A-6778186 A-6778187.
Decided by Board March 9, 1953. Decided by Attorney General December 21, 1954.
Citizenship, acquired at birth — Section 1993, Revised Statutes, as amended — Residence requirement as to parent.
In view of the long history of administrative construction interpreting broadly the residence requirement for parents under section 1993, Revised Statutes, as amended, two visits to the United States by a United States citizen parent prior to the birth of her children, one for two days and the other for a few hours, are held to satisfy the residence requirement of the statute.
CHARGES:
Warrant: Act of 1924 — No immigration visa (each alien). Act of 1918 — No passport (each alien).
BEFORE THE BOARD
(March 9, 1953)
Discussion: These cases concern two natives of Mexico, brother and sister, aged 17 and 15 years, who last entered the United States on August 30, 1946, for permanent residence. They entered with their mother, who presented evidence of her citizenship, and presumably they were likewise regarded as citizens. The presiding inspector, on October 7, 1948, found the respondents to be aliens and subject to deportation on the charges that they were not in possession of immigration visas or passports. He recommended that their deportation be suspended under section 19 of the Immigration Act of 1917. The Assistant Commissioner has ordered the proceedings terminated and has certified his decision to us for consideration.
The issue presented is whether the respondents are citizens of the United States, or aliens.
They were born in Mexico on June 11, 1935, and September 7, 1937, respectively. Their parents were natives of Mexico, the mother being a citizen of the United States under section 1993, Revised Statutes, by virtue of the fact that her father was born in the United States. As it does not appear that he was expatriated it follows that his original status must be presumed to have continued ( Hauenstein v. Lynham, 1879, 100 U.S. 482, 484) and that his child, the mother of the respondents, is a citizen.
The citizenship of the respondents is determined by said section 1993, as amended May 24, 1934 ( 48 Stat. 797), which 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. * * *
As the respondents took up residence in the United States on August 30, 1946, when they were of the respective ages of 11 and 9 years, no issue of retention of citizenship is involved.
Prior to the 1934 amendment section 1993, R.S., declared that children born abroad of American fathers were citizens of the United States, and provided that "the rights of citizenship shall not descend to children whose fathers never resided in the United States." The Supreme Court, in Weedin v. Chin Bow, 1927, 274 U.S. 657, determined that in order to transmit citizenship to the child the father must have resided in the United States prior to the child's birth. The clarifying language of the amendment "has resided in the United States previous to the birth of such child" makes unnecessary reliance on the court's interpretation that the residence of the parent in the United States must have preceded the birth; such requirement is an express requirement of the statute. The question is whether the mother had resided in the United States prior to June 11, 1935, so far as concerns the one respondent, and prior to September 7, 1937, as to the other.
The respondents' mother testified as follows:
I visited in the United States on September 16, 1929, and again on September 16, 1931, in Presidio, Tex., but I did not come to the United States to live until September 1938.
Q. How do you remember the dates of September 16, 1929, and September 16, 1931, so well?
A. Because September 16th is a national holiday in Mexico, and I remember that I made those visits in 1929 and 1931.
Q. How long did you remain in Presidio, Tex., on each of these visits?
A. In 1929 I visited for 2 days, and in 1931 I was in Presidio for only a few hours.
In Matter of E----, 56048/740, 1941, 1 IN Dec. 40, there was presented to us the question under section 1933, as amended in 1934, of whether the citizen parent had resided in the United States prior to the birth of the child, although the residence was not of a permanent character. Quoting from that decision:
The testimony shows that the husband (respondent's parent) 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. * * * 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 (pp. 41, 42).
We said, in concluding that citizenship did not descend:
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 (p. 43).
The Attorney General reviewed our decision and directed that the subject of the proceeding be admitted as a citizen. Presumably he lent his approval to a memorandum submitted to him by an attorney of the Department, containing the following:
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 State Department * * * 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" (p. 45).
He cited 13 Op. Atty. Gen. 90, wherein it was determined that children born abroad of a father who, at the time of their birth, was a citizen of the United States and had at some time resided therein, are American citizens under section 1993, R.S., and are entitled to all the privileges of citizenship, and commented:
It is my view that the word "resided" as used in the statute is used in the sense of "lived" in the United States. * * *
It is my recommendation that the Attorney General should sign the order * * * which * * * directs that D---- E---- E---- be admitted as a United States citizen.
The only distinction we discern between the precedent case and the cases now before us involves the period of the visits. The former involved visits of 29 days, and 4 or 5 days; the latter visits of 2 days and "a few hours." Such distinction does not, in our opinion, constitute basis in law for arriving at a different result. Accordingly, on the basis of the precedent cited, we hold that the respondents are citizens of the United States.
Order: It is ordered that the decision of the Assistant Commissioner terminating the proceedings be affirmed.
(December 21, 1954)
Discussion: The Board of Immigration Appeals, pursuant to Title 8, Code of Federal Regulations, § 6.1 (h), has referred to me for review its decision in the above cases. That decision affirmed a decision of the Assistant Commissioner of Immigration and Naturalization terminating deportation proceedings instituted against the respondents on the ground that they were aliens who had entered the United States illegally on August 30, 1946. The asserted illegality was that respondents were not in possession of immigration visas and passports, as required by the Immigration Act of 1924, 8 U.S.C. 1946 ed., § 201, et seq., and the Passport Act of 1918, as amended, 22 U.S.C. 1946 ed., § 223, the statutes in force on the entry date. Both the Assistant Commissioner and the Board of Immigration Appeals concluded that respondents on that date were citizens of the United States by operation of section 1993 of the Revised Statutes, as amended by the act of May 24, 1934, 48 Stat. 797, and, therefore, not subject to the documentary requirements imposed on aliens by the Immigration Act of 1924 and the Passport Act of 1918.
Section 1993, as amended by the 1934 act, supra, read so far as here relevant 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.
The pertinent facts are as follows: The respondents were born in Mexico in 1935 and 1937, respectively. Their parents were also born in Mexico. However, their mother at the time of their birth was a United States citizen because her father was a citizen of the United States and had resided therein prior to her birth. § 1993, supra. Prior to the birth of the respondents, their mother had been in the United States on a two-day visit in 1929 and for a period of a few hours in 1931. Considering itself bound by a 1941 decision of the Acting Attorney General in Matter of E----, 56048/740, 1 IN Dec. 40, the Board of Immigration Appeals concluded that respondent's mother had "resided" in the United States prior to their birth within the meaning of section 1993.
In the E---- case it appears that the citizen father had been in the United States prior to the birth of his son on three occasions-once on a visit of 29 days, a second time on a visit of 3 days, and a third time on a visit for an unspecified "short time." The Board of Immigration Appeals there held that these visits did not satisfy the residence requirement of section 1993, stating that although the duration of the residence was not material, there must have been an intention on the part of the parent to reside in the United States. The Department of State brought to the attention of the Attorney General a despatch from the American consul at Windsor, Canada, taking a contrary view. It was the consul's position that the purpose of the parent's presence in the United States was immaterial — that section 1993 required no more than the parent's physical presence in the United States prior to the birth of the child. The Department of State, in transmitting the despatch, did not specifically state that it approved this position; it did not, however, disapprove. The Acting Attorney General, although reversing the Board of Immigration Appeals, did so without opinion.
I
The residence provision of section 1993 has rarely been before the courts. In Weedin v. Chin Bow, 274 U.S. 657 (1927), the Supreme Court had before it the question whether the statute, as it read at the time, was satisfied where the residence of the citizen parent in the United States occurred only after the birth of the child. The Court held that the required residence must have occurred prior to the birth of the child, even though the statute did not expressly so provide. The Court, however, did not have before it, nor did it discuss, the nature or length of the residence needed to satisfy the statute. In the only other judicial determination bearing on the question, State ex rel. Phelps v. Jackson, 79 Vt. 504 (1907), the citizen parent had lived in the United States for several years during his infancy. The Court rejected the argument that this did not meet the residence requirement of the statute because a minor cannot legally acquire an independent residence; it said (pp. 519-520):
"All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States."
Reviewing the legislative history of the statute, which was found not to be dispositive ( id., pp. 660-666), the Court concluded that its reading of the statute was more in accord with the "probable attitude" of the Congress not to "extend(s) citizenship to a generation whose birth, minority and majority, whose education, and whose family life, have all been out of the United States and naturally within the civilization and environment of an alien country" ( id., p. 667).
There is nothing in the act indicating that any intent on the part of the person in question is required. The purpose of the provision is to prevent the residence abroad of successive generations of persons claiming the privileges of American citizenship while evading its duties — which does not require the narrow construction asked for by the relator.
Nor is the legislative history of section 1993 illuminating; there is nowhere any discussion as to the meaning of the term "resided." Its history prior to its amendment in 1934 is reviewed in Weedin v. Chin Bow, supra, at pp. 660-666. The legislative history of the 1934 amendment is equally barren.
§ 1993 had its origin in the act of March 26, 1790, 1 Stat. 103. The provisions of that act relating to the citizenship of children born abroad were reenacted in substance by § 3 of the act of January 29, 1795, 1 Stat. 415, and then repealed by the act of April 14, 1802, 2 Sat. 153, except with respect to children whose parents were citizens on or before that date. They were reestablished by the act of February 10, 1855, 10 Stat. 604, and embodied in the Revised Statutes as § 1993. The Court observed that there was no reference in the 1790 proceedings in Congress concerning the scope of the statute and that the report on the 1855 act was never found.
The 1934 amendment, 48 Stat. 797, conferred upon mothers who were United States citizens the same right to transmit citizenship to their children as was then possessed by fathers; the amendment also added the express requirement that the residence of the citizen parent in the United States must have occurred prior to the birth of the child. For the legislative history see H. Rept. No. 131, 73d Cong., 1st Sess., S. Rept. No. 865, 73d Cong., 2d Sess.; 78 Cong. Rec. 2077-2078, 2773-2774, 7329-7334, 7337-7350, 7355-7359, 8469-8471, 9425, 9308, 9406, 9426, 9551; and see also 38 Op. Atty. Gen. 10 (1934).
II
As an original proposition, the view that the visits of the respondents' mother to the United States of 2 days on one occasion and of a few hours on another constitute residence for purposes of the statute is subject to serious doubt. In other situations residence, although not required to have the element of permanency, has been held to necessitate more than a place of mere sojourning or transient visiting. See, for example, Guessefeldt v. McGrath, 342 U.S. 308; McGrath v. Kristensen, 340 U.S. 162; Barney v. Oelrichs, 138 U.S. 529; Frost Dickinson v. Brisbin, 19 Wend. (N.Y.) 11; McEntyre v. Burns, 81 Ga. App. 239; Fink v. Katz, 68 A. 2d 812. And, under the statutes, which have been in effect since the repeal of section 1993 by the Nationality Act of 1940, § 504 ( 54 Stat. 1172, 8 U.S.C. 1946 ed., § 904), visits of the duration and nature here involved would not suffice to confer citizenship on children born abroad.
Under the 1940 act the parent must have had, depending on the particular circumstances involved, either "ten years' residence" in the United States prior to the birth of the child (§ 201 (g), 8 U.S.C. 1946 ed., § 601 (g)), or, by application of § 104 (8 U.S.C. 1946 ed., § 504), his "general abode" in the United States prior to such birth (Nationality Act, § 201 (c), (d); 8 U.S.C., 1946 ed., § 601 (c) (d)). Under the present statute, the Immigration and Nationality Act of 1952, the citizen parent must have been in the United States, prior to the birth of the child, depending again on the particular circumstances involved, either for a continuous period of one year, for periods totaling not less than 10 years or had his place of "general abode" in the United States. "General abode" is defined to mean "principal, actual dwelling place in fact, without regard to intent." 66 Stat. 235, 8 U.S.C. 1952 ed., § 1401; 66 Stat. 166, 8 U.S.C. 1952 ed., § 1101 (a) (33).
Nevertheless, I am not inclined to reverse the decision of the Board of Immigration Appeals, thereby taking away the citizenship not only of these respondents but also casting doubt upon the citizenship of other persons in similar circumstances. Residence being a word which may bear different shades of meaning (see 1 Beale, The Conflict of Laws 110) has occasionally been said to include sojourning and transient visiting ( Appeal of Wolf, 13 Atl. 760; Matter of Gahn, 110 Misc. (N.Y.) 96; Phillips v. S.C. Tax Commission, 195 S.C. 472; Switzerland Gen. Ins. Co. v. Gulf Ins. Co., 213 S.W. 2d 161; Smith v. Whitewater, 251 Wis. 313), and has sometimes been described in terms of wherever a person may happen to be and of mere "bodily presence" in a place ( Farrow v. Farrow, 162 Ia. 87; In re Application of Quale, 213 Minn. 421; Matter of Gahn, ( supra)). It is in this broad sense that it has been administratively construed over a long period of time. Both the Immigration and Naturalization Service of the Department of Justice and the Board of Immigration Appeals have adhered to this construction at least since the E---- decision ( supra). Similarly, the Department of State has long been of the view that short visits to the United States by the parent are enough. See 3 Hackworth, Digest of International Law (1942), p. 21. In a more recent expression that Department has said that it has not insisted upon any minimum period of residence, however brief, and has made no distinction between residence while a minor and residence as an adult.
See Nationality Manual (United States Department of Justice), p. 4007. The following have been held to satisfy the residence requirements of the statute: Father in the United States for about 2 years on temporary assignment as a missionary; father in the United States on a number of occasions for temporary visits of 6 weeks to 4 months as an itinerant laborer; father in the United States on three occasions, each a few months in duration, as a laborer; father in the United States for 6 months during his minority. However, the mere presence of the parent for a few hours while in transit through the United States is not sufficient.
The Department of State agrees that passage in transit does not suffice.
The Department of State further advises that it does not feel justified in urging a reversal of a position which, it states, "is supported not only by an opinion of the Attorney General and long-standing administrative determinations of this Department, but also by the only reported court decision construing the language in question ( State ex rel. Phelps v. Jackson, supra)"; and "there appears to be no direct judicial or administrative authority for any contrary view."
The Department of State also states that while it is unable to estimate the number of children who have been held to have acquired American nationality under its interpretation of section 1993, it is probable that "only the smallest percentage involved fathers or mothers whose residence in the United States had been of a duration of less than a year at the time of the child's birth."
Whatever may have been the uncertainty in the earlier statute (an uncertainty which may well have induced the Congress to make the present statute more definite in this regard, see footnote 5, supra), it has nevertheless had a long history of administrative construction that should not, in my judgment, be overturned at this late date. Moreover, it cannot be said that that construction is without a modicum of support in the cases. As stated by one of my predecessors: "A contemporaneous, uniform, and long-continued construction of a statute by the department of the Government charged with its administration, under which rights have been determined and adjusted, is not to be disturbed in the absence of compelling reasons." 39 Op. Atty. Gen. 194, 196, I see no such reasons here.
Compare the 1950 report of the Senate Judiciary Committee which investigated the current immigration and nationality laws: "the provisions of existing law relative to the citizenship of children born abroad of a citizen parent or parents are confusing and difficult to administer and interpret, particularly with reference to residence requirements, both of parents and children." S. Rept. No. 1515, 81st Cong., 2d sess., p. 713.
Accordingly, the decision of the Board of Immigration Appeals is affirmed.