Matter of V----

• Decision Date: 02 February 1962
• Docket Number: A-12664565.
• Citation: 9 I&N Dec. 558
• Parties: MATTER OF V----. In SECTION 341 Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

9 I&N Dec. 558

MATTER OF V----.

In SECTION 341 Proceedings.

A-12664565.

Board of Immigration Appeals.

Decided by Regional Commissioner February 2, 1962.

Approved by Assistant Commissioner February 20, 1962.

Citizenship—Acquisition at birth abroad—Section 301(a)(7) of 1952 Act—Physical presence of citizen parent—Savings clause preserves residence in outlying possession which has since become independent country.

(1) Applicant born in Philippine Islands in 1958 held to have acquired United States citizenship under section 301(a)(7) of Act through his father who was born in the United States in 1931 and resided in the Philippine Islands from September 1936 until May 1954.

(2) The term "outlying possession" as used in section 301(a)(7) includes, in addition to the territories enumerated in section 101(a)(29) of the Act, any other territory which was, in fact and in law, an outlying possession of the United States during the period of a citizen parent's physical presence therein.

(3) Citizen parent's residence in Philippine Islands from September 1936 until July 3, 1946, when they ceased to be a possession of the United States, conferred upon him the status of physical presence in an outlying possession of the United States which was preserved by section 405 of the Act.

BEFORE THE REGIONAL COMMISSIONER

DISCUSSION: On September 28, 1961, the applicant's father applied for the issuance of a certificate of citizenship to the applicant in accordance with the provisions of section 341 of the Immigration and Nationality Act and related regulations. The record establishes that the applicant was born in the Philippine Islands, a foreign state, on January 11, 1958. His mother also was born in the Philippine Islands, and first entered the United States on January 14, 1960. She has advanced no claim to United States nationality. The applicant's father was born in Stockton, California, on February 23, 1931, and thus became a United States citizen at birth by reason of the constitutional provision. Therefore, the applicant's claim to United States citizenship must be resolved in accordance with the requirements of section 301(a)(7) of the Immigration and Nationality Act.

The issue presented in the case involves a determination as to whether or not the applicant's father, prior to the applicant's birth was physically present in the United States or its outlying possessions for at least ten years, of which period five years must have been accumulated after he arrived at his fourteenth birthday (section 301(a)(7). Immigration and Nationality Act). The evidence of record establishes that the applicant's father was continuously physically present in the United States from February 23, 1931, the date of his birth, until his departure for the Philippine Islands in September 1936, a period of physical presence totaling five years and seven months. He resided in the Philippine Islands without interruption until his return to the United States on May 3, 1954. Thereafter, he was continuously physically present in the United States until his enlistment in the United States Air Force on July 27, 1954, and he has served continuously in the Air Force since that date. Under the proviso to section 301(a)(7) of the Act, all periods of service in this country's armed forces must be considered as physical presence in the United States. Thus, the applicant's citizen father has unquestionably been physically present in the United States for an additional period of three years and eight months prior to the applicant's birth, and such physical presence was accumulated after he arrived at his fourteenth birthday.

A consideration of the total physical presence amassed by the applicant's father, permits a narrowing of the issue to the single question: Does his continuous residence in the Philippine Islands from September 1936 to July 4, 1946, when the Islands beyond dispute ceased to have the status of an outlying possession of the United States, nonetheless constitute physical presence in an outlying possession of the United States for the purposes of section 301(a)(7) of the Immigration and Nationality Act? This is the crucial question. If it is answered in the affirmative, it is mathematically certain that the father will have more than sufficient physical presence prior to the birth of the applicant to satisfy the prerequisites of section 301(a)(7) of the Act.

The record discloses that a Department of State official at the American Embassy, Manila, Philippine Islands, issued this applicant United States Passport #155733 on February 10, 1959, predicated upon a finding of citizenship acquired at birth abroad, pursuant to section 301(a)(7) of the Immigration and Nationality Act. In making the finding of citizenship, the continuous residence of the applicant's father in the Philippine Islands prior to July 4, 1946, was credited as physical presence in an outlying possession of the United States for the purpose of completing the five years' physical presence after age fourteen, which the father needed to confer citizenship upon the applicant under the section (Exhibits 5 and 6). Direct inquiry of the Department of State elicited a statement that the action taken by the American Embassy in Manila was in complete accord with the official position of the Department. Thus it is clear that the Department of State has given an affirmative answer to the decisive question.

Administrative decisions in cases involving the acquisition of citizenship at birth abroad under sections 201(e) of the Nationality Act of 1940 (Matter of S----, 4-575 (1951)) and 201(g) of the same statute (Matter of Y----, 7-667 (1958)) have held that a parent's residence in the Philippine Islands prior to July 4, 1946, was residence in an outlying possession of the United States for the purpose of those sections. Further, it is pertinent to observe that in the decision last cited such holding prevailed even though the child beneficiary was born in 1949, when the Philippine Islands, beyond any shadow of doubt, had ceased to be an outlying possession of the United States.

The decisions cited above give no reason to suppose that a different viewpoint should prevail in the case under consideration. Indeed, the similarity in the respective factual situations would seem to prompt the opposite conclusion. Nonetheless, proper adjudication must consider first of all whether the mere language change from "residence" as used in sections 201(e) and (g) of the Nationality Act of 1940 to "physical presence" as used in section 301(a)(7) of the Immigration and Nationality Act could conceivably require a viewpoint in the area of discussion different from that expressed in the administrative decisions. Also material to the deliberations may be the significance of the change in the statutory definition of an outlying possession of the United States which in the Nationality Act of 1940 (section 101(e)) embraces by interpretation the Philippine Islands; whereas, in the Immigration and Nationality Act (section 101(a)(29)), the definition omits all direct or implied reference to the Islands. Finally, and perhaps of the greatest importance, will be an essential evaluation of any impact which the savings clause in section 405(a) of the Immigration and Nationality Act may have upon the question at hand.

We must look to the Congressional committee reports in an effort to determine the underlying Congressional...