MATTER or N-In EXCLUSION Proceedings

MATTER or N-In EXCLUSION Proceedings

A-12473274

Deckled by Board October 17,1961

Expatriation—Five years' foreign residence by naturalized citizen—Section

352(a)(2), 1952 Act—Retroactive effect of 1959 amendment to section 354(5)

of Act.

Amendment of August 4, 1959 to section 354(5) of the Immigration and Nationality Act exempting from expatriation under section 352(a) (2) of the

Act a naturalized citizen who has had not less than 15 years' residence in

the United States subsequent to lawful admission for permanent residence

and prior to age 21 is construed to operate retrospectively to preserve citizenship of one who had already er-patriated under section 352(a) (2) by

having completed five years of foreign residence prior to August 4, 1959

and who did not come within the exemption of section 354(5) as originally

enacted.

EXCLUDABLE: Act of 1952—Section 212(a) ( 2 0) [8 U.S.C. 1182(a) (20)J—No

immigrant visa.

BEFORE THE BOARD

DISCUSSION: An order entered by the special inquiry officer on

the above - captioned

applicant. as a United States citizen. The opinion and order was

certified to the Board of Immigration Appeals for final review

because the case involved a novel question of law relating to the

statutory construction of section 354(5) of the Immigration and

Nationality Act (8 U.S.C. 1486(5) ), as amended by the Act of

August 4, 1959 (Public Law 86-129).

The applicant, female, a native of Glasgow, Scotland, born February 20, 1916, was 5 years of age when she emigrated to the United

States with her parents in 1921. She derived United States citizenship through her father's naturalization at Sao Francisco, California, on June 6, 1927. A certificate of citizenship was issued to

her on August 13, 1947.

August 8, 1961, provides for the admission of

The applicant resided in the United States from 1921 until her

marriage to a Canadian citizen in September of 1941. She returned

to the United States in June of 1946 and resided here until April of

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1040. Since April of 1949 she has resided at Victoria. British Co

lumbia, Canada. The applicant testified that she returned to the

United States for temporary visits on several occasions in 1953,

1954, 1956 and 1959.

The special inquiry officer concludes that the applicant did not

expatriate herself under section 404 of the Nationality Act of 1940

by residing in Canada from September 1941 to June of 1946 because

under an amendment to the Nationality Act of 1940 loss of citizenship based upon extended foreign residence could occur for the first

time on October 14, 1946 (Act of October 11, 1945; 59 Stat. 544,

8 U.S.C. 809)). The applicant's general place of abode and residence was in the United States on October 14, 1946.

The applicant's Canadian residence totaled approximately 3 years

7 months between the time she returned to Canada in April of

1949 and the effective date of the Immigration and Nationality Act

(December 24, 1952). The special inquiry officer concludes that

since the applicant did not acquire Canadian nationality i during

the period of her residence in Canada from Septpmhpr 15, 1941, to

June of 1946, her residence in Canada from April 1949 to December 24, 1952, did not result in expatriation because paragraphs (a)

and (b) of section 404 of the Nationality Act of 1940 apply only

to naturalized nationals who reside in "the territory of a foreign

state of which he (she) was formerly a national."

The remaining period of the applicant's residence in Canada

(December 24, 1952, to date) is governed by section 362(a) (2) of

the Immigration and Nationality Act (8 U.S.C. 1484). It provides

as follows:

Sec. 352. (a) A person who has become a national by naturalization shall

lose his nationality by— • • •

(2) having a continuous residence for five years in any • • • foreign state

or states, except as provided in sections 353 and 354 of this title, whether

such residence nammeweed before or after the effective date of this Act.

(Emphasis supplied.)

Since the statute makes continuous foreign residence for 5 years

before or after December 24, 1952, the test for expatriation of a

national by naturalization, the special inquiry officer concludes that

the applicant's residence in Canada from April 1949 to April 1954

was sufficient to expatriate her unless she comes within the excep1 The applicant was born a British national in Scotland. She acquired the

status of a British subject by her marriage in 1941 to a native of Canada.

However, under section 2 of the Canadian Nationals Act of 1921 (Ch. 27,

R.S. Canada, 1927) she did not acquire Canadian nationality because sue ma

not qualify as a British subject who is a "Canadian citizen" by reason of

domicile in Canada for at least five years subsequent to entry. The applicant's domicile in Canada from September 15, 1941, to June 1946, falls short of

the required rive years.

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tions provided by sections 353 2 and 354 3 of the Immigration and

Nationality Act (8 U.S.C. 1485 and 1486).

An examination of the ten subdivisions of section 353 of the Immigration and Nationality Act makes it clear that the applicant

does not come within the exceptions enumerated therein. This also

is true for the first four paragraphs of section 354. Public Law

86-129, Act of August 4, 1959, amended paragraph (5) of section

354, supra, by reducing the residence required in the United States

from 25 to 15 years and by adding the clause "or who prior to

attaining the age of 21 years, shall have had his residence in the

United States for not less than 15 years subsequent to his lawful

admission for permanent residence."

The applicant prior to her twenty firqt birthday on February 20,

-

1937, resided in the United States for a period of 16 years subsequent to her lawful admission for permanent residence in 1921.

The issue involved is whether the amendment of August 4, 1959

(Public Law 86-129) operates retrospectively to preserve the citizenship of those who had already expatriated under section 352

(a) (2) of the Immigration and Nationality Act and did not come

within the exception of section 354(5) as originally enacted.

We have here an issue of first impression and we find no precedent either by this Board or the courts construing the last clause

of section 354(5), as amended. The special inquiry officer has noted

in his opinion that the State Department has issued an instruction

to its diplomatic and consular service which const, ties the amendment as having only prospective application and, therefore, does

not operate to restore nationality lost prior to the amendment. 4

The facts and the law of a case involving loss of nationality

should be construed as far as is reasonably possible in favor of a

retentinn of United States citizenship. Cf., Schneiderman, v. United

States, 320 U.S. 118, 122 (1943) ; Chin Chuck Ming v. Dulles, 225

F.2d 849 (C.A. 9, 1959) ; Yee Mee v. Dulles, 136 F. Supp. 199 (D.C.,

W.D. Pa., 1955) ; Fletes-Mora v. Rogers, 160 F. Supp. 215 (D.C.,

S.D. Cal., 1958), and cases cited therein at p. 218; Attorney General

of United States v. Ricketts, 165 F.2d 193 (CA. 9, 1947). The

special inquiry officer is of the opinion that the amendment to section 354(5) of the Immigration and Nationality ALA, ewpra, is susceptible of retrospective application and should be so construed,

since the primary interest of Congress 5 was to insulate from loss

2 See Appendix for text of section 353 of the Immigration and Nationality

Act (8 U.S.C. 1485).

3 See Appendix for text of section 354 of the Immigration and Nationality

Act (8 U.S.C. 1486).

.Department of State Instruction 1314, C.A. 2493, September 16, 1959.

5 See excerpt from Senate Report No. 560 and House Report No. 398, 86th

Congress, First Session, set forth in the Appendix.

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of United States citizenship a class of naturalized nationals who

had resided in the United States for 15 years subsequent to naturalization or who had entered the United States prior to their sixth

birthday and had spent their formative years in this country. He

reasons that if the amendment is construed as prospective only, it

would defeat the congressional purpose by denying the benefits of

legislation which is clearly remedial to naturalized nationals who

completed 5 years' foreign residence between December 24, 1952,

and August 4, 1959, namely, the period between the original enactment of the Immigration and Nationality Act and its amendment.

The special inquiry officer concludes that the applicant did not

lose her United States citizenship by reason of her residence in

Canada subsequent to December 24, 1952. because she comes within

the provision of the exemption provided by the amendment to sec tion 354(5) , supra, effective August 4, 1959. We agree with this

conclusion and concur in the authorities cited to support it.

Upon careful consideration of the entire record, the findings of

fact and conclusions of law proposed by the special inquiry officer

in his opinion of August 8, 1961, and served upon the applicant on

August 16, 1961, are hereby adopted. An appropriate order will be

entered.

ORDER: It is ordered that the order entered by the special inquiry

officer on August 8, 1961, admitting the applicant as a United States

citi zen is hereby affirmed.

APPENDIX

Sections 353 and 354 of the Immigration and Nationality Act

(8 U.S.C. 1485 and 1486) provide, as follows :

Sec. 353. Section 352(a) shall have no application to a national who—

(1) has his residence abroad in the employment of the Government of the

United states; or

(2) is receiving compensation from the Government of the United States

and has his residence abroad on account of disability incurred in its service; or

(3) shall have had his residence in the United States for not less than

twenty-five years subsequent to his naturalization and shall have attained

the age of sixty years when the foreign residence Is established; or

(4) had his residence abroad on October 14, 1940, and temporarily has his

residence abroad, tnr who thertafter Las guile tn sues abroad and temporarily has his residence abroad, solely or principally to represent a bona

fide American educational, scientific, philanthropic, commercial, financial,

or business organization, having its principal office or place of business

in the United Etatca, or a bona fide religious organization having an office

and representative in the United States, or an international agency of an

official character in which the United States participates, for which he

received a substantial compensation; or

(5)

has his residence abroad and is prevented from returning to the 'United

States exclusively (A) by his own ill health; or (B) by the ill health of

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his parent, spouse, or child who cannot be brought to the United States,

whose condition requires his personal care and attendance: Provided,

That in such case the person having his residence abroad shall, at least

every six months, register at the appropriate Foreign Service office and

submit evidence satisfactory to the Secretary of State that his case con

tinues to meet the requirements of this subparagraph; or (C) by reason

of the death of his parent, spouse, or child: Provided, That in the case

of the death of such parent, spouse, or child the person having his residence abroad shall return to the United States within six months after

the death of such relative; or

(6) has his residence abroad for the purpose of pursuing a full course of

study of a specialized character or attending full-time an institution of

learning of a grade above that of a preparatory school: Provided, That

such residence does not exceed five years; or

(7) is the spouse or child of, or has a son or daughter who is. an American

citizen, and who has his residence abroad for the purpose of being with

his American citizen spouse, parent, or son or daughter who has his residence abroad for one of the objects or considerations specified in paragraph (1), (2), (3), (4), (5), or (6) of this section, or paragraph (2)

of section 3.14 or this title; or

(8) is the spouse or child of an American national by birth who while

under the age of twenty-one years haft his residence in the United States

for a period of [or] periods totaling ten years, and had his residence

abroad for the purpose of being with said spouse or parent; or

(9) was born in the United States or one of its outlying possessions, who

originally had American nationality and who, after having lost such nationality though marriage to an alien, reacquired it; or

has, by Act of Congress or by treaty, United States nationality solely

(10)

by reason of former nationality and birth or residence in an area outside

the continental United States: Provided, That subsections (b) and (c)

of section 404 of the Nationality Act of 1940, as amended (8 U.S.C.

804(b) and (c)), shall not be held to be or to have been applicable to

persons defined in this paragraph.

Sec. 354. Section 352(a) (2) of this title shall have no application to a

national—

(1) who is a veteran of the Spanish-American War, World War I, Or

World War II, or of the Korean hostilities (having served honorably in

an active-duty status in the miiltary, air, or naval forces of the United

States during a period beginning June 25, 1950, and ending July 1, 1955),

and the spouse, children, and dependent parents of such veteran whether

such residence In the territory of a foreign state or states commenced

before or after the effective date of this Act: Provided, That any such

veteran who upon the date of the enactment of this Act has had his residence continuously in the territory of a foreign state of which be was

formerly a national or in which the place of his birth Is situated for

three years or more, and who has retained his United States nationality

solely by reason of the provisions of section 406(h) of the Nationality

Act of 1940, shall not be subject to the provisions or re:wires:lents of section 352(a) (1) of this title: Provided further, That the provisions of

section 404(c) of the Nationality Act of 1940, as amended, shall not be

held to be or to have been applicable to veterans of World War II;

(2) who has established to the satisfaction of the Secretary of State, as

evidenced by possession of a valid unexpired United States passport or

other valid document issued by the Secretary of State, that his residence

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is temporarily outside of Lbe United States for the put-pore of (A) carrying on a commercial enterprise which in the opinion of the Secretary

of State will directly and substantially benefit American trade or commerce; or (B) carrying on scientific research on behalf of an institution

accredited by the Secretary,' of State and engaged in research which in

the opinion of the Secretary of State is directly and substantially beneficial to the interests of the United States; or (C) engaging in such work

or activities, under such unique or unusual circumstances, as may be

determined by the Secretary of State to be directly and substantially beneficial to the interests of the United States;

(3) who is the widow or widower of a citizen of the United States and

who has attained the age of sixty years, and who has had a residence

outside of the United States and its outlying possessions for a period of

not less than ten years during all of which period a marriage relationship has existed with a spouse who has had a residence outside of the

United States and its outlying possessions in an occupation or capacity

of the type designated in paragraph (U. (2), (3), (4), or (5) (A) of

section 353, or paragraphs (1), (2), or (4) of this section;

(4) who has attained the age of sixty years, and has had a residence outside of the United States and its outlying possessions for not less than

ten years, during all of which period he has been engaged in an occupation of the type designated in paragraphs (1), (2), or (4) of section 353,

or paragraph (2) of this section, and who is in bona fide retirement from

such occupation; or

(5) who shall have had his residence in the United States for not less than

fifteen years subsequent to his naturalization and prior to the establishment of his foreign residence; or who prior to attaining the age of twentyone years, shall have had his residence in the United States for not less

than fifteen years subsequent to his lawful admission for permanent

residence.

Senate Report No. 560 (p.2) and House Report No. 398 (p.2),

86th Congress, First Session, state :

It is felt that the steadily increasing activities of American citizens abroad

justify the reduction of the 25-year residence requirement to 15 in the case

of naturalized citizens subject to the 5-year rule.

Similarly, it is felt that naturalized U.S. citizens who entered the United

States in their early youth, prior to their sixth birthday, and thus spent their

formative years in this country, should have all of their 'residence in the

United States, prior to attaining 21 years of age, counted within the residential requfrement which would exempt them from loss of U.S. citizenship.

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