In the Matter of N---- J---- Q

Board of Immigration AppealsApr 30, 1951
4 I&N Dec. 360 (B.I.A. 1951)

A-7982346

Decided by Central Office April 30, 1951

Citizenship — Acquisition at birth by child born abroad between May 24, 1934, and January 13, 1941 — R.S. 1993, as amended by the act of May 24, 1934 — Retention conditions — Section 201 (g) and (h) of the Nationality Act of 1940 — (See Int. Dec. No. 242).

A child acquired United States citizenship at birth abroad on February 18, 1935, to a native-born United States citizen parent, under R.S. 1993, as amended by the act of May 24, 1934 (the other parent being an alien); and such citizenship status did not cease because he has not taken up residence in the United States by the time he reached the age of 16 years, as required by section 201 (g) and (h) of the Nationality Act of 1940 (the child arriving in the United States, with the intention of residing here permanently, just prior to his 16th birthday, at Shemya, Aleutian Islands, Alaska).

EXCLUDED BY BOARD OF SPECIAL INQUIRY:

Act of 1924 — No Immigration visa.

Executive Order No. 8766 — No passport.

BEFORE THE CENTRAL OFFICE


Discussion: This record relates to a native of China, single, who arrived at the port of New York on February 19, 1951, ex Trans-Canadian plane CF-TFG. He applied for admission as a United States citizen. He was held for a Board of Special Inquiry which found that he had ceased to be a citizen by reason of his failure to comply with the requirements of section 201 (g) and (h) of the Nationality Act of 1940. He was thereupon excluded as an alien not in possession of an unexpired immigration visa, and as one who did not present an unexpired passport or official document in the nature thereof. He has appealed from the excluding decision.

The appellant was born on February 18, 1935. His mother is a native and citizen of China. The evidence satisfactorily establishes that his father is a native-born citizen of the United States. Section 201 of the Nationality Act of 1940 provides, in part:

(g) A person born outside the United States and its outlying possessions of parents one of whom is a citizen of the United States, who, prior to the birth of such person, had had 10 years' residence in the United States or one of its outlying possessions, at least 5 of which were after attaining the age of 16 years, the other being an alien: Provided, That in order to retain such citizenship, the child must reside in the United States or its outlying possessions for a period or periods totaling 5 years between the ages of 13 and 21 years: Provided further, That, 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 of 21 years, his American citizenship shall thereupon cease.

* * * * * * *

(h) The foregoing provisions of subsection (g) concerning retention of citizenship shall apply to a child born abroad subsequent to May 24, 1934.

In arriving at the conclusion that the appellant was an alien, the Board pointed out that he had arrived in New York when he was 16 years and 2 days old.

The appellant traveled to the United States by air. During the course of the hearing he testified that he left Hong Kong on February 15, 1951; that he first landed at Okinawa; then at Tokyo; then at someplace whose name he did not know; then at Vancouver where he was examined by United States immigration officers and where he remained for 1 day and 2 nights; and finally at New York. His counsular travel affidavit bears the stamp of this Service showing that primary inspection in his case was deferred at Vancouver, British Columbia, Canada, on February 16, 1951, and that the plane on which he traveled was CPA Flight 306/15 from Hong Kong to Vancouver, British Columbia.

When counsel appeared before the Central Office he presented a letter dated March 20, 1951, signed by J.D. Roach, general agent of the Canadian Pacific Railway; Minneapolis, St. Paul Sault Ste. Marie Railroad; and the Canadian Pacific Airlines, Limited, the pertinent portion of which reads as follows:

The Canadian Pacific Air Lines at Vancouver advise that Flight 306 on which Q---- N---- J---- was a passenger ex Hong Kong February 15 arrived Shemya 5:36 a.m. February 16 and left Shemya 7:57 a.m. the same date, Shemya Local Time. Flight did not stop at Anchorage and arrived Vancouver 8:50 p.m. February 16.

Counsel contends that since Shemya belongs to the United States and as the applicant arrived there prior to his 16th birthday, he did not relinquish under section 201 (g) of the Nationality Act of 1940, the United States citizenship which he acquired at birth under section 1993 of the Revised Statutes, as amended by the act of May 24, 1934.

Section 101 (d) of the Nationality Act of 1940 provides "The term `United States' when used in a geographical sense means the continental United States, Alaska, Hawaii, Puerto Rico, and the Virgin Islands of the United States." Shemya is located in the Aleutian Islands. The Aleutian Islands are included in the territory ceded to the United States by Russia by the treaty of March 30, 1867. 48 U.S.C. 21 (act of August 24, 1912) provides that "The territory ceded to the United States by Russia by the treaty of March 30, 1867, and known as Alaska, shall be and constitute the Territory of Alaska under the laws of the United States, the Government of which shall be organized and administered as provided by said laws." Shemya is, therefore, part of the United States within the meaning of that section.

Section 104 of the Nationality Act of 1940 provides that "For the purposes of sections 201, 307 (b), 403, 404, 405, 406, and 407 of this act, the place of general abode shall be deemed the place of residence."

The appellant has testified that he was coming to this country to reside permanently. As soon as he arrived in the United States with that intention, it immediately became his place of general abode. Thus, if he had landed at New York prior to his 16th birthday, there would be no question that his place of residence had then become the United States and that he had retained his citizenship. Merely because he entered at Shemya and then had to leave the United States for a short period en route to his final destination would not change that fact. We find therefore, that upon his arrival at Shemya on February 16, 1951, which was two days prior to his 16th birthday, he took up his place of residence in the United States. He is, therefore, a citizen of this country and his appeal must, therefore, be sustained.

Order: It is ordered that the appeal be sustained and the appellant admitted to the United States as a citizen.