Interim Decision. #1248

Interim Decision. #1248

Marrmt or BagTrans-Rum

In EXCLUSION Proceedings

A-13040423

Decided by Board Auguet 7, 1962

(1) Retention requirements of section 301 (b) , immigration and Nationality Act,

as amended by section 16, Aet of September 11, 1957, may be satisfied by a

United States citizen resident of Mexico who commutes to his employment

in the United States, even though he has never established a residence in

the United States.

(2) The retention provisions of section 301(b), Immigration and Nationality

Act, as amended by section 16, Act of September 11, 1957, that a United States

Citizen come to the United States and be continuously physically present for

at least five years, do not require the taking up of a residence in the United

States. cf. Matter of Destines -Ruiz, Interim Decision #1256.•

ExCLIMaarm: Act of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20)1—Immigrant without visit.

An order entered by the special inquiry officer on March 29, 1962,

excludes this applicant as an alien immigrant not in possession of a

valid immigration visa (8 U.S.C. 1182 (a) (20) ). The special inquiry

officer concludes that the applicant failed to retain his United States

citizenship derived by birth abroad. to parents one of whom was a

citizen of the United States, because he did not come to the United

States prior to attaining the age of 23 years and therefore is required

to have documentation. The case has been certified by the special

inquiry officer for an interpretation of section 801(b) of the Immigration and Nationality Act (8 U.S.C., 1401 (b) ) as modified by section

16 of Public Law 85-316 (Act of September 11, 1957) and for final

decision.

The applicant, a married male, 24 years of age, sought to enter the

United States through the port of El Paso, Texas, on. February 4,

1962. He applied for entry as a United States citizen and was detained for an exclusion hearing.

The applicant was born in Mexico on January 2, 1938, of lawfully

married parents one of whom was a citizen of the United States, the

'See also, Matter of Flores Maldonado, Int. Dee. No. 1235.

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Interim Decision #1243

other an alien. He was issued a United States citizen identification

card on September 2, 1954, when 16 years of age (p. 2 of Ex. 2). It

is conceded that the applicant acquired United States citizenship under

the provisions of Revised Statute 1993, as amended by the Act of

May 24, 1931.

The applicant has come to the United States for employment on

numerous occasions during the period 1954 to February 4, 1962. He

has resided in the United States for periods of one to six months during

the course of his employment. From September 1960 through the first

week of July 1961 the applicant was employed in El Paso, Texas, and

commuted daily from his home in Juarez, Mexico. Since July of 1961

the applicant has been employed in the United States at Delano, California, from August 24, 1061, to on or about November 24, 1961; at

Columbus, New Mexico, during the month of December 1961, and he

resided in his mother's home in El Paso, Texas, while not employed

from January 1, 1962, until January 13, 1962.

The applicant has never established a residence in the United States.

He has always entered the United States heretofore as a citizen. The

special inquiry officer concludes that the applicant now requires an

immigration visa to enter because he is no longer a citizen by reason

of the provisions of section 301(b) of the Immigration and Nationality

Act (supra).

Loss of nationality by a person born outside of the geographical

limits of the United States or its outlying possessions of parents one of

whom is an alien and the other a citizen who has had ten years' physical

presence in the United States prior to the birth of such person 2' is governed by section 301(b) of the Immigration and Nationality Act (8

U.S.O. 1401(b) ). Section 301(b) provides that such person shall lose

his United States nationality derived at birth "unless he shall come to

the United States prior to attaining the age of 23 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 14 years and

precedes the age of 28 years." (Emphasis supplied.)

Realizing that the five-year continuous physical presence provision

of section 301(b) as originally enacted created a hardship for many

citizens born outside of the United States whose families continued to

reside abroad, the Congress enacted section 16 of Public Law 85-316

(Act of September 11, 1957). 2 Section 16 of the Act of September 11,

1957, provides that in the administration of section 801(b) (supra)

Paraphrase from section 301(a) (7) of the Immigration and Nationality Act

(8 U.S.C. 1401(a) (7) ).

' See 'U.S. Code Congressional and Administrative News, Vol. 2, Seth Cong., 1st

Sess.—pp. 2019 and 2020.

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Interim Decision #1243

"absences from the United States of less than 12 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."

Section 301(b) of the Immigration and Nationality Act differs from

its predecessor, section 201 (g) of the Nationality Act of 1940. The

present statute requires that the child "shall come to the United States"

prior to attaining the age of 23 years while section 201(g) provided

that the child "must reside in the United States" for a total of five

years between the ages of 13 and 21 years. [Emphasis supplied.]

Notwithstanding the difference in language the special inquiry officer

is of the opinion that in order for the foreign-born child to retain his

citizenship under section 301(b) (supra) he must enter the United

States for permanent residence before attaining the age of 23 years, and

shall thereafter be physically present in the United States for at least

five years following any such entry prior to age 23 and after age 14.

The special inquiry officer is also of the opinion that section 16 of Public

Law 85-316 (supra) avails the applicant nothing because as a condition precedent to computing allowable absences from the United States

the foreign-born citizen child must "take up a residence in the United

States" prior to his 23d birthday.

The special inquiry officer refers to several congressional committee

reports 3 as:the basis for his conclusion in this regard. It is true that

the Senate committee did recommend in its report of April 20, 1950

(#1515, footnote 1) that the "child born abroad of one citizen parent

and one alien parent must in order to retain his United States citizenship enter the United States for permanent residence before attaining

the age of 23." The committee, however, prefaced this recommendation with a statement that ". . the provisions of existing law

relative to 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." Senate Report #1515 accompanied the first "omnibus

bill" introduced by Senator McCarron. on April 20, 1950. There were

three revisions of his original bill prior to the introduction of a final

version in the form of a "clean bill," 5-2550, on January 29, 1952.

The House Committee on Immigration in a later report, dated

February 14, 1952, which accompanied House Resolution 5678, enacted

as the Immigration and Nationality Act of 1952 on Juno 27, 1952, made

no mention of an "entry into the United States for permanent resiSenate Report #1515, 81st Cong., 2nd Stns., April 20, 1950, p. 713. Senate

Report #1167, and Cong., 2nd Seas., January 29, 1952, p. 39. lluuse Report

*1365, 82nd Cong., 2nd Sees., February 14, 1952, p.33.

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Interim Decision #1243

deuce" in order to retain United States citizenship. This report

merely states that :

In order to retain citizenship derived through one citizen parent, the child

is required to be physically present in the United States for a continuous period

of live years between his 14th and 28th birthdays. (House Report 1365 to

accompany House Resolution 5678 at page 76).

We are confident that it was the intent of Congress to eliminate the

residential requirements for retention of citizenship formerly embodied in section 201(g) of the Nationality Act of 1940. The managers on the part of the House committee in their conference report

accompanying the final version of House Resolution 5678 expressly

state "The conferees believe that the final version of this legislation

would preclude any strained construction which would distort its

general purpose and its particular provisions." 4 It would certainly

be a "strained construction" that would "distort" the retention provisions of the present Act if we were to equate such phrases as "must

reside in the United States" and "has not taken up residence in the

United States," the language used in the retention provisions of

former section 201(g), with the phrases "he shall come to the United

States" and "be continuously physically present in the United States,"

the language found in the retention provisions of section 301(b)

(supra).

The special inquiry officer maintains that this Board has ruled in

two reported decisions that sections 301 (a) through (c) of the immigration and Nationality Act require the child to "take up residence in

the United States before reaching the age of 23" in order to retain

citizenship obtained by birth abroad (p. 9 of special inquiry officer's

opinion citing Matter of 8—, 8 I. & N. Dec. 221, and Matter of S—,

8 I. & N. Dee. 226 (December 23, 1958) ). The issues in both cases

are concerned with whether citizenship, lost under sections 201(g)

and (h) of the Nationality Act of 1940, is restored by sections 301 (b)

and (c) of the Immigration and Nationality Act. It was our original

belief that the savings clause found in section 405(e) of the 1952 Act

controlled rather than the provisions of section 301(c) which reads

"subsection (b) shall apply to a • person born abroad subsequent to

May 24, 1934." We overruled our formed decisions and ordered both

applicants admitted notwithstanding the fact that they both arrived

subsequent to their 23rd birthday. The evidence established that they

were prevented from complying with the retention provisions of the

1952 Act by the previous erroneous interpretation of sections 301 (b)

and (e).

4 Conference Renort, House #2096, U.S. Code Congressional and Administrative

News, 82nd Cong., 2nd Sees., VoL 2 at p. 1754.

Matter of B—, 5 L & N. Dec. 291, BIA, 1953.

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Interim Decision #1243

While it is true that in both of the cited cases we have used the

phrase "take up permanent residence" in the text of the opinions, it

is clear that the use of this phrase is not germane to the issue involved

and may be considered "obiter dictum." The decision of the Regional

Commissioner in the Matter of M—, 7 L & N. Dec. 646, 650 (February

13, 1958) states the correct rule as follows :

In order to retain his United States citizenship and in accordance with

Sections 301 (b) and (c) of the Immigration and Nationality Act, applicant

(is) required to come to the United States prior to his attainment of the age

of 28 year's and immediately following any such coining to be physically present

in the United States for at least five years, which physical presence period

must follow the attainment of the age of 14 years and precede the age of 28

years.

The applicant meets the first test set forth in Matter of M—

(supra). He came to the United States prior to attaining the age

of 23 years. The question to be resolved is whether it is mathematically possible for the applicant to establish a continuity of five years

of pkysicaZ presence in the United States prior to attaining the age

of 28 years on January 2, 1966. (Emphasis supplied.)

The question is complicated by the fact that the applicant

was

physically present in Mexico for various periods of time ranging

from approximately 12 hours to several weeks between his 23rd birthday on January 2, 1961, and the date he sought to enter the United

States as a citizen some 13 months later on February 4, 1962. However,

if the applicant's absences aggregate "less than 12 months * * * following any * * * coming (to the United States) * * * prior to attaining the age of 23 years," then such absences do not break the continuity of the required five years of physical presence in the United

States (section 301(b), Immigration and Nationality Act as amended

by Public. Law 85 816) (8 U.S.C. 1401 (b) and 11.01b).

The mathematical computation of the applicant's absences, in Mexico

between his 23rd birthday on January 2, 1961, and the date he was

excluded at El Paso, Texas, on February 4, 1962, is found in Appendix

A. Based upon the record of the applicant's testimony our computation shows that he was absent in Mexico a total of 1781/2 days or approximately six months during this period. This figure is computed

on the basis of 12 hours' physical presence in the United States while

commuting daily from Juarez, Mexico, to his employment in the

United States. We have also charged the applicant with absences in

Mexico when the record discloses that he had a day off a or was uncin-

The applicant testified concerning his employment at the Auto Center Car

Wash, El Paso, Texas, as follows :—"I worked 7 days a week except sometimes

when I was given Monday off but this was not au the time." (pp. 6 and 7).

The applicant also testified that he had Wednesdays off while working at the

Dill's Car Wash in El Paso, Texas (p. 8).

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Interim Decision #1248

ployed. We realize that he may have entered the United States during

this period in search of employment, but we have no way of ascertaining such entries.

The applicant's absences from the United States during the fiveyear period between his 23rd and 28th birthday aggregate approximstAly six months. Accordingly, when the applicant applied for admission on February 4, 1962, some 13 months after his 23rd birthday,

it was impossible for him to acquire five years of physical presence in

the United States prior to his 28th birthday (January 2, 1966) unless

the aggregate of his absences for a period immediately preceding his

23rd birthday amounts to less than six months. The statute provides

that the applicant may acquire the required five years of physical

presence at any time subsequent to his 14th and prior to his 28th

birthday provided he conies to the United States before he attains

the age of 23 years (8 U.S.C. 1401(b) ). There must be, however, a

continuity of actual physical presence in the United States totaling

five years prior to attaining the age of 28 years and this five-year period must be not be interrupted by total absences which aggregate 12

months or more (8 U.S.C. 1401b).

Concerning the applicant's physical presence in the United States

for a period immediately preceding his 23rd birthday, the record discloses that he commuted from his home in Juarez, Mexico, to his employment at the Auto Center Car Wash, El Paso, Texas, for the period

September 1, 1960, through January 1, 1961. According to our computation, based upon the applicant's testimony (pp. 6 and 7), he was

physically present in the United States for approximately 60 days during this period (see Appendix B) .

The applicant, had he been admitted on February 4, 1962, could

have acquired three years and eleven months of physical presence prior

to his 28th birthday on January 2, 1966. Between January 1, 1961,

his 23rd birthday, and February 4, 1962, the date he applied for admission, the applicant was physically present in the United States

for a total of seven months. The aggregate of the applicant's absences

in Mexico for the period September 1, 1960, to February 4, 1962,

amounts to approximately eight months during this 11-month period.

The applicant's potential and actual physical presence in the United

States as of February 4, 1962, totals four years and eight months for

the period September 1, 1960, to January 2, 1966.

The question resolves itself into whether it can be established on

this record that the applicant can acquire five years of physical presence in the United States prior to his 28th birthday which is not interrupted by total absences aggregating 12 months or more during a

period subsequent to January 1, 1900, and prior to February 4, 1962.

According to our computation the applicant must have more than four

as—i5E;--oz—G

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Interim Decision #1243

months of physical presence in the United States during the eightmonth period, January 1, 1960, to September 1, 1960, as we have accounted for absences which aggregate approximately eight months for

the 17-month period, September 1, 1960, to February 4, 1962.

The applicant testified that "during the slow part of the season"

(January to September) when he was not employed as an agricultural

worker he would obtain employment in "the restaurant and construction. business" for periods of "one day, three days, maybe a week" (pp.

13 and 14). The applicant also testified he was employed on a ranch

at Columbus, New Mexico, from September 1, 1959, through December

31, 1959 (pp. 12 and 13). He would work on the ranch for a period of

15 to 22 days and then returned to Mexico for "a few days up to

week" after which he would again return to the ranch and that this

kept up during the whole season (pp. 12 and 13).

We are unable to compute on the basis of the foregoing testimony

whether the applicant has sufficient physicial presence in the United

States during the period January 2, 1960, to September 1, 1960, which

when added to his actual and potential physical presence of four years,

eight months, as of the date he sought to enter (February 4, 1962)

would make it mathematically possible for him to have a continuity

of actual and potential physicial presence totaling five years prior to

his 28th birthday (January 2, 1966).

By-the same token we are unable to compute on the basis of the

record as it now stands whether it is mathematically possible for the

applicant to acquire a continuity of five years of physical presence

miming from a. date certain while employed at Columbus, New Mexico,

in the fall of 1959 to a date certain in 1965. There is the possibility

that the applicant during the period September 1959 to February 4,

1962, a span of some two years, five months, has been physically present in the United States for periods which total more than one year,

five months, with absences which aggregate less than 12 months.

Here we are concerned with loss of nationality acquired at birth.

Every effort should be made to establish compliance with section 301

(b) as amended by section 16 of Public Law 85-316 (8 U.S.C. 1401 (b)

and 1401b). We are mindful of the fact that the burden is upon the

applicant to establish his admissibility ass citizen of the United States.

We note, however, that the only evidence with regard to the applicant's

physical presence in the United States for the period. January 1, 1960,

to September 1, 1960, is his testimony that he was intermittently employed in restaurants and in the construction business for periods of

"one day, three days, maybe a week."

We will, under the circumstances, remand the case to the special

inquiry officer for additional evidence of the applicant's physical presence in the United States during the period January 1, 1960, to Sep-

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Interim Decision #1243

tember 1, 1960. Evidence should also be developed as to whether it

is mathematically possible to establish the applicant's physical presence

in the United States from a date certain in the fall of 1959 to a date

certain in 1965 which has a continuity of five years and which is not

interrupted by total absences which aggregate 12 months or more.

ORDER: It is directed that the hearing in this case be reopened

for the purposes stated in the foregoing opinion.

It is further directed that the case be certified to the Board of Immigration Appeals for final decision pursuant to 8 CFR 3.1(c).

APPENDIX A

Computation of the Applicant's Physical Presence in Alecto Between Jan, 2,

1961. His 236 Birthday and .Feb. 4, 1962, the Date Be Applied for Admission

at Er Paso, Tow.

Jan. 2, 1961May 15, 1961.

May 16,1961May 22, 1061.

May 23,1961July 9, MI.

July 10,1961Aug. 23, 1961.

Aug. 24, 3961Nov. 24, 1961.

Nov.25, 1961Nov.20, 1961.

Dee. 1,3961Dec. 31, 1961.

Jan. 1,1962Jan. 13, 1962.

Jan. 14,1962Feb. 4. 1962.

las

tt 6•1

Period

Record page

Monday oil estimated,4.

'89

pp. 6 and 7.

48 Employed Did's Car Wash, Wednesdays off, 0

ES Peso, Tex.

44 Unemployed

'27

44

Total

daysin

period

134

7

Days off and

weekendttipa to Mexico

Activity

Employed Auto Center

Car Wash, El Paso, Tex.

Unemployed

Employed as agricultural

laborer, Delano, Calif.

Unemployed

No return trips to

Mexico.

Employed as agricultural

laborer, Columbus, N.

Men,

13 Resided with mother at El

Paso, Ter.

22 Employed picking cotton,

Anthony, Tex., 3 days.

24•hour weekend

trips to Juarez,

Mexico, 5.

No return trip to

Mexico.

Entered United

States 7 a.m.—

93

0

31

7 p. 8.

pp. 7 and 8.

p. 8.

pp. 8 and 9.

8

5

p. 9.

20%

p.10.

p. 9.

return to Mexico

6 p.m.

Total--

398

3709

•Comput*d an the bask of eight hems of employment and 4 boors travel and3tinch time

APPENDIX B

Computation of the Applicant's Physical Presence in Mexico for the 4Month

Period Prior to His 28cl Birthday on Jan. 5, 1961

Sept. 1,196o,

through

Jan. 10961.

T91

e

Period

Activity

123

Employed Auto Center

Car Wash, El Paso, Tex.

Days of

Total

days in

Mexico

Record page

Mondays off, 4

'6334

pp. 8 and 7.

*Computed on the basis of 12 hours' employment, travel and lunch time in the United States and allowing 9 Mondays us than off spent in Mexico out of a total of 3.7 Mondays in this period.

67