A-101273
Decided by Central Office December 7, 1949
Citizenship — Derivation by foreign born alien child through resumption of citizenship by her widowed mother (1936) — Requirement of lawful admission for permanent residence — Admission in error under "exemption 9" — Amendment of record of entry (prior to July 1, 1924) where quota not exhausted (8 C.F.R. 110.37 (b) — Admission under section 14 of the Immigration Act of 1924.
An alien child born abroad was erroneously admitted (February 1924) under the so-called "exemption 9" under the Quota Act of 1921, as amended (neither the father nor the child returning from a temporary visit abroad), nor may such record be amended pursuant to 8 C.F.R. 110.37 (b) because the quota to which she was chargeable was exhausted at the time of her entry; but because she was under 16 years of age when her widowed mother resumed citizenship in 1936, she was held to fall within the provisions of section 14 of the Immigration Act of 1924 under the circumstances, so that her admission on February 11, 1924, could be considered as a lawful admission for permanent residence, whereupon she was found to have derived citizenship in 1936, and was entitled to a certificate of citizenship.
BEFORE THE CENTRAL OFFICE
Discussion: The question presented is whether the certificate of citizenship heretofore issued to the above-named subject should be canceled in accordance with the provisions of section 340 of the Nationality Act of 1940, as amended, on the ground that it was illegally procured.
The record discloses that on May 27, 1943, subject applied for a certificate of citizenship under the provisions of section 339 of the Nationality Act of 1940, alleging therein that she derived citizenship on June 25, 1936, through the resumption of citizenship by her mother, E---- G---- on June 25, 1936, at which time applicant was a minor and having resided permanently in the United States since February 11, 1924, her father having died on May 10, 1936. On February 16, 1944, subject was issued certificate No. A-101273. No question was raised in this proceeding regarding subject's admission into the United States.
Subsequent thereto, subject's brother, J---- G---- G---- applied for a certificate of citizenship under section 339 of the Nationality Act of 1940 (0300-136640, A-185781, A-6899462). In his case, a question was raised as to his lawful admission to the United States for a permanent residence and after a certificate of lawful entry had been issued, certificate of citizenship No. A-185781 was issued on September 29, 1948. Both the brother and subject entered the United States at the same time.
The problem presented is whether subject's admission on February 11, 1924, was a lawful admission for permanent residence, which is required in order for subject to establish that she derived citizenship.
The record discloses that subject's father, A---- G----, was originally admitted to the United States at New York, N.Y., on November 18, 1923. At the time of his entry, he was accompanied by subject's mother, and was admitted in transit. The manifest record discloses that head tax was assessed on deposit, that no proof of departure was submitted and that head tax was authorized transferred to the Treasury on April 19, 1924. On February 11, 1924, the father was again admitted to the United States at New York, N.Y., under exemption 9 and was accompanied at that time by subject and subject's brother J---- G---- G----. The record does not disclose when the father left the United States after his entry in 1923. The record of admission of subject on February 11, 1924, shows that she was accompanied by her father and her brother and was destined to her mother in the United States, that no head tax was paid inasmuch as subject was under 16 years of age and that subject was admitted under exemption 9.
Section 2 (d) of the act approved May 19, 1921, as amended, which was in effect at the time of the father's admission to the United States on November 18, 1923, and February 11, 1924, and at the time of subject's admission on February 11, 1924, provided that aliens returning from a temporary visit abroad, if otherwise admissible, might have been admitted after the monthly or annual quotas were exhausted (this section is known as exemption 9). However, neither subject's father nor subject were entitled to admission under this section inasmuch as they were not aliens returning from temporary visits abroad. Section 110.37 (b) title 8, C.F.R., provides a method whereby certain persons admitted for a temporary visit prior to July 1, 1924, may be regarded as having been admitted for permanent residence. However, the record of admission may not be amended under the general administrative procedure of amending records of entry, where the Service records disclose that the quota for the country from which the aliens came has been exhausted (A-2477430. L---- A---- H----, Dec. 6, 1948). The quota for Germany, the country of birth of subject and of father, for the fiscal year of 1924 was exhausted on January 29, 1924.
Accordingly, subject's record of admission cannot be amended under the administrative procedure as prescribed by 8 C.F.R. 110.37 (b).
Section 14 of the Immigration Act of 1924 contains a proviso that:
* * * The Attorney General may, under such conditions and restrictions, as to support and care as he may deem necessary, permit permanently to remain in the United States, any alien who, when under 16 years of age, was heretofore temporarily admitted to the United States and who is now within the United States and either of whose parents is a citizen of the United States.
The discretionary power to exercise section 14 has been delegated by the Attorney General to the Commissioner of Immigration and Naturalization by notice 1.42 (j). Such discretionary power was exercised in the case of A---- J---- M---- (A-94433, Nov. 27, 1943) in which case the facts were similar to those in subject's case.
Subject's case falls directly within the conditions of this proviso. The facts in the case are such as to call for the exercise of the discretionary powers delegated to the Commissioner of Immigration and Naturalization. Accordingly, the record of subject's admission should be amended to show that she was lawfully admitted to the United States for permanent residence at New York on February 11, 1924.
Thereupon, subject, having been lawfully admitted to the United States for permanent residence on February 11, 1924, derived citizenship of the United States on June 25, 1936, through the resumption of citizenship by her mother, A---- G---- on June 25, 1936, subject being then a minor and having resided permanently in the United States since her lawful admission on February 11, 1924, at which time she had not reached her sixteenth birthday, her father having died on May 10, 1936.
It is, therefore, concluded that it may be deemed that a certificate of citizenship was properly issued to the subject.
It is ordered, That pursuant to section 14 of the Immigration Act of 1924, subject's record of entry at New York, N.Y., on February 11, 1924, be deemed a lawful entry for permanent residence.
It is further ordered, That the case be considered closed insofar as the institution of cancellation proceedings are concerned.