A-11361319
Decided by Board November 1, 1957
Expatriation — By dual national under section 350 of the 1952 Act — Residence in foreign state — Place of general abode.
(1) A dual national at birth of the United States and Mexico who went to Mexico to reside when he was 21 years of age and purchased land available only to Mexican nationals became expatriated under section 350 of the act upon having resided continuously in Mexico for 3 years subsequent to December 24, 1952.
(2) "Residence" as used in section 350 of the act means place of general abode as defined in section 101 (a) (33) of the act. Since the evidence establishes that Mexico is the place where subject has principally dwelled and where he has had his principal place of abode, his "residence" was in Mexico, despite intervals when he left that country to work and visit in the United States.
EXCLUDABLE:
Act of 1952 — Section 212 (a) (20) ( 8 U.S.C. 1182 (a) (20)) — No immigrant visa.
BEFORE THE BOARD
Discussion: The appellant is a 41-year-old married male. He seeks admission as a United States citizen. It is conceded that at birth on December 16, 1915, appellant became a citizen of both the United States and Mexico. In 1937, when he was about 21 years of age, he went to Mexico to reside. In 1939 he purchased land within 100 miles of the land borders of Mexico. This privilege is available only to Mexican nationals. He has made his home in Mexico since 1937 except for temporary stays in the United States. Before 1953, he entered this country for brief periods. On April 27, 1953, he entered to work and remained in the United States for about 8 months. During this period, as at all other times since 1937, he considered Mexico as his home. His wife and children reside there. He considered his stay in the United States as temporary. After the 8 months, he returned to Mexico and thereafter entered almost monthly to visit a sister in the United States and to work. Just previous to the present application for admission, he had entered the United States about May 1957 and had worked for a 2-week period in this country.
The special inquiry officer found that the appellant had lost United States citizenship under section 350 of the Immigration and Nationality Act ( 8 U.S.C. 1482) because he had sought the benefits of Mexican nationality and had resided in Mexico continuously for at least the 3 years required by the section.
The term "residence" means the place of general abode. The place of general abode means the principal actual dwelling place in fact, without regard to intent. A residence is continuous for the purposes of section 350 where there is a continuity of stay but not necessarily an uninterrupted physical presence in the foreign state (sections 350 and 101 (a) (33), Immigration and Nationality Act; 8 U.S.C. 1482 and 1101 (a) (33)).
We must determine whether the appellant's place of general abode for the 3-year period after December 24, 1952, was in Mexico ( Matter of G---- Q----, A-8949245, Int. Dec. No. 786).
Judicial examination of the term "residence" has not left us with clear-cut rules of interpretation. However, it has been decided that where the person involved customarily lives in a foreign abode and has no actual place of residence in the United States, the person's intent to establish a residence in the United States in the future is not material. His "residence" is in the foreign country where he lives ( Savorgnan v. United States, 338 U.S. 491). It has also been decided that when a person has established that he lives in more than one country, the fact that he considers one place his permanent home in preference to the other place is of importance ( United States v. Karahalias, 205 F. (2d) 331, C.A. 2, 1953; Garlasco v. Dulles, 243 F. (2d) 679, C.A. 2, 1957; Lee You v. Acheson, 109 F. Supp. 98, S.D. Texas; Acheson v. Yee King Gee, 184 F. (2d) 382, C.A. 9, 1950; but see Grauert v. Dulles, 133 F. Supp. 836 , D.C., aff'd without discussion of the point in issue, 239 F. (2d) 60, cert. den. 353 U.S. 917).
The second rule stated appears to apply to the instant case. Appellant customarily dwells in Mexico. Substantial evidence establishes that in Mexico is the place where he principally dwells and it is the place he considers as his principal place of abode. His residence in the United States by contrast is temporary in nature and is considered as such. The appeal must be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.