In SECTION 341 Proceedings

MATTER OF V—

In SECTION 341 Proceedings

A-12664565

Decided by Regional Commissioner February 2,1962

Approved by Assistant Commissioner February 20, 196's

Citizenship—Acquisition at birth abroad—Section 301(a)(7) of 1952 Act—Physical presence of citizen parent—Savings clause preserves residence in outlying possession which has since becuute independent country.

(1) Applicant born in Philippine Islands in 1958 held to have acquired United

States citizenship under section 301(a) (7) of Act through his father who

was born in the United States in 1931 and resided in the Philippine Islands

from September 1936 until May 1954.

(2) The term "outlying possession" as used in section 301(a) (7) includes, in

addition to the territories enumerated in section 101(a) (29) of the Act, any

other territory which was, In fact and in law, an outlying possession of the

United States during tne period of a citizen parent's pliybical presence

therein.

(3) Citizen parent's residence in Philippine Islands from September 1936 until

July 3, 1946, when they ceased to be a possession of the United States,

conferred upon him the status of physical presence in an outlying posses ,

sionftheUdSawicsprevdbytion405fheAc.

BEFORE THE REGIONAL COMMISSIONER

DISCUSSION: On September 28, 1961, the applicant's fatherapplied for the issuance of a certificate of citizenship to the applicant

in accordance with the provisions of section 341 of the Immigration

and Nationality Act and related regulations. The record establishes that the applicant was born in the Philippine Islands, a

foreign state, on January 11, 1958. His mother also was born in

the Philippine Islande, and first entered the T_Tnited States on

January 14, 1960. She has advanced no claim to United States nationality. The applicant's father was born in Stockton, California,

on February 23, 1931, and thus became a United States citizen at

birth by reason of the constitutional provision. Therefore, the applicant's claim to United States citizenship must be resolved in

accordance with the requirements of section 301(a) (7) of the

Immigration and Nationality Act.

The issue presented in the case involves a determination as to

whether or not the applicant's father, prior to the applicant's birth,

558

was physically present in the United States or its outlying possessions for at least ten years, of which period five years must have

been accumulated after he arrived at his fourteenth birthday (section 301(a) (7). Immigration and Nationality Act). The evidence

of record establishes that the applicant's father was continuously

physically present in the United States from February 23, 1931,,

the date of his birth, until his departure for the Philippine Islands

in September 1936, a period of physical presence totaling five years

and seven months. He resided in the Philippine Islands without

interruption until his return to the United States on May 3, 1954.

Thereafter, he was continuously physically present in the United

States until his enlistment in the United States Air Force on July 27,

1954, and he- has served continuously in the Air Force since that

date. Under the proviso to section 301(a) (7) of the Act, all periods

of service in this country's armed forces must be considered as

physical presence in the United States. Thus, the applicant's citizen father has unquestionably been physically present. in the United

states for an additional period of three years and eight months

prior to the applicant's birth, and such physical presence was accumulated after he arrived at his fourteenth birthday.

A consideration of the total physical presence amassed by the

applicant's father, permits a narrowing of the issue to the single

question: Does his continuous residence in the Philippine Islands

from September 1936 to July 4, 1946, when the Islands beyond

dispute ceased to have the status of an outlying possession of the

United States, nonetheless constitute physical presence in an outlying possession of the United States for the purposes of section

301(a) (7) of the Immigration and Nationality Act? This is the

crucial question. If it is answered in the affirmative, it is mathematically certain that the father will have more than sufficient

physical presence prior to the birth of the applicant to satisfy the

prerequisites of section 301(a) (7) of the Act.

The record discloses that a Department of State official at the

American Embassy, Manila, Philippine Islands. issued this applicant. United States Passport #155733 on February 10, 1959, predicated upon a finding of citizenship acquired at birth abroad, pursuant to section 301(a) (7) of the Immigration and Nationality Act.

In making the finding of citizenship, the continuous residence of the

applicant's father in the Philippine Islands prior to July 4, 1946,

was credited as physical presence in an outlying possession of the

United States for the purpose of completing the five years' physical

presence after age fourteen, which the father needed to confer

citizenship upon the applicant under the section (Exhibits 5 and

6). Direct inquiry of the Department of State elicited a statement

that the action taken by the American Embassy in Manila was in

559

complete accord with the official position of the Department Thus

it is clear that the Department of State has given an affirmative

answer to the decisive question.

Administrative decisions in cases involving the acquisition of

citizenship at birth abroad under sections 201(e) of the Nationality

4-575 (1951) ) and 201(g)- of the same

Act of 1910 (Matter of

statute (Matter of Y— , 7 - 667 (195S)) have held that a parent's

residence in the Philippine Islands prior to July 4, 1946, was residence

in an outlying possession of the United States for the purpose of those

sections. Further, it is pertinent to observe that in the decision last

cited such holding prevailed even though the child beneficiary was

born in 1949, when the Philippine Islands, beyond any shadow of

doubt, haxl ceased to be an outlying possession of the United States.

The decisions cited above give no reason to suppose that a different viewpoint should prevail in the case under consideration. Indeed, the similarity in the respective factual situations would seem

to prompt the opposite conclusion. Nonetheless, proper adjudication must consider first of all whether the mere language change

from "residence" as used in sections 201(e) and (g) of the Nationality Act of 1940 to "physical presence" as used in section 301

(a) (7) of the Immigration and Nationality Act could conceivably

require a viewpoint in the area of discussion different from that

expressed in the administrative decisions. Also material to the deliberations may be the significance of the change in the statutory

definition of an outlying possession of the United States which

in the Nationality Act of 1940 (section 101(e)) embraces by interpretation the Philippine Islands; whereas, in the Immigration and

Nationality Act (section 101(a) (29) ), the definition omits all direct

or implied reference to the Islands. Finally, and perhaps of the

greatest importance, will be an essential evaluation of any impact

which the savings clause in section 405(a) of the 7mmigr9tion and

Nationality Act may have upon the question at hand.

We must look to the Congressional committee reports in an effort

to determine the underlying Congressional intent and purpose in

substituting "physical presence" in the 1952 Act for the "residence"

of the 1940 Act. Further, such reports may shed light upon why

the definition of outlying possessions of the United States was

modified in the current statute, and thus enable us to evaluate the

significance of the modification in terms of the question before us.

Report No. 1137, 82d Congress, 2(1 Session, the Senate Report on

S-2550, which became the 1952 Immigration and Nationality Act,

reflects (page 38) that "The bill carries forward substantially

those provisions of the Nationality Act of 1910 which prescribe

who are citizens by birth * * *. These conditions have been re,

560

defined in the bill to meet more realistically the fact that we have

many members of our Aimed Forces serving abroad who have married alien spouses and have children born in foreign countries."

There is no indication in the committee reports that the language

change was for purposes other than the elimination of troublesome

problems involving "constructive" residence which had theretofore

been encountered, and to make it clear that "residence" meant

"physical presence" and nothing else. That the residence of the

applicant's father in the Philippine Islands was in fact physical

presence is clearly evident from the record. It is concluded then

that the language change from "residence" to "physical presence"

has no significant relationship to the question under consideration.

Of potentially greater moment in our deliberations is the change

which has been made in the definition of outlying possessions of the

United States. Admittedly, in eliminating all direct and indirect

reference to the Philippine Islands from the new definition (section

101(a) (29)), the Congress may have intended to destroy for the

purposes of the 1952 Act the former acknowledged status of the

Islands as an outlying possession of the United States. Yet, the

committee reports identified, supra, contain no language to give the

slightest indication that the modified definition was other than a

realistic enumeration of the outlying possessions of the United

States, as they existed at the time the 1952 legislation was under

consideration by the Congress. It cannot be denied that at such

time the Philippine Islands had ceased to have the aforementioned

status. The Islands had then become an independent nation and for

such reason, obviously, could not be included in the definition.

Furthermore, the phraseology of the definition finally adopted in no

way specifically states or infers that it is to be applied retrospectively

in the sense that it was intended to be destructive of the status of

"outlying possession," as it may have been recognized throughout

an earlier period under former law. In the absence of specific

language to the contrary, we cannot impute to the lawmakers a

desire to legislatively disregard what had previously been, in fact

and law, an outlying possession of the United States.

While it appears clear that the term "outlying possessions" in

section 301(a) (7) of the Immigration and Nationality Act necessarily is inclusive of those territories specifically enumerated as

such in section 101(a) (29) of the same Act, it is here concluded

that such term, as used in section 301(a) (7), also was intended to

include any other territory which was, in fact and law, an outlying

possession of the •United States during the period of the citizen

parent's physical presence therein. Any other construction would

result in a substantial reduction in the number of children who

could acquire citizenship at birth abroad to parents of mixed na561

634377-0 ---3T

tionality, not through any change in the substantive provisions of

the law relating to the acquisition of citizenship, but through a modification in a definition which was never intended to cause that result.

Any other construction would belie the Congressional committee

reports which indicate that the provisions of the Nationality Act

of 1940 relating to the acquisition of citizenship at birth were

carried forward unchanged in the Immigration and Nationality

Act, save for clarifying modifications having no apparent connection with or relationship to the question under consideration.

The savings clause of the Immigration and Nationality Act (section 405(a)) provides:

Nothing contained in thts Act, unless otherwise specifically provided therein,

Alan be construed * * g' to affect any * * * status, condition, right in process

of acquisition, act, thing, liability, obligatluu, or matter, rival or criminal, done

or existing, at the time this Act shall take effect; but as to all such * *

statutes [sie--sta tues] conditions, rights, acts, things, liabilities, obligations,

or matters the statutes or parts of statutes repealed by this Act are, unless

otherwise specifically provided therein, hereby continlIPti In force and effect.

The courts, in their interpretations of the law, have always been

zealous in safeguarding the rights of citizens from the sometimes

unforeseen and unintended destructive effects of new legislation.

In accord with this fundamental policy, they have given.section 405

(a), the savings clause of the Immigration and Nationality Act, the

broadest and most liberal construction holding that, by reason of

its grace, many diverse procedural and substantive rights or conditions arising under the immigration and nationality laws were preserved to citizen and alien alike. In United States v. Menarche,

348 U.S. 528 (1955), the Supreme Court stated that the savings

clause manifests a well-established policy not to destroy advantages

gained under prior laws and that the policy of preserving such

rights was intended to apply to matters both within and without the

specific contemplation of Congress. See also United States v.

Kershner, 228 F.2d 142 (1955) ; United States v. Lehmann, 136 F.

Supp. 458 (1955) ; Sitemberg v. United States, 348 U.S. 540 (1955).

The father of this applicant had acquired the status or condition

of a United States citizen who had been physically present from

September 1936 through July 3, 1946, in the Philippine Islands,

which were then an outlying poccession of the United States. His

acquisition of this status or condition was completed and perfected

under the Nationality Act of 1940, prior to the repeal of that statute

by the Immigration and Nationality Act. Such status or condition

existed intact on December 24, 1952, when the latter Act became

effective and, as a consequence, was saved and continued unchanged

by virtue of section 405(a), the savings clause of the Act. Accordingly,, on January 11, 19h8, when this applicant, was born, the preserved status or condition of the father, as described, was a proper

562

substantive element to be considered in determining whether his

child, the applicant, then acquired United States citizenship under

the provisions of section 301(a) (7) of the Immigration and Nationality Act. In other words, the father's physical presence in the

Philippine Islands during a period when the Islands were uniformly regarded as an outlying possession of the United States, was

saved as physical presence in an outlying possession of the United

States for the purposes of section 301(a) (7) of the Immigration

and Nationality Act, notwithstanding the provisions of section 101

(a) (29) of the same statute. This conclusion is a realistic one and,

in principle, is believed to be entirely consistent with the position

taken by the courts in their application of the savings clause. Fundamentally, it is also in conformity with the well-reasoned decision

entered in Matter of Y—, 7-667, which has been referred to at an

earlier point in this discussion.

Upon the premise of the authority cited and the reasoning set

forth herein, it is concluded that the physical presence of the applicant's father in the Philippine Islands during the period September

1936 July 3, 1946, constituted physical presence in an outlying possession of the United States within contemplation of section 301(a)

(7) of the Immigration and Nationality Act. It is further found

that at the time of the applicant's birth in the Philippine Islands

on January 11, 1958, his father was a United States citizen who had

been previously physically present in the United States and an outlying possession of the United States for a period of ten years, at

least five years of such period having been after he arrived at his

fourteenth birthday, and that the applicant's mother at the time of

the applicant's birth was an alien. Consequently, it is finally concluded that the applicant acquired citizenship of the United States

at birth on January 11, 1958, under section 301(a) (7) of the Immigration and Nationality Act, and is entitled to the issuance of a

certificate of citizenship.

ORDER: It is ordered that the application of S—K—V— for a

certificate of citizenship be granted.

—

563