1415 K 1181
Decided by the Board May 7, 1953
Entry — Erroneous admission as United States citizen regarded as lawful admission for permanent residence.
An individual who was deprived, under section 15 of the act of 1906, of United States citizenship acquired at birth under section 1993 R.S. when his father's citizenship was revoked in 1935 is regarded as having been admitted for permanent residence in 1948 since he was erroneously admitted as a United States citizen at that time and has acted in good faith at all times.
CHARGE:
Warrant: Act of 1924 — No immigration visa.
BEFORE THE BOARD
Discussion: This case is before us on appeal from the decision of the hearing officer dated October 24, 1952, holding respondent deportable as an alien entering without a visa (secs. 13, 14, act of 1924). Respondent was born in Greece on November 3, 1930, of a father who had been naturalized in the United States on March 27, 1925. Prima facie respondent was a citizen under section 1993 R.S. by virtue of his birth of a citizen father. However, the naturalization of the respondent's father was canceled on April 5, 1935, a fact which raises the issue of whether the respondent is now or ever was a citizen of the United States (36 Op. Atty. Gen. 446 (1931; Mariani)). Respondent's only entry occurred at New York on October 25, 1948, as a United States citizen, traveling on a valid United States passport.
Respondent's father was naturalized in the Court of Common Pleas in St. Clairsville, Belmont County, Ohio.
Because respondent's father returned to his native land of Greece in September 1925, the naturalization of the father was canceled pro confesso and set aside for presumptive fraud by the United States District Court, Southern District, Ohio, on April 5, 1935. Section 15, act of June 29, 1906 ( 34 Stat. 601, 8 U.S.C. 405). After the father's return to Greece, he married respondent's mother in 1926 and remained in that country until November 1934. The father reentered the United States on November 13, 1934, and the denaturalization proceeding then followed. The father reportedly died in Greece during the early part of World War II.
If any alien who shall have secured a certificate of citizenship under the provisions of this chapter shall, within 5 years after the issuance of such certificate, return to the country of his nativity, or go to any other foreign country, and take permanent residence therein, it shall be considered prima facie evidence of a lack of intention on the part of such alien to become a permanent citizen of the United States at the time of filing his application for citizenship, and, in the absence of countervailing evidence, it shall be sufficient in the proper proceeding to authorize the cancellation of his certificate of citizenship as fraudulent * * *.
Under section 15 of the act of 1906, the cancellation of a parent's naturalization for fraud of any sort resulted in the loss of United States citizenship by a child, who had acquired United States citizenship from this parent. Section 15 was repealed by section 504 of the Nationality Act of 1940, effective January 13, 1941, with section 338 (d) of the Nationality Act (8 U.S.C. 738 (d)) being substituted for the repealed section. This latter section provided that cancellation of a parent's naturalization for presumptive fraud would not cause the denaturalization of a child, who acquired United States citizenship from the parent through R.S. 1993. However, in order for the child to obtain the benefit of section 338 (d), the judicial proceedings must have been commenced following the effective date of the Nationality Act of 1940 on January 13, 1941.
Hence, since the citizenship of respondent's father was revoked in 1935, when section 15 of the act of 1906 was in effect, respondent was deprived of his United States citizenship by virtue of the judicial decree. Battaglino v. Marshall, 172 F. (2d) 979 (C.A. 2, 1949); Rosenberg v. United States, 60 F (2d) 475 (C.C.A. 3, 1932).
However, because respondent was erroneously admitted to the United States in 1948 as a citizen and since respondent acted in good faith at all times, we conclude that respondent's last entry should be considered as an admission for permanent residence. The appeal is therefore sustained and proceedings should accordingly be terminated.
According to the State Department, in the event of cancellation of a parent's naturalization under sec. 15 of the act of 1906, such as occurred in the instant case, both State and Justice Departments had originally taken the administrative view that such a child acquiring United States nationality under R.S. 1993 lost his citizenship. However, with In re Bolter ( 66 F. Supp. 566, D.C., 1946), the judicial view changed and from 1947 to 1950 the two Departments joined in following this latter view. Subsequently, the judicial view was again changed by Battaglino v. Marshall ( supra), and the State Department reverted to the original view, which it had consistently maintained prior to 1946. For this reason, numerous passports were issued from 1947-50 under the Bolter reasoning, which would not have been issued since the Battaglino decision, if the cases were considered anew. Respondent was issued a United States passport by the American Consulate at Athens, Greece, on September 21, 1948.
Order: It is hereby ordered that proceedings be terminated.