S---- F---- 56158/818 G---- 56158/377
Decided by Board August 19, 1944. Approved by Attorney General September 1, 1944.
Citizenship — Child born abroad — Section 201 (g) of the Nationality Act of 1940 — United States residence of citizen parent.
A child born outside of the United States in 1944 of an alien father and citizen mother, the citizen mother being under the age of 21 years at the time of the birth of the child, did not acquire United States citizenship under the provisions of Section 201(g) of the Nationality Act of 1940 because of the lack of the required 5 years' residence by the citizen parent after attaining the age of 16 years.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Immigrant without immigration visa.
Executive Order No. 8766 — No passport.
BEFORE THE BOARD
IN THE MATTER OF S---- F----
Discussion: The appellant, aged 1 month, accompanied by his mother, applied on April 5, 1944, at Del Rio, Tex., for admission to the United States for permanent residence. He was held for examination by a Board of Special Inquiry. The decision of the Board of Special Inquiry was deferred pending additional evidence. At the reopened hearing of April 10, 1944, the appellant was found to be an alien and inadmissible to the United States on the grounds above stated. An appeal was entered in his behalf. He has been paroled pending final decision on the appeal.
The appellant was born in Villa Acuna, Coahuila, Mexico, on March 6, 1944. His father is a legally resident alien, a citizen of Mexico. The appellant's mother was born in Hondo, Tex., on December 19, 1923, and therefore will not be 21 years of age until December 19, 1944. She lived in the United States from birth until about 1936 when she went to Mexico with her parents. After her marriage on May 18, 1939, she returned to the United States and has since resided in this country. She departed to Mexico about 20 days before the birth of the appellant.
The appellant does not have a passport or other official document in the nature thereof showing his origin and identity, or an immigration visa.
Citizenship of the appellant is governed by Section 201 of the Nationality Act of 1940 ( 54 Stat. 1138-1139; 8 U.S.C. 601). That section provides as follows:
The following shall be nationals and citizens of the United States at birth:
* * * * * * *
(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, has had 10 years' residence in the United States or one of its outlying possessions, at least five of which were after attaining the age of 16 years, the other being an alien * * *.
The appellant's claim to citizenship is dependent upon the citizenship of the mother. The mother was under 21 years of age when the appellant was born and therefore she had not, "prior to the birth" resided in the United States "at least 5 (years) * * * after attaining the age of 16 years." As the statute requires that the prescribed period of residence must have preceded the birth, it is beside the point to give consideration to her residence subsequent to the date of the birth.
It is urged that Congress could not have intended so to discriminate against a parent who was under 21 years of age.
Mr. Chief Justice Taft in Weedin v. Chin Bow, 274 U.S. 657 (1927), considered the case of a person born abroad of a citizen parent who had not resided in the United States previous to the birth of the appellant but who thereafter took up such residence. The Chief Justice said:
The very learned and useful opinion of Mr. Justice Gray speaking for the Court in United States v. Wong Kim Ark, 169 U.S. 649, 42 L. ed. 890, 18 Sup. Ct. Rep. 456, establishes that at common law in England and the United States the rule with respect to nationality was that of the jus soli, that birth within the limits of the jurisdiction of the Crown and of the United States, as the successor of the Crown, fixed nationality, and that there could be no change in this rule of law except by statute * * *." [Italics supplied.]
It is concluded therefrom that the appellant's claim to citizenship is completely dependent upon statute.
In Chung Fook v. White, 264 U.S. 442 (1924), the Supreme Court considered the case of an alien woman who was the wife of a native born citizen of the United States. She sought admission but was excluded because she was afflicted with a dangerous contagious disease. She sought to invoke Section 22 of the act of February 5, 1917 ( 39 Stat. 891-892, 8 U.S.C. 159) which provided:
That whenever an alien shall have been naturalized or shall have taken up his permanent residence in this country, and thereafter shall send for his wife * * * and said wife * * * shall be found to be afflicted with any contagious disorder, such wife * * * shall be held * * * until it shall be determined whether the disorder will be easily curable or whether they (she) can be permitted to land without danger to other persons * * *; Provided, That if the person sending for wife * * * is naturalized, a wife to whom married * * * subsequent to such husband's naturalization shall be admitted without detention for treatment in hospital * * *."
The Supreme Court said: The measure of the exemption is plainly stated, and, in terms, extends to the wife of a naturalized citizen only.
But it is argued that it cannot be supposed that Congress intended to accord to a naturalized citizen a right and preference beyond that enjoyed by a native-born citizen. The court below thought that the exemption from detention was meant to relate only to a wife who, by marriage, had acquired her husband's citizenship, and not to one who, notwithstanding she was married to a citizen, remained an alien under § 1994, Rev. Stat. (Comp. Stat. § 3948, 2 Fed. Stat. Anno. 2d ed. p. 117); "Any woman who is now or may hereafter be married to a citizen of the United States and who might herself be lawfully naturalized, shall be deemed a citizen." To the same effect, see Ex. parte Leong Shee, 275 Fed. 364. We are inclined to agree with this view; but, in any event, the statute plainly relates only to the wife or children of a naturalized citizen, and we cannot interpolate the words "native-born citizen" without usurping the legislative function. Corona Coal Co. v. United States, decided January 7, 1924 ( 263 U.S. 537 * * *.) The words of the statute being clear, if it unjustly discriminates against the native-born citizen, or is cruel or inhuman in its results, as forcefully contended, the remedy lies with Congress, and not with the courts. Their duty is simply to enforce the law as it is written, unless clearly unconstitutional.
The bill introduced in Congress and which was enacted as the Nationality Act of 1940 contained the following:
Sec. 201. The following shall be nationals and citizens of the United States at birth:
* * * * * * *
(g) A person born outside the United States and its outlying possessions of parents one of whom is a citizen of the United States and who has had ten years' residence in the United States or one of its outlying possessions, the other being an alien: Provided, That * * *
Thus the words, pertinent herein, "at least 5 (years) of which were after attaining the age of 16 years" were not included but were added by the Congress during its consideration of the measure. Express language written into the statute under those circumstances may not, in our opinion, be negatived by interpretation.
We are therefore led to conclude that a finding of citizenship is not warranted because the facts prescribed by statute do not exist, and we hold that the appellant is an alien and the grounds for exclusion are sustained. In reaching this conclusion we would add that we recognize the statute discriminates against a minor who is married to an alien, in that he cannot transmit citizenship to his foregin born child, whereas a major may do so. If this is an unwarranted discrimination the matter is one which calls for legislative action.
We do not concede that it is harsh and absurd to hold the appellant is not a citizen. Such a holding does not prohibit his entry into the United States; it only results in a need for his compliance with the procedure applicable to aliens rather than the informalities relating to citizens. His temporary admission to the United States on parole affords liberal opportunity for compliance in due time with the requirements of the immigration law for entry as an immigrant. Furthermore, he may become a citizen in due course, even during minority, upon compliance with the requirements therefor. (Secs. 313, 315, Nationality Act of 1940; 54 Stat. 1145-1146; 8 U.S.C. 713, 715.)
Findings of Fact: Upon the basis of all the evidence, it is found:
(1) That the appellant is an alien, a native and citizen of Mexico;
(2) That the appellant has applied for admission to the United States for permanent residence;
(3) That the appellant is not in possession of an unexpired immigration visa;
(4) That the appellant does not present a valid passport or other official document in the nature of a passport showing his origin and identity.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under Section 13 (a) of the Immigration Act of 1924 the appellant is inadmissible to the United States on the ground that he is an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder;
(2) That under the Passport Act approved May 22, 1918, as amended, the appellant is inadmissible to the United States on the ground that he does not present an unexpired passport or official document in the nature of a passport issued by the government of the country to which he owes allegiance or other travel document showing his origin and identity as required by Executive Order 8766.Other Factors: In view of his tender age the appellant requires the care and attention of his citizen mother and legally resident alien father. The parole should be continued for a period of 1 year to permit the adjustment of his immigration status.
Order: It is ordered that the excluding decision of the Board of Special Inquiry be affirmed without prejudice to the alien's reapplication for admission within 1 year when in possession of the required documents.
It is further ordered, That the alien's parole into the United States in custody of his parents be continued for a period of 1 year to permit the adjustment of his immigration status.
IN THE MATTER OF G----
This case was considered by the Board on April 29, 1944 when the appellant's exclusion by a Board of Special Inquiry was affirmed. Later, the Board on its own motion recalled the case for a further consideration. Meanwhile, the decision had been communicated to the field, and now another case (J---- A---- S---- F----, file 56158/818) presenting the identical issue has arisen.
The instant case concerns a native and citizen of Mexico who was born on January 10, 1944 of a father who was a citizen of Mexico and mother who was born in the United States and who was but 18 years of age when appellant applied for admission. The appellant was not in possession of the documents required of an alien and his application for entry was based upon the claim that he is a citizen of the United States. The issue presented herein is fully discussed in our opinion of current date in the S---- F---- case wherein the majority of the Board affirms exclusion. For the reasons set forth therein the majority of the Board reaffirms exclusion in the instant case.
The decision and order of the Board of Immigration Appeals in the above named cases are hereby approved.
The opinion of my colleagues assumes the existence of a glaring defect in the nationality laws. I cannot concur in this assumption, since I believe that the construction adopted by the majority of the Board is contrary to the expressed intention of Congress. I am convinced that the majority's interpretation is harsh and unreal, and that the language of the statute clearly lends itself to a construction which will effectuate the Congressional intent, and which will accomplish a just and sensible result. Consequently, I must record my dissent from the views of my associates, first, because I believe their interpretation is unsound and, second, because the facts presented are not unusual and will confront us with increasing frequency as our men in the Armed Forces return from overseas.
During the 11½-month period ending June 15, 1944, 5,091 nonquota visa petitions were filed with the State Department or our consuls abroad. It is estimated that over 4,000 of these are applications for wives of American soldiers overseas. An Associated Press dispatch dated August 12, 1944 declared that nearly 10,000 Australian girls have married American servicemen since 1942. One thousand of these war brides and about 200 babies have already entered the United States, according to the release, and hundreds of others are awaiting transportation.
The finding of alienage was based on Section 201 (g) of the Nationality Act of 1940 ( 8 U.S.C. 601 (g)). That section reads as follows:
(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, has had 10 years' residence in the United States or one of its outlying possessions, at least five 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.
The preceding provisos shall not apply to a child born abroad whose American parent is at the time of the child's birth residing abroad solely or principally in the employment of the Government of the United States or a bona fide American educational, scientific, philanthropic, religious, commercial, or financial organization, having its principal office or place of business in the United States, or an international agency of an official character in which the United States participates, for which he receives a substantial compensation.
The instant case concerns the application for admission to the United States of a child born in Mexico on January 10, 1944. The child's mother is a native-born citizen of the United States, 18 years of age, who has made her home in the United States at all times since her birth except for a 1-year period when she was 5 years old. The father is a native and citizen of Mexico, a resident of Mexico at the time of the child's birth but a legal resident of the United States at the time of the child's application for admission. The child's birth in Mexico occurred 3 days after the mother left the United States on a temporary visit abroad. Two months after the child was born the mother sought to return with him to the United States. However, a Board of Special Inquiry excluded the child from admission to the United States on March 30, 1944 on the ground that he was an alien not in possession of passport or immigration visa. A majority of this Board affirmed the excluding decision.
The interpretation placed upon this statute by the majority of this Board is grounded on the supposition that since the citizen mother is only 18 years of age she cannot comply with the condition of the statute which required 5 years' residence in the United States prior to the birth of the child and after attaining the age of 16 years. From this circumstance it is concluded that the mother was powerless to transmit citizenship at birth to the child, even though the mother is an American citizen who has resided in the United States virtually her entire life. Under this interpretation no citizen under 21 years of age could transmit American citizenship to a child born during a temporary visit abroad, and such disqualification would be operative solely because he or she is under 21 years of age. It is believed that such an interpretation would lead inevitably to incongruous, harsh, and anomalous results that are at war with the undisputed purpose of Congress.
Such an interpretation would create these anomalies. No citizen under 21 years of age, married to an alien, could be the parent of a citizen child born abroad — solely because the citizen parent is under 21 years of age. An illegitimate child born abroad to a citizen mother under 21 years of age would be a citizen, a legitimate child an alien, the fathers in both cases being aliens. The child born to a legally resident alien mother while on a temporary visit abroad could enter the United States as an immigrant without documents, but the child born under similar circumstances to a citizen mother would be excluded as an alien. Illustrative of the absurd results that the majority view would render necessary would be the case of a boy, born, bred, and never absent from the United States, who, while under 21 years of age, married a Canadian girl in the United States. The wife becomes pregnant and prior to the birth of the child visits her mother across the border so that she may be near her family during and immediately after her confinement. The child thus born would be deemed an alien because and only because the father is not yet 21 years of age — despite the fact that the citizen father has lived in the United States all his life. Or, let us suppose the case of an American citizen soldier who marries an alien while serving overseas. A child born of that union would be declared an alien if the citizen father was under 21 years of age when the child was born abroad. This unnecessary stress upon the nonage of the citizen parent rather than upon his foreign domicile defeats the purpose of the legislation.
Sec. 205 of the Nationality Act of 1940 (8 U.S.C. 605).
8 C.F.R. 154.44 (b). Originally, Executive Order No. 6986 of March 9, 1935 waived documentary requirements for children born during the temporary visit abroad of either a citizen or legally resident alien mother. Superseding Executive Orders Nos. 7865 of April 12, 1938, 8029 of December 27, 1938 and 8430 of June 5, 1940 continued the waiver only for children born to legally resident alien mothers temporarily abroad. The children of citizen mothers obviously did not require such waivers after the amendment of May 24, 1934 to Sec. 1993 of the Revised Statutes, since they thereby became citizens by birth. The rules in effect since the passage of the Nationality Act of 1940 still do not include waivers for children born abroad to citizen mothers, even though they are born during the citizen mother's temporary absence abroad. (See 8 C.F.R. 175.44.)
The infant child of an American marine and his Australian wife born in Australia before the citizen father was 21 was declared to be an alien by the Immigration and Naturalization Service. (See Matter of C----, V-307076.) The provisos to Section 201 (g) of the Nationality Act of 1940 would be deemed inapplicable, perhaps, under the second paragraph to that section. The residence period after attaining 16 years of age would, however still apply.
The Board of Special Inquiry in the instant case recognizing the harshness of their conclusion stated:
It seems that in this case the law and circumstances have conspired to penalize the applicant. Since the citizen mother is only eighteen years of age and has not resided in the United States for five years after attaining sixteen years of age and since she was lawfully married at the time of the child's birth, citizenship was not derived through the mother under the provisions of either Section 201 (g) or Section 205 of the Nationality Act of 1940.
If it be said, as indeed the majority opinion does, that a literal reading of Section 201 (g) of the Nationality Act of 1940 requires the conclusion that a child born abroad to parents, one of whom is a citizen under 21 years of age and the other an alien is necessarily an alien, then accepted principles of statutory construction require that the literal meaning of the statute be sacrificed, if necessary, to avoid harsh and absurd results and to give effect to the purpose and will of the legislature. In Ozawa v. United States, 260 U.S. 178 (1922), at p. 194, the Supreme Court said:
"It is the duty of this court to give effect to the intent of Congress. Primarily this intent is ascertained by giving the words their natural significance; but if this leads to an unreasonable result, plainly, at variance with the policy of the legislation as a whole, we must examine the matter further. We may then look to the reason of the enactment, and inquire into its antecedent history, and give it effect in accordance with its design and purpose, sacrificing, if necessary, the literal meaning in order that the purpose may not fail." [Italics supplied.]
See also Helvering v. New York Trust Company, 292 U.S. 455 (1934). The Attorney General of the United States in discussing with approval this canon of statutory interpretation pointed out that " In Church of the Holy Trinity v. The United States, 143 U.S. 457, the Supreme Court went so far as to depart from the literal construction of an unambiguous statutory provision in order to avoid a harsh and absurd result." (38 Ops. Atty. Gen. 10, 15.) In the very recent cases of United States v. Dickerson, 310 U.S. 554, 561 (1940) and Harrison v. Northern Trust Company, 317 U.S. 476, 479 (1943), the Supreme Court rejected the contention that where a statute is clear and unambiguous resort may not be had to explanatory legislative history to establish the true intent and purpose of Congress.
A review of the antecedent history of section 201 (g) of the Nationality Act of 1940 reveals that the construction placed upon it by the majority of this Board not only does not effectuate the purpose of Congress but actually defeats it.
This statute, supersedes and supplants Section 1993 of the Revised Statutes, as amended by section 1 of the act of May 24, 1934. The most significant change made in that law, through the enactment of the Nationality Act of 1940, was that in order for a child born abroad to parents, only one of whom is a citizen, to acquire citizenship at birth, the citizen parent must have resided in the United States prior to the birth of such a child for a period of 10 years, five of which shall have been after attaining the age of 16 years. The committee appointed by the President in 1933 to codify the nationality laws and recommended provisions thereto, called repeated and particular attention in their letter of transmittal to the President, to section 201 (g) of their proposed nationality code, designating it as one of the most important changes in existing law proposed by them. The draft code, however, added only the requirement that the citizen parent to transmit citizenship to a child born abroad must have resided in the United States for at least 10 years prior to the birth of the child. The requirement that five of those years of residence be acquired after the citizen parent attained the age of 16 years was added by Congress.
Section 1993 of the Revised Statutes was derived from the act of February 10, 1855. Before its amendment in 1934, section 1993 read as follows: "All children born out of the limits and jurisdiction of the United States, whose fathers may be at the time of their birth citizens of the United States, are declared to be citizens of the United States; but the right of citizenship shall not descend to children whose fathers never resided in the United States. All such children who continue to reside outside the United States shall, in order to receive the protection of this Government, be required upon reaching the age of 18 years to record at an American consulate their intention to become residents and remain citizens of the United States and shall be further required to take the oath of allegiance to the United States upon attaining their majority. Duplicates of any evidence, registration, or other acts required by this section shall be filed with the Department of State for record."
The Act of May 24, 1934 amended it to read: "Any child hereafter born out of the limits and jurisdiction of the United States whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States; but the rights of citizenship shall not descend to any such child unless the citizen father or citizen mother, as the case may be, has resided in the United States previous to the birth of such child. In cases where one of the parents is an alien, the right of citizenship shall not descend unless the child comes to the United States and resides therein for at least 5 years continuously immediately previous to his 18th birthday, and unless, within 6 months after the child's 21st birthday, he or she shall take an oath of allegiance to the United States of America as prescribed by the Immigration and Naturalization Service of the Department of Labor."
By Executive Order of April 25, 1933, the President designated the Secretary of State, the Attorney General and the Secretary of Labor a committee to review the nationality laws of the United States, to recommend revisions, and to codify those laws into one comprehensive law for submission to Congress. A draft Nationality Code embodying the proposed revisions and modifications was prepared and submitted to the President on June 1, 1938. The report of the committee concerning the revision and codification of the nationality laws of the United States was transmitted to the Congress by the President on June 13, 1938. With but few amendments, the committee's proposed code became the Nationality Act of 1940.
It should be mentioned at this point that section 1993 of the Revised Statutes contained the proviso that the right of citizenship shall not descend to children whose fathers "never resided in the United States." It was contended in Weedin v. Chin Bow, 274 U.S. 657 (1927), that the residence of the foreign born citizen father might be adopted after the birth of the child, and by so doing he could effectively transmit his American citizenship to his foreign-born child. The Supreme Court rejected that contention. The court held that Congress intended by the quoted phrase that the citizen father of the foreign-born child shall have resided in the United States prior to the birth of the child so that the citizenship of the child could be determined at his birth. In reaching this conclusion the court disposed of Chin Bow's contention in the following language:
* * * We are thus to have two generations of citizens who have been born abroad, lived abroad, the first coming to old age and the second to maturity and bringing up of a family without any relation to the United States at all until the father shall in his last days adopt a new residence. We do not think that such a construction accords with the probable attitude of Congress at the time of the adoption of this proviso into the statute. Its construction extends citizenship to a generation whose birth, minority and majority, whose education and whose family life have all been out of the United States and naturally within the civilization and environment of an alien country. The beneficiaries would have evaded the duties and responsibilities of American citizenship * * *
Congress removed all doubt that its intention was as the Supreme Court declared it by its amendment of section 1993 of the Revised Statutes in 1934. The phrase "whose fathers never resided in the United States" was amended by the act of May 24, 1934 to read "unless the citizen father or citizen mother, as the case may be, has resided in the United States previous to the birth of such child." While it was thus clearly established, by judicial interpretation prior to 1934 and by legislative enactment after 1934, that a citizen parent may transmit citizenship to his foreign-born child only when the citizen parent has resided in the United States previous to the birth of such child, there still remained for determination the question of what constitutes a previous residence in the United States to satisfy the requirements of the statute. That question was presented to the Attorney General in Matter of E----, 56048/740 (February 15, 1941). This Board denied the claim to citizenship of a 1-year-old Canadian-born child and excluded him as an alien. The child and his father were both born in Canada. The father derived citizenship under section 1993 of the Revised Statutes. Prior to his child's birth, the father had visited in the United States for periods of short duration, the longest of which was for 29 days when he was a youth. We expressed the opinion that the father had not resided in the United States previous to his child's birth. within the meaning of the statute, so as to confer citizenship on his foreign-born child. We held that length of residence was immaterial but an intention to reside permanently was essential. The Acting Attorney General reversed the Board's decision. He indicated his approval of the State Department view that the father's physical presence alone in the United States was sufficient; the purpose of his coming was of no import. This is now the administrative view.
This situation was regarded by the President's Committee and by Congress as a laxity in the law — a perpetuation of citizenship through two generations of persons who by their birth and residence abroad had become disassociated from the traditions and ideals of American life. In the Nationality Act of 1940, Congress sought to put to an end the transmission of citizenship to a foreign-born child by one citizen parent whose previous residence in the United States might have been for as little as 1 month or even 1 day.
There was, therefore, a unanimity of purpose among the President's Committee, the House of Representatives, and the Senate in amending existing law in the manner expressed in section 201 (g) of the Nationality Act of 1940. The Committee's explanatory comment to their proposed section 201 (g) is as follows:
Codification of the nationality laws of the United States, Part I, p. 14, as it appears in the House Committee (on Immigration and Naturalization) Print, 76th Cong., 1st Sess. (United States Government Printing Office, 1939.)
"This subsection is based upon section 1993 of the Revised Statutes, as amended by section 1 of the act of May 24, 1934 (48 Stat. pt. 1, 797). However, it embodies a modification of the provision last mentioned to make it better adapted to existing situations. On the one hand, it does not seem reasonable to confer citizenship at birth upon a foreign-born child having only one citizen parent unless the latter has resided in the United States before the child's birth at least 10 years. A foreign-born child whose citizen parent has not resided in this country as much as 10 years altogether is likely to be more alien than American in character. On the other hand, it seems desirable that the requirements in the first proviso to the effect that the foreign-born child, in order to retain citizenship, must reside in the United States 5 years between the ages of 13 and 21 years and take an oath of allegiance to the United States within 6 months after his 21st birthday should not be applied to one whose citizen parent resides abroad to represent the Government of the United States, an American organization belonging to one of the categories specified in the second proviso, or an international agency of an official character in which the United States participates. In general, citizens of the United States residing abroad for the purposes just mentioned not only promote the interests of this country but are likely to retain their American sympathies and character. Therefore, such persons are likely, as a rule, to bring up their children as Americans, to see that they speak the English language, and to have them imbued with American ideals. The probabilities, however, would seem to be otherwise where the citizen parent who is married to an alien resides abroad for reasons having no connection with the promotion of American interests." [Italics supplied.]
The Senate in its comittee report made the following comment with regard to the section under discussion:
Senate Report 2150, 76th Cong., 3rd Sess. at p. 4 of report (Committee on Immigration and Naturalization.).
Under the present law a child born outside the United States of one citizen and one alien parent becomes a citizen at birth, provided the citizen parent has resided in the United States before the birth of the child. No prescribed period of residence in this country of the citizen parent is fixed. Under the code the citizen parent must have resided in the United States preceding the child's birth for at least 10 years, 5 years of which must have been after reaching the age of 16 years. This restriction would prevent the perpetuation of United States citizenship by citizens born abroad who remain there, or who may have been born in the United States but who go abroad as infants and do not return to this country. Neither such persons nor their foreign-born children would have a real American background, or any interest except that of being protected by the United States Government while in foreign countries. [Italics supplied]
While neither of the House Committee Reports made specific reference to section 201 (g) of the proposed code, except insofar as they adopted the report of the President's Committee, an illuminating discourse was made on the floor of the House with regard thereto by Representative Edward H. Rees of Kansas, who, as a member of the subcommittee which studied the code, guided the measure through the House. Said Mr. Rees:
House Reports 2936, 3019, and 3020, 76th Cong., 3rd Sess. (Committee on Immigration and Naturalization.).
Congressional Record, vol. 86, pt. II, p. 11948.
"Now, one of the most important features of this legislation relates to the acquisition of citizenship in cases of persons born abroad to parents of whom one is a citizen of the United States and the other parent is an alien. The existing law is so lax that it confers citizenship at birth upon persons who are not at all likely to be American in character or become imbued with American principles.
"Reference is made to section 1 of the act of May 1934, amending section 1993 of the Revised Statutes, that provides for the acquisition of citizenship in case of a child born abroad to an American mother married to an alien, as well as one born abroad to an American father married to an alien. While this statute requires specifically that the parent should have resided in the United States prior to the birth of the child, it does not require that he or she should have resided in this country for any specified length of time.
* * * * * * *
"* * * However, section 201 (g) of the code requires that the citizen parent, in order to transmit citizenship to a child born abroad, should have had —
"`Ten years' residence in the United States of one of its outlying possessions, at least 5 of which were after attaining the age of 16 years.'" [Italics supplied]
It is clear that the purpose of Congress was to prevent the transmission of citizenship by only one citizen parent to a child born abroad where the citizen parent has, prior to the birth of such child, resided abroad from early infancy or childhood. Such long foreign residence is deemed by Congress a sufficient indication that the citizen parent has become detached from American ideals and traditions. To effectuate that purpose Congress has required residence of the citizen parent in the United States for at least 10 years, five of them after attaining the age of 16 years prior to the birth abroad of the child. The provision that at least five of the 10 years of residence be obtained after attaining the age of 16 years was inserted to insure that the citizen parent shall have spent some maturer years in the United States. It was not thought that a citizen who may have been removed to a foreign land after spending only the first 10 years of his or her life in the United States had acquired a sufficient background of American life and traditions to transmit citizenship. The Congressional purpose would be defeated if it were held that citizenship did not descend in the case of a child born abroad to a citizen parent who has resided all her life in the United States, as in the instant case, and who at the time of the child's birth is still a resident of the United States temporarily abroad. It is true that the parent is not yet 21 years old therefore has not lived in the United States the requisite number of years after attaining the age of 16. However, she has complied with the conditions of the statute to the full extent of her capacity by residing in this country almost without interruption since she was born. To require more would be to exact a condition impossible of performance and would necessitate a result that is oppressively harsh and utterly absurd — and certainly not within the intent of Congress.
See "Nationality Act of 1940" by Richard W. Flournoy, Contemporary Law Pamphlets, Series 5, No. 4 (1941). Mr. Flournoy served on the President's Committee as a representative of the Department of State.
It is my conviction that the restrictive provisions of section 201 (g) of the Nationality Act of 1940 were not meant to apply, and do not apply, to the children born abroad to parents resident within the United States, only one of whom is a citizen, the mother being abroad temporarily at the time of the child's birth. For in such cases the parents are living in the United States and the child will be reared in the American way of life and will be imbued with American ideals and traditions. In the instant case, the appellant's citizen mother resides and has resided in the United States for virtually all of her life, a period of over 17 years. She has complied with all statutory requirements humanly possibly of performance. She has not lived in the United States for 5 years after attaining the age of 16 years only because she is under 21 years of age and has not yet lived for 5 years after attaining the age of 16 years. The evil which Congress sought to remedy is not present in this case. The purpose of the legislation will not be served by a contrary holding. It will be defeated. If the words of the statute seem to read otherwise, then the literal meaning of the statute should be sacrificed in order that the purpose of the legislature shall not fail. To rule otherwise is to negative the will and intent of the legislature.
As a dissent has been recorded, these cases were certified to the Attorney General for a review of the Board's decisions in accordance with the provisions of section 90.12, title 8, Code of Federal Regulations.