MATTER or C
In EXCLUSION Proceedings
A-11452V03
Decided by Board December 28, 1959
Loss of citizenship—Retention requirements of section 349(a)(1) of 1952 act
apply to citizen who attains age 23 subsequent to December 24, 1952.
(1) Under section 401(a) of the Nationality Act of 1940, subject, who acquired United States citizenship at birth in Italy in 1933 pursuant to 11.S.
1993 and Italian nationality in 1935 upon his father's reacquisition of Italian
citizenship, could retain his United States nationality only by establishing
residence in the United States before reaching age 23.
(2) However, since subject was 19 years of age and still a citizen of the
United States on December 24, 1952, when the Immigration and Nationality
Act became effective, his case is governed by the more liberal provisions of
section 349 (a ) (1) of that act permitting retention of his citizenship if he
applies for admission to the United States before reaching age 25.
Matter of C 7 1. & N. Dec. 612, overruled.
EXCLITI53PLE A ct of 1552—Section 212(a) (20) [S U.S.C. 1182(a) (201 ]—lmmigrant not in pos s e :St_401.1 or an unexpired immigrant visa.
BEFORE THE BOARD
• Discussion : Ths appellant, a 26-year-old married male. born in
Italy on September 19, 1953, arrived at New York, New York, on
July 8, 1958, and applied for admission to the United States as a
citizen thereof. He had in his possession a United States passport
issued by the United States Consul at Palermo, Italy, on June 9,
1958. The aforementioned passport was valid for a return journey
to the United States and expired on August 8, 1958. The appellant
was ordered detained for further examination by a special inquiry
officer for the purpose of determining his admissibility to the United
States under the Immigration and Nationality Act and he was
paroled into the United States under section 212(d) (5) of the
Immigration and Nationality Act pending a final determination on
his application for admission as a citizen of the United States.
After a hearing conducted at San Francit-cu, California, on September 2, 1959, the special inquiry officer directed that the appellant be admitted to the United States as a citizen thereof and at
the same time he certified the case to the Board for final decision
K11
in accordance with the applicable regulations. The record shows
that the appellant's father, a native of Italy, was naturalized a
citizen of the United States in the Superior Court of Santa Clara
County, San Jose, California, on June 14, 102E. The father was
married to a native-born citizen of the United States at Palermo,
Italy, on April 23, 1930, and the appellant was born in Italy on
September 19, 1933, approximately 2 months after his citizen father
last returned to his native country in July 1933, where he has since
resided. The appellant's father was a citizen of the United States
when he (appellant) was born in Italy on September 19, 1933.
Hence, the appellant, acquired United States citizenship at birth
under the provisions of section 1993, Revised Statutes. A certificate
expatriation approved by the United States Department of State
on April 7, 1958, shows that the appellant's father expatriated himself on or about July 29, 1935, under the provisions of the first paragraph of section 2 of the Act of March 2, 1907, by having automatically naturalized a subject of Italy, a foreign state, pursuant
to article IX (3) of the Italian Nationality Law of June 13, 1912,
and by his-having manifested a voluntary acceptance of such nationality in that he resided in Italy continuously subsequent to his
naturalization without documentation as an American citizen from
July 1933 until January 15, 1958, the date the appellant made application for a United States passport. Moreover, he voted in elections held in Italy on June 7, 1953, May 23, 1.954, and June 5, 1955.
Under the provisions of article XII of the Italian Nationality Law
of 1919, the appellant as a minor nonemancipated child acquired
Italian nationality when his father reacquired such nationality in
July 1935. Consequently, lie acquired dual citizenship when he sae
approximately 2 years of age.
The appellant became subject to the provisions of section 401 of
the Nationality Act of 1940, as amended, when that act becalm
effective in January 1941. Section 401 thereof provides that:
Sac. 401. A person who is a national of the United States, whether by birt
or naturalization, shall lose his nationality by:
(a/ Obtaining naturalization in a foreign state, either upon his own appl
cation Or through the naturalization of a parent having legal custody of sue
person: Provided. however, That nationality shall not he lost as the result
the naturalization of a parent unless and until the cane shalt have obtain
the age of twenty-three years without acquiring permanent residence in t
United States ….
On the basis of the foregoing, the appellant had to return to t
United States before attaining the age of 23 or lose his Unit
Staten citizenship acquired at birth. Subsequent thereto, the
tionality Act of 1940, as amended, was repealed pursuant to sect
403(a) (42) of the Immigration and Nationality Act on Decem
24, 1952. The appellant on that date was 19 years of age an ∎
512
c iti zen of the United St a t es . Accordingly, the issue involved in the
instant case is whether the appellant lost his United States citizenship under the provisions of section 401(a) of the Nationality Act
of 1940, as amended, because of his reaching the age of 23 years
without acquiring residence in the. United States or whether he
retained his United States citizenship under the provisions of section 349(a) (1) of the Immigration and Nationality Act.
The Service representative in oral argument stated that the decision rendered by the Service on November 22, 1957, in the Matter of
C—, 7 T. & N. Dec. 612, is controlling in the instant case. The
Service representative argues that, section 401(a) was continued in
operation by reason of the savings clause of the Immigration and
Nationality Act (section 405(a)). The pertinent paragraph of section 349 of the Immigration and Nationality Act reads as follows:
SEC. 349. (a) From and after the effective date of this Act a person who is
a national of the United States whether by birth or naturaliZation, shall lose
his nationality hy-
(1) obtaining naturalization in a foreign state upon his own application.
upon an application filed in his behalf by a parent, guardian, or duly authorized agent, or through the naturalization of a parent having legal custody of
such person: Provided, That nationality shall not he lost by any person
under this section as the result of the naturalization of a parent or parents
while such person is under the age of twenty-one years, or as the result of a
naturalization obtained on behalf of a person under twenty-one years of age
by a parent, guardian, or duly authorized agent, unless such person shall fall
to enter the United States to establish a permanent residence prior to his
twenty-fifth birthday: And provided farther, That a person who shall have
lost nationality prior to January 1, 1948, through the naturalization in a foreign state of a parent or parents, may, one year from the effective
date of this Act, apply for a visa and for admission to the United States as
a nonquota immigrant under the provisions of section 101(a) (27) (E) * a a.
The special inquiry officer concluded that the appellant, herein
retained his United States citizenship, inasmuch as he entered the
United States to establish a. permanent residence prior to his 25th
birthday as provided in section 349(a) (1), supra. The special inquiry officer stated in his decision that a somewhat comparable interpretation of a different section of the Immigration and Nationality was made by the Regional Commissioner in February 1958
and approved by the Assistant Commissioner in the Matter of 31—,
7 I. & N. Dec. 646. The subject in Matter of 31 8.apra„ was
bOrn in Mexico on April 17, 1935, and he acquired United States
citizenship at. birth under section 1993, R. S., as amended, because
of the fact that his father had always been a citizen of the United
States. The issue raised in Matter of M , mpra, was whether
the subject lost. citizenship under the provisions of sections 201 (g)
and (h) of the Nationality Act of 1940, as amended, because he
entered the United States on May 10, 1952, after reaching his 10th
513
birthday. It was concluded in Jfatter of Of supra, that he had
an opportunity to regain his citizenship by complying with the provisions of sections 301(b) and (c) of the Immigration and Nationality Act, inasmuch as he had been physically present in the
United States since May 10, 1952, and on May 10, 1957, had fulfilled
the retention requirements of sections 301(b) and (c) of the Immigration and Nationality Act, by having cone to the United States
prior to the age of 23 and by having been physically present in this
country continuously for a 5-year period between the ages of 14 and
28. The decision rendered in Matter of supra, is contrary
to the views originally held on this question as set forth in Matter
of B , 5 I. & N. Dec. 291. Matter of M , supra, made a detqed reference to Lee You Fee v. Dulles,
236 F.2d 885, wherein
there was a situation identical in most respects to those existing in
Matter of 21/ and Matter of B , supra.
The District Court,
133 F. Supp. 160, and the Circuit Court of
Appeals,
236 F.2d 885 . held that Lee You Fee had failed to retain
his citizenship because of his failure to come to the United States
prior to the effective date of the Immigration and Nationality Act
of December 24, 1952, and prior to his 16th birthday. The Supreme
Court. granted certiorari in May 1957 and on November 18, 1957, the
court in a per euriam, opinion (
355 U.S. 61) stated that: "Upon
cOnsickration of the confession of error by the Solicitor General
and of the entire record, the judgment of the United States Court of
Appeals for the Seventh Circuit is reversed and tile case is remanded to the District Court with directions to vacate its order
dismissing the complaint.." The Government brief submitted by the
Department of Justice stated among other things that the real issue
in Lee You Fee v. Dulles, supra, is whether, although the petitioner
had lost his citizenship under the. 1340 act, sections 301(b) - and (c)
of the . 1952 act gave him an opportunity to regain that citizenship
by•coming to the United States before he was 23 years of age. The
Solicitor General stated in his brief that the petitioner's position
was correct and the contrary position of the Government below in
the District and Circuit Court of Appeals was incorrect; that section 301(c) states in terms that the new rule established by section
301(b) as to losing citizenship unless one has come to the United
States prior to the age of 23 "shall apply to a person born abroad
subsequent to May 24, 1934." Lee You Fee was, in fact, born in
China on July 16, 1935, a date subsequent to May 24, 1934, The
Government brief referred to the comments and analysis of the
Immigration and Naturalization Service on the proposed 195'2 act
wherein it was stated that "although subsection (b) refers specifically to persons born abroad who are citizens under paragraph (7)
of subsection (a), the apparent effect of subsection (c) is to apply
514
the rules for retention of citizenship 001 in subsection (b) to
all persons born abroad subsequent to May 24, 15)34." The Government brief noted that the language and legislative history in section
301(c) sufficiently indicated a congressional intent. to cover all persons 'porn after May 24, 1934, so that section 301(c) of the 1952 act
should properly be treated as a specific provision rendering the general savings clause inapplicable; that the determination of whether
a particular section comes within the "otherwise specifically provided" part of a general savings clause requires not any particular
form of language, rather only a clear expression of congressional
purpose.. The Supreme. Court action in Lee You Fee v. Dulles,
supra. is the law of the land. Hence, a person in order to retain
his United States citizenship in accordance with the provisions of
sections 301 (b) and (c) of the Immigration and Nationality Act
was required to come to the United States prior to the time. he
reached 23 years of age and immediately following any such coming
to be continuously present in the United States for at. least five
-years …. The confession of error by the Solicitor General of
the United States in Lee You Fee v. Dulles, supra., and the subsequent. action of the Supreme Court, -of the United States in that
case overrules the decision of this Board in .71Iaz!ter of B supra.
Section 349(a) of the Immigration and Nationality Act continued in effect the ten acts listed in the Nationality Act, of 1940. as
amended, by which both native-born and naturalized citizens shall
divest themselves of their nationality. The bill, except for certain
modification, continued in effect the provisions of the Nationality
Act. of 1940 relating to acts which cause loss of nationality but
modifies the conditions under which. the person who may commit
certain expatriating acts while under 18 years of age may repudiate
those acts and thus preserve his United States citizenship (Senate
Report No. 1137, 82d Cong., 2d Sess., which accompanied S. 2550).
This report bears the notation that. the committee, after consideration of all the facts, recommends that the bill be enacted. It was
also stated in Senate Report No. 1137, supra (p. 49), that "a child
under 21 rears of age. who is residing abroad with or under the legal
custody of a. parer.a, who loses American nationality under the 3-year
or 5-year rule. also loses his American nationality if he has or acquires the nationality of the foreign state." Under existing law
(the Nationality Act of 1940) the child may return to the United
States prior i.o reaching the age of 23, establish his residence., and
thereby retain his citizenship. The Immigration and Nationality
Act, of 1952 raises the age limit from 23 to 25. Unquestionably, the
congressional intent at the time the Immigration and Nationality
Act was enacted was to liberalize not only section 301 (b) and (c)
but also section 349(a) (1) of the Immigration and Nationality Act..
515
The brief submitted by the Government in Lee Y ow Fee v. Dulles,
supra, states that the language and legislative history in section 301
expressly indicates a congressional intent to cover all persons born
after May 24, 1934, so that section 301(c) should properly be treated.
as a specific provision rendering the general savings clause inapplicable. Therefore., we find that the views expressed by the Department
of Justice in its confession of error to the Supreme Court in Lee
Fee v. Dulles— stayrr t, as to whether a particular section of the
Immigration and Nationality Act comes within the "otherwise specifically provided" part of the general savings clause are applicable
to section 349. Section 319(a) (1) of the Immigration and Nationality Act was intended to liberalize the law so that citizens of the.
1h ited States who had not lost their nationality on December 24,
1952, and had not obtained 23 years of age would have an additional two years within which to come to the United States in order
to preserve their citizenship; that Congress: intended to liberalize
the then existing laws is evidenced by statements made. by Senate
Committee on the Judiciary in Senate. Report No. 1137, supra
(pp. 46, 49).
The expatriation of the appellant's father in July 1935 was
merely a condition precedent to his the appellant's, possible expatriation, which in turn depended upon his subsequent. conduct up
to and including the expiration of the defined limits specified in the
statute in effect at the time the appellant adopted or made a choice
of nationality. The appellant did not lose his United States nationality, inasmuch as he entered the United States to establish a
permanent residence prior to his 25th birthday. It should be noted
that provision was also made in section 349(a) (1) for nonimmigrant.
status for all persons who prior to January 1, 1948, lost nationality
through their parent's naturalization in a foreign state.
The latter proviso of section 349(a) (1) further emphasizes that
it was the intention of the Congress to liberalize the aforementioned
section of the Immigration and Nationality Act. After carefully
considering all the evidence of record, together with the representations by counsel and the Service representative in oral argument,
we conclude for the reasons hereinbefore set forth that the appellant
was properly admitted to the United States as a citizen thereof by
the special inquiry officer. Accordingly, the following order will be
entered.
Order: It is ordered that the order of the special inquiry officer
dated September 24, 1959, directing that the appellant be admitted
to the United States as a citizen thereof be and the :SUMO is hereby
approved.
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