1300-122155
Decided by Board April 29, 1952 Decided by Attorney General June 11, 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.
(1) A child who acquires United States citizenship by birth abroad on September 12, 1935, to a 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, is subject to the provisions found in section 201 (g) and (h) of the Nationality Act of 1940, relating to retention of citizenship. As a general rule, if such child does not return to the United States by the time he reaches the age of 16, so that it becomes impossible for him to complete 5 years' residence in the United States before reaching the age of 21 years, he becomes divested of his American citizenship.
(2) However, when the individual's failure to comply with the provisions of section 201 (g) and (h) of the Nationality Act of 1940, was not the result of his own inaction or lack of diligence, he will not be held to have lost his American citizenship. When a showing is made that the individual has acted diligently in his efforts to reach the United States before he attained the age of 16 years and that his inability to arrive prior to that date was due to the failure of a consular officer to provide timely documentation (United States passport), the individual is not regarded as having been divested of his United States citizenship under the pertinent provisions of the Nationality Act.
BEFORE THE BOARD
(April 29, 1952)
Discussion: This is an appeal from an order entered by the Acting Assistant Commissioner on December 13, 1951, affirming the appellant's exclusion on the above-stated grounds and paroling him into the United States for a period of 90 days to permit him to adjust his immigration status. Counsel in his exceptions to the order relies upon two recent decisions of the United States District Court of the Ninth Circuit which hold that where the delay in entering the United States was due to reasons beyond the control of the applicant, expatriation under section 201 (g) and (h) of the Nationality Act of 1940 ( 8 U.S.C. 601 (g) and (h)) does not follow. Counsel moves for a review of a ruling by the Attorney General which is consistent with the action taken by the Acting Assistant Commisioner but contra to the interpretation of the foregoing sections of the Nationality Act of 1940 by the District Courts of the Ninth Circuit.
Lee Bang Hong aka Bung Hong Lee by Lee Chin Fat, his natural guardian, Plaintiff v. Dean Acheson, Secretary of State, Defendant, Civil Action No. 1052, U.S.D.C., District of Hawaii; complaint filed under sec. 503, Nationality Act of 1940 (8 U.S.C. 903); judgment for the plaintiff November 29, 1951; Hong Yick Foo and Hong Yick Ming, Plaintiffs v. Dean Acheson, Secretary of State, Defendant, Civil Action No. 29428, U.S.D.C., N.D. Calif., Southern Div., October 12, 1951; complaint filed pursuant to sec. 503, Nationality Act of 1940 (8 U.S.C. 903); judgment for the plaintiff October 12, 1951.
Matter of L---- W---- Y----, A-7821371, decided by the Acting Attorney General March 23, 1951, Interim Decision No. 242.
The facts of the case are fully stated in the opinions below. Briefly they relate to a native of China who alleges birth on September 12, 1935, of an alien mother and a United States citizen father, L---- W---- J----. There is an affirmative showing that the citizen father was in China for the period necessary for paternity of the appellant (January 1931-May 1937). The appellant seeks to enter as a derivative citizen under the provisions of section 1993 of the Revised Statutes, as amended by the act of May 24, 1934. A pre-ponderance of the evidence favors the claimed relationship. The only issue presented is whether the appellant is entitled to enter as a citizen in view of the provisions found in section 201 (g) and (h) of the Nationality Act of 1940 respecting retention of citizenship.
Sec. 201 (g) of the Nationality Act of 1940 provides:
"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 outlying possessions before reaching the age at 21 years, his American citizenship shall thereupon cease."
There is a showing of record that the appellant departed from Hong Kong on September 12, 1951, on a Philippine Airlines plane destined for San Francisco and first reached United States territory when the plane arrived at Guam on September 13, 1951, at 1:41 a.m. local time. If the appellant had arrived in the United States or any of its possessions prior to 12:01 a.m. on September 12, 1951, he would have "taken up residence" by the time he reached the age of 16 years within the meaning of section 201(g) ( supra, footnote 3). There is an affirmative showing that the delay in the appellant's arrival appears to have been due in large measure to a factor over which he had little or no control; namely, the failure of the American consul at Hong Kong to provide timely documentation. There is also a showing that the appellant was diligent in his attempts to protect his United States citizenship.
The foregoing facts are identical to those presented in Matter of L---- W---- Y---- ( supra, footnote 2). L---- W---- Y---- claimed birth in China on June 13, 1934. He departed from Hong Kong via airplane for the United States on June 13, 1950, at 4:40 p.m. and arrived at Guam the following day, June 14, 1950, at 9:21 a.m. local time. As in the instant case, there was an affirmative showing that L---- W---- Y---- had been diligent in his attempts to protect his United States citizenship, but delay in documentation by the American consul had prevented his arriving in the United States by the time he became 16 years of age.
This Board, in deciding the issue of "taking up residence" in L---- W---- Y----'s favor relied on a series of cases which arose from the operation of sections 404 and 409 of the Nationality Act of 1940. The precedent opinion in this series of cases (approved by the Attorney General) holds that a naturalized citizen did not expatriate himself under section 404(b) of the 1940 act if, on or before October 14, 1946, he had completed all arrangements to return to the United States, but his return was delayed by reason of factors over which he had no control, such as transportation difficulties or delayed documentation due to understaffing of consulate offices abroad and the heavy workload of those offices. The Attorney General, notwithstanding his approval of the theory advanced in construing sections 404 and 409 of the Nationality Act, reversed our order admitting L---- W---- Y---- as a citizen, but assigned no reason therefor. He did, however, direct that L---- W---- Y---- be paroled into the United States for a period of 90 days to permit him to adjust his immigration status by applying for suspension of deportation.
Secs. 404 and 409 of the Nationality Act provide, inter alia, that a naturalized citizen of the United States shall lose his United States nationality if, prior to October 14, 1946, he completed 2, 3 or 5 years' residence in the territory of a foreign state, the length of time depending on circumstances set forth in the statute and not applicable here.
Matter of V----, A-6501663, B.I.A. February 28, 1947 (approved by A.G. May 14, 1947), 2 IN Dec. 816; and Matter of C----, 2 IN Dec. 889.
The cases before the United States District Courts of Hawaii and the Northern District of California (see footnote 1), relied upon by counsel, present the same issues of fact and law considered by this Board in the L---- W---- Y---- case ( supra). The petitioners filed the actions pursuant to 8 U.S.C. 903 (sec. 503 of the Nationality Act of 1940), seeking a judgment declaring them to be citizens of the United States. The courts in both instances found, inter alia, that the plaintiffs had acted diligently in their efforts to reach the United States before they attained the age of 16 years and that their failure to arrive prior to their 16th birthday was the result of factors beyond their control, to wit: the failure of the American Consulate-General to provide timely documentation, and that for this reason the plaintiffs were prevented from exercising their claimed United States citizenship prior to their 16th birthday. The courts concluded as a matter of law that the plaintiffs acquired United States citizenship at birth under section 1993 of the Revised Statutes, as amended by the act of May 24, 1934, by reason of fact that they were the foreign-born blood sons of a United States citizen who had resided in the United States prior to their birth and that each of the plaintiffs were entitled to have their nationality confirmed by an appropriate decree of the court pursuant to the provisions of section 503 of the Nationality Act of 1940 since their failure to take up residence in the United States on or before their 16th birthday was caused by the failure of the American consulate general at Hong Kong to timely process their applications.
It is alleged by counsel that the two district court cases referred to above were submitted to the Department of Justice by the local United States attorney on the question of whether an appeal should be taken to the 9th Circuit Court of Appeals. It is a matter of record that in both cases no appeal was taken and the time for appeal has expired. Counsel argues that assuming the question of law involved received the attention of the proper officials of the Department of Justice, it must have been decided by them that the district courts were correct in their interpretation of the law since no appeal was taken. A fortiori, according to counsel, this creates the anomalous situation of the Department's having approved the court's interpretation of the question of law here involved notwithstanding the fact that this same question of law, when considered by the Acting Attorney General in the L---- W---- Y---- case, received a contra interpretation administratively. Counsel submits that this presents a problem which again should be reviewed by the Attorney General.
We agree with counsel that the cases before the district court of the 9th Circuit, the L---- W---- Y---- case ( supra), and the case before us, all present the same issues of law and fact. We also agree with counsel that the district court's findings and conclusions with regard to these issues are consistent with those advanced by this Board in our opinion of January 11, 1951, in the L---- W---- Y---- case ( supra). Notwithstanding these facts, however, we feel that we, as an administrative body, are bound by the Acting Attorney General's ruling of March 23, 1951. Accordingly, we find that the appellant did not take up residence in the United States by the time he reached the age of 16 years, as required by section 201 (g) of the Nationality Act of 1940, and therefore is an alien subject to exclusion on the grounds stated in the caption above. Since it appears that a conflict of policy may be involved, we will certify the case to the Attorney General for a review of our decision. An order will be entered accordingly.
Order: It is directed that the appeal be and the same is hereby dismissed, the appellant to be paroled into the United States pursuant to the order entered by the Acting Assistant Commissioner on December 13, 1951.
As a question of policy is involved in this case, the Board certifies its decision and order to the Attorney General for review pursuant to the provisions of Title 8, Code of Federal Regulations, section 90.12.
I am unable to agree with the decision of the Board of Immigration Appeals of April 29, 1952, in the above-captioned matter. Applicant's failure to comply with the provisions of section 201 (g) and (h) of the Nationality Act of 1940 was not the result of his own inaction or lack of diligence and should not divest him of his United States citizenship. Order: The decision of the Board of Immigration Appeals dated April 29, 1952, is hereby disapproved and the applicant is found admissible to the United States as a citizen.
Lee Bang Hong aka Bung Hong Lee by Lee Chin Fat, his natural guardian, Plaintiff v. Dean Acheson, Secretary of State, Defendant, Civil Action No. 1052, U.S.D.C., Dist. of Hawaii; complaint filed under sec. 503, Nationality Act of 1940 (8 U.S.C. 903); judgment for the plaintiff November 29, 1951. Hong Yick Foo and Hong Yick Ming, Plaintiffs v. Dean Acheson, Secretary of State, Defendant, Civil Action No. 29428, U.S.D.C., N.D. Calif. Southern Div.; complaint filed pursuant to sec. 503, Nationality Act of 1940 (8 U.S.C. 903); judgment for the plaintiff October 12, 1951.