A-8015838
Decided by Central Office June 25, 1951 Decided by Board August 15, 1951
Citizenship — Acquisition by child born abroad after January 12, 1941, of parents both United States citizens — Section 201 (c) of the Nationality Act of 1940 — Prerequisite of residence in United States or one of its outlying possessions by at least one such parent prior to child's birth — "Residence" — Section 104 of the above act.
A child born in Canada in 1950 of United States citizen parents (who were born in Canada but who acquired United States citizenship through their fathers under R.S. 1993) did not acquire United States citizenship under the provisions of section 201 (c) of the Nationality Act of 1940, because neither parent had "resided," within the meaning of section 104 of that act, in the United States or one of its outlying possessions prior to the child's birth (their temporary visits here before the birth of child did not constitute such "residence").
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No visa. Executive Order 8766 — No passport.
BEFORE THE CENTRAL OFFICE
(June 25, 1951)
Discussion: This record relates to a 9-month-old female child who, with her father, applied at the office of this Service at Winnipeg, Manitoba, Canada, on April 11, 1951, to have her admissibility to the United States as a United States citizen determined. She has been found by a board of special inquiry to be an alien immigrant and inadmissible on the ground stated above. She has appealed.
Due to the infancy of this appellant her father has testified in her behalf. The father has testified that he was born in Canada and that his mother and father were both native born United States citizens. He has presented Form I-448, issued on April 9, 1951, showing that he was found admissible to the United States as a United States citizen. He also states that his father was naturalized in Canada on July 4, 1933, and has presented the naturalization certificate.
The appellant's father has stated that he was married in Canada on February 13, 1949. His wife, the mother of the appellant, has testified that she was born in Canada and that her father and her mother were native-born citizens of the United States. She has presented Form I-448, issued April 9, 1951, showing that she was examined and found admissible to the United States as a United States citizen. The document shows that her father was naturalized in Canada in 1933.
This appellant was born in Canada on June 28, 1950. The facts presented above show that her parents were both United States citizens (sec. 1993 R.S.), at the time of her birth on June 28, 1950. The question under consideration is whether this appellant was a United States citizen at the time of her birth in Canada pursuant to section 201 (c) of the Nationality Act of 1940 which reads:
Section 201. The following shall be nationals and citizens of the United States at birth: * * *
(c) A person born outside of the United States and its outlying possessions of parents both of whom are citizen of the United States and one of whom has resided in the United States or one of its outlying possessions, prior to the birth of such person: * * *.
Section 104 of the Nationality Act of 1940 provides that for the purpose of sections 201, 307 (b), 403, 404, 405, 406, and 407 of said act, the place of general abode shall be deemed the place of residence.
The record clearly establishes that this appellant's parents have never taken up residence in the United States with the intention of residing permanently. They entered this country about April 1949 to work on a farm in South Dakota and remained in this country up to October 1949 except for several trips back to Canada of 1 week each or less during the summer. The father returned in 1950 and worked for 1 week. It appears that the father and mother both entered the United States in April 1951 on two occasions and returned to Canada. In February 1951 there was a drawing of lots in a colony of the Hutterite Farms in the United States and this appellants father, a member of the colony, was chosen to be one of tho persons to go to a new farm in the United States. He and his wife desire to enter the United States for permanent residence and to bring the appellant with them. Each of the appellant's parents has stated that during prior entries to the United States they had no intention of taking up residence here or remaining permanently. In fact, they frequently returned to their home in Canada during the period of their temporary stay in the United States.
It is concluded from the facts presented in this case that this appellant was not a United States citizen at the time of her birth in Canada on June 28, 1950, for the reason that neither of her parents had resided in the United States prior to her birth. Consequently she is an alien, native and citizen of Canada. She desires to enter the United States to reside. She is not in possession of a visa and she does not present a passport or document in lieu thereof. The findings of the board of special inquiry are sustained.
Upon consideration of the entire record, the findings of fact and conclusions of law prepared by a board of special inquiry and served on the appellant on April 16, 1951, are hereby adopted.
Order: It is ordered that the excluding decision of the board of special inquiry be affirmed, without prejudice to reapplication for admission within one year.
Discussion: Upon consideration of the entire record, we agree with the Acting Assistant Commissioner that the applicant is not a citizen of the United States, and we approve her decision which affirms the decision of the board of special inquiry.
We note counsel's statement that he has been advised by the consulate at Winnipeg that the Department of State has upon a similar set of facts declared a person in like circumstances to be a citizen, because of which the consulate refused a visa. Presumably, any such ruling involved section 1993 of the Revised Statutes. The instant case, however, involves sections 201 and 104 of the Nationality Act of 1940. Consideration of the provisions of those sections compels the conclusion that the applicant is not a citizen. No basis is apparent to us for a holding that the applicant is a citizen.
Order: It is ordered that the appeal from the decision of the Acting Assistant Commissioner be and the same is hereby dismissed.