56254/635.
VP-393375
Decided by Central Office July 17, 1951
Citizenship — Child born abroad (1948) of alien mother and United States citizen father — Prerequisite of father's residence in the United States before birth of child for acquisition of citizenship by child under section 201 (g) and (i) of the Nationality Act of 1940, as amended — Meaning of "residence" under section 104 of that act, as amended. (See Interim Decision #78, 3 IN Dec. 652)
The United States citizen father was physically absent from the United States for 19 years (not absent for a short period as in Acheson v. Yee King Gee, 184 F. (2d) 382), and (though under the circumstances he may have a substantial claim as to domicile here) did not fulfill the residential requirements of section 201 (g) and (i) of the Nationality Act of 1940, as amended, as defined in section 104 of that act, as amended, so that a child born to him in the Belgian Congo of an alien wife in 1948 did not acquire United States citizenship at birth under section 201 (g) or (i) ( supra).
BEFORE THE CENTRAL OFFICE
Discussion: On November 7, 1950, subject's application for a certificate of citizenship under section 339 of the Nationality Act of 1940, as amended, was denied by the Commissioner. The denial was based upon the fact that the subject's United States citizen parent, his father, did not fulfill the mandatory residential requirements of section 201 of the Nationality Act of 1940, as amended, specifically sections 201 (g) and 201 (i), and accordingly, it was held that the subject could not be regarded as a citizen of the United States.
Subject's counsel requests reconsideration of said denial on the ground that the subject's father meets the 10-year residence in the United States requirements of sections 201 (g) and (i). Counsel has submitted a memorandum of law and has also directed the attention of the Service to the case of Acheson v. Yee King Gee ( 184 F. (2d) 382), decided by the United States Court of Appeals, Ninth Circuit. With reference to that case, counsel contends that since the holding of that case is that the word "residence" as used in section 201 (g) does not require physical presence, that obviously the word "residence" must be construed to mean domicile as it is understood in the law; that at all times the domicile of the subject's father during the father's minority was the domicile of N---- B----, the father of the subject's father, or the subject's grandfather; that since the grandfather was in Turkey during the father's minority as an employee of the Socony-Vacuum Oil Co., an American firm, the subject's grandfather's domicile and residence within the meaning of the Nationality Act was at all times in the United States, and therefore, it follows that the subject's father's residence was in the United States and accordingly the statutory residence requirements of section 201 had been complied with prior to the subject's birth.
The questions presented are (1) whether the subject acquired United States citizenship at birth pursuant to the provisions of section 201 of the Nationality Act of 1940, as amended, and (2) whether the residence of subject's father in Turkey, with subject's grandfather, during minority, was residence in the United States within the meaning of that section, and specifically 201 (g) and (i).
The record shows that the subject's grandfather, N---- E---- B----, entered the United States in November 1907 and was naturalized as a United States citizen in September 1915. He departed from the United States in February 1919 and returned to the United States in May 1922. He was married to G---- A---- and on October 16, 1922, the subject's father, E---- B----, was born in New York, N.Y. The subject's father then resided in New York until November 1925, when the family went to Turkey. The subject's grandfather returned to the United States for a short period from June 1926 to November 1926 and then returned to Turkey where he remained until November 1945, when he returned to the United States for permanent residence again. During the period from December 22, 1929, until October 1, 1945, the grandfather was continuously employed by Socony-Vacuum Oil Co., an American corporation, said employment being continuously in Turkey where he resided with his family, including the subject's father. The subject's father resided continuously with the grandfather in Turkey until May 1944 when the subject's father returned to the United States, at which time he was under 22 years of age. While in Turkey, the subject's father worked from 1941 to 1942 with the United States military attaché in Ankara and from 1942 until 1944 with the Office of War Information in Istanbul. After the father's return to the United States he served in the United States Army from December 1, 1944 until November 18, 1946 when he was honorably discharged. He then went to work for the Texas Petroleum Co., an American corporation, and in 1947 left for the Belgian Congo where he married the subject's mother on November 4, 1947. The subject was born on May 18, 1948, in the Belgian Congo and based upon the father's allegation that the father resided in New York from the time of his birth until February 12, 1947, the applicant was included in the father's United States passport as a United States citizen and was admitted to the United States at the port of New York on September 11, 1948, as a United States citizen, being accompanied by his citizen father and his alien mother. Subsequently, the Department of State on March 21, 1949, advised the subject's father that the father did not fulfill the required residence qualifications for passing on American nationality to the subject who was born abroad, by reason of the father's continuous residence in Turkey from 1926 to 1944.
Although the record shows that the subject's father had a total period of residence in the United States of less than 6 years since the time of his birth, less than 3 years of which was after he attained the age of 12 years, counsel contends that subject's father nevertheless fulfilled the residence requirements of section 201 by reason of the fact that the father's presence in Turkey during his minority was not residence outside the United States within the meaning of section 201, as amended, and that the domicile of the grandfather, which was in the United States, by reason of his employment abroad in behalf of an American firm or corporation engaged in the development of foreign trade and commerce of the United States, should be imputed to the subject's father as residence under said section 201.
There appears to be no basis to dispute the fact that the grandfather's domicile since 1907 was in the United States and that the father's domicile, during the minority of the father, was that of the grandfather's, and accordingly was also in the United States. There is no disagreement with the matters set forth in counsel's memorandum insofar as they deal with the question of domicile and residence generally, but there is disagreement with counsel's conclusion that the subject's father did meet the residence requirements of section 201 (g) or (i) in view of the specific and special restricted meaning of that residence as defined by Congress in section 104 of the Nationality Act of 1940.
It appears that the only question in issue is where was the place of general abode of the grandfather and father, for section 104 of the Nationality Act provides that for the purpose of section 201 of that act, the place of general abode shall be deemed the place of residence. The regulations in connection therewith in part 301.8 of title 8 of the Code of Federal Regulations state that for the purpose of section 201 the place of a person's general abode shall be deemed the place of his residence, and that, the place of general abode of a person is his principal dwelling place.
It is well settled that an infant, being non sui generis, cannot fix his own domicile but acquires and keeps during his minority the domicile of his father ( Lamar v. Micou, 112 U.S. 452). In this case it is clear that the subject's father was not domiciled in a foreign country but was domiciled in the United States, throughout the period of his absence. Domicile, however, is not decisive of the question of residence as defined by section 104 of the Nationality Act of 1940.
Residence is a term of broad content, having no exact legal meaning, and sometimes when used in a statute or constitution means a domicile and involves physical presence in a place without requiring intent to make it one's home, which is involved in the domicile concept ( U.S. v. Stabler, 169 F. (2d) 995). Domicile is not decisive of residence which has varying meanings that must be understood in connection with the context of statute and legislative purpose ( Downs v. Collector of Internal Revenue, 166 F. (2d) 504).
In addition to the aforesaid definition of residence for the purposes of the Nationality Act of 1940 as to certain sections of that act including section 201, a further expression of the legislative intent, with reference to section 201 appears in the explanatory comment to this section in the report of the joint committee, when said act was proposed.
In the commentary to subsection (c) of section 201 the following was stated:
In normal times, with increased facilities of transportation, the numbers of persons sojourning or residing temporarily in states of which they are not nationals is likely to increase. Even now there are large numbers of Americans who reside abroad, not merely for pleasure or because they have a preference for life in foreign countries, but because they are engaged in promoting American interest, commercial or other. In the great majority of these cases husband and wife are both citizens of the United States. In such cases it is altogether likely that the children will be taught to speak the English language from infancy and will be so brought up that they will be truly American in character. This is likely to be the case where both parents are citizens of the United States even though neither one resides abroad for the purpose of promoting American interests. It seems reasonable and expedient that citizenship in all such cases should be conferred upon the children at birth, without any condition except that one of the two citizen parents must have resided in the United States prior to the child's birth. The latter condition is similar to that which appeared in the old law, and it has never met with serious objection, since it is so patently reasonable. Its retention in subsection (c) hereof seems quite desirable, since it would not be a wise policy to extend citizenship indefinitely to generations of persons born and residing in foreign countries. The case of a child born abroad to parents of whom only one is a citizen of the United States, the other being an alien presents greater difficulties and requires correspondingly stricter limitations.
In the commentary to subsection (g) the committee pointed out as follows:
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 citzenship 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 ten 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. On the other hand, it seems desirable that the requirements in the 1st proviso to the effect that the foreign-born child, in order to retain citizenship, must reside in the United States 5 years between the ages of 13 and 21 years and take an oath of allegiance to the United States within 6 months after his 21st birthday should not be applied to one whose citizen parent resides abroad to represent the Government of the United States, an American organization belonging to one of the categories specified in the 2d proviso or an international agency of an official character in which the United States participates. In general, citizens of the United States residing abroad for the purpose just mentioned not only promote the interest of this country but are likely to retain their American sympathies and character. Therefore, such persons are likely, as a rule, to bring up their children as Americans, to see that they speak the English language and to have them imbued with American ideals. The probabilities however, would seem to be otherwise where the citizen parent who is married to an alien resides abroad for reasons having no connection with the promotion of American interests.
It is evident that Congress intended to make certain concessions insofar as the retention of citizenship under section 201 (g) is concerned and at the same time intended to restrict the passing on of American citizenship from parent to child by requiring the child's parent to have at least ten years residence in the United States before the child's birth. Congress has stated it would not be a wise policy to extend citizenship indefinitely to generations of persons born and residing in foreign countries. The requirement of the citizen parent having at least 10 years residence in the United States prior to the child's birth effectively accomplishes this congressional purpose. It also appears obvious that Congress, in speaking of residence after the age of 12 years and after the age of 16 years, as provided in sections 201 (g) and 201 (i) of the Nationality Act of 1940, respectively, intended that a person who had not attained the age of 21 years, should nevertheless be regarded as having a place of residence of his own for the purpose of passing on citizenship to his children. There is nothing in the statute from which it can be inferred that the actual residence of a parent can be imputed to a child like domicile within the contemplation of sections 201 and 104 of the Nationality Act of 1940, as amended.
Sec. 104 ( supra), defining "residence" for the purpose of sec. 201 ( supra), was considered in Matter of L---- W---- Y----, A-7821371, Acting Attorney General, March 23, 1951, Int. Dec. 242. The term "residence," as so defined, denotes an objective fact. See Savorgnan v. United States, 338 U.S. 491.
This Service, in a similar case to the instant case, Matter of D----, 56250/344, C.O., June 29, 1949 (Int. Dec. #78, 3 IN Dec. 652), concluded that the subject thereof was not a citizen of the United States. It was held in that case that a child born in Egypt on March 24, 1946, to a native-born citizen father (the mother being an alien) who presumably served honorably in the armed forces of the United States from February 24, 1943, until January 17, 1946, did not acquire United States citizenship at birth under either section 201 (g) or (i) of the Nationality Act of 1940, as amended, inasmuch as the citizen father who was born here in September 28, 1922, was not considered, under the circumstances, to have resided (constructively) in the United States during the time he was abroad (from September 1931 until June 1946) within the meaning of section 104 of the above act and 8 C.F.R. 301.8, although he may have kept his domicile here (where his father lived) throughout the period of his absence, and although his absence from the United States may have been temporary. It was concluded in that case that it could not be implied that the father's residence abroad from 1931 to 1946 was residence in the United States; that during his absence from the United States, he had his place of general abode and his principal dwelling place abroad, where he actually lived for 15 years; and that under the circumstances, his sojourn abroad, although temporary in character, could not be considered as constructive residence in the United States for the purpose of section 201 of the Nationality Act of 1940, and accordingly, since the father did not fulfill the residence requirements of section 201 of the Nationality Act of 1940, the subject, his child, could not be regarded as a citizen of the United States.
The case of Acheson v. Yee King Gee ( supra), (United States Court of Appeals, Ninth Circuit, October 4, 1950), concerned itself with a suit under section 503 of the Nationality Act of 1940 for a declaratory judgment as to the citizenship of the minor child, and section 201 (g) was directly in issue. The facts in that case disclose that the child was born in China on March 16, 1941; his father was born in China but was a citizen through his own father, the child's grandfather, who was a citizen; the child's father arrived in the United States on August 6, 1929, at the age of 17, and was admitted as a United States citizen; between 1929 and the date of the child's birth the father made two visits to China, the first in 1936 at which time he was married and remained in China for a few days less than 2 years and the second in 1940 to 1941 during which time the child was born. Leaving out of account the period covered by the father's absence in China, he was physically present in the United States but 8 years and 4 months prior to the child's birth. The American consul therefore refused to recognize the claim to citizenship under section 201 (g) of the Nationality Act of 1940 on the ground that the child's father had not resided in the United States for the required 10 years prior to the child's birth. The court held that the term "residence" as used in section 201 (g) is entitled to a broad and liberal construction. It stated that "significantly" it is not qualified by the words "actual" or "continuous." It implies no requirement of physical presence. Moreover, section 104 of the act provides that for the purpose of certain designated sections, including 201, "the place of general abode shall be deemed the place of residence." The court found on persuasive evidence that the father's two visits to China were for the purpose of visiting his relatives and for no other reasons; that he had no intention of abandoning his residence in the United States, and that in fact he had resided here since his arrival in August 1929, hence had been a resident of this country for nearly 12 years prior to the date of the child's birth. The court found that the child was, therefore, a citizen of the United States under section 201 (g).
The decision of the Court of Appeals in Yee King Gee ( supra), is not in conflict with Interim Decision 78 ( supra). Undoubtedly, the court found that the father's residence was in the United States for 10 years because his place of general abode was in the United States since 1929, even though he had been temporarily absent therefrom on two occasions, the greater absence being less than 2 years. The facts in the instant case are not similar to that case in that the place of general abode of both the grandfather and the father without question was in Turkey from 1925 to 1944. The period of absence in the instant case was over 19 years. These two cases clearly are distinguishable and are not in conflict.
In view of the foregoing, since the subject's United States citizen parent did not fulfill the mandatory residential requirements of section 201 of the Nationality Act of 1940, as amended, and as defined by section 104 of said act, the subject may not be regarded as a citizen of the United States. The prior order of denial is hereby affirmed.
The following cases are cited in further support of the conclusion that the residence requirement under section 201 as defined by section 104 is not synonymous with domicile. In the case of Dorsey v. Brigham, 52 N.E. 303, 177 Ill. 250; 42 L.R.A. 809, 69 Am. St. Rep. 228, it was held that an "abode" is the place where a person dwells. In the case of Berryhill v. Sepp, 119 N.W. 404, 106 Minn. 458, 21 L.R.A., N.S. 344 it was held that in its relation to the question of whether a summons has been left at the house of usual abode of the defendant, the term "abode" means one's fixed place of residence for the time being and may be synonymous with "residence." But ordinarily "usual place of abode" is a much more restricted term than "residence" and means the place where the defendant is actually living at the time when service is made. Service at the dwelling house of the defendant which is not described as his usual place of abode, is not sufficient. The purpose of the use of the term in an act relating to the service of process has primary reference to the place where the defendant is usually to be found. Therefore, "usual place of abode" means "present place of abode." As defined in this State, the term means the customary or settled place of residence. In the case of a married man the "house of usual abode" is prima facie the house wherein his wife and family reside. In the case of Yerkes v. Stetson, 61 A. 113, 211 Pa. 556, it was held that a person has his "dwelling" where he resides permanently or from which he has no present intention to remove. Under act of July 1, 1901, authorizing a summons to be served by handing a copy to a member of the defendant's family at his "dwelling" house, the service was good though the "dwelling" house was that of the father of the defendant.
In the case of Sanders v. Dixon, 89 S.W. 577, 114 No. App. 229, it was held that the word "dwelling" is one of multiple meanings, but the particular meaning intended to be expressed by it when used in a given instance may be rendered obvious by the context or attendant circumstances, and usually resort must be had to those aids to interpretation to ascertain what is meant. In its broadest sense the word denotes a building as a settled human abode and in common parlance, when not qualified conveys the notion of a home, though a suite of rooms occupied by one man may be his dwelling house. In the case of Douglas v. Queeny, 167 A. 453, 109 Pa. Super. Ct. 336 it was held that a person has his dwelling where he resides permanently or from which he has no present intention to remove, and in its broadest significance the word "dwelling" denotes a building used as a settled human abode, and in common parlance, when not qualified conveys the notion of a home.
In the case of Inhabitants of Jefferson v. Inhabitants of Washington, 19 Me. (1 App.) 293, it was held that a "dwelling" means some permanent abode or residence where the person residing intends to remain, and is not synonymous with "domicile" as used in international law, but has a more restricted meaning. In the Restatement, Conflict of Laws, section 13b, it is stated that the word "dwelling place" is used as the most colorless word that can be employed; a word which has no legal connotation, and is not-confined to any physical sort of living quarters. The dwelling place may be fixed in a single room, or apartment or in a house or other building; or it may be no more definitely fixed than in a city, county or state. Thus, if a man's dwelling place has been in a house, but the house has been burned, he may still have a dwelling in the city in which the house stood.
In the case of Kelty v. Burgess, 115 P. 583, 84 Kan. 678, the word "principal" means main, chief, leading, highest in value, character or importance, most considerable or important. In the case of Chicago and A.R.O. v. House, 71 Ill. App. 147, it was held that "usual" is defined to be frequent, ordinary, customary, general, often or regular. In the case of Dorus v. Lyon, 101 A. 490, 92 Conn. 55, it was held that a house where a resident of Connecticut habitually spends 3 days of the week for 14 years, except when away on trips and vacations, is his usual place of abode for the purpose of serving process upon him.
In the case of Savorgnan v. United States, 338 U.S. 491, the Supreme Court had occasion to consider the definition in section 104 ( supra), in its relationship to section 403 (a) of the Nationality Act of 1940. The Court stated:
Section 403 (a) and 104 used the terms "residence" and "place of general abode" without mention of the intent of the persons concerned. The Act cleared up the uncertainties which had been left by early decisions as to the type and amount, if any, of residence abroad that was required to establish expatriation. In contrast to such terms as: "temporary residence," "domicile," "removal, with his family and effects," "absolute removal," or "permanent residence," the new Act used the term "residence" as plainly as possible to denote an objective fact. To identify the required "place of residence," it required only that it be the "place of general abode."
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Under the act of 1940, the issue is not what her intent was on leaving the United States, nor whether at any later time, it was her intent to have a permanent residence abroad or to have a residence in the United States.
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Her intent as to her "domicile" or to her "permanent residence," as distinquished from her actual "residence," "principal dwelling place," and "place of abode," is not material.
In applying the foregoing to the facts in the instant case, there can be but one conclusion and that is, that the subject's father's place of general abode or principal dwelling place between 1925 and 1944 was in Turkey and not in the United States. This conclusion would also apply to the subject's grandfather's place of general abode during the said period.
Accordingly, it is concluded that the subject has failed to establish that his father fulfilled the mandatory residential requirements of section 201 of the Nationality of Act of 1940, as amended, in that his father did not have 10 years residence in the United States prior to the subject's birth. In view thereof, the subject may not be regarded as a citizen of the United States.
Order: It is ordered that the denial of the application of A---- M---- N---- B---- for a certificate of citizenship be and is hereby affirmed.