1700-7640
Decided by the Board August 4, 1953
Status — National of the United States — British Samoa — Section 308 (2) of the Immigration and Nationality Act prospective — Savings clause.
1. Section 308 (2) of the Immigration and Nationality Act is prospective in nature since it is identical in wording with section 204 (b) of the Nationality Act of 1940 which was previously held to be prospective and the savings clause contained in section 405 of the Immigration and Nationality Act provides that the repeal of any statute by that act shall not terminate nationality heretofore lawfully acquired nor restore nationality heretofore lost under any law of the United States.
2. Prior to the Nationality Act of 1940, there was no law of the United States under which a person born in a foreign country to a father who had the status of a national, but not a citizen, of the United States acquired American nationality at birth, the law of jus sanguinis being applicable to United States citizens. Therefore, an individual born in British Samoa on December 3, 1927, is not entitled to recognition as a noncitizen United States national, even though her parents were nationals of the United States at the time of her birth.
EXCLUDED:
Act of 1924 — No immigration visa.
E.O. 8766 — No passport.
BEFORE THE BOARD
Discussion: The case comes forward on appeal from the order dated April 8, 1953, of the board of special inquiry finding the applicant to be an alien and inadmissible on the grounds stated above.
The sole issue in the case is whether or not the appellant is a United States national. She was born on December 3, 1927, in British Samoa. It is conceded that at the time of her birth, the parents of the appellant were American Samoans and nationals of the United States. Both section 204 (b) of the Nationality Act of 1940 and section 308 (2) of the Immigration and Nationality Act provide that a person born outside the United States and its outlying possessions of parents, both of whom are nationals, but not citizens of the United States, and have had a residence in the United States or one of its outlying possessions prior to the birth of such person, shall be a noncitizen national of the United States at birth. However, section 204 of the Nationality Act has been held to be prospective in application rather than retroactive and not intended as declaratory of the status of persons born before its effective date. The language of section 308 (2) of the Immigration and Nationality Act is likewise prospective in nature. The savings clause, section 405 (c) of the Immigration and Nationality Act, provides that the repeal of any statute by that act shall not terminate nationality heretofore lawfully acquired nor restore nationality heretofore lost under any law of the United States. It would therefore appear that section 204 (b) of the Nationality Act and section 308 (2) of the Immigration and Nationality Act, which are identical in wording, must both be regarded as prospective rather than retroactive.
Matter of S----, 3 IN Dec. 589, 596-598 (BIA 1949).
The appellant's status must be determined in accordance with the requirements of such law or laws as were in effect at the time the events relating to her status occurred. However, there seems to be a paucity of statutory law in existence prior to the enactment of the Nationality Act of 1940 as to the status of persons born in outlying possessions of the United States and as to the status of persons born outside the United States and its outlying possessions, the parents of whom were nationals but not citizens of the United States. In connection with the codification of the nationality laws, reference was made to the fact that there were no statutory provisions affixing the nationality status of the inhabitants of certain of the outlying possessions of the United States, including American Samoa and Guam. In commenting on what is now section 204 (b) of the Nationality Act of 1940, the committee indicated that the subject seemed to require little explanation and was intended to supply a deficiency which existed in the laws then in effect.
Haaland v. Attorney General, 42 F. Supp. 13; Schaufus v. Attorney General, 45 F. Supp. 61; United States ex rel. Aberasturi v. Cain, 55 F. Supp. 536, reversed on other grounds, 147 F. (2d) 449.
Nationality Laws of the United States, House Committee Print, 76th Cong., 1st sess., p.v.
Idem, pp. 16-17.
Children born outside the United States to parents, one or both of whom are American citizens, acquire citizenship of the United States in certain circumstances, under the rule known as jus sanguinis which has been embodied in the statutory law of the United States in one form or another from the beginning of the Republic. But this rule refers to children of United States citizens. Prior to the Nationality Act of 1940, there was no law of the United States under which a person born in a foreign country to a father who had the status of a national, but not a citizen, of the United States acquired American nationality at birth. Accordingly, it must be concluded that this appellant who was born in a foreign country (British Samoa) is not entitled to recognition as a noncitizen United States national, even though her parents were concededly nationals of the United States at the time of her birth.
Idem, p. 156. See Matter of S----, A-6811391 ( 3 IN Dec. 589) as to acquisition of noncitizen United States nationality by inhabitants of American Samoa.
Matter of M----, A-6811393 (Dec. 9, 1948), cited in Matter of S----, A-6811391 ( 3 IN Dec. 604, fn 3).
The appellant desires to come to the United States as a student to take up a course in nursing. We shall therefore affirm the excluding decision without prejudice to reapplication for admission in the event that she can qualify for entry as a nonimmigrant student.
Order: It is ordered that the appeal be and the same is hereby dismissed without prejudice to reapplication for admission within 1 year.