56071/992
Decided by the Board May 31, 1941.
Infant's visa under quota of father's nativity — Section 12 (a) (1), Immigration Act of 1924.
1. An infant immigrant, a native of Poland, who, because her father was a native of Latvia, was issued a visa under the Latvian quota as provided by section 12 (a) (1) of the Immigration Act of 1924, is not inadmissible under section 13 (a) (2) of the Immigration Act of 1924 on the ground that she was not of the nationality specified in her immigration visa when because of unforeseen circumstances her father came to the United States 1 month before she arrived.
2. The requirement of section 12 (a) (1) of the Immigration Act of 1924 that the child accompany its parent need not be literally construed.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
(M---- S----.)
Act of 1924 — Not of nationality specified in immigration visa.
(I---- S----.)
Act of 1917 — Accompanying an inadmissible alien.
Mr. David Schwartz, Board attorney-examiner.
STATEMENT OF THE CASE: The appellants arrived at Miami, Fla., via Pan American Airways on May 22, 1941, and applied for admission for permanent residence, The board of special inquiry excluded them on the above-mentioned grounds and they appealed.
DISCUSSION: Appellants are sisters. The older one, E----, is a native and citizen of Latvia, aged 16, single, and a student. The younger one is 3 years old, a native of Poland and a citizen of Latvia. They are coming to join their parents who were admitted only a short time ago for permanent residence. Appellants present Latvian passports valid until January 1942 and June 1941, respectively. The older one is in possession of a Latvian quota immigration visa issued at the American consulate at Havana, Cuba, on February 17, 1941, and valid until June 16, 1941. The younger one is in possession of a similar visa issued against the Latvian quota under section 12 (a) (1) of the act of 1924.
Appellants' father testified that he has resided in the United States for about a month; that he came ahead of the family on business, and that he is undecided as to where to locate in the United States and so sent for his wife, who arrived only 2 days before the hearing. Appellants could not leave school, and so they remained until the session was finished. He did not know that a child issued a visa against the quota of its parents should accompany the parents.
The board of special inquiry excluded the younger appellant on the ground that since she was not accompanying her father or mother, her nationality could not be said to be Latvian for quota purposes under section 12 (a) (1) of the 1924 act. The board reasoned that she was therefore not of the nationality specified in her immigration visa and inadmissible under section 13 (a) (2) of the 1924 act.
Section 12 (a) (1) of the 1924 act was intended to avoid a separation of family groups bound for the United States because of the fact that some of the children were born in a country other than that of their parents. It therefore provided that while for the purposes of the 1924 act nationality should be determined by the country of birth, the nationality of a foreign-born minor child, accompanied by its parent, should be determined by the country of the parent's birth if the parent is entitled to an immigration visa. It was under this action that the 3-year-old appellant, a native of Poland, was issued a visa under the Latvian quota. The family originally intended to proceed to the United States as a group, but, because of unforeseen circumstances, the father preceded the children by a month and the mother by 2 days. It cannot be said that sections 12 (a) (1) and 13 (a) (2) were intended to apply in such a case and cause the exclusion of the minor child. The requirement in section 12 (a) (1) that the child accompany its parents is not a literal one but was, as has been pointed out, intended to avoid a separation of family groups. Thus the 3-year-old appellant is not inadmissible as not of the nationality specified in her immigration visa. It follows from this that her older sister cannot be excluded as an alien accompanying an inadmissible alien.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing it is found:
As to the appellant M---- S---- or Sch----:
(1) That appellant is an alien, a native of Poland and a citizen of Latvia;
(2) That appellant is in possession of Latvian passport issued to her on January 21, 1938, valid until June 17, 1941;
(3) That appellant is in possession of an immigration visa issued at the American consulate on February 17, 1941, and valid until June 17, 1941;
(4) That said visa was issued under the Latvian quota under section 12 (a) (1) of the Immigration Act of 1924;
(5) That it was originally intended that appellant would embark for the United States accompanied by her father, a native and citizen of Latvia;
(6) That because of unforeseen circumstances appellant's father preceded her by 1 month and appellant's mother preceded her by 2 days.
As to the appellant I---- S---- or E---- Sch----:
(1) That the appellant is an alien, a native and citizen of Latvia;
(2) That appellant is in possession of a Latvian passport issued on May 30, 1933, and valid until January 14, 1942;
(3) That appellant is in possession of an immigration visa issued at the American consulate in Havana, Cuba, on February 17, 1941, valid until June 16, 1941.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under sections 12 (a) (1) and 13 (a) (2) of the Immigration Act of 1924, appellant M---- S---- or Sch---- is not inadmissible to the United States as not of the nationality specified in her immigration visa;
(2) That under section 18 of the Immigration Act of 1917, appellant I---- S---- or E---- Sch---- is not inadmissible to the United States as an alien accompanying an inadmissible alien.
ORDER: It is ordered that the appeals be sustained and appellants admitted for permanent residence.