MATTER OF C
Application for Certificate of Citizenship
A-11452378
Decided by Regional Commissioner August 6, 1959
approved by Assistant Commissioner
Presumption of lawful admission-8 CFR 101.1(j)—Not applicable where no
passport was issued—Exemption from passport requirement does not render
applicant eligible.
The presumption of lawful admission for permanent residence under 8 CFR
101.1(j) (1) is available only to an alien who was erroneously issued a
United States passport or included in the passport of his citizen parent
accompanying him or to whom he was destined. Hence, a Canadian-born
alien child, erroneously admitted in 1943 as a United States citizen, accompanied by a United States parent, who was not issued or included In a
United States passport, cannot be presumed to have been lawfully admitted,
notwithstanding that, as a Canadian national, toe child was exempt rrotn
passport requirements.
BEFORE THE REGIONAL COMMISSIONER
Discussion: This case .is on appeal from a decision of the district director, dated April 27, 1959, denying the application for a
certificate of citizenship upon the ground that there is no record
of applicant's lawful admission for permanent residence.
The record discloses that applicant was born in Canada on May
26, 1941, to a native-born citizen mother and an alien father. Her
mother had resided in the United States from birth on January 8,
1920, to 1938, when she went to Canada to reside. She returned to
the United States on February 20, 1943, accompanied by the applicant. On that date applicant was erroneously admitted as a citizen
of the United States. Neither she nor her mother had a United
States passport, nor was the applicant then in possession of an
immigration visa. Her lather %. ■ as naturalized tin September 10,
1949.
Section 201(g) of the Nationality Act of 1940, in effect at the
time of the applicant's birth, conferred citizenship at birth upon:
A person born outside the United States and its outlying possessions of
parents one of whom is a citizen of the United States who, prior to the birth
of such person, has had ten years' residence in the United States or one of its
421
outlying possessions, at least five of which were after attaining the age of
sixteen years, the other being an alien ….
Since her mother had not resided in the United States for the
required ten-year period prior to May 26, 1911, the date of the
applicant's birth, the applicant did not acquire citizenship at birth
(Matter of S - F , 2 I. & N. Dec. 182).
The applicant claims that she derived citizenship through the
naturalization of her father on September 16. 1949.
Section 313 of the Nationality Act of 1940, then in force, provided:
A child born outside of the United States, one of whose parents at the time
of the child's birth was an alien and the other of whose parents then was and
never thereafter ceased to be a citizen of the United States, shall, if such
alien parent is naturalized, be deemed a citizen of the United States, when—
(a) Such naturalization takes place while such child is under the age of
eighteen years; and
(b) Such child is residing in the United States at the time of naturalization
or thereafter and begins to reside permanently in the United States while
under the age of eighteen years.
No issue is raised as to any of the above conditions, except that
of the applicant's permanent residence in the United States at the
time of her father's naturalization.
Lawful permanent residence has alwo: . been a prerequibile to
—
derivative citizenship (Senate Report. No. 1515, 81st Cong., 2d
Sess., p. 707; see too, Matter of At , 3 I. & N. Dec. 815). Until
one is admitted in conformity with the immigration laws, no rights
of citizenship' can be acquired (United States en rel. Goldman v.
Tod,
3 F.2d 836). Even though an alien may reside physically
within the United States, if he be in an excluded class, such residence cannot be considered as a permanent residence (Schneider v.
United States Immigration and Naturalization Service,
65 F. Supp.
377, affirmed
161 F.2d 1022 (1947)).
Not having acquired citizenship at birth, the applicant was an
alien at the time of her admission to the United States and as such
was required to be in possession of a valid immigration visa to be
lawfully admitted for permanent residence. She was not in possession of such a document. Accordingly, she was excludable and
not lawfully residing in the United States at the time of her
father's naturalization. See Matter of S F , Wpm.
Applicant maintains that her admission as a citizen was the fault
of this Service and that she was not informed that such admission
was erroneous until her application was denied. This argument is
adequately answered by the following comments of the court in
Schneider v. United States Immigration and Naturalization Service,
eupra:
422
… irrepeetive of who wtte to biome, and certainly this petitioner, duo
to his infancy when he crossed the border, could not be held accountable, this
court is bound to follow the interpretation placed upon the word 'dwelling' as
announced by the Supreme Court.
Although that case involved a prior statute, its rationale is
applicable to the instant case.
It remains to be determined whether the applicant's erroneous
admission as a citizen may be presumptively regarded as a lawful
one for permanent residence.
Part 101.1(j), Title S. Code of Federal Regulations, presumes
a lawful admission for permanent residence in the case of :
(1) An alien for whom there exists a record of admission prior to September 11, 1957, as a United States citizen who establishes that at the time of
such admission he was the child of a United States citizen parent; he was
erroneously issued a United States passport or included in the United States
passport of his citizen parent accompanying him or to whom he was destined;
no fraud or misrepresentation was practiced by him in the issuance of the
Passport or in gaining admission; he was otherwise admissible at the time of
entry except for failure to meet visa or passport requirements; and he has
maintained a residence in the United States since the date of admission. …
Applicant meets all the requirements of this portion of the regu,
latio»s except that she had not been erroneously issued a passport
or included in the United States passport of her citizen mother.
As pointed out above, neither the subject nor her mother had a
passport. Absent this essential requirement, this portion of the
regulations affords no benefit, to the applicant.
It is urged that the passport requirement has no application to the
instant case for the reason that passports were not required under
the circumstances of the applicant's entry from Canada. This contention must be rejected. The language of Part 101.1(j) is clear
and unambiguous. No exceptions or deviations are set forth.
Literal compliance therewith is necessary in order that an entry
may be presumed lawful for permanent residence.
In view of the foregoing, it is concluded that the subject has
failed to establish that she was lawfully admitted into the United
States for permanent residence. Lacking this essential element,
she did not derive citizenship upon the naturalization of her father
and she is not of the clean of persons to whom issuance of a certificateof citizenship is authorized. The decision of the district
director will be affirmed.
Order: It is ordered that the decision of the district, director
denying the application for a certificate of citizenship be and the
same hereby is affirmed.
