In the Matter of S

This case is not covered by Casetext's citator
Board of Immigration AppealsOct 18, 1941
1 I&N Dec. 174 (B.I.A. 1941)
1 I&N Dec. 1741 I&N Dec. 174


Decided by the Board October 18, 1941.

Racial eligibility to citizenship — Arabs.

Persons of the Arabian race being white persons are not inadmissible under section 13 (c) of the Immigration Act of 1924 as ineligible to citizenship.


Act of 1924 — Racially ineligible to citizenship.

Mr. Frederick E. King, of New York City, for the appellant.

Mr. David Schwartz, Board attorney-examiner.

STATEMENT OF THE CASE: In April of 1941 the appellant applied at Montreal for admission for permanent residence. He was excluded on the ground that he was racially ineligible to citizenship and therefore inadmissible under section 13 (c) of the act of 1924. From this action he has appealed.

DISCUSSION: The appellant is a 27-year-old native and citizen of Iraq. He is applying for admission for permanent residence to join his wife, a citizen of the United States. He presents an Iraqian passport valid until March 19, 1942, and an unexpired quota-preference visa issued under section 6 (a) (1) of the act of 1924. Appellant was previously in the United States as a student.

Appellant testifies that his parents are full-blooded Arabians; that his ancestors came from Turkish stock; that he is a Moslem. He states that he is of Arabian blood, and his counsel thus interprets his testimony.

It appears that appellant should be considered of the Arabian race. He has been excluded as a person racially ineligible to citizenship and therefore inadmissible under section 13 (c) of the act of 1924. The question for determination is whether an Arabian is racially eligible to citizenship under the relevant statutory provisions and other authorities.

Section 303 of the Nationality Act of 1940, a codification and amendment of Revised Statutes, Section 2169, provides, insofar as it is here relevant:

The right to become a naturalized citizen under the provisions of this act shall extend only to white persons, persons of African nativity and descent, and descendants of races indigenous to the Western Hemisphere. [Italics supplied.]

The italicized phrase was first enacted in 1790 and was prefaced with the word "free." 1 Stat. 103. The extension of the privilege to persons of African nativity and descent took place after the Civil War ( 16 Stat. 256, 1870). The Nationality Act further extended the privilege to "descendants of races indigenous to the Western Hemisphere."

The construction of "white persons" did not come before the Supreme Court until 1922. In Ozawa v. United States, 260 U.S. 178 (1922), the court held that a Japanese was not a white person within the meaning of Revised Statutes, Section 2169. The court rejected the test of the color of the skin of the particular individual and saw no reason to differ with "an almost unbroken line" of lower court decisions that had held "that the words `white person' were meant to indicate only a person of what is popularly known as the Caucasian race." Mr. Justice Sutherland, writing for a unanimous court, recognized that this determination did not dispose of borderline cases but he preferred to defer such cases to "the gradual process of judicial inclusion and exclusion" ( 260 U.S. at 197-198).

A case requiring a further clarification of the meaning of "white persons" arose in United States v. Thind, 261 U.S. 204 (1923). In that case the first certified question was "Is a high caste Hindu of full Indian blood * * * a white person within the meaning of Section 2169, Revised Statutes?" This question was answered in the negative, and Mr. Justice Sutherland again wrote the opinion of a unanimous court. The words "white persons" were found to be "words of common speech, to be interpreted in accordance with the understanding of the common man, synonymous with the word `Caucasian' only as that word is popularly understood. As so understood and used, whatever may be the speculations of the ethnologist, it does not include the body of people to whom the appellee belongs ( 261 U.S. at 214-15)."

The opinion gave little or no weight to ethnological reasoning based on a common ancestry between the race in question and admittedly white persons, but rather set up a test based on common understanding. The governing statute was said to be "written in the words of common speech, for common understanding, by unscientific men ( 261 U.S. at 210)." The court had this to say of the eligibility to citizenship of Asiatic races in general ( 261 U.S. at 214):

"What, if any, people of primarily Asiatic stock come within the words of the section we do not deem it necessary now to decide. There is much in the origin and historic development of the statute to suggest that no Asiatic whatever was included * * *. That question, however, may well be left for final determination until the details have been more completely disclosed by the consideration of particular cases, as they from time to time arise. The words of the statute, it must be conceded, do not readily yield to exact interpretation, and it is probably better to leave them as they are than to risk undue extension or undue limitation of their meaning by any general paraphrase at this time."

The opinion then enunciates the holding that the words are of common speech and, under this construction, finds that Hindus are not white persons. The opinion continues ( 261 U.S. at 215):

It is not without significance in this connection that Congress, by the Act of February 5, 1917, c. 29, Sec. 3, 39 Stat. 874, has now excluded from admission into this country all natives of Asia within designated limits of latitude and longitude, including the whole of India. This not only constitutes conclusive evidence of the congressional attitude of opposition to Asiatic immigration generally, but is persuasive of a similar attitude toward Asiatic naturalization as well, since it is not likely that Congress would be willing to accept as citizens a class of persons whom it rejects as immigrants. [Italics supplied.]

Conversely, the fact that the barred zone established by section 3 of the act of 1917 does not include countries to which Arabians are indigenous might be persuasive of a congressional approval of the naturalization of Arabians.

An illuminating application of the Supreme Court's technique in the Thind case is found in Wadia v. United States, 101 F. 2d 7 (C.C.A. 2, 1939). The Parsees are a sect, originally Persian, which migrated to India (Dictionary of Races or Peoples, vol. 5, Reports of the Dillingham Commission, S. Doc. No. 662, 61st Cong., 3d sess., p. 103). In 1910 the Second Circuit had held a Parsee to be a white person within the meaning of the naturalization laws ( United States v. Balsara, 180 F. 694, affg. 171 F. 294). After the Ozawa and Thind decisions, supra, the Second Circuit reversed itself and in the Wadia case affirmed an order denying the petition of a Parsee for naturalization.

Judge A.N. Hand said, in the course of his opinion ( 101 F. 2d at 9):

A Parsee of a race which immigrated from Persia to India some 1,200 years ago, even though retaining, as is claimed, blood differing little, if any, from that of its original ancestors, can hardly be differentiated in the mind of the common man from that of the Hindus beside whom the Parsees have lived for 1,200 years. Each stock is Caucasian. The language of each is of Aryan origin, but neither can properly be classed as "white persons" in view of the decision in United States v. Bhagat Singh Thind, 261 U.S. 204, 43 S. Ct. 338, 67 L. Ed. 616 * * *

Whatever might have been the case with a Parsee, if his stock had been directly derived from Persia, one whose ancestors have resided in India for 1,200 years cannot be regarded as of a race, the members of which are commonly thought of as "white persons." Thus in Re Feroz Din, D.C., 27 F. 2d 568, Judge Bourquin held that an Afghan was not a "white person," and in United States v. Ali, D.C., 7 F. 2d 728, Judge Tuttle held that a pure blooded Arabian, who was a native of India and whose ancestors had lived there for several centuries, was not such a person, even though his Arabian blood had been kept pure by intermarriage only within the family. See also, Morrison v. California, 291 U.S. 82, 85, 54 S. Ct. 281, 78 L. Ed. 664.

Thus it seems that a sect that was originally "white," although the skin of its members is colored, may become nonwhite in the common understanding through long residence in a nonwhite country.

It is this principle that explains the remarks in United States v. Ali. 7 F. 2d 728 (E.D. Mich. 1925), motion to set aside decree denied, 20 F. 2d 998 (1927), which might at first be thought a holding that Arabians are ineligible to citizenship. In 1921 the subject, Ali, had been admitted to citizenship in the District Court for the Eastern District of Michigan as a high caste Hindu, the judge holding him to be a white person under the then weight of judicial authority. After the Thind decision the Government brought suit to cancel Ali's naturalization. Ali attempted to distinguish the Thind case by alleging that while he was a native of India his ancestors were Arabians who invaded India but had kept their Arabian blood pure by marriage within the family. The court ordered cancellation of his certificate, relying on the Thind case. In discussing Ali's argument the court said ( 7 F. 2d 732):
"I am unable to follow the argument thus sought to be made. No reason has been suggested, and I can discover none, why the mere fact that the early ancestors of the defendant came to India from Arabia, where they had been called Arabians, renders the defendant a white person. His skin is certainly not white, but unmistakably dark, like that of the other members of his race. He is a native of the continent of Asia, specifically of the country of India, and more specifically of the province of Punjab, the place of the nativity of the alien held, in the case of United States v. Bhagat Singh Thind, supra, not to be a white person. Clearly, all of the conclusions of the Supreme Court in that case, as well as the reasons on which they are based, are equally applicable to this defendant. He admits that his ancestry, like that of other races residing in India, originally sprang from Caspian Mediterranean stock. It would seem that the most that could be claimed by him, by reason of Arabian ancestry, would be membership in the Caucasian race. This, however, manifestly would avail him nothing, under this decision of the Supreme Court." [Italics supplied.]

From this excerpt from the opinion, it is clear that the case is not a holding that Arabians as such are ineligible to citizenship but rather a holding that remote Arabian origin does not make "white" a person commonly thought to be nonwhite.

Judge Hand adverted to the caution in the Ozawa case, supra, that borderline cases are to be decided and not anticipated but nevertheless said ( 101 F. 2d at 9):

Accordingly it is not altogether safe to generalize, yet it may fairly be said that members of races inhabiting Europe or living along the shores of the Mediterranean are ordinarily to be classed as "white persons" in construing the naturalization laws. The same thing may be true of some Asiatics whose long contiguity to European nations and assimilation with their culture has caused them to be thought of as of the same general characteristics. [Italics supplied.]

The Thind decision certainly implied that the races indigenous to the barred zone of the 1917 Immigration Act are not eligible to citizenship. Therefore, Judge Hand could not, in his reference to the eligibility to citizenship of "some Asiatics," have meant any of the races indigenous to the barred zone. The barred zone includes western China, the countries south of China and the Pacific Islands, substantially all of India, most of Afghanistan and the southeastern corner of the Sinai peninsula. The boundary of the barred zone seems carefully to have been drawn to leave Iran untouched. And none of the countries west of Iran in Asia Minor are included in the zone.

If the races of the barred zone are not to be eligible to citizenship but nevertheless some Asiatics are to be eligible, the remaining races that might be said to be white are the Armenians ( United States v. Cartozian, 6 F. 2d 919 (D. Oreg. 1925)), the Persians who have remained such ( Wadia v. United States, supra, semble), and, generally speaking, the other races of Asia Minor, including the Arabian. The line has apparently been drawn at the Afghans ( In re Feroz Din, 27 F. 2d 568 (N.D. Calif. 1928)); Afghans having been held not to be white under the Thind decision.

An even more specific reference to the eligibility to citizenship of the races of Asia Minor is found in the brief for the Government in the Thind case. It was there argued that "a free white person" denominates what is historically known as the men of the Western civilization, and that this Western civilization cannot be wholly determined upon either geographical, philological, or ethnological bases, but can only be determined in the light of history. The Government argued (brief for the United States, Supreme Court of the United States, October Term, 1922, No. 202, pp. 20-21):

Western civilization, which now includes the Americas, is something more than European civilization; although the largest field of its operations was Europe. It is something more than the Aryan family; for the Semitic races, including the Phoenecian, Assyrian, Arabian, Chaldean, Aramaic, and Hebrew, which are not Indo-European or Aryan, are not excluded from it.

Indeed, our Western civilization began with the Semitic races in Egypt, extended to Assyria and Chaldea, passed thence into Crete and Greece, and finally found its dominating expression in the great Roman Empire, which was essentially a Mediterranean civilization. Thence it proceeded northward, into the forests of Gaul, and crossed the Channel into England.

Western civilization may, therefore, include so much of the Near East as contributed to, and was assimilable with, the development of Western civilization of Greece and Rome. Language, literature, religion, government and races, both of the Aryan and of the Semitic roots, became blended into the European civilization of Rome, and were extended by the genius of Columbus to the Americas.

This is the Western civilization, sometimes denominated the European civilization, which our fathers knew and from which they were willing to recruit the citizenship of the Republic; but the Far East, including India, was not regarded by them as a part of such civilization. To them, naturalization of the Far East Asiatics was unthinkable, because immigration of the teeming millions of Asia into America was likewise unthinkable. [Italics supplied.]

Although this historical and cultural test was not in terms adopted by the Supreme Court in the Thind opinion, historical and cultural associations of course play a large part in the application of the Court's test of common understanding. The connection of the Arabians and the other Semitic races with the beginning of our civilization has always been well-known to the historian, to the student of the Bible, and to the common man insofar as he had such learning. From this familiarity with the Arabians as a race, it would seem that it was not intended, either in 1790 at the time of the first enactment of the governing statute or certainly in 1940 at the time of its last enactment, that Arabians be excluded from the group of "white persons."

Insofar as ethnological considerations still play a part in applying the test of common understanding — and unanimous scientific belief may be presumed to have some small effect on common understanding — they are in accordance with the conclusion that Arabians are white persons. The ethnologists unanimously characterize the Arabians as part of the Semitic branch of the Caucasian race, closely related to the Jews (Dictionary of Races or Peoples, supra, pp. 5, 6, 16). This close relationship to the Jews, whose eligibility to citizenship has never been questioned, is no doubt widely and commonly known. By an associative process the relationship has aided in the creation of a common understanding of Arabians as white persons.

The above authorities and considerations all lead to the conclusion that Arabians are white persons within the meaning of section 303 of the Nationality Act of 1940. And this has been the administrative view. In naturalization matters it has been the administrative policy not to object to the naturalization of Arabians ( F---- H. D---- (56029/35); letter dated May 13, 1941, from the Special Assistant to the Attorney General to the Secretary of State; A---- A---- (29/65) letter dated February 4, 1938.) However, the question has required decision in rulings on applications for registry under the Act of March 2, 1929, now section 328 of the Nationality Act. This statute provides for the making of a record for legal admissions of aliens "not ineligible to citizenship" who fulfill certain specified conditions. Since 1931 several certificates of registry have been issued to Arabians. See A---- A----, supra, citing cases; A---- S---- (R-69499) 1935; A---- M---- (R-77810) 1936; A---- M---- (R-78377) 1936.

Since the appellant is of a race that is not ineligible to citizenship under section 303 of the Nationality Act of 1940, he is not inadmissible to the United States under section 13 (c) of the Immigration Act of 1924. The appeal will therefore be sustained.

FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing, it is found:

(1) That the appellant is an alien, a native and citizen of Iraq;

(2) That the appellant is applying for admission for permanent residence;

(3) That the appellant is in possession of an unexpired Iraqian passport and an unexpired immigration visa issued to him under section 6 (a) (1) of the 1924 act;

(4) That the appellant is of the Arabian race.

CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:

(1) That the appellant is a white person within the meaning of section 303 of the Nationality Act of 1940 and eligible to citizenship;

(2) That under section 13 (c) of the Immigration Act of 1924, the appellant is not inadmissible to the United States as a person ineligible to citizenship.

OTHER FACTORS: There are no other factors.

ORDER: It is ordered that the appeal be sustained and that the appellant be admitted for permanent residence.