In EXCLUSION Proceedings

MATTER OF S

In EXCLUSION Proceedings

A-1127 ,206

Decided by Board Deccolber 23, 1958

Citigoarhip_acgoi,ition by child born abroad—Section 301(a)(7), (b), and (c)

of Immigration and Nationality Act—Failure to retain under section 201(g)

and (h), Nationality Act of 1940—Savings clause, section 405, Immigration

and Nationality Act.

(1) A person who acquired United States citizenship on July 12, 1934, at time

of birth abroad (to a United States citizen parent and an alien parent)

under section 1.993 of the Revised Statutes, as amended, and who tailed to

take up residence in the United States prior to her sixteenth birthday as

required by section 201(g) and (h) of the Nationality Act of Imo, retains

her United States citizenship when she complies with the provisions of section 301(b) of the Immigration and Nationality Act by coming to the United

States prior to her twenty-third birthday and establishing physical presence

in the United States for a continuous period of five years (Matter of 11—,

5 I. & N. Dec. 291 (1953), overruled.)

(2) Where such person was incorrectly informed by an American consular

officer on January 8, 1957, before her twenty-third birthday, that she had

lost her United States citizenship, nod in reliance upon such information

and without any lack of diligence on her part did not apply for and receive

a United States passport until after her twenty-third birthday and proceeded

immodiutoly upon pag,,r1 i.rinnep to this owintrv. she is entitled to admission as a United States citizen.

EXCLUDABLE Act of 1952—Section 212011(20) [8 U.S.C. 1182(a ) (20)]—No

immigrant visa.

7.

Act of 14152—Section 212(a1 (20) [8 INC.

I182;a (20)1—No unexpired passport.

BEFORE THE BOARD

Discussion: Appellant is a 24-year-old married female who

was born in Italy on Only 12, 1934. She arrived in the United

States at New I orlc via air on June 4, 1958, and applied for admis-

sion as a United States citizen. She was in possession of a United

States passport issued May 23, 1958, at Rome, Italy. This was the

only document in her possession. The special inquiry officer ordered

that she be excluded and deported from the United States as an

alien immigrant not in possession of the necessary documents. She

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appeals to this Board from that decision, asserting her right to

admission as a citizen of the United States.

Appellant was never in the United States prior to her application

for entry on June 4, 1958. Her father was burn in tho United

States at Philadelphia, Pennsylvania, on July 23, 1908, and is,

therefore, a United States citizen by birth. He was married in

Italy on December 20, 1930, to is woman who was not a citizen of

the United States and who, at that time, had never been in the

United States. Appellant acquired citizenship of the United States

at birth under section IM of the Ttayised Statutes of the United

States, as amended by the Act of May 24, 1934. Under section 201

(g) of the Nationality Act of 1940 1 it was necessary for appellant

to arrive in (lie United States before she became 16 in order to

retain her United States citizenship. Following the enactment of

the Immigration and Nationality Act of 1952 2 the provision was

liberalized to extend her citizenship so that she might retain it if

she took up residence in the United States before reaching age 23

years and if she remained in this country for 5 years following her

entry

At the time of appellant's arrival in the United States she

was more than 23 years of age, and the epeeist inquiry officer held

Section 201. The following shall be nationals and citizens of the United

ta,tos tit birth: "" (g) A person born outside the United States and its

outlying, possessions of parents one of whom Is n citizen of the United States

who, prior to the birth of such person, has had ten years' residence is the

United States or one of Its outlying possessions, at least five of which were

after attaining the age of sixteen years, the other being an Mien: Provided,

That in order to retain such citizenship, the child must reside in the United

States or its outlying possessions for a period or periods totaling five years

between the ages of thirteen and twenty - one years: Provided further, That,

if the ohild has not taken up a residence in the United States or its outlying

possessions by the time he reaches tne ag e of enstoen rears, or If he resides

abroad for such a time that it becomes impossible for him to complete the

Owe years' residence in the United. States or its outlying possessions before

reaching the age of twenty-one years, his American citizenship shalt thereupon

cease. * *

"Sec. 301. (a) The following shall be nationals and citizens of the United

States at birth: (7) a person horn outside the geographical limits, of the

United States and its outlying possessions of parents one of whom is an alien,

and the other a citizen of the United States who, prior to the birth of such

person, was physically present In the United States or its outlying possessions

for a period or periods totaling not less than ten years, at least five of which

were aft,. attaining rho age of fourteen years * * *

(b) Any person who is a national and citizen or the Unitorl States at birth

under paragraph (7) of subsection (a), shall lose his nationality and citizenship 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 continuously physically present in the United States for at least five years * * 0.

[Amended by section 19, P.L, 85-315, but amendment not pertinent here.]

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

24, 1934 0 00 .

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she had lost her United States citizenship. At the time of her

hearing before the special inquiry officer she did not know, and at

the time of oral argument before this Board her attorney and the

Ser vice representative had not yet been informed, of the rationale

for the issuance of a United States passport to her by the American

Embassy at Rome even though she was more than age 23.

An inquiry concerning the citizenship status of appellant was

addressed by the District Director of the Immigration and Naturalization Service at Philadelphia on October 9, 1958, to the Chief of

the Foreign Adjudications Division, Passport Office, Department of

State. The responsive communication has been referred to us. It

states that the records of the Passport Office show that appellant's

father listed her as his minor child in connection with his passport

application executed at the American Embassy at Rome on January

31, 1950. On January 8, 1957, her brother listed her as his sister in

connection with his registration application also executed at the

American Embassy at Rome. Appellant first made formal application for a passport on May 9, 1958. (She was by then more than

23 years old.) The State Department further advises as follows

(in pertinent part) •

It has been the long-standing practice of the American Consular posts

abroad, including the Rome Embassy, to inform applicants for passports or

registrations of the citizenship status of other members of their families

listed 111 connection With tam applications. Our Embassy at name nas reported that it has no reason to believe that Mrs. S--- was not so informed

through her father and brother on January 31, 1950, and January 8, 1957,

respectively, In view of our interpretation of section 301(b) and (c) of the

Immigration and Nationality Act prior to the decision in the case of Lee You

Fee v. Males,3 this office takes the position that Mrs. S— was incorrectly

informed on January 8, 195? by the Rome Embassy, through her brother, that

she had lost her United States citizenship under section 201 (g) and (h) of

the Nationality Act by reason of her failure to take.up United States residence

prior to her sixteenth birthday. Consequently, the Passport Office considers

that Mrs. S—'s failure to establish her residence in the United States prior

to her twenty-third birthday must he attributed to the fault of the United

States Government. We also consider that for the purpose of complying with

the live-year physical presence requirement of section 301 (h), as amended,

Mrs. may be regarded to have been constructively physically present in

the United States at least for a period of time to enable her to comply with

the retention of citizenship requirement of the same section.

In view of the above the American Embassy at Rome issued on May 23,

1958 United States passport No. 89095 to E

D

M

S

The action (akem in this coos is in accordance with State Department memoranda. wherein the Department of State outlined the

categories of persons who would be considered eligible for documentation as United States citizens, even though they had failed to

355 U.S. (11 (1957).

Memo CA-7479, March 3, 1958, as amended by a memorandum of October

14, 1958,

223

establish residence in this country prior to reaching age 23. These

memoranda refer to changes in the interpretation of section 301 (b)

and (c) of the Immigration and Nationality Act, resulting from

the ruling of the Solicitor General and the affirmance thereof by

the Supreme Court in the case of Lee You Fee v. Dulles, referred

to above. It was originally the view of the State Department, the

Immigration and Naturalization Service, and this Board that

United States citizenship lost under section 201(g) of the Nationality Act of 1010 for failure to come to the United States before

age 16 was not restored by section 301 (b) and (c) of the Immigration and Nationality Act (enacted June 27, 1952 and effective December 24, 1952). It was our belief that the savings clause contained in section 405(c) 5 operated in this situation rather than the

provision of section 301(c) which says, "Subsection (b) shall apply

to a person born abroad subsequent to May 24, 1934." This view

was set forth in Matter of B , 5 I. & N. Dec. 291 (B.I.A., 1953),

which we now consider overruled. The Circuit Court lated adhered

to this position in Lee You Fee v. Duffles, 236 F.2d 885 (C.A. 7,

1956). However, the Solicitor General of the 'United States confessed error in this matter and the Supreme Court approved his

action reversing the decision of the Circuit Court of Appeals and

remanding the ease to the District Court with directions to vacate

its order (355 U.S. 61 (1957)). A decision following the revised

, 7 I. & N. Dec. 646, which quotes at length

view is Matter of

from the brief for the Government submitted by the Department of

Justice in support of its confession of error in Lee You Fee. The

conclusion of the Solicitor General was that section 301 (c) renders

the general savings clause inapplicable, so that, although a petitioner had lost his citizenship under the 1940 act, he, could regain

that citizenship under section 301 (b) and (c) of the 1952 act by

coming to the United States before he became 23 years of age.

State Department memoranda circulated to all diplomatic and

consular posts declared that an applicant over age 2:5 at time of

documentation, who acquired United States citizenship at birth,

and who applied for a passport before reaching 23, whose application was disapproved because she had failed to take up residence

in the United States before reaching 16, may now be given a United

States passport (under conditions enumerated, which are not relevant here because they have been complied with). The memoranda

stipulated that the applicant must have been "wrongfully refused

documentation" or "misinformed" that she had lost United States

5 SEC. 405. (c) Except as otherwise specifically provided in this Act, the repeal of any statute by this Act shall not terminate nationality heretofore lawfully acquired nor restore nationality heretofore lost under any law of the

United States or any treaty to which the United States may have been a party.

114

citizenship under section 201 (g) of the 1940 act for failure to come

to the United States before age 16. She must have been prevented from complying with section 301(h) of the Immigration and

Nationality Act by the erroneous previous interpretation of section 301(b) by the State Department. This instruction assumes

further that the applicant has never performed any expatriative

act and that she previously applied for documentation after June 27,

1952, but before she reached age 23. Applying these principles to

the instant case, and assuming that appellant was incorrectly informed through her brother on January 8, 1957, at which time she

was not yet 23 years of age, that she had lost her United Staten

citizenship, she falls squarely within the category of persons described in the State Department memoranda as a person who is

entitled to is United ,States pnssport in spite of the fact that she

failed to arrive in theUnited States before she became 23 years of age.

The record shows that a United States passport was issued to

M , appellant's father, at Rome on January 7, 1955.

G D

Appellant's father testified that he filed a petition in Philadelphia

for his daughter to come to the United States three-and-a-half years

before the hearing. This would place the date of the filing of the

petition for appellant early in 1901. Appellant's mother arrived

in the United States in May 1956. Her father stated that he at

first filed a visa petition to obtain an immigrant visa under the

quuta for his daughter, but at the time her mother came to the

United States in 1956 the American Consul at Naples told his

daughter that she could file her own petition, because her father

was a United States citizen. After June 27, 1952, the date of the

passage of the Immigration and Nationality Act, she was incorrectly informed that she no longer had a claim to United States

citizenship. Her failure to arrive in the United States and take up

permanent residence here prior to her 23rd birthday was the result

of failure of consular officials to provide a United States passport.

The record does not establish lack of diligence in protecting her

claim to citizenship. There is no way in which she could lawfully

have entered the United States to take up permanent residence

Prior to the date on which she did so. It will be ordered that

appellant be admitted to the United States for permanent residence

as a United. States citizen.

Order: It is ordered that the appellant be admitted to the United

States as a United States citizen.

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