A-7030745
Decided by Central Office July 28, 1948
Amendment of record of entry — Alien child born abroad, recorded and admitted in error as a United States citizen (1928) — Circumstances in which record of entry amended to show lawful admission as alien for permanent residence — (Sec. 13 of the Immigration Act of 1924).
A child, born abroad in 1927 during the temporary absence of his mother, a legally resident alien admitted here for permanent residence, who accompanies his mother upon her first return to the United States to resume her residence in 1928, may be admitted to the United States for permanent residence without a visa and without regard to quota requirements or racial eligibility for naturalization, where the child's mother is herself then admissible as a returning resident. (In this case, mother found admissible in 1928 upon presentation of a valid reentry permit.)
BEFORE THE CENTRAL OFFICE
Discussion: The case of the above-named subject has been submitted for consideration of amendment of the record of the subject's entry at the port of San Francisco on March 30, 1928, as a United States citizen, to reflect admission on that date as an alien entering for permanent residence.
The subject is a 20-year-old unmarried male, a native and national of Japan. The record indicates that the subject's father lawfully entered the United States for permanent residence in November 1904. Subject's father testified that he resided continuously in the United States thereafter with the exception of a visit to Japan in August 1927 from which he returned in 1928. The record establishes that he entered at San Francisco, Calif., on March 30, 1928, under section 4 (b), Immigration Act of 1924. He stated that at time of entry he was accompanied by his wife, four sons, and one daughter and that the subject, age 4 months was with them.
The subject's mother testified that she entered the United States for permanent residence on August 27, 1920, at San Francisco, Calif. She continued to reside in the United States until 1927 when she departed on a visit to Japan. She reentered the United States on March 30, 1928, at San Francisco to resume residence. The record establishes that at time of entry she surrendered Reentry Permit No. 293665. She stated that at time of entry she was accompanied by the subject who had been born on October 29, 1927, during her visit to Japan. The record further indicates that the subject and his parents have continued to reside in the United States since 1928. The subject was not in possession of an unexpired immigration visa or other document at time of entry. Entry on March 30, 1928, has been verified with respect to the subject and his parents.
It has been ruled that by virtue of a broad construction of section 13 (a) (1) of the Immigration Act of 1924, a child born abroad during the temporary absence of his mother, a legally resident alien admitted for permanent residence, and accompanying his parent on her first return to the United States to resume her residence, may enter the United States without a visa and without regard to quota requirements, provided that the child's mother is herself admissible as a returning resident alien. (See petition of B---- C-5661450, citing Solicitor's Op., Sept. 23, 1932, 4-899, file 55606/570 (now 56034/252), and Solicitor's Op. of Feb. 11, 1925).
Consideration was given in the above-cited opinion of the Solicitor of Labor of September 23, 1932, to the question of the admissibility of a child under this exception, who would otherwise be excludable under the provisions of section 13 (c) of the Immigration Act of 1924 as an alien racially ineligible to citizenship.
The question was propounded in that opinion whether children held within the terms of section 13 (a) (1) were of a distinct class not covered by the act of 1924 whose cases should be treated administratively in a manner not inconsistent with that act, or were of a distinct class not covered by the act whose cases should be treated in a manner similar to those of their parents. In reaching the conclusion that the latter view was the correct one, and that in effect the children should be treated as nonquota immigrants under section 4 (b), even though not actually classified as such, it was stated "the effect and purpose of the exception is to prevent a situation arising where such a parent and a child of tender age would not be of the same status with respect to admissibility under the act." After citing the language of Knowlton v. Moore ( 178 U.S. 41), that "where a particular construction of a statute will occasion great inconvenience or produce inequality or injustice, that view is to be avoided if another and more reasonable interpretation is present in the statute," the Solicitor ruled "the opinion of this office holding that the children herein referred to are of a class sui generis (Solicitor's Op. Feb. 11, 1925) was not based on the view that the children were not covered by the Immigration Act of 1924, but that they are within what can reasonably be regarded as the scope and purpose of the exception with respect to children of tender age accompanying a parent complying before the birth of the child with the requirements of that act and regulations made thereunder * * *."
This office concurs in the Department's application of the exception and the opinion of this office to children regardless of race, as the exception does not refer to race. Being a special provision relating to a special class of children, it prevails in respect to them under general principles of statutory construction over the provision in the section excluding certain immigrants because of their race."
The foregoing rule laid down by the Solicitor has been consistently followed by this Service. ( Matter of K----, 55428/182 (1935); Matter of Y----, A-7040646 (1946); Matter of S----, A-7013900 (1948)). In each of the above cited cases the alien child was deemed admissible without presentation of documents under the provisions of section 13 (a) of the Immigration Act of 1924 although racially ineligible for citizenship and subject to exclusion under section 13 (c) of the same act.
Pursuant to this ruling a manifest record may be made at the port of entry of an admission for permanent residence without an immigration visa in the case of an alien immigrant child born during the temporary visit abroad of an alien mother who has previously been legally admitted to the United States for permanent residence (Operations Instruction 107 VII 1 (2)).
At the time of subject's entry on March 30, 1928, the subject's mother was returning to resume residence in the United States after a temporary absence abroad. She was in possession of a reentry permit. It is apparent from the facts set forth that the subject's case is within the terms of the foregoing rule and that despite the fact that he is a native of Japan, documentary requirements may be waived with respect to the subject's entry on March 30, 1928. Head tax was not assessable (8 C.F.R. 105.3). Through no fraud or misrepresentation on the subject's part an erroneous record of his entry was made. Accordingly, his record of entry should be amended to reflect his true status at time of entry as an alien entering for permanent residence. ( Matter of H----, C-3164597; Matter of W----, A-1466593; Matter of D----, A-166535).
It is ordered that the record of the subject's admission at the port of San Francisco on March 30, 1928, as a United States citizen, be amended to reflect admission as an alien entering for permanent residence.