Interim Decision #1271
MATTER or Qum
In DEPORTATION Proceedings
A-117'15487
Dooidod by Board February 91,1963
Respondent, born in Saipan May 5, 1933, has no claim under the Organic Act
of Guam (August 1, 1950) to citizenship through his noncitizen national
father by reason of the latter's birth in Guam in 1004, sines under this
provision of law citizenship does not extend to the children of the persons
described therein.
CHARGE :
Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)7—Convicted of
two crimes involving moral turpitude after entry, to
wit, petit theft and worthless checks.
An order entered by the special inquiry officer on December 3, 1962
terminates the above-captioned proceeding and certifies the case to
tine Board of Immigration Appeals for final decision. Termination ie
based primarily on a finding by the special inquiry officer that alienage
has not been established. The Service representative has submitted a
memorandum of law in support of his contention that the respondent
has no claim to United States citizenship under the Organic Act of
Guam enacted August 1, 1950 (64 Stat. 384). The Service representative suggests that the ease be remanded to the special inquiry officer
for further consideration following a ruling on the issue of alienage
by the Board of Immigration Appeals.
The Issue of Alienage
We will briefly review the facts concerning the issue of the respondent's nationality. The respondent was born May 5, 1933 on Saipan,
Mariana Island, now a Trust Territory under the administrative jurisdiction of the United States. His father was born of Guamanian.
parents on the island of Guam, June 10, 1901 (Ex. 4). The respondent's father was taken by his parents to the island of Saipan "sometime
in 1912" (Ex. 4) . He, the respondent's father, resided on Saipan
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from 1912 until his death on May 19, 1950 except for a 80-day visit to
Guam in 1932 (Ex. 4). The respondent's mother, a native of Saipan,
married the respondent's father in Saipan on October 17, 1925 (p. 5
& Ex. 4) .
A person born in Guam on or after April 11, 1899, and prior to
January is, 1941, became a noncitizen national of the United States
at birth if his father at the time of such birth was an American noncitizen national (Matter of S—, 3 I. & N. Dec. 589, B.I.A., April 26,
1949). The respondent's father acquired noncitizen nationality at
birth since the record shows that the respondent's grandfather was
Guamanian at the time of the birth of the respondent's father on
June 10, 1904 (Ex. 4).
The special inquiry officer concludes that the respondent derived
United States citizenship through his noncitizen national father under
the provisions of the Organic Act of Guam 1 notwithstanding the fact
that the respondent's father died on May 19, 1950, some two and onehalf months prior to the enactment of the said Act on August 1, 1950.
The special inquiry officer reasons that if the respondent's father were
alive on August 1, 1950 he (the respondent's father) would have
acquired United States citizenship. The special inquiry officer maintains that the death of the respondent's father does not affect the
respondent's United States citizenship because as a child of a person
born on the island of Guam subsequent to April 11, 1899 and as one
who was residing on the island on the date of enactment of the
Organic Act he (the respondent) derived United States citizens -hip
pursuant to paragraphs (a) and (b) of section 206 of the Nationality
Act of 1940 (8 U.S.C. 606-1950 Edition) (see Appendix A).
Section 206(a) of the Nationality Act of 1940 declares two classes
of persons and their children born after April 11, 1899 to be citizens
of the United States provided they were residing on the island on
August 1, 1950. The respondent does not qualify under paragraph
(a) of section 206 (supra) because (1) he is not a child of a Spanish
subject who was an inhabitant of the island of Guam on April 11,
1899 nor is he (2) the child of a person "born in the island of Guam
who resided in Guam on April 11, 1899." The respondent's father was
born on Guam on June 10, 1904, some five years subsequent to the
cutoff date of April 11, 1899. Furthermore, the respondent's father
gained nothing under section 206 (a) (supra) because he was deceased
on the date of the enactment of the Organic Act and according to the
record had not resided on Guam since 1912 except for a temporary
visit of 30 days in 1932 (Ex. 4).
Section 4(a) of the Organic Act of Gdam (04 Stat. 354) has been set forth
in Appendix A.
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Paragraph (b) of section 206 (supra) declares a third class of persons to be citizens of the United States, to wit, "all persons born in the
island of Guam on or after April 11, 1899 . . . subject to the jurisdiction of the United States" provided such person if born before the
date of enactment of the Act had "taken no affirmative steps to preserve or acquire foreign nationality." The respondent does not derive
citizenship through his father under this provision because it does not
extend to the children of the persons described therein. We conclude
that the respondent, born in Saipan, has no claim to derivative citizenship under the Organic Act of Guam (Appendix A) by reason of his
father's birth in Guam in 1904.
The question arises as to whether the respondent was born a noncitizen national of the United Stales. Prior to the effective date of
the Nationality Act of 1940, January 13, 1941, there were no statutory
provisions regulating the status at birth of children born outside of
the United States, its territories, and possessions to nonoitizen na , -
tionals of the United States. Section 204(b) of the Nationality Act
of 1940 2 provided in substance that a person born outside of the United
States and its outlying possessions on or after January 13, 1941 "of
parents both of whom are nationals, but not citizens of the United
States" who previously had resided in the United States or one of its
outlying possessions, became nationals but not citizens of the United
States at birth. This provision of the Nationality Act of 1940 does
not affect the respondent because he was born prior to January 13,
1941 and according to the record his mother was not a national of the
United States.
The Issue of Deportability
The respondent has been charged with deportability under section
241(a) (4) of the Immigration and Nationality Act (8 U.S.C. 1251 (a)
(4) ) in that he has been convicted of two crimes involving moral turpitude after entry, to wit, petit theft and "making, drawing and passing
certain worthless checks." These charges were not fully developed by
the special inquiry officer because he concluded that alienage had not
been established. Furthermore, it appears that the trial attorney
for the Immigration Service shared the special inquiry officer's belief
with regard to the respondent's citizenship (p. 12).
The Service representative suggests that the case be remanded to
the special inquiry officer for further evaluation of the deportation
charge in light of the Board's ruling with regard to the respondent's
alienage and to afford the respondent an opportunity for the submis-
s 8 U.S.C. 604( b) , 1910 Edition, now 8 U.S.C. 1408.
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sion of additional evidence on the issue of his citizenship and his
deportability. We will so order.
ORDER It is directed that the ease be remanded to the special
inquiry officer for the purposes stated in the foregoing opinion.
APPENDIX A
Sec. 4. (a) Chapter II of the Nationality Act of 1940, as amended,
is hereby further amended by adding at the end thereof the following
new section :
Sec. 206. (a) The following persons, and their children born after
April U, 1899, are hereby declared to be citizens of the -United States,
if they are residing on the date of enactment of this section on the
island of Guam or other territory over which the United States
exercises rights of sovereignty :
(1) All inhabitants of the island of Guam on April 11, 1899,
including those temporarily absent from the island on that
date, who were Spanish subjects, who after that date continued to reside in Guam or other territory over which the
United States exercises sovereignty, and who have taken no
affirmative steps to preserve or acquire foreign nationality.
(2) All persons born in the island of Guam who resided in Guam
on April 11, 1899, including those temporarily absent from
the island on that date, who after that date continued to
reside in Guam or other territory over which the United
States exercises sovereignty, and who have taken no affirmative steps to preserve or acquire foreign nationality.
(b) All persons born in the island of Guam on or after April 11,
1899 (whether before or after the date of enactment of this section),
subject to the jurisdiction of the United States, arc hereby declared to
be citizens of the United States: Provided, That in the case of any
person born before the date of enactment of this section, he has taken
no affirmative steps to preserve or acquire foreign nationality.
(c) Any person hereinbefore described who is a citizen or national
of a country other than the United States and desires to retain his
present political status shall make, within two years of the date of
enactment of this section, a declaration under' oath of such desire,
said declaration to be in form and executed in the manner prescribed
by regulations. From and after making of such a declaration any
such person shall be held not to he a national of the United States by
virtue of this Act.
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