Interim Decision 401432

Interim Decision 401432

blikTrEn or FAntsr

•

In Section 341 Proceedings

A-13793203

Decided by District Director February 19, 1966

Approved by Assistant Commissioner

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

requiring continuous physical presence in the United States for at least is

years between the ages of 14 and 28, are fully satisfied by a combination of

constructive and actual physical presence in the United States for the requisite period prior to age 28, no physical presence beyond that age being

obligatory under said section.

Discussion: The subject has applied for a certificate of citizenship,

claiming to have acquired citizenship at birth in Canada on July 25,

1935, through a citizen father and an alien mother.

The pertinent statute in effect when the applicant was born was

section 1993, Revised Statutes, as amended by the Act of May 24,

1934, providing that 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 right bf

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. In cases where

one of the parents is an alien, the right of citizenship shall not descend unless the child comes to the United States and resides therein

for at least five years continuously immediately previous to his

eighteenth birthday.

The latter part of this section concerning retention of citizenship

was changed by the provision of section 201(g) of the Nationality

Act of 1940 (54 Stat. 1138-39), effective January 13,1941, and these

in turn were affected by section 301(b) and (c) of the Immigration

and Nationality Act, effective December 24, 1952 (8 'U.S.C. 1401),

quoted below:

•

Any person who is a national and citizen of the United States at birth under

paragraph (1) of subsection (a), shall lose his nationality and citizenship

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'unless he shall come to the United States prior to attaining the age of

twenty-three years and shall immediately following any such coming.be con, tinuously physically present in the United States for at least Sire . years :

Provided, That such physical presence follows the attainment of the age of

fourteen years and precedes the age of twenty-eight years.

Subsection (b) shall apply to a person born abroad subsequent to May 24,

1934: Provided, however, That nothing contained in this subsection shall be

construed to alter or affect the citizenship of any person born abroad —subsequent to May 24, 1934, who, prior to the effective date of the Act, has taken

'up a residence in the United States before attaining the age of sixteengears,

and thereafter, whether before or after the effective date of this Act, complies

or shall comply with the residence requirement for retention of citizenship

specified in suboection (g) and (Ii) of motion 201 of the Nationality Act of

1940. as amended. .."

. The applicant's father vas born in Woonsocket, Rhode Island,

- on July 23, 1909. He was..taken to Canada by his parents in 1915.

The applicant's parents were married in Canada on April 6, 1932,

and he is the legitimate issue of that marriage. His mother was a

-`

'native and still is a citizen of Canada.

The father has testified that he has voted in Canada since 1945.

The record indicates, however, that he was a citizen of the United

•States- on the date of applicant's birth. The applicant= testified that

he, hinigelf, also voted,in Canada in 1954. This was before he knew

that he might be a citizen of the United States due to his father's

birth in the United States: It is the Service position that a United

States ,citizen who performs an act of an expatriating'nature without

knowledge that he had: ever enquired United States citizenship does

not thereby • expatriate himself (Bogen v. Patokoaki, 271 F.2d- 858

. (1959).;- Matter of C—A—, 9 I. & N. Dec..482 (1961) ; Matter of

p-s-, 9 I. & N. Dee, 67.0 (1962)).

The applicant had no knowledge of his- possible claim to citizenship until he applied for an immigrant -visa •at7-the American Consulate in- Montreal, Canada, on February 26, 1963. On the basis 6f

the. Attorney General's opinion of May 24, 1962, Matter of C—B(ettprrs), it was concluded that he might properly be issued limited

dbcumentation as a United States citizen valid for a period to enable

him to proceed to the United States. The record discloses that the

applicant did enter the United States on March 23, 1963, in possession of a United States citizen's identity card. At that time he was

twenty-seven years of age and had never previously been in the

United States.

It has been held in Matter of Tame-Carr1116, (Int. Dec. No. 1302,

. August 29, 1963) that the retention requirement of section 301(b),

Immigration and Nationality Act, requiring continuous physical

presence in the United States for at least five years between the ages

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of fourteen" and twenty-eight, does not operate to deprive an individual of United States citizenship until he has had a reasonable

opportunity to come to the United States as a United States citizen

after leaining of such claim to citizenship. It is concluded that the

applicant's arrival was timely.

Subsequent to the applicant's initial entry on .March 23, 1963, he

has returned to Canada on several occasions. He went to Canada on

August 3, 1963, and returned to the United States on August 5, 1963;

for three days in November 1963; two weeks in December 1963 and

from March 28, 1964, to March 31, 1964. These trips were after the

applicant's twenty-eighth birthday..

Constructive residence and physical presence in the United States

are concepts regularly given effect in the field of immigration and

nationality law Thus, in the Matter of L—B—D—, (4 I. & N. Dec.

639 (1052) ), in considering the question of whether United States

citizenship was retained under a statute -which required the child to

take up residence in the United States before sixteen years of age,

the Attorney General ruled that the retention requirements were

satisfied although factually residence was not taken up until after

that age because of conditions beyond the control of the child.

In. two other cases (Matter of &-, 8 I. & N. Dec. 221, and.Matter

of 8—, 8 1 & N. Dec. 226 (1958)), the Board of Immigration Appeals had under consideration section 301 (b) , the identical section of

law involved in the present case. In -those two cases, factually the

coming to the United States and consequently the beginning of

physical presence in this country were not in sufficient time to permit

a full five-years' presence to accumulate before twenty-eight years of

age. The Board, nevertheless, concluded that the applicants were

to be regarded as having constructively complied with the provisions

" of section 301(b). Similarly, in Matter of S—, Int. Dec. No. 1252

(1962), subject's absence abroad in the United States Armed Forces

during the period of physical presence required by section 801(b)

was regarded as constructive physical presence in the United States

within the meaning of that section. The conclusions in these cases

were based on. the fact that failure to comply was due to circumstances beyond the control of the persons involved. In such cases it

is equitable not to penalize individuals for circumstances beyond

their control. Such a situation would also exist when the failure to

come to the United States is due to ignorance of a claim to citizenship. In the instant ease, it is concluded that the concept of constructive physical presence is also applicable in accordance with the

principle of law that no conduct results in expatriation unless it is

engaged in voluntarily (117451tikawa v. Duties, 356 U.S. 129 (1958) ). .

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Although the above cases establish the principle of constructive

physical presence, and regard the commencement thereof after age 23

as timely under appropriate circumstances, they are silent with respect to the physical presence requirement subsequent to such a

person's arrival in this country. It remains, therefore, to be determined how such retention provisions apply to one who is regarded as

having been constructively physically present for a Portion of the

required five-year period.

The word "constructive" has been defined as "That which is

established by the mind of the law in its act of construing facts

* * * i that which has not the character assigned to it in its own

essential nature, but acquires such character in consequence of the

way in which it is regarded by a rule or policy of law; hence,

inferred, implied, made out by legal interpretation." Black's Law

Dictionary, 3rd Ed., p. 413.

In this posture, the applicant is regarded, in law, as having been

physically present in the United States from a data immediately

prior to his 23rd birthday to March 23, 1963, the date upon which

he came to the United States.. He was factually physically present

from that date until July 25, 1963, hii28th birthday. Section 301(b)

requires only that the physical presence be between the ages of 14

and 28 years in order that citizenship may be retained. No obligation

beyond the 28th birthday is imposed. Accordingly, it is concluded

that the applicant's constructive physical presence, coupled with his

actual physical presence, amounted to a. full compliance with the

retention requirements of section 301(b). Having fulfilled the requirements of that statute between his 23rd and 28th birthday, he

had no further obligation thereunder and was relieved of any

further obligation to retain citizenship.

ORDER: It is ordered that the application for a certificate of

citizenship be and the same is hereby granted.

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