56250/344
Decided by the Central Office June 29, 1949
Citizenship — Acquisition on birth abroad of one citizen parent who had resided in the United States prior to the birth of the child-"Residential" prerequisite as to citizen parent under section 201 (g) or (i) of the Nationality Act of 1940, as amended — "Constructive residence."
A child, born in Egypt on March 24, 1946, to a native-born citizen father (the mother being an alien) who presumably served honorably in the Armed Forces of the United States from February 24, 1943 until January 17, 1946 (enlisting in Lebanon and being discharged in Egypt), did not acquire United States citizenship at birth under either section 201 (g) or (i) of the Nationality Act of 1940, as amended, inasmuch as the citizen father who was born here on September 28, 1922, was not considered, under the circumstances, to have resided (constructively) in the United States during the time he was abroad (from September 1931 until June 1946), within the meaning of section 104 of the above act and 8 C.F.R. 301.8, although he may have kept his domicile here where his father lived throughout the period of his absence, and although his absence from the United States may have been "temporary."
BEFORE THE CENTRAL OFFICE
Discussion: In letter dated August 23, 1948, the Department of State requested a further expression of the views of this Service in regard to whether the subject's father, R---- F. D---- had fulfilled the residence requirements of section 201, subsections (g) and (i), of the Nationality Act of 1940, prior to the birth of the subject on March 24, 1946, at Cairo, Egypt. In letter dated June 4, 1948, this Service had expressed the opinion that these requirements had been fulfilled for the reason that the father's absence from the United States from 1931 to 1946 was but temporary and that his place of general abode had continued to be in the United States. This opinion was based on the father's testimony that he had been sent abroad for the purpose of study.
As amended.
The letter of the Department of State pointed out that their records showed the reason for his departure from the United States, as follows:
The records of this Department show that R---- F. D----, his younger brother and sister, were included in a passport issued to their mother, M---- D---- on August 2, 1931, in which she stated that she was going to Egypt and Lebanon to visit relatives and that she intended to return to the United States within 2 years. On June 5, 1937, Mrs. D---- executed an application for a passport at the American Legation at Beirut, Lebanon, in which she stated that she went to Egypt in 1931 in order to be with her ill mother and that since she would be detained in Lebanon, her husband had desired that the children be sent to the American University at Beirut, that she intended to return to the United States upon the recovery of her mother and when her children had completed their courses in French and Arabic.
On February 1, 1943, R---- F. D---- executed an application for a passport at the American Legation at Beirut, Lebanon, in which he stated that his occupation was that of "merchant and contractor" and, that his intention of returning to the United States was indefinite. He also stated in an accompanying affidavit that upon his completion of the commercial course at the American University in 1942, he was engaged as a civilian clerk by the British Security Mission at Beirut, from May 1942 to August 31, 1942, and since then in private business. A copy of the affidavit executed by Mr. D---- is enclosed for the information of the Immigration and Naturalization Service.
No documentary evidence is on file in the case and the subject has not made application for a certificate of citizenship under the provisions of section 339 of the Nationality Act of 1940. The subject entered the United States as a citizen. Therefore, in addition to the interest of the Department of State in this case, the question of the subject's immigration status is also involved.
As amended.
The available evidence shows that the subject's father, R---- F. D----, was born at Gloverville, N.Y., on September 28, 1922, and resided in the United States continuously until September 4, 1931. He remained abroad from September 1931 until June 1946. Consequently, he was not, prior to the subject's birth on March 24, 1946, physically present in the United States for any of the periods mentioned in subsection (g) or (i) of section 201 of the Nationality Act of 1940 (as amended). When interviewed by an officer of this Service, M---- D----, the mother of R---- F. D----, testified, in part, as follows, concerning her residence abroad subsequent to September 4, 1931:
Q. Where were you destined at the time of your departure?
A. I was going to visit my mother in Port Said, Egypt.
Q. How long did you intend to remain abroad at that time?
A. I intended to remain abroad until the education of my children had finished. My primary purpose was to give my children an education in the American University of Beirut which had been previously planned by my husband and I. When I arrived abroad, I enrolled my son R---- in a preparatory school in Port Said. Upon completion of his studies in this school he proceeded to the American University of Beirut which he completed in 1942.
Q. When did you return to the United States?
A. October 9, 1945 on the S.S. Gripsholm at the port of New York.
Q. During your stay abroad by whom were you supported?
A. I was supported by my husband who not only contributed to my support but that of the three children and the expenses incurred by their education abroad.
R---- F. D---- testified that, upon graduation from the American University at Beirut, Lebanon, in 1942, he accepted a position with the British Security Mission in Beirut from May 1942 to August 1942; after that he was unemployed and awaited enlistment orders from the United States Army Headquarters in Cairo, Egypt. He further stated that, when he appeared before the American consul in Beirut on February 1, 1943, it was his intention to proceed to Palestine to enlist in the United States Armed Forces. In view of British restrictions, it was necessary that his passport state specifically the employment of the person traveling to Palestine. For that reason he indicated in his application for a passport that he was engaged in private business, although that was not the case. According to his testimony, he enlisted in the United States Armed Forces in Beirut, Lebanon on February 24, 1943, and was honorably discharged in Cairo, Egypt on January 17, 1946. No explanation was advanced why he thought he had to travel to Palestine to enlist in the United States Army. It will be noted that he enlisted in the United States Army at Beirut approximately 3 weeks after he had appeared at the American consulate.
According to the available evidence, the father of R---- F. D---- lived in New York, N.Y., during the entire period of the absence of his family from the United States.
The evidence in the case establishes, without question, that M---- D---- left the United States for the purpose of visiting relatives in Egypt and Lebanon and took her children with her. Since her children were young, it would only be natural that those of school age would attend school in the foreign countries which they were to visit for any length of time. Before her departure from the United States, M---- D---- stated in her passport application that she intended to remain abroad only 2 years. She now states that she intended to remain abroad until the education of her children was completed. The record is not clear whether the visit to relatives or the education of her children abroad was the real reason for their absence from the United States. However, the intention to return to the United States at a future date always existed. Whether the absence was for one purpose or another seems to be of little importance.
It is well settled that an infant, being non sui juris, cannot fix his own domicile but acquires and keeps during his minority the domicile of his father ( Lamar v. Micou, 112 U.S. 452). In this particular case it is clear that R---- F. D---- was not domiciled in a foreign country but was domiciled in the United States, throughout the period of his absence. Domicile, however, is not decisive of the question of residence.
Residence is a term of broad content, having no exact legal meaning, and sometimes when used in a statute or constitution means a domicile but on other occasions means something less than domicile and involves physical presence in a place without requiring intent to make it one's home, which is involved in the domicile concept ( U.S. v. Stabler, 169 F. (2d) 995). Domicile is not decisive of residence which has varying meanings that must be understood in connection with the context of statute and legislative purpose ( Downs v. Collector of Internal Revenue, 166 F. (2d) 504).
The Nationality Act of 1940 contains a definition of residence for the purposes of certain sections of that act, including section 201. The place of residence has been defined as the place of general abode (sec. 104). The place of general abode of a person has been defined as his principal dwelling place (8 C.F.R. 301.8). In addition to these definitions, a further expression of the legislative intent, with reference to section 201 of the Nationality Act of 1940, appears in the explanatory comment to this section in the report of the joint committee, when said act was proposed.
In the commentary to subsection (c) of section 201 the following was stated:
In normal times, with increased facilities of transportation, the numbers of persons sojourning or residing temporarily in states of which they are not nationals is likely to increase. Even now there are large numbers of Americans who reside abroad, not merely for pleasure or because they have a preference for life in foreign countries but because they are engaged in promoting American interests, commercial or other. In the great majority of these cases husband and wife are both citizens of the United States. In such cases it is altogether likely that the children will be taught to speak the English language from infancy and will be so brought up that they will be truly American in character. This is likely to be the case where both parents are citizens of the United States even though neither one resides abroad for the purpose of promoting American interests. It seems reasonable and expedient that citizenship should in all such cases be conferred upon the children at birth, without any condition except that one of the two citizen parents must have resided in the United States prior to the child's birth. The latter condition is similar to that which appeared in the old law, and it has never met with serious objection, since it is so patently reasonable. Its retention in subsection (c) hereof seems quite desirable, since it would not be a wise policy to extend citizenship indefinitely to generations of persons born and residing in foreign countries. The case of a child born abroad to parents of whom only one is a citizen of the United States, the other being an alien, presents greater difficulties and requires correspondingly stricter limitations.
In the commentary to subsection (g), the committee pointed out that it would not seem reasonable to confer citizenship at birth upon a foreign-born child having only one citizen parent, unless the latter had resided in the United States before the child's birth at least 10 years; that a foreign-born child whose citizen parent had not resided in this country as much as 10 years altogether is likely to be more alien than American in character.
It seems obvious that Congress, in speaking of residence after the age of 12 years (subsec. i) and after the age of 16 years (subsec. g) in section 201 of the Nationality Act, intended that a person, who had not attained the age of 21 years, should nevertheless be regarded as having a residence of his own. There is nothing in the statute from which it can be inferred that the residence of a parent can be imputed to a child like domicile.
As amended.
In the instant case, the subject's father, R---- F. D----, sojourned or lived abroad for a period of 15 years after he was approximately 9 years of age. According to his testimony, the principal reason for his sojourn abroad was the obtention of a foreign education. It does not seem likely that this education was designed to make him truly American in character. Nor does any reason appear why the United States residence of one parent should be imputed to him in preference to the foreign residence of the other parent, in whose custody he went abroad. Although it was intended at first that R---- F.D---- would return to the United States within 2 years, there was a later decision that he would remain abroad for a much longer period. No consideration appears from which it can be implied that his residence abroad from 1931 to 1946 was residence in the United States. During his absence from the United States, he had his place of general abode and his principal dwelling place abroad, where he actually lived for 15 years. Under the circumstances, it is concluded that his sojourn abroad, although temporary in character, cannot be construed as constructive residence in the United States for the purposes of section 201 of the Nationality Act of 1940.fn_ Since R---- F.D---- did not fulfill the residence requirements of section 201 of the Nationality Act of 1940, the subject, his child, cannot be regarded as a citizen of the United States.
It is ordered, That, from the evidence presented, the subject be deemed not a citizen of the United States. The Department of State and the field office at New York, N.Y., should be advised of the conclusions reached herein.