A-6702996, A-6697067
Decided by Board April 2, 1948
Citizenship — Child born abroad to citizen father (1912) — Acquisition by child abroad under R.S. 1993 — Residence requirement as to father prior to birth of child — Effect of residence by father in Hawaii before it became part of the United States.
The father was born in Hawaii in 1893 (prior to its annexation), resided there until 1897 when his parents took him to China, where he married and had a child born to him in 1912 in China; this father acquired United States citizenship under section 4 of the act of April 30, 1900, which conferred United States citizenship on citizens of the Republic of Hawaii. This child acquired United States citizenship under the provisions of Revised Statutes 1993, since the father's residence in Hawaii (from 1893 to 1897) before the birth of the child, was regarded as "residence in the United States" (which is required. See Weedin v. Chin Bow, 274 U.S. 657), within the meaning of Revised Statutes 1993.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Executive Order 8766 — No passport.
BEFORE THE BOARD
Discussion: Appellants are mother and son, 34 and 15 years old, respectively, both natives of China. They seek admission on the basis of their relationship to C---- H---- S----, whom they claim to be a citizen of the United States. Appellant C---- T---- P---- is the son of S----, and he asserts that he acquired United States citizenship at birth under Revised Statutes 1993. Appellant L---- G---- J---- is the wife of S----, and she seeks admission as the wife of an honorably discharged veteran of World War II, pursuant to Public Law 271, act of December 28, 1945. The Board of Special Inquiry conceded the claimed relationship to S---- and, therefore, the case turns on whether S---- is a citizen of this country.
S----'s citizenship depends, in turn, on the citizenship status of his father, C---- K---- C----. C---- was born in Hawaii in October 1893 and his parents took him to China in 1897. He married there and S---- was born in China in October 1912. In March 1913 C---- was admitted to Hawaii as a citizen of the United States. Later in the same year he was admitted at San Francisco as a citizen, and he has resided here ever since. C---- acquired United States citizenship by virtue of section 4 of the act of April 30, 1900, which conferred United States citizenship on citizens of the Republic of Hawaii.
3 Hackworth, Digest of International Law (1942) 119; 23 Op. Atty. Gen. 345 (1901); Cf. Leong Kwai Yin v. United States, 31 F. (2d) 738 (C.C.A. 9th, 1929); Wong Foong v. United States, 69 F. (2d) 681 (C.C.A. 9th, 1934).
S---- arrived at San Francisco in 1925 and he sought admission as a citizen of the United States. A Board of Special Inquiry excluded him on the ground that the evidence did not establish his relationship to C----. On review, however, the Department ordered that he be admitted as a citizen. The immigration authorities also recognized S----'s claim to United States citizenship in February 1931, when they issued him a citizen's return certificate on his departure to China. He returned from China in March 1933. Thus on three occasions the immigration authorities have found that S---- was a citizen of this country. S---- served honorably in the United States Army between November 1942 and December 1945. Had a question arisen concerning his citizenship status during this period, he could have been naturalized pursuant to section 701 of the Nationality Act of 1940, as amended, which has now expired.
The record shows that S---- was regarded as having acquired citizenship at birth, under R.S. 1993.
Counsel contends: (1) that S---- acquired citizenship by virtue of Revised Statutes 1993, and (2) that if he did not, he derived citizenship from C----, when he came to the United States for permanent residence in 1925, under Revised Statutes 2172 and section 5 of the act of March 2, 1907.
S---- could not have acquired citizenship by Revised Statutes 1993 unless his father had "resided in the United States" prior to the birth of S----. Weedin v. Chin Bow, 274 U.S. 657. The Central Office rules that C---- did not begin to reside in the United States until many years after the birth of S---- and, therefore, concludes that Revised Statutes 1993 did not vest citizenship in S----. With this we disagree. We believe that C----'s residence in Hawaii from 1893 to 1897 satisfied the residence requirements of Revised Statutes 1993, although the United States did not annex Hawaii until August 1898 and although Hawaii was not incorporated as a Territory until April 1900. Section 100 of the act of April 30, 1900, provided:
That for the purpose of naturalization under the laws of the United States, residence in the Hawaiian Islands prior to the taking effect of this act shall be deemed equivalent to residence in the United States and in the Territory of Hawaii. * * *
Thus, for purposes of naturalization, residence in the Hawaiian Islands prior to the 1900 statute was made equivalent to residence in the United States. Revised Statutes 1993 was also a naturalization statute. It was enacted pursuant to the power conferred on Congress by the Constitution, article I, section 8, "to establish an uniform rule of naturalization." See Minor v. Happersett, 88 U.S. 162, 168 (1874); United States v. Wong Kim Ark, 169 U.S. 649, 672, 702 (1898). Section 100 of the 1900 act made residence in Hawaii prior to 1900 equivalent to residence in the United States for purposes of judicial naturalization. We think that such residence should be regarded as residence in the United States within the meaning of Revised Statutes 1993, which, as we have seen, is a naturalization statute.
See United States v. Dang Mew Wan, 88 F. (2d) 88, 89 (C.C.A. 9th, 1937); 3 Hackworth, supra, note 1, 121.
The following appears in 3 Hackworth, supra, note 1, 21:
Residence in the United States within the meaning of section 1993 of the Revised Statutes was generally construed by the Department of State as not including residence in the unincorporated territories and possessions.
We find, therefore, that S---- acquired citizenship at birth under Revised Statutes 1993. It is unnecessary to consider counsel's alternative suggestion. It follows that appellant C---- T---- P----, who was born in 1932, acquired citizenship by Revised Statutes 1993. S----'s wife is admissible under Public Law 271.
Appellants were paroled into the United States pending adjustment of their status.
Order: It is ordered that the parole of the appellants be approved.
It is further ordered that the appeal of both appellants from the excluding decision be sustained.
It is further ordered that appellant C---- T---- P---- be admitted to the United States as a citizen.
It is further ordered that appellant L---- G---- J---- be admitted as the wife of a citizen, pursuant to Public Law 271, act of December 28, 1945.
* * * * * * * However, in the case of D---- de A---- the Department held that residence in Puerto Rico constituted a sufficient compliance with section 1993 as amended by section 1 of the act of May 24, 1934 ( 48 Stat. 797; 8 U.S.C. § 6). Memorandum of the office of the legal adviser, June 4, 1937, MS. Department of State, file 130 A----. S---- O. de H---- de.
We think the foregoing is not inconsistent with the conclusion we have reached.