T-2647622
Decided by the Board June 12, 1953
Citizenship — Acquisition: by child born abroad — Sections 301 (a) (7) and 301 (b) of the Immigration and Nationality Act — Failure to retain under section 201 (g) of the Nationality Act of 1940 — Savings clause, section 405 of the Immigration and Nationality Act.
(1) The citizenship of a person born outside the United States is determined by the statutes and law in existence at the time of the birth. Section 301 (a) (7) of the Immigration and Nationality Act is prospective in nature and intent. Therefore, an individual who acquired United States citizenship at birth abroad in 1935 under section 1993, Revised Statutes, as amended by section 1 of the act of May 24, 1934, but who failed to come to the United States before his 16th birthday, does not derive any benefit under section 301 (a) (7) or section 301 (b) of the Immigration and Nationality Act.
(2) Section 301 (b) of the Immigration and Nationality Act is limited by its own terms to persons who acquire citizenship under section 301 (a) (7) of that act. A person who acquired citizenship at birth abroad under a prior statute and subsequently lost such citizenship under section 201 (g) of the Nationality Act of 1940 by failing to come to the United States before reaching the age of 16 years is not restored to citizenship by the provisions of the Immigration and Nationality Act, there being no specific provision in sections 301 (a) (7), 301 (b), or 301 (c) which nullifies the language of section 405 (c) of the Immigration and Nationality Act which provides that unless "otherwise specifically provided," the repeal of any statute shall not "restore nationality heretofore lost under any law of the United States."
EXCLUDED:
Act of 1924 — No immigration visa.
E.O. 8766 — No passport.
BEFORE THE BOARD
Discussion: The case comes forward on motion of counsel requesting that the proceedings be reopened in order to permit the introduction into evidence of proof of 10 years' residence in the United States of the father prior to the respondent's birth.
The issue in the case is whether the applicant is entitled to admission as a citizen. The applicant was born in Cayman Islands, British West Indies, on January 14, 1935. His first and only arrival in the United States occurred at Tampa, Fla., on March 8, 1952, on the M/V Addie H. It is to be noted that at the time of his arrival the applicant was approximately 17 years and 2 months of age. The applicant claims citizenship through his father, who in turn claims citizenship through his father, J---- J---- B----. The grandfather became a citizen of the United States through naturalization on February 9, 1925. At that time the respondent's father, J----, 17 years of age, was residing in the Cayman Islands, British West Indies. It is conceded tha the applicant's father took up residence in the United States prior to his 21st birthday. It is also conceded that the respondent's father derived citizenship through the paternal grandfather. The applicant was born in the British West Indies on January 14, 1935, the issue of a citizen father and an alien mother and under the provisions of law in effect at the time of his birth, section 1993, Revised Statutes, as amended by section 1 of the act of May 24, 1934, was a citizen of the United States at birth.
Section 201 (g) of the Nationality Act of 1940 requires, in the case of children born subsequent to May 24, 1934, compliance with certain provisions relating to retention of such citizenship, to wit: That the child must reside in the United States or its outlying possessions for a period or periods totaling 5 years between the ages of 13 and 21 years: Provided further, That if the child had not taken up residence in the United States or its outlying possessions by the time he reaches the age of 16 years, or if he resided abroad for such a time that it becomes impossible for him to complete the 5 years residence in the United States or its outlying possessions before reaching the age of 21 years, his American citizenship shall thereupon cease. The act of May 24, 1934, also contains certain retention provisions as to citizenship but these were superseded by the Nationality Act of 1940. Inasmuch as the applicant herein failed to reach the United States before reaching the age of 16 years, he failed to comply with the retention provisions of section 201 (g) of the Nationality Act of 1940 and his citizenship accordingly terminated.
In our prior order of December 23, 1952, we observed that counsel raised no contention that the applicant meets the requirements for retention of United States citizenship as set forth in section 201 (g) of the Nationality Act of 1940, but was requesting decision be held in abeyance until the effective date of the Immigration and Nationality Act. It was counsel's contention that section 301 (a) (7) of the new act would favorably affect the citizenship status of the applicant. On the basis of the record before us, we pointed out the applicant's father was not physically present in the United States or an outlying possession thereof for a period or periods totaling not less than 10 years prior to the birth of this subject and that the requirements of the Immigration and Nationality Act alluded to by counsel could not be met. We ordered that the appeal be dismissed.
In support of his present motion counsel asserts that if the case is reopened he will be able to establish that the applicant's father resided in the United States for more than 10 years prior to the birth of the applicant and will therefore be able to show a compliance with the provisions of section 301 (a) (7) of the Immigration and Nationality Act. We do not believe that any purpose would be served in reopening the case for the reasons which are more fully set forth below.
Section 301 (a) (7) of the Immigration and Nationality Act provides that the following shall be nationals and citizens of the United States at birth:
(7) A person born 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 10 years, at least 5 of which were after attaining the age of 14 years: * * *
Section 301 (b) of the Immigration and Nationality Act provides as follows:
Any person who was a national and citizen of the United 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 23 years and shall immediately following any such coming be continuously physically present in the United States for at least 5 years: Provided: That such physical presence follows the attainment of the age of 14 years and precedes the age of 28 years.
The citizenship of a person born outside the United States upon his birth is ascertained by reference to the statutes and law in existence at the time of the birth. It is therefore the act of May 24, 1934, which determines the acquisition at birth of United States citizenship by the applicant. The retention requirements set forth in section 201 (g) of the Nationality Act of 1940 were specifically made applicable to children born abroad subsequent to May 24, 1934, and under that law, the applicant's citizenship ceased because he failed to come to the United States before reaching the age of 16 years. The new law, section 301 (a) (7), set forth a class of persons who would acquire citizenship at birth and made changes as to the prerequisites for acquisition of citizenship as compared to the prior law. However, it would appear that section 301 (a) (7) of the Immigration and Nationality Act is prospective in nature and intent, clear indication of which is found in the language of section 405 (c) of the Immigration and Nationality Act which provides that unless "otherwise specifically provided" the repeal of any statute shall not "restore nationality heretofore lost under any law of the United States." And as already demonstrated, this applicant had already lost United States citizenship under section 201 (g) of the Nationality Act of 1940 by failing to come to the United States before he was 16 years old.
Schaufus v. Attorney General, 45 F. Supp. 61 (D.C. Md. 1942).
Counsel apparently is under the impression that the Immigration and Nationality Act operates to restore citizenship to a person who already has lost it under the provisions of the prior statute (section 201 (g) (h) of the Nationality Act of 1940), and apparently his concept is caused by a confusion as to the meaning of section 301 (c) of the Immigration and Nationality Act which provides:
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 this act, has taken up a residence in the United States before attaining the age of 16 years, and thereafter, whether before or after the effective date of this act, complies or shall comply with the residence requirements for retention of citizenship specified in subsections (g) and (h) of section 201 of the Nationality Act of 1940, as amended.
The plain language of the savings clause, section 405 (c) of the Immigration and Nationality Act, which provides that "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" would appear to negate any argument or conclusion that persons who had already lost citizenship under the 1940 Nationality Act were to be restored to citizenship by the new law. It is not believed that section 301 (b) of the Nationality Act comes within the exception in section 405 (c) of the savings clause regarding "except as otherwise specifically provided in this act," inasmuch as section 301 (b) by its own terms applies to persons who acquire citizenship under section 301 (a) (7) of the new act, and this latter section has been shown to be prospective in application and not to affect persons born before December 24, 1952. Section 301 (c) of the new act is not applicable since it refers to persons born abroad subsequent to May 24, 1934, who have taken up residence in the United States before attaining the age of 16 years, and this applicant of course arrived after reaching the age of 16 years.
Order: It is ordered that the motion to reopen be and the same is hereby denied.