A-8082501 and A-8082511
Decided by Board February 20, 1952
Citizenship — Acquisition at birth by child born abroad between May 24, 1934, and January 13, 1941 — Revised Statutes 1993, as amended by act of May 24, 1934 — Retention conditions — Section 201 (g) and (h) of the Nationality Act of 1940.
A child acquired United States citizenship at birth abroad in 1935 to a United States citizen parent who had resided in the United States prior to the birth of the child, under Revised Statutes 1993, as amended by the act of May 24, 1934 (the other parent being an alien); and such citizenship status did not cease where the child took up residence in the United States on his 16th anniversary, thereby fulfilling the retention conditions of section 201 (g) and (h) of the Nationality Act of 1940 (the child arriving in September 1951 on his 16th birthday).
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigrati visa (both appellants).
Executive Order 8766 — No passport (both appellants).
BEFORE THE BOARD
Discussion: The cases came forward on appeal from the decisions dated September 24, 1951, and September 19, 1951, respectively, of the Acting Assistant Commissioner affirming the decision of the Board of Special Inquiry finding the appellants to be aliens and inadmissible on the grounds stated above. The appellants have been paroled into the United States, such parole to be terminated upon the filing of an application for suspension of deportation, but the appellants have appealed from the finding of alienage. The cases have been combined for convenience inasmuch as they present the same question of fact and law.
The appellant, L---- M----, was born on August 8, 1935, and the appellant, C---- Y---- C----, was born on August 2, 1935. Both appellants were born in China, their respective mothers were natives and citizens of China, while their respective fathers were citizens of the United States who had resided in this country prior to the birth of the appellants. Both appellants arrived in the United States on their respective 16th birthdays, to wit: August 8, 1951, and August 2, 1951. The Acting Assistant Commissioner holds that the appellants reached the age of 16 years at 12:01 a.m. on the 16th anniversary of their birth, and inasmuch as the appellants arrived in the United States about 4 a.m. and on 8 a.m., respectively, they had reached the United States after they had reached their 16th birthday and had consequently ceased to be American citizens and were to be regarded as aliens. Counsel for the appellants contends that the arrival of the appellants on the anniversary date of their 16th birthday was timely and prevented the loss of American citizenship, and that they are to be regarded as having retained American citizenship.
Under the provisions of section 1993 of the Revised Statutes as amended by the act of May 24, 1934 ( 48 Stat. 797; 8 U.S.C. 6), a child born out of the United States, one of whose parents was an alien, the other a citizen who had resided in the United States prior to the child's birth, was declared to be a citizen of the United States, but the right of citizenship did not descend unless the child came to the United States and resided therein for at least 5 years continuously immediately previous to his 18th birthday, and unless, within 6 months after the child's 21st birthday, he took an oath of allegiance to the United States. It has been held that under this provision such a child acquires United States citizenship at birth, and that such citizenship is subject to being divested if the child thereafter fails to comply with the two conditions prescribed in section 1 of the act of May 24, 1934, which are to be regarded as conditions subsequent and not as conditions precedent (38 Opinion Attorney General 10 (1934)).
Under section 201 (h) of the Nationality Act of 1940 the retention conditions set forth in Revised Statutes 1993, as amended by the act of May 24, 1934, were superseded as to children born abroad subsequent to May 24, 1934, by the provisions of section 201 (g) of the Nationality Act of 1940 which provided in pertinent part:
Provided further, That, if the child has not taken up a residence in the United States or its outlying possessions by the time he reaches the age of 16 years, or if he resides abroad for such a time that it becomes impossible for him to complete the 5 years' residence in the United States or its possessions before reaching the age of 21 years, his American citizenship shall thereupon cease.
The question presented by the factual situation herein is a very narrow one of computation of time. The issue is whether the appellants herein, both of whom arrived in the United States on the anniversary date of their 16th year, have satisfied the retention conditions of the statute requiring them to take up residence in the United States by the time they reach the age of 16 years, and whether it has become impossible for them to complete the 5 years' residence in the United States before reaching the age of 21 years.
Where a period of time during which an act may or must be performed is referred to as being "by," "before," etc., a designated day or date, such words are generally construed as words of limitation of time and excluding the date or dates designated; and in such a case the general rule excluding the last date does not apply. This construction however is not of universal application and the effect to be given to such a word depends on the intention with which it is used as manifested by the context and considered with reference to the subject to which it relates (62 Corpus Juris 986). As a general rule, in the computation of time, a day is to be considered an indivisible unit or period of time and the law will not, unless there is sufficient reason therefor, take cognizance of fractions of a day (62 Corpus Juris 978.) In a somewhat analogous case arising under section 201 (g) of the Nationality Act of 1940, where the child did not reach the United States until 1 day after his 16th birthday, it was held that since the applicant did not arrived in the United States until after his 16th birthday, he could not be said to have taken up a residence in the United States by the time he reached the age of 16 years, and therefore failed to preserve his citizenship, ( Matter of L---- W---- Y----, A-7821371 (A.G. 1951)). The cited case however is of little or no assistance in reaching a conclusion as to the instant case, as in the cited case the child admittedly arrived in the United States a day after his 16th birthday.
An examination of the committee reports and the debates dealing with the review, revision, and codification of the Nationality Laws of the United States, resulting in the present Nationality Act of 1940, throws very little light on the intent of Congress as to the method of computation of time in section 201 (g) of the Nationality Act. In the Congressional Record, 76th Congress, 3d session, volume 86, part 11, p. 11945, there appears a copy of a letter of submittal, dated June 1, 1938, from the joint committee, composed of the Secretary of State, Attorney General, and the Secretary of Labor, addressed to the President. This letter sets forth that none of the various provisions of the code concerning loss of American nationality, such as those applicable to children born abroad to parents only one of whom has American nationality is designed to be punitive or to interfere with freedom of action; they are merely intended to deprive persons of American nationality when such persons by their own acts, or inaction, show that their real attachment is to the foreign country, and not to the United States.
Judicial authority and interpretation on that particular point involved herein is singularly lacking. Resort may however be had to judicial holdings on analogous provisions of law. The case of In re Babjak, 211 Fed. 551 (D.C.W.D. Pa. 1914) involved the question of the court's jurisdiction to issue a certificate of naturalization where the petition, filed on October 6, 1913, was supported by a declaration of intention made October 6, 1906. The question arose under the second paragraph of section 4 of the Naturalization Law of June 29, 1906, the material part of which provided:
Not less than 2 years nor more than 7 years after he has made such declaration of intention he shall make and file in duplicate, a petition in writing. * * *
The court had before it therefore the question as to the computation of time in view of the provisions and purposes of the act of Congress. The court stated that an examination of numerous decisions relating to computations of time leads to a conclusion that there is no fixed rule. It quoted the language used by the Court in Griffith et al. v. Bogert et al., 59 U.S. 158, 163 ( 15 L. Ed. 307):
It would be tedious and unprofitable to attempt a review of the very numerous decisions, or to lay down rules applicable to all cases. Every case must depend on its own circumstances. Where the construction of the language of a statute is doubtful, courts will always prefer that which will confirm rather than destroy any bona fide transaction or title. The intention and policy of the enactment should be sought for and carried out. Courts should never indulge in nice grammatical criticism of prepositions or conjunctions, in order to destroy rights honestly acquired.
The court then pointed out that this language had been approved by the Supreme Court in the case of Taylor v. Brown, 147 U.S. 640 where the Court stated that while it is desirable that there should be a fixed and certain rule upon this subject, it must be conceded that the rule which excludes the terminus a quo is not absolute, but that it may be included when necessary to give effect to the obvious intention. The court then went on to observe that the statute granted the alien the great privilege of citizenship; and that a distinction should be made between the computation of the time within which a right may begin and the computation of the time within which a right shall end, and that the method of arriving at the computation is to be in the interest of the person affected by it. The court then concluded that while there is no fixed rule for the inclusion or exclusion of the terminus a quo in the computation of time, there does seem to be the view that the dies quo shall be either included or excluded, as the case may be, in order to preserve some right which otherwise would be destroyed. Applying the rule to the case before if, the court held that the day of the date of the declaration should be excluded in computing the 7 years; and that inasmuch as the petition was filed upon the seventh anniversary of that date, it should be received by the court. The decision of the court in the case of In re Babjak ( supra), was followed in the case of Ex parte Eberhardt, 270 Fed. 334 (E.D. Mo., E.D. 1921). The present administrative view adopts the construction of the court that a petition for naturalization filed on the seventh anniversary date of the date of the filing of the declaration of intention is valid. (Section 332, Nationality Act of 1940; 8 C.F.R. 322.1 (c) and 8 C.F.R. 322.2 (c).)
We find the reasoning of the court in the case of In re Babjak ( supra), equally appropriate to a determination of the question under consideration herein. As previously indicated (38 Op. A.G. 10), under the provisions of 1993 Revised Statutes as amended by the act of May 24, 1934, the child born abroad of parents one of whom is a citizen of the United States and has previously resided in the United States and the other an alien, acquires United States citizenship at birth. This conclusion is equally applicable to section 201 (g) of the Nationality Act of 1940. Such citizenship is subject to being divested if the retention conditions are not complied with, and these conditions are regarded as conditions subsequent and not as conditions precedent.
Here, the appellants have reached the United States on the anniversary date of their 16th birthday. It is apparent that by thus arriving in the United States they have evidenced an intention to retain their citizenship and to show that their real attachment is to this country. A divestiture of American citizenship should not be predicated upon an ambiguity. Where the language of the statute is capable of more than one construction, that construction is favored by law which will best preserve a right or prevent a forfeiture. It has been shown that the intent of Congress in enacting this legislation was not punitive. In view of the judicial precedents as to computation of time so as to prevent a forfeiture and preserve a right and with due regard to the purpose of the enactment of the legislation, we conclude that the language used in section 201 (g) of the Nationality Act of 1940 requiring the child to take up residence in the United States by the time he reaches the age of 16 years, and requiring him to complete 5 years' residence in the United States before reaching the age of 21 years, includes within its scope a person who arrives in this country on the anniversary date of his 16th birthday. We accordingly find that the appellants were United States citizens at birth, and that they have complied with the retention conditions set forth in section 201 (g) of the Nationality Act of 1940 by arriving in the United States on the anniversary date of their 16th birthday, and that they are to be regarded as United States citizens.
Order: It is ordered that the appeal be and the same is hereby sustained and that the appellants be admitted as citizens of the United States.