A-6501663.
Decided by Board February 28, 1947. Ruling by Attorney General May 14, 1947.
Citizenship — Naturalized person — Expatriation — Sections 404 and 409 of the Nationality Act of 1940, as amended — Return to United States after October 14, 1946 — Meaning of "en route."
A person naturalized in 1929, who did not otherwise expatriate himself subsequently, is not deemed to have expatriated himself under the provisions of Sections 404 and 409 of the Nationality Law of 1940, as amended, though he arrived in the United States December 21, 1946 after having resided in his native country since 1931, since the evidence establishes he was "en route" to the United States in that he had completed all arrangements to return here on or before October 14, 1946, but his return was delayed because of transportation difficulties or other delays incident to travel, over which he had no control. (See 2 IN Dec. 889).
MR. V---- ADMITTED BY BOARD OF SPECIAL INQUIRY AS ALIEN VISITOR.
BEFORE THE BOARD
Discussion: The appellants, husband and wife, arrived in the United States at the port of New York December 21, 1946, and are applying for admission for permanent residence, the husband as a citizen of the United States and the wife as an alien in possession of a non-quota immigration visa issued to her as the wife of a United States citizen in accordance with the provisions of section 4 (a) of the Immigration Act of 1924.
The Service excluded Mr. V---- after finding that he became expatriated as a citizen of the United States through the operation of section 404 (b) of the Nationality Act of 1940, despite the fact that the evidence establishes he made all arrangements to return to the United States before October 14, 1946, but was precluded from doing so because of transportation difficulties.
The provisions of sections 404 and 409 of the Nationality Act of 1940 are set forth in the Attorney General's memorandum to the Commissioner dated December 9, 1946, to which was attached the directive of January 3, 1947. (See footnote 4.)
The male appellant was, however, admitted as a visitor to adjust his immigration status. The wife's immigration status is to be adjusted in accordance with the provisions of section 13 (d) of the Immigration Act of 1924.
Briefly, it is established that Mr. V---- was naturalized a citizen of the United States on June 18, 1929. On September 10, 1931, he returned to Greece, where he was married on January 22, 1932, to the woman who now accompanies him. He stated that he returned to Greece because of a lung condition and that it was his intention to return hereto and was prepared to do so in 1938, but lack of funds prevented such return. Later, the advent of war again delayed his return. On October 26, 1945, he applied for a United States passport at the American Embassy, Athens, Greece. A passport was issued to him on September 24, 1946. When he received the passport he was advised by the consul that it would be necessary for him to return here before October 14, 1946. He attempted to do so, but encountered difficulty in arranging transportation. He eventually was successful in securing a return passage from Piraeus, Greece, December 8, 1946.
The Service has taken the position that the directive of January 3, 1947, with respect to the phrase "en route to the United States" applies only to a person "who on October 14, 1946, was in a foreign country — other than the one where the residence mentioned in section 404 had been maintained — and was awaiting transportation or experiencing other delays incident to travel."
The Service has issued Operations Instructions 801.2, dated January 8, 1947, based on the directive of January 3, 1947, with respect to the interpretation of Sections 404 and 409, providing as follows (Part IV):
"1. A naturalized citizen of the United States who prior to October 14, 1946, had completed the two, three, or five years' residence mentioned in Section 404 of the Nationality Act and who departed before that date from the foreign country in which that residence had been maintained and was on that date en route to the United States, is not to be held to have lost his American nationality by reason of his mere failure to reach the United States until after that date. The record of admission shall be amended accordingly in the case of any such individual who has been admitted as an alien.
2. The use in paragraph 1 of the phrase "en route" is not meant to exclude a person who on October 14, 1946, was in a foreign country — other than the one where the residence mentioned in Section 404 had been maintained — and was awaiting transportation or experiencing other delays incident to travel.
(See revision of foregoing in subsequent decision reported herein on p. 889.)
Contrary to the view taken by the Service, this Board interprets the directive as applying to all persons who on or before October 14, 1946, completed all arrangements to return here, but whose return was delayed because of transportation difficulties or other delays incident to travel, and over which they had no control, irrespective of their location or place of residence on or before that date. On the basis of this interpretation of the directive, we find on the established evidence of record that Mr. V---- is a citizen of the United States. It also follows, therefore, that his wife would be admissible upon presentation of the nonquota immigration visa which she presented upon arrival. Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the male appellant is a native of Greece;
(2) That the male appellant became a naturalized citizen of the United States on June 18, 1929;
(3) That the male appellant returned to Greece on September 10, 1931;
(4) That the male appellant married a native and citizen of Greece on January 22, 1932;
(5) That the male appellant applied for an American passport at the American Embassy, Athens, Greece, on October 26, 1945;
(6) That the male appellant was issued an American passport on September 24, 1946;
(7) That the male appellant was delayed in arriving in the United States on or before October 14, 1946, because of difficulties he encountered in arranging transportation;
(8) That the male appellant took action to return to the United States with a view to arriving before October 14, 1946;
(9) That the female appellant was in possession of a nonquota immigration visa issued to her as the wife of an American citizen.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That the male appellant did not become expatriated as a citizen of the United States under the provisions of sections 404 and 409 of the Nationality Act of 1940, in accordance with the opinion of the Attorney General of January 3, 1947, since his return to the United States before October 14, 1946, was delayed by transporation difficulties and that he made arrangements to return prior to such date;
(2) That the male appellant is a citizen of the United States;
(3) That the female appellant is not inadmissible under section 13, Immigration Act of 1924, since she is in possession of a valid nonquota immigration visa issued to her as the wife of a citizen of the United States.Order: It is ordered that Mr. V---- be admitted as a citizen of the United States and his wife as an alien for permanent residence.
In accordance with the provisions of title 8, C.F.R., section 90.12, this case is certified to the Attorney General for review of the Board's decision.
The decision and order of the Board of Immigration Appeals dated February 28, 1947 are hereby approved.