A-7111777 (mother).A-7111778 (son)
Decided by Board May 6, 1949
"Nationality" specified in immigration visa — Ground of exclusion — Section 13 (a) (2) of the Immigration Act of 1924 — Basis of "nationality"-determination — Country of birth — Exceptions — Section 12 (a) of the Immigration Act of 1924
1. For the purposes of the Immigration Act of 1924, "nationality" is determined by the country of birth, with the exceptions set forth in section 12 (a) of the Immigration Act of 1924 (see 22 C.F.R. 61.250).
2. One such exception is the case of an alien minor child (not born in the United States), accompanying his alien parents (not born in the United States). Such a child's "nationality" is determined by the country of birth of the father, provided the father is entitled to an immigration visa (sec. 12 (a) (1), supra, which also provides for the situation where but one alien parent accompanies the child).
3. Another such exception is the case of an alien woman, accompanying her alien husband and of a different "nationality" from him. Her "nationality" is determined by the country of birth of the husband, provided ( a) he is entitled to an immigration visa, ( b) the quota of her nationality (country of her birth) is exhausted for the calendar month, and ( c) the quota of his nationality is not exhausted for the calendar month.
4. In both of the above exceptions, the proviso that the husband/father be "entitled to an immigration visa" is a matter for the United States consul to determine, and this proviso is deemed met where the United States consul finds him so entitled and duly issues him an immigration visa.
5. Where the United States consul found the alien husband/father, who was born in the Union of Soviet Socialist Republics, entitled to an immigration visa and duly issued him one showing his quota-nationality as the Union of Soviet Socialist Republics, then issued immigration visas to the "accompanying" wife and minor child, born in Rumania, showing their quota-nationality as the Union of Soviet Socialist Republics in accordance with provisions of section 12 (a) of the Immigration Act of 1924, the wife and child will not be held excludable under section 13 (a) (2) of that act on the ground they are not of the "nationality" specified in their visas notwithstanding that on their joint arrival here, the "accompanying" husband/father was denied admission, i.e., was ordered excluded and deported by the Attorney General under the provisions of 8 C.F.R. 175.53, 175.57.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — Likely to become public charge.
Act of 1924 — Not of nationality specified in visa
BEFORE THE BOARD
Discussion: This is an appeal from an order entered by the Assistant Commissioner April 1, 1949, affirming the exclusion of the abovecaptioned appellants at the port of New York solely on the ground that they are immigrants who are not of the nationality specified in the visa of the immigration visa they presented upon arrival. Counsel on appeal attacks the legal sufficiency of the exclusion order.
The facts of the case are fully stated in the Assistant Commissioner's opinion. Briefly they relate to a mother and son, 39 and 8 years of age, respectively, natives of Rumania, now stateless, who arrived at the port of New York on October 16, 1948, ex S.S. Wisconsin and applied for admission to the United States for permanent residence. They presented a document of identity issued by the Government of France, in lieu of passports, valid until June 27, 1949. This document apparently is not valid for their return to France because of the lack of an appropriate visa. They also presented visas chargeable to the quota of the Union of Soviet Socialist Republics which were issued by the American Embassy at Paris, France, on July 8, 1948. The visas appear to have been issued in accordance with the provisions of section 12 (a) of the Immigration act of 1924 and section 61.250, title 22, Code of Federal Regulations. They were accompanied upon arrival in the United States by the husband-father, who has been order excluded and deported from the United States by the Attorney General under the provisions of 8 C.F.R. 175.53 and 175.57.
The Assistant Commissioner finds that the appellants are not afflicted with any certifiable or discernible condition which might affect their ability to earn a living and concludes that the appellants are not inadmissible to the United States under section 3 of the Immigration Act of 1917 as persons likely to become a public charge. With this conclusion we agree. The ground for exclusion laid under the act of 1917 is not sustained.
The Commissioner sustains the ground of exclusion laid under section 13 (a) (2) of the 1924 act, predicated upon a finding that the provisos contained in section 12 of this act and 22 C.F.R. 61.250 have not been met in that the husband-father is not entitled to an immigration visa and therefore it follows that the appellants are not properly chargeable to his quota, to wit, the quota of the Union of Soviet Socialist Republics. With this conclusion we do not agree.
For the purposes of the 1924 act nationality is generally determined by the country of birth. Congress, however, realized that a strict adherence to this general rule would of necessity result in the separation of families. In order to remedy this situation two provisos were incorporated in section 12 (a) of the 1924 act. One proviso remedies the situation with respect to minor children not born in the United States and reads in part as follows: "For the purposes of this act nationality shall be determined by the country of birth * * * except that (1) * * * the nationality of a child under 21 years of age not born in the United States, accompanied by both alien parents not born in the United States, shall be determined by the country of birth of the father if the father is entitled to an immigration visa." The other provides for the accompanying wife, and it reads in part, to wit: "If a wife is of a different nationality from her alien husband and the entire number of immigration visas which may be issued to quota immigrants of her nationality for the calendar month has already been issued, her nationality may be determined by the country of birth of her husband if she is accompanying him and he is entitled to an immigration visa, unless the total number of immigration visas which may be issued to quota immigrants of the nationality of the husband for the calendar month has already been issued."
That portion of the provisos referred to above which reads if the father-husband "is entitled to an immigration visa" in our judgment refers to the actual issuing of the immigration visa by the consul. In other words, if the consul finds that the husband-father "is entitled to an immigration visa," then the wife and minor child may be charged to the same quota as the husband-father, subject to the other conditions specified but not pertinent here. The record before us affirmatively shows that the consul found that the husband-father was entitled to an immigration visa, was duly issued one, and since the other conditions mentioned in the two provisos of section 12 (a) of the 1924 act were present, he, the consul, issued the immigration visas presented by the appellants.
In addition to the foregoing there is another factor which renders the ground of exclusion laid under section 13 (a) (2) of the 1924 act untenable in the instant case. The pertinent portion of section 13 (a) (2) reads as follows: "No immigrant shall be admitted to the United States unless he * * * (2) is of the nationality specified in the visa of the immigration visa." An examination of the visas in question show that the appellants have been regarded by the consul as "stateless" and that he has so indicated in their visas. There is no showing in the record before us that the appellants are of a nationality other than "stateless." It cannot be said, therefore, that the appellants are not of the nationality specified in the visas of their immigration visas. For the foregoing reasons the appeals will be sustained, the aliens to be admitted for permanent residence as nonpreference quota immigrants in possession of duly executed immigration visas.
Order: It is directed that the appeals be and the same are hereby sustained, the aliens R---- R---- K---- and A---- B---- K---- to be admitted for permanent residence under the Immigration Act of 1924 as nonpreference quota immigrants in possession of duly executed immigration visas.