner February 13, 1958 Approved by Assistant Commissioner
Citizenship — Acquisition by child born abroad — Failure to retain under section 201 (g), Nationality Act of 1940 — Opportunity to regain citizenship by complying with section 301 (b), Immigration and Nationality Act — Effect of temporary absence on continuity of physical presence.
(1) Subject who was born abroad April 17, 1935, to a United States citizen parent acquired citizenship at birth under R.S. 1993, as amended. He subsequently lost citizenship under the provisions of section 201 (g) and (h) of the Nationality Act of 1940 because of failure to come to the United States prior to his 16th birthday and prior to December 24, 1952. However, he has the opportunity to regain citizenship by complying with the provisions of section 301 (b) and (c) of the Immigration and Nationality Act.
(2) Subject having been physically present in the United States since May 10, 1952, is entitled to the issuance of a certificate of citizenship, since on May 10, 1957, he had fulfilled the requirements of section 301 (b) and (c) of the Immigration and Nationality Act by having come to the United States prior to the age of 23 and by having been physically present in this country continuously for a 5-year period between the ages of 14 and 28.
(3) In view of section 16 of the Act of September 11, 1957 (P.L. 85-316), subject's absence from the United States for a period of 26 days in July 1956 did not break the continuity of his physical presence for purposes of section 301 (b) of the Immigration and Nationality Act.
BEFORE THE REGIONAL COMMISSIONER
Discussion: This case is on appeal from the decision of the District Director, Detroit, Michigan, denying the application of J---- Z---- M---- for a certificate of citizenship. The issue raised is whether subject, who acquired United States citizenship at birth abroad on April 17, 1935, failed to retain his United States citizenship because of his entry into the United States on May 10, 1952, after he had reached his 16th birthday.
Applicant's father, D---- M----, born in the United States on November 5, 1915, has always been a United States citizen. Applicant's mother, E---- Z----, is a native and national of Mexico. Applicant was born in Mexico on April 17, 1935, and entered the United States on or about May 10, 1952, as a United States citizen. He thereafter left the United States on July 5, 1956, and last entered this country on July 31, 1956, at which time he was in possession of a nonquota immigrant visa issued pursuant to section 101 (a) (27) (C) of the Immigration and Nationality Act because of his status as a native of a Western Hemisphere country.
In effect at the time of applicant's birth was section 1993, Revised Statute, as amended by the Act of May 24, 1934, which provided as follows:
Any child hereafter born out of the limits and jurisdiction 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 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 cases where one of the parents is an alien, the right of citizenship shall not descend unless the child comes to the United States and resides therein for at least five years continuously immediately previous to his eighteenth birthday, and unless, within six months after the child's twenty-first birthday, he or she shall take an oath of allegiance to the United States of America as prescribed by the Bureau of Naturalization. (Sec. 1, Act of May 24, 1934, 48 Stat. 797; 8 U.S.C. 6.)
The latter part of this section concerning retention of citizenship was changed by the retroactive provisions of section 201 (g) and (h) of the Nationality Act of 1940 which provided as follows:
SEC. 201. * * * (g) * * * Provided further, That, if the child has not taken up a residence in the United States or its outlying possessions by the time he reaches the age of sixteen years, or if he resides abroad for such a time that it becomes impossible for him to complete the five years' residence in the United States or its outlying possessions before reaching the age of twenty-one years, his American citizenship shall thereupon cease.
* * * * * * *
(h) The foregoing provisions of subsection (g) concerning retention of citizenship shall apply to a child born abroad subsequent to May 24, 1934. ( 54 Stat. 1139; 8 U.S.C. 601.)
Under the provisions of this act it would appear that applicant, who acquired United States citizenship at birth on April 17, 1935, his father then being a native-born citizen who had resided in the United States prior to applicant's birth, failed to retain his United States citizenship because of his failure to come to the United States prior to his 16th birthday on April 17, 1951. However, in making a final determination the provisions of the Immigration and Nationality Act must be considered. The following provisions of the act are pertinent. Section 301 (a) provides that the following shall be nationals and citizens of the United States at birth:
(7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in computing the physical presence requirements of this paragraph.
(b) Any person who is a national and citizen of the United States at birth under paragraph (7) of subsection (a), shall lose his nationality and citizenship unless he shall come to the United States prior to attaining the age of twenty-three years and shall immediately following any such coming be continuously physically present in the United States for at least five years: Provided, That such physical presence follows the attainment of the age of fourteen years and precedes the age of twenty-eight years.
(c) Subsection (b) shall apply to a person born abroad subsequent to May 24, 1934: Provided, however, That nothing contained in this subsection shall be construed to alter or affect the citizenship of any person born abroad subsequent to May 24, 1934, who, prior to the effective date of this Act, has taken up a residence in the United States before attaining the age of sixteen years, and thereafter, whether before or after the effective date of this Act, complies or shall comply with the residence requirements for retention of citizenship specified in subsections (g) and (h) of section 201 of the Nationality Act of 1940, as amended.
Section 405 (c) of the Immigration and Nationality Act provides as follows:
Except as otherwise specifically provided in this Act, the repeal of any statute by this Act shall not terminate nationality heretofore lawfully acquired nor restore nationality heretofore lost under any law of the United States or any treaty to which the United States may have been a party.
It was originally the view of the Service that because of the provisions of section 405 (c), preventing the restoration of citizenship to one who previously lost his United States citizenship, the provisions concerning retention of citizenship contained in section 301 (b) of the Immigration and Nationality Act were not applicable to a person born abroad subsequent to May 24, 1934, if such person had failed to retain his United States citizenship because of his failure to come to the United States prior to his 16th birthday and prior to December 24, 1952 ( Matter of B----, T-2647622, 5 IN Dec. 291 (B.I.A., 1953)). It was for this reason that applicant obtained an immigrant visa and entered the United States in 1956 as an alien.
In Lee You Fee v. Dulles, 236 F. (2d) 885, a similar situation was presented. The plaintiff in that case was born in China on July 16, 1935, of a Chinese mother and a father who was a citizen of the United States prior to plaintiff's birth. The plaintiff had reached the age of 16 prior to December 24, 1952, and had not as yet come to the United States. In accord with the then Service view the court held that the plaintiff had failed to retain his citizenship because of his failure to come to the United States prior to the effective date of the Immigration and Nationality Act on December 24, 1952, and prior to his 16th birthday. A writ of certiorari was granted by the Supreme Court. In the brief for the Government submitted by the Department of Justice the following was stated with regard to point II:
The real issue in the case is whether, although petitioner had lost his citizenship under the 1940 Act, Sections 301 (b) and (c) of the 1952 Act * * * gave him an opportunity to regain that citizenship by coming to the United States before he was twenty-three years of age. We now believe that petitioner's position is correct and that our contrary position below was incorrect. Section 301 (c) states in terms that the new rule established by Section 301 (b) as to losing citizenship unless one has come to the United States prior to attaining the age of twenty-three "shall apply to a person born abroad subsequent to May 24, 1934." Petitioner was in fact "born abroad subsequent to May 24, 1934" — i.e., he was born on July 16, 1935. Literally, the section covers his case.
The legislative history likewise supports petitioner's position that Sections 301 (b) and (c) were actually intended to be applicable to all children of an American citizen-parent born abroad after May 24, 1934. These provisions were originally recommended in Senate Report 1515, 81st Cong., 2d Sess., filed on April 20, 1950. At that time, no child born after May 24, 1934, could yet have lost his citizenship by failure to take up residence before his sixteenth birthday (although that possibility was only a month away). The committee report stated, p. 713:
"Inasmuch as adjudication and determination of cases coming under the provisions of existing law [ i.e., the 1940 Act] have not yet begun, the subcommittee recommends that the proposed new law be made retroactive to include children born abroad subsequent to May 24, 1934, which is the date used in the 1940 Act."
Further support is given petitioner's position by the detailed analysis and comment by the Immigration and Naturalization Service on the proposed 1952 Act; at page 301-5 of that analysis, this statement is made:
"Although subsection (b) refers specifically to persons born abroad who are citizens under paragraph (7) of subsection (a), the apparent effect of subsection (c) is to apply the rules for retention of citizenship contained in subsection (b) to all persons born abroad subsequent to May 24, 1934."
On this view, the question becomes whether the language of Section 301 (c), applying Section 301 (b) to "a person born abroad subsequent to May 24, 1934", can in the light of its legislative history be said to be a clause which brings this case within the "except as otherwise specifically provided" portion of Section 405 (c)-a savings clause of the 1952 Act which provides against restoration of American nationality theretofore lost, "except as otherwise specifically provided in this Act." We think the language and legislative history of Section 301 (c) do sufficiently indicate a Congressional intent to cover all persons born after May 24, 1934, so that Section 301 (c) should properly be treated as a specific provision rendering the general savings clause inapplicable. The determination of whether a particular section comes within the "otherwise specifically provided" part of a general savings clause requires not any particular form of language, but rather only a clear expression of Congressional purpose. Lehmann v. Carson, 353 U.S. 685; Mulcahey v. Catalanotte, 353 U.S. 692.
It was then submitted by the Government that for the reason stated in point II the judgment of the Court of Appeals was in error and should be reversed and that the case should be remanded to the District Court. On November 18, 1957, in a per curiam opinion the Supreme Court stated ( 355 U.S. 61):
Upon consideration of the confession of error by the Solicitor General and of the entire record, the judgment of the United States Court of Appeals for the Seventh Circuit is reversed and the case is remanded to the District Court with directions to vacate its order dismissing the complaint.
The position taken by the Government and the action of the Supreme Court represents the present view of the Service and is the law of the land. The decision in the Matter of B----, supra, is, therefore, considered as having been overruled.
Following the present view, in order to retain his United States citizenship and in accordance with the provisions of section 301 (b) and (c) of the Immigration and Nationality Act, applicant was required to come to the United States prior to his attainment of the age of 23 years and immediately following any such coming to be continuously physically present in the United States for at least 5 years, which physical presence period must follow the attainment of the age of 14 years and precede the age of 28 years. Applicant came to the United States on May 10, 1952, at which time he was 17 years of age, and has been actually physically present in the United States continuously since that date except for the period of 26 days when he went to Mexico to get an immigrant visa in July 1956. His absence of 26 days in July 1956 did not break the continuity of his physical presence, in view of section 16 of P.L. 85-316 approved September 11, 1957, which provides:
In the administration of section 301 (b) of the Immigration and Nationality Act, absences from the United States of less than twelve months in the aggregate, during the period for which continuous physical presence in the United States is required, shall not be considered to break the continuity of such physical presence.
Therefore on May 10, 1957, applicant had completed 5 years' continuous physical presence in the United States and had fulfilled the retention requirements of section 301 (b) and (c) of the Immigration and Nationality Act. His application for a certificate of citizenship will be granted.
Order: It is ordered that a certificate of citizenship be issued to applicant J---- Z---- M---- who acquired United States citizenship at birth abroad on April 17, 1935.