A-10452357
Decided by Regional Commissioner January 24, 1958 Approved by Assistant Commissioner
Acquisition of citizenship by child born abroad — Section 201 (g), Nationality Act of 1940 — Parent's United States residence prior to child's birth — Time spent in United States as college student.
Section 201 (g) of the Nationality Act of 1940 permits 3-year period spent by applicant's father as student attending an American university to be counted in computing the required 10-year period of residence in the United States prior to applicant's birth.
BEFORE THE REGIONAL COMMISSIONER
Discussion: This case has been certified to the Regional Office by the District Director, Chicago, Illinois, for determination as to the issuance of a certificate of citizenship to applicant. The issue involved is whether it has been established that applicant's father resided in the United States for 10 years prior to the applicant's birth.
Applicant's father, R---- E---- M----, was born in England on June 1, 1905. As a British subject he was the recipient of a Commonwealth Fund Fellowship for advanced study in the United States from 1931 to 1934, and in connection therewith he pursued his studies at Yale University from September 20, 1931 until the summer of 1934. In the summer of 1935 and from the early summer of 1936 to April 1937, he was again in this country as a visitor. On December 27, 1937, he was married in New York City to applicant's mother, then and still a national of Great Britain. He was lawfully admitted to the United States for permanent residence on June 13, 1939, and was naturalized as a United States citizen on May 20, 1946, at Madison, Wisconsin. Applicant was born in Croydon, England, on April 21, 1947, and came to the United States on July 25, 1947.
The pertinent provision of law which was in effect at the time of applicant's birth was section 201 (g) of the Nationality Act of 1940, which reads in part as follows:
SEC. 201. The following shall be nationals and citizens of the United States at birth:
* * * * * * *
(g) A person born outside the United States and its outlying possessions of parents one of whom is a citizen of the United States who, prior to the birth of such person, has had ten years' residence in the United States or one of its outlying possessions, at least five of which were after attaining the age of sixteen years, the other being an alien. * * *
Applicant's father, born in 1905, has lived continuously in the United States since June 13, 1939. Consequently, at the time of subject's birth on April 21, 1947, he had resided in this country for at least 7 years and 10 months, at least 5 of which were after his attaining the age of 16. However, he did not have the requisite period of 10 years' residence in the United States prior to applicant's birth, unless the period of his stay in the United States from September 20, 1931, until the summer of 1934 can be counted. The issue, therefore, in this case is whether applicant's father resided in the United States during this period for the purpose of section 201 (g) of the Nationality Act of 1940.
The Nationality Act of 1940 contained a definition of residence for the purposes of certain sections of that act, including section 201. The place of residence was defined as the place of general abode (section 104 of the act) and the place of general abode had been further defined as the principal dwelling place (8 CFR 301.8). In the explanatory comment of the Joint Committee, when said Act was proposed, the following was stated with reference to section 104 (Codification of the Nationality Laws of the United States, House Committee Print, 76th Congress, 1st Session, 1938):
Definitions of "residence" frequently include the element of intent as to the future place of abode. However, in section 104 hereof no mention is made of intent, and the actual "place of general abode" is the sole test for determining residence. The words "place of general abode," which are taken from the second paragraph of section 2 of the Citizenship Act of March 2, 1907 ( 34 Stat. 1228), seem to speak for themselves. They relate to the principal dwelling place of a person.
In the same report, the following commentary was made with respect to section 201 (g) of the Nationality Act of 1940:
This subsection is based upon section 1993 of the Revised Statutes, as amended by section 1 of the act of May 24, 1934 (48 Stat. pt. 1, 797). However, it embodies a modification of the provision last mentioned to make it better adapted to existing situations. On the one hand, it does not seem reasonable to confer citizenship at birth upon a foreign-born child having only one citizen parent unless the latter has resided in the United States before the child's birth at least 10 years. A foreign-born child whose citizen parent has not resided in this country as much as 10 years altogether is likely to be more alien than American in character. * * *
It is obvious that in requiring a 10-year period of residence in the United State prior to the birth of the child, it was Congressional intent to require a 10-year presence in the United States of the person through whom citizenship was claimed, so that during such period he would be subject to American influences and ideals. Domicile without a place of abode in this country was deemed to be insufficient for such purposes. A place of general abode or principal dwelling place in the United States for the 10-year period, without regard to intent as to domicile, was deemed necessary.
Applicant's father was in the United States from September 1931 to the summer of 1934, when he was a student at Yale University pursuant to the terms of the Commonwealth Fund Fellowship for advanced study in the United States. During such period, he certainly was subject to American influences and ideals. In the Matter of V---- M---- V----, A-8943750, Int. Dec. No. 770 (B.I.A., 1956), it was held that an appellant who attended a boarding school in the United States during a 9-month period from September 1949 to June 1950 had a place of general abode in the United States within the meaning of section 104 of the Nationality Act of 1940. Conversely, it was held in the Matter of D----, 56250/344, 3 IN Dec. 652 (C.O., 1949), that an individual who was abroad for the purpose of obtaining a foreign education did not have a place of abode in the United States. It necessarily follows that in the present case, the period of stay in the United States by applicant's father from September 20, 1931, until the summer of 1934 can be counted in computing the required 10-year period of residence in the United States, prior to applicant's birth. When this period is added to the period of residence in the United States from June 13, 1939, to the date of applicant's birth on April 21, 1947, it is evident that applicant's father had a place of abode in the United States for 10 years prior to applicant's birth. Consequently, the requirements of section 201 (g) of the Nationality Act of 1940, with respect to the residence in the United States of applicant's father, have been met.
It is concluded that applicant acquired United States citizenship on April 21, 1947, pursuant to the provisions of section 201 (g) of the Nationality Act of 1940, her father, a United States citizen at the time of her birth, having resided in the United States prior to her birth for at least 10 years, 5 of which were after attaining the age of 16 years, applicant's mother being an alien.
Order: It is ordered that a certificate of citizenship be issued to the applicant, D---- M---- M----.