A-8943750
Decided by Board February 10, 1956
Status — Citizenship — Sections 201 (g) and (h) of Nationality Act of 1940 — Section 301 (b), Immigration and Nationality Act — Where expatriation or loss of citizenship had not occurred prior to the effective date of the 1952 act, the provisions of that act then apply in determining citizenship status.
(1) When citizenship has not been lost on the effective date of the Immigration and Nationality Act, thereafter the provisions of that act determine the circumstances under which expatriation occurs or citizenship is retained.
(2) An individual who acquired United States citizenship at birth in Mexico on April 17, 1936, under R.S. 1993, as amended by the Act of May 24, 1934, and who had completed 9 months' residence in the United States during 1949-50 could have retained citizenship by complying with sections 201 (g) and (h) of the Nationality Act of 1940 through resumption of her residence in the United States 9 months after her 16th birthday (on January 17, 1953). Hence, as such person had retained citizenship on the effective date of the Immigration and Nationality Act, she was entitled to admission on December 16, 1955, then being under the age of 23, and being able to comply with the provisions of section 301 (b) of the act regarding the further retention of her citizenship.
EXCLUDABLE:
Act of 1952 — Section 212 (a) (20) — No immigrant visa.
BEFORE THE BOARD
Discussion: This case is before us on certification of an order of a special inquiry officer dated December 16, 1955, holding that appellant is still a United States citizen and ordering her admission. Appellant was born in Tijuana, B.C., Mexico, on April 17, 1936, and acquired United States citizenship through her United States citizen father by virtue of R.S. 1993, as amended by section 1 of the Act of May 24, 1934. She applied for admission as a United States citizen at San Ysidro, California, on December 5, 1955.
The question presented is whether the appellant has retained her citizenship in the United States under the applicable provisions of law. Under the Act of May 24, 1934, in order to retain citizenship it was required that the child reside in the United States for at least 5 years continuously and immediately prior to her 18th birthday. That provision was relaxed by section 201 (g) and (h) of the Nationality Act of 1940 by requiring residence in the United States for a period or periods totaling 5 years between the ages of 13 and 21 years.
38 Op. Atty. Gen. 10 (1934).
Section 301 (b) of the Immigration and Nationality Act (effective December 24, 1952) contains a further modification by provision that the residence in the United States shall begin prior to attaining the age of 23 years. Section 301 further provides, in subsection (c), that nothing contained in subsection (b) shall be construed to alter or affect the citizenship of one born abroad subsequent to May 24, 1934, who, prior to December 24, 1952, has taken up residence in the United States before attaining the age of 16 years, and who complies or shall comply with the residence requirements for retention of citizenship specified in section 201 (g) and (h) of the 1940 act. Since, on December 24, 1952, appellant had not placed herself in a position that she could not have complied with the requirements of the 1940 act (concerning the period of United States residence required for retention of citizenship), she is able to benefit from the Immigration and Nationality Act.
Appellant attended boarding school in the United States during the 9-month period from September 1949 to June 1950. She had then passed her 13th birthday but was under 16 years of age. The special inquiry officer concluded that such attendance satisfied the requirement for "residence" exacted by the 1934 act and section 201 (g) of the 1940 act. However, section 104 of the 1940 act provides that: "For the purposes of section(s) 201 * * * of this Act, the place of general abode shall be deemed the place of residence." Because of that definition, we agree with the conclusion of the special inquiry officer on the issue of residence.
As to the quantum of residence, it is noted that the appellant attained her 16th birthday on April 17, 1952, and that up to that time she had a credit of 9 months' residence in the United States after her 13th birthday. Had the Immigration and Nationality Act not been enacted, she could have complied with the 1940 act by a resumption of residence in the United States 9 months after her 16th birthday, on January 17, 1953. As the Immigration and Nationality. Act had meanwhile become effective, it is clear that on December 24, 1952, there was no loss of citizenship.
Therefore, we concur in the conclusion of the special inquiry officer that the appellant was a citizen of the United States on December 16, 1955, when she applied for admission, she then being under the age of 23 years. Accordingly, we approve of the decision of the special inquiry officer.
Order: It is ordered that the decision of the special inquiry officer be approved.