56007/92
Decided by the Board July 16, 1942.
Citizenship — Children — Born abroad of citizen father — Section 1993, Revised Statutes.
A child born abroad of a citizen father who had never lived in any territory of the United States except the unincorporated territory of Puerto Rico derives citizenship under Section 1993 of the Revised Statutes. Residence of the citizen parent in Puerto Rico is residence in the United States within the meaning of Section 1993.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Immigrants without immigration visas.
Mr. Luis E. Dubon, of San Juan, P.R., for the appellants.
Mr. Richard P. Lott, Board attorney-examiner.
STATEMENT OF THE CASE: The appellants arrived at the port of San Juan, P.R., on April 1, 1939, and applied for admission as citizens of the United States. A board of special inquiry excluded them on the ground above stated. Our order of October 27, 1939, authorized their parole. Upon consideration of the case under date of January 29, 1941, we ordered the reopening of the case with the view to determining the appellants' citizenship under sections 201 (g) or (c) of the Nationality Act of 1940.
DISCUSSION: The appellants are the legitimate children of a Puerto Rican born in Puerto Rico in 1908. He remained in Puerto Rico until 1922 when he moved to the Dominican Republic. He was never naturalized there. The father had never lived in any part of the United States except Puerto Rico. At the time of our first order of October 27, 1939, the question of whether the appellants herein, born in the Dominican Republic of a father who was a citizen of Puerto Rico, but who had never lived in any territory of the United States except the unincorporated territory of Puerto Rico, acquired United States citizenship under Section 1993 of the Revised Statutes was not definitely decided by the Immigration and Naturalization Service. An opinion of the solicitor dated June 28, 1938, had held that Section 1993 of the Revised Statutes and as it was amended by the act of 1934 was not available to those born outside of United States territory unless the father from whom they would derive citizenship had lived in a territory of the United States other than unincorporated territory, such as Puerto Rico. The opinion of the solicitor resulted in promulgation of circular 302. The solicitor's opinion and the attitude of the Immigration and Naturalization Service expressed in circular 302 produced unfortunate administrative difficulties and were also at variance with the opinion of the Department of State. The Office of the Solicitor had occasion to reconsider its prior decision and in a memorandum dated July 20, 1939, the view was expressed that residence of the parent in Puerto Rico is residence in the United States for purposes of Section 1993 as it originally read and as amended by the Citizenship Act of 1934. The solicitor affirmed his later memorandum on October 30, 1939 (C.O. file 56026/100). This view has subsequently become generally adopted by the Immigration and Naturalization Service.
Our order of January 29, 1941, reopening the case for the purpose of permitting the appellants to produce evidence to claim citizenship under the provisions of section 201 of the Nationality Act of 1940 has been complied with in a succession of hearings at the port, which demonstrated only that the citizenship of the mother of the appellants is not susceptible of proof. Thus they fail to qualify under section 201 (c) of the Nationality Act, which requires that both parents be citizens of the United States. Furthermore, under section 201 (g) the appellants fail to qualify since that subsection requires that the citizen parent must have had 10 years' residence in the United States or one of the outlying possessions, at least 5 of which were after attaining the age of 16. The father of these appellants, as before stated, has lived in the Dominican Republic since he was 14 years of age with the exception of one brief visit to Puerto Rico. The Central Office of the Immigration and Naturalization Service has ruled in interpretation No. 9 that section 201 (g) with certain exceptions not applicable here applies only to persons born after the effective date of the Nationality Act. In forwarding the case following the reopened hearing, the board of special inquiry and the district director suggested that the appellants should be considered United States citizens under Section 1993 of the Revised Statutes. In this we agree.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing, it is found:
(1) That the appellants' father was born in Puerto Rico in 1908 and lived there until 1922;
(2) That the appellants' father has lived in the Dominican Republic since 1922 but was never naturalized there;
(3) That the appellants' father and mother were married in 1929;
(4) That the citizenship of the mother of the appellants is undetermined;
(5) That the appellants were born in the Dominican Republic in 1931 and 1933 and 1936;
(6) That the appellants seek admission to Puerto Rico as citizens of the United States;
(7) That the appellants are not in possession of any consular or immigration documents.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under the Acts of April 12, 1900, March 2, 1917, and June 27, 1934, the father of the appellants is a citizen of the United States;
(2) That under Section 1993 of the Revised Statutes the appellants R---- F---- and C---- L---- are citizens of the United States;
(3) That under Section 1993 of the Revised Statutes, as amended by the act of 1934, the appellant M---- T---- F---- is a citizen of the United States;
(4) That under section 13 of the act of 1924 the appellants are not inadmissible as immigrants not in possession of immigration visas.
ORDER: It is ordered that the appeals be sustained and the appellants admitted as citizens of the United States.