A-7013900
Decided by Central Office April 6, 1948
Entry record — Amendment to show admission for permanent residence (1929) — Administrative extension as to exception set forth in section 13 (a) (1) of the Immigration Act of 1924 — Child born while legally resident mother temporarily abroad, accompanying mother on her first return — Requirements as to visa, quota, and race.
A child, born of Japanese parents in 1927, while her mother (a legally resident alien) was temporarily visiting abroad, accompanied her mother on her first return to resume residence in the United States (1929), at which time the mother met the documentary requirements for readmission for permanent residence; the child was manifested and admitted as a United States citizen at that time (1929) in error; in the absence of fraud on the child's part, and in the light of the provisions of section 13 (a) (1) of the Immigration Act of 1924, the entry record may be amended to show this alien child entered the United States in 1929 for permanent residence under the administrative ruling set forth herein, without regard to quota requirements, without an immigration visa, and without reference to race
BEFORE THE CENTRAL OFFICE
Discussion: The San Francisco office has submitted the case of the above-named subject for consideration of the amendment of the record of the subject's admission at that port on March 3, 1929, as a United States citizen to reflect admission on that date as an alien entering the United States for permanent residence.
The subject is a 21-year-old native and national of Japan. Form I-404 (manifest) of record reflects the subject's admission as above, age, 1 year, accompanied, by her mother, T----, age 33. The subject's father testified that he married T---- T---- on April 6, 1917, in San Francisco, Calif., and that on December 7, 1926 his wife was pregnant and returned to Japan on a visit to her mother. The subject was born on April 3, 1927, in Japan. At the time of her return to the United States on March 3, 1929, the subject's mother was in possession of a reentry permit. The subject's mother is now deceased. The subject has resided in the United States continuously since the foregoing entry.
It has been ruled that by virtue of an administrative extension of section 13 (a) (1) of the Immigration Act of 1924, a child born abroad during the temporary absence of his mother, a legally resident alien admitted for permanent residence, who was accompanying his parent on her first return to the United States to resume her residence, may enter the United States without a visa and without regard to quota requirements provided that the child's mother is herself able to comply with the documentary requirements of the act (see petition of B----, C-5661450, citing Solicitor's opinion, Sept. 23, 1932, 4-899, file 55606/570 and Solicitor's opinion of Feb. 11, 1925, 55428/182, 4-899).
The above-mentioned Solicitor's opinion of Sept. 23, 1932 states in part:
In an opinion of Feb. 11, 1925 (4-899), approved by the Department this office held to the effect that the clause there relating to children (sec. 13 (a) (1)) clearly exempts children from the necessity of procuring a consular immigration visa when they are born to a parent complying with the documentary requirements of that section and accompany such parent to this country and that, therefore, aliens who are nonquota immigrants because heretofor lawfully admitted to this country and are returning from a temporary absence may bring in with them children born during such absence without visas for such children and without regard to quota requirements. * * *
The foregoing view was not entirely clear and in the opinion of September 23, 1932, above, this was said:
It was pointed out that the effect of the foregoing consideration was that a child born abroad during the temporary absence of the alien parent entitled to return to the United States as a nonquota immigrant by reason of former lawful admission and the temporary character of the absence could be admitted without an immigration visa as being born since coming into existence of what corresponds to the date of issuance of an immigration visa to the accompanying parent. The converse, of course, is that where the parent for any reason is not such a nonquota immigrant though a former resident, the child could not be admitted without an immigration visa unless born subsequent to the issuance of the immigration visa to the parent. The result is that children born abroad during the absence of a former resident parent will thus be on the same footing as children of aliens with quota immigration visas in that the parent and child would be admissible together or excludable together. * * *
* * * As the whole construction in favor of the admission of such children as exempt from quota and documentary requirements is based on the language of the exception, read along with the entire act and in view of its purpose, it does not appear that the express requirement of the exception that the children accompany the parent to this country can be disregarded in any case. This office concurs in the Department's application of the exception and the opinion of this office to children regardless of race, as the exception does not refer to race.
Pursuant to this administrative ruling a manifest record may be made at the port of entry of an admission for permanent residence without an immigration visa in the case of an alien immigrant child born during the temporary visit abroad of an alien mother who has previously been legally admitted to the United States for permanent residence (Operations Instruction 107, VII, 1 (2)).
The foregoing summary of the facts establishes that the subject's mother was admissible to the United States as a returning resident alien at the time of her entry on March 3, 1929, and that she was in possession of proper documents to effect such reentry. It is established further that the subject was accompanying her mother on her first return to the United States after the subject's birth, and that the subject's case is within the foregoing rule regarding the waiver of the documentary requirements with respect to her entry on March 3, 1929. Head tax is not assessable (8 C.F.R. 105.3). In view of the subject's tender years at the time of entry no fraud or misrepresentation may be attributed to her with respect to her having been admitted as a United States citizen. The subject was admissible at the time of her entry as an alien entering for permanent residence. Accordingly, the record of her entry should be amended to reflect her true status at the time of her entry. ( Matter of W----, A-1466593; Matter of D----, A-166535; Matter of H----, March 23, 1948, C-3164597).
It is ordered that the record of the subject's admission at the port of San Francisco, Calif. on March 3, 1929, as a United States citizen be amended to reflect her admission on that date as an alien entering for permanent residence.