MOORMAN

 Interim Decision #1389




                            MATER OF 1V1001t3fAlf

                      In SECTION 245 Proceedings
                                  A-12977383
              Decided by District Director July 28, 1984
An alien who entered as a nonimmigrant student and who was born in the
 United States but was expatriated under section 401(e) of the Nationality
 Act of 1940 is not precluded by section 245(e), Immigration and Nationality
  Act, as amended, from adjusting her status to that of a lawful permanent
  resident under section 245(a) of the Act since she is not, in fact, a native of
  a country contiguous to the United States, even though under section 202 (a) (3)
  of the Act she is considered, for quota purposes, as having been born in
  Canada and to be a nonquota immigrant under section 101(a) (27) (C) of the
  Act.

   The applicant was born in Meade, Kansas on August 8, 1910 and was
a United States citizen at birth. Her parents were also born in the
United States. Her father first went to Canada on May 15, 1912,
being followed on August 23, 1912 by the applicant, her mother, and
other children in the family. Her father was naturalized in Canada
on April 19, 1915. In Apri11920, the applicant and family returned to
the United States. On September 11, 1923, the applicant returned to
Canada and was married in 1951 to Stanley Moorman, a naturalized
citizen of Canada.
   The applicant voluntarily voted in Canadian provincial elections on
May 10, 1952 and September 19, 1956. At that time she knew she
had been born in the United States and the record does not establish
that she had been informed by any official that she had no claim to
United States citizenship. By her act of voting on May 10, 1952, the
applicant lost her United States citizenship under the provisions of
section 401(e) of the Nationality Act of 1940.
   Section 245 of the Immigration and Nationality Act, as amended,
provides that the status of an alien who was inspected and admitted
or paroled into the United States may be adjusted by the Attorney
General, in his discretion, to that of an alien lawfully admitted for
permanent residence. Subparagraph (c) of seetion. 245 further pro-
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vides that the provisions of the section shall not be applicable to any
alien who is ". . . a native of any country contiguous to the United
States .. .".
   Section. 202(a) (3) of the Act provides that "an alien born in the
United States shall be considered as having been born in the country
of which he is a citizen or subject, or if he is not a. citizen or subject
of any country then in the last foreign country in which he had his
residence as determined by the consular officer;".
   The last-cited section serves the purpose of providing a means to
determine the quota to which an immigrant born in the United States
shall be chargeable. Under the terms of this section, the applicant
is considered to be a nonquota immigrant under section 101 (a) (27)
 (C) of the Act, as though she were born in Canada. Although by its
terms, the applicant, for quota purposes, is considered as having been
born in Canada, she is not, as a matter of fact, a native of Canada, a
country contiguous to the United States. She is not precluded under
section 245(c), therefore, from being granted status as a lawful
permanent resident.
  The applicant last entered the United States on January 28, 1963
as a student in practical nursing under the provisions of section
101 (a.) (15) (F) of the Act. She was inspected and admitted. She is
in all respects eligible to have her status adjusted to that of a lawful
permanent resident under section 245 and her application. will be
granted.
  It is ordered that the application for status as a lawful permanent
resident under section 245 of the Immigration and -Nationality Act,
as amended, be approved.




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