A-2033704
Decided by Central Office June 27, 1951 Decided by Board August 17, 1951
Citizenship — Acquisition by naturalization — Expatriation by residence abroad — Section 404 (b) of the Nationality Act of 1940, as amended.
A native of Newfoundland, naturalized here in 1943, took up residence in Newfoundland in August 1947. She was issued a United States passport at St. Johns, Newfoundland, on December 20, 1948, endorsed to show that it was not valid after August 6, 1950, "the limited period that bearer should be residing outside the United States." She came here in June-July 1950 for the purpose of retaining her citizenship, and returned to Newfoundland after a stay of about 3 weeks here, where she had no home, did not work, and did not reestablish herself. Under the circumstances upon her seeking admission here in May 1951 she was found to have had her principal dwelling place in Newfoundland for at least 3 years, thereby becoming expatriated under the provisions of section 404 (b) of the Nationality Act of 1940, as amended.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Executive Order 8766 — No passport.
Act of 1924 — No visa.
BEFORE THE CENTRAL OFFICE
(June 27, 1951)
Discussion: This record relates to a 58-year-old female who applied to enter the United States as a United States citizen at Vanceboro, Maine, on May 5, 1951, by railway, at which time she was in possession of a Canadian National Railway ticket No. 122755, representing passage from St. Johns, Newfoundland, to Boston, Mass. She was found inadmissible by a Board of Special Inquiry as an alien immigrant on the grounds stated above. She has appealed.
Upon consideration of the entire record, the findings of fact and conclusions of law of the board of special inquiry, read to the applicant on May 7, 1951, are hereby adopted except finding of fact No. 5 which is modified to show "return to Canada on July 12, 1950."
If the appellant is an alien, then the grounds of exclusion are sustained. From the present record it is concluded that the appellant is an alien and therefore subject to exclusion on the grounds above stated.
The subject is a native of Newfoundland who resided in the United States for many years. She was naturalized here on January 11, 1943. She went to Newfoundland (Canada), in August 1947; she remained there at the home willed to the subject appellant, with her mother, until about June 1950. Her United States passport issued on December 20, 1948, at St. Johns, Newfoundland, was endorsed to show that it was not valid after August 6, 1950, "the limited period that bearer should be residing outside the United States."
From the foregoing it appears that when she came to the United States in June 1950 she lacked but two months to complete a 3 years' residence in her native Newfoundland from about August 6, 1947. If she had remained in Newfoundland until August 1950 she would clearly have expatriated herself under the provisions of Section 404 (b) of the Nationality Act of 1940, inasmuch as she does not come within any of the exceptions set forth in sections 405 and 406 of the Nationality Act of 1940.
The record shows that the appellant remained in the United States from about June 19, 1950, to July 12, 1950, and then she returned to Newfoundland where she remained until her present application for admission into the United States at Vanceboro, Maine, on May 5, 1951.
If the evidence of record were found to establish that from June 19 to July 12, 1950, the appellant had actually resettled in the United States, then her subsequent absence could be considered as starting a new period of absence from about July 12, 1950, and accordingly, the evidence of record would not sustain a finding that she had expatriated herself by 3 years' residence in her native Newfoundland from August 6, 1947.
The evidence of record indicates that upon the advice of her sister and in view of the information on her United States passport, that she might lose her citizenship if she did not return to the United States before August 6, 1950, she returned to the United States in June 1950 for the sole reason to retain her United States citizenship. She was actually in the United States about 3 weeks and the rest of the time was consumed in traveling to and from Newfoundland. She had her own home in Newfoundland; she does not have a home in the United States; she did not work in the United States while here — June — July 1950; she did not reestablish herself in the United States during June — July 1950. It must therefore be concluded that her principal dwelling place since August 1947 was in Newfoundland, and even if the period she was away from Newfoundland in June-July 1950 be not considered in computing 3 years of residence in Newfoundland beginning from August 1947, it would still appear that by at least October 1950 she had completed 3 years of uninterrupted residence in Newfoundland during which period her principal dwelling place was there. Accordingly, it must be concluded that she has expatriated herself under the provisions of section 401 (b) of the Nationality Act of 1940.
Sec. 104 of the Nationality Act of 1940 provides that for certain sections of that act including sec. 404, the place of general abode is to be deemed the place of residence. The principal dwelling place is the place of residence to be considered. See 8 CFR 301.8. It is to be stated that in this definition of residence, no mention is made of intent as to the future place of abode, but rather the actual place of general abode is made the sole test for determining residence under the specified sections covered by sec. 104. As used here, the term "residence" denotes an objective fact. See Savorgnan v. U.S., 338 U.S. 491.
Order: It is ordered that the excluding decision of the board of special inquiry be affirmed without prejudice to reapplication for admission to the United States when in possession of appropriate documents.
Upon consideration of the entire record, it is ordered that the appeal from the decision of the Commissioner be and the same is hereby dismissed.