A-8943827
Decided by Board May 15, 1956
Loss of citizenship — Section 350, Immigration and Nationality Act — Occurs when benefits of foreign nationality obtained prior to effective date of act continue to be enjoyed more than three years subsequent to that date.
A dual national of the United States and Mexico who acquired property by devise in 1951 in a border area of Mexico without obtaining the special permission non-Mexican nationals must obtain to hold such property is considered to have sought or claimed the benefits of Mexican nationality. Continued holding of such property coupled with continued residence in Mexico for three years subsequent to December 24, 1952, the effective date of the Immigration and Nationality Act, and subsequent to the appellant's 22d birthday results in loss of United States citizenship under section 350 of the act.
EXCLUDABLE:
Act of 1952 — Section 212 (a) (26) — Nonimmigrant not in possession of a valid nonimmigrant visa or border-crossing identification card.
BEFORE THE BOARD
Discussion: This is an appeal from the order of the special inquiry officer excluding appellant on the ground stated above. The appeal will be dismissed.
The appellant is a 45-year-old widow. At birth she became a citizen both of the United States and Mexico. She has been a resident of Mexico since the latter part of 1943. On February 7, 1956, she made application to enter the United States to bring her two children, native-born citizens of the United States, to school as had been her custom. She was excluded on the ground that she had lost United States citizenship under section 350 of the Immigration and Nationality Act and was not in possession of the documents required by an immigrant to enter for temporary purposes. Loss of United States citizenship was based upon the fact that on December 20, 1951, the appellant had become the title owner of considerable real estate in Mexico lying within 100 kilometers of the border, an area in which aliens in Mexico are not permitted to acquire direct ownership of land. The property which was transferred to the appellant in December 1951 had been held in the name of an individual who was in fact a trustee for the appellant's husband who was the actual owner of the property. In June 1951, the appellant's husband died and left his property to the appellant and the two children born of their union. The transaction on December 21, 1951, was to carry out the terms of his will.
A letter from the Mexican Consul at San Diego, California, quotes sections of the constitution of Mexico and regulations which indicate that a person other than a Mexican by birth or naturalization is not permitted to own land within a zone of 100 kilometers from the border, although where an alien acquires property in such a zone by inheritance "the Department of Foreign Affairs may grant permission in order that such adjudication may be made" and "authorization shall be granted on the condition that such rights shall be transferred to a person who has the necessary legal capacity under the law within a term of five years from the date of the death of the testator." While the exact meaning of this is not too clear, we will assume that an alien in Mexico is permitted to take title to property in the forbidden zone where the property passes by inheritance if special permission to take title is received from the Mexican Government. No permission was granted in the instant case. Whether such permission could have been obtained by a Mexican national who is also a citizen of another country we do not know. In any event, the appellant holds title to the property in a forbidden zone without special permission.
The first question is whether taking the property by devise without seeking such permission is a seeking or claiming the benefits of Mexican nationality. We believe it is. The right to take such property without receiving express authorization from the Government of Mexico is a right reserved to Mexican nationals. It follows that the ability to take such property without requesting the government for permission to do so is a benefit of Mexican nationality, and exercise of that right is a seeking or claiming of the benefit.
The claiming of benefits occurred on December 20, 1951. This was before the date of the Immigration and Nationality Act which became effective on December 24, 1952. In a case involving the seeking or claiming of benefits prior to December 24, 1952, where there was no enjoyment of the benefits after December 24, 1952, we held the seeking or claiming of benefits occurring before the effective date of the act may not be used as a basis for loss of citizenship under section 350 of the act. This case now presents a different problem because of the fact that the benefits were sought or claimed before December 24, 1952, but the continued exercise of that claim or enjoyment of the benefits continued after December 24, 1952.
The appellant now holds title to property in her own name without any restriction. This she can do, under Mexican law, only because she is a Mexican national. If she were a citizen only of the United States, she could not hold title in such a manner. Her enjoyment of this right is a seeking or claiming of the benefits of Mexican nationality. This seeking or claiming existed on and after December 24, 1952, and continues to this date. We believe she comes within the terms of section 350 and that her seeking or claiming of benefits of foreign nationality on and after December 24, 1952, coupled with her residence in Mexico for three years thereafter has caused loss of United States citizenship under section 350.
If a dual national at birth — a citizen of both the United States and Mexico — had taken title by devise on or after December 24, 1952, to property lying in an area where ownership without restriction could be had only by Mexican nationals, we would hold that the ownership amounted to a seeking or claiming of benefits of foreign nationality and would rule that the person involved lost United States citizenship if he did not return to the United States within three years from the date of the seeking or claiming of benefits or otherwise come within the provisions of section 350. We believe this interpretation is required by section 350 which was created by Congress to bring about termination of dual nationality and not to save it. The law should be interpreted to give it this effect even though it requires dual nationals abroad to refrain from enjoying the benefits of their foreign nationality if they desire to retain United States citizenship. The respondent should not be placed in a different class than the dual national whose ownership of property in a restricted area commenced on December 24, 1952, or thereafter. We can see no reason for treating the appellant differently than we would treat a dual national who had taken the title on December 24, 1952, or thereafter. Both were in the same position on December 24, 1952. Both on that date sought or claimed the benefits of foreign nationality. The result is required by law.
The law must be viewed in light of the fact that a three-year period is given to the individual involved within which to give due reflection to the desirability of divesting himself of United States nationality and provision is made so that the individual can save his United States nationality within the three-year period by returning to the United States or otherwise bringing himself within the exceptions of section 350. This three-year period within which United States citizenship could have been saved was available to the appellant. She is in no worse a situation than the dual national who first sought or claimed the benefits of foreign nationality on December 24, 1952.
A three-year period has passed since December 24, 1952, on which date the appellant held title to property by virtue of her seeking or claiming benefits of Mexican nationality. She has maintained a continuity of stay in Mexico for three years since she sought or claimed benefits of Mexican nationality. This period of three years was achieved after her twenty-second birthday. She does not come within any of the exceptions of section 350. It must be held that she has lost United States citizenship. The appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.