1

October 1950 she had completed 3 years of uninterrupted residence in Newfoundland during which period her principal dwelling place 1 was there. Accordingly, it must be concluded that she has expatriated herself under the provisions of section 401 (b) of the Nationality Act of 1940.

Order: It is ordered that the excluding decision of the board of special inquiry be affirmed without prejudice to reapplication for admission to the United States when in possession of appropriate documents.

BEFORE THE BOARD

(August 17, 1951)

Upon consideration of the entire record, it is ordered that the appeal from the decision of the Commissioner be and the same is hereby dismissed.

1

Sec. 104 of the Nationality Act of 1940 provides that for certain sections of that act including sec. 404, the place of general abode is to be deemed the place of residence. The principal dwelling place is the place of residence to be considered. See 8 CFR 301.8. It is to be stated that in this definition of residence, no mention is made of intent as to the future place of abode, but rather the actual place of general abode is made the sole test for determining residence under the specified sections covered by sec. 104. As used here, the term "residence" denotes an objective fact.. See Savorgnan v. U. S., 338 U. S. 491.

In the Matter of B

In STATUS DETERMINATION Proceedings

56254/635

VP-393375

Decided by Central Office July 17, 1951

Citizenship-Child born abroad (1948) of alien mother and United States citizen father-Prerequisite of father's residence in the United States before birth of child for acquisition of citizenship by child under section 201 (g) and (i) of the Nationality Act of 1940, as amended-Meaning of "residence" under section 104 of that act, as amended. (See Interim Decision #78, 3, I. & N. Dec. 652)

The United States citizen father was physically absent from the United States for 19 years (not absent for a short period as in Acheson v. Yee King Gee, 184 F. (2d) 382), and (though under the circumstances he may have a substantial claim as to domicile here) did not fulfill the residential requirements of section 201 (g) and (i) of the Nationality Act of 1940, as amended, as defined in section 104 of that act, as amended, so that a child born to him in the Belgian Congo of an alien wife in 1948 did not acquire United States citizenship at birth under section 201 (g) or (i) (supra).

BEFORE THE CENTRAL OFFICE

Discussion: On November 7, 1950, subject's application for a certificate of citizenship under section 339 of the Nationality Act of 1940, as amended, was denied by the Commissioner. The denial was based upon the fact that the subject's United States citizen parent, his father, did not fulfill the mandatory residential requirements of section 201 of the Nationality Act of 1940, as amended, specifically sections 201 (g) and 201 (i), and accordingly, it was held that the subject could not be regarded as a citizen of the United States.

Subject's counsel requests reconsideration of said denial on the ground that the subject's father meets the 10-year residence in the United States requirements of sections 201 (g) and (i). Counsel has submitted a memorandum of law and has also directed the attention of the Service to the case of Acheson v. Yee King Gee (184 F. (2d) 382), decided by the United States Court of Appeals, Ninth Circuit. With reference to that case, counsel contends that since the holding of that case is that the word "residence" as used in section 201 (g)

does not require physical presence, that obviously the word "residence" must be construed to mean domicile as it is understood in the law; that at all times the domicile of the subject's father during the father's minority was the domicile of NB, the father of the subject's father, or the subject's grandfather; that since the grandfather was in Turkey during the father's minority as an employee of the SoconyVacuum Oil Co., an American firm, the subject's grandfather's domicile and residence within the meaning of the Nationality Act was at all times in the United States, and therefore, it follows that the subject's father's residence was in the United States and accordingly the statutory residence requirements of section 201 had been complied with prior to the subject's birth.

The questions presented are (1) whether the subject acquired United States citizenship at birth pursuant to the provisions of section 201 of the Nationality Act of 1940, as amended, and (2) whether the residence of subject's father in Turkey, with subject's grandfather, during minority, was residence in the United States within the meaning of that section, and specifically 201 (g) and (i).

The record shows that the subject's grandfather, N EB-, entered the United States in November 1907 and was naturalized as a United States citizen in September 1915. He departed from the United States in February 1919 and returned to the United States in May 1922. He was married to GA and on October 16, 1922, the subject's father, E — B——, was born in New BYork, N. Y. The subject's father then resided in New York until November 1925, when the family went to Turkey. The subject's grandfather returned to the United States for a short period from June 1926 to November 1926 and then returned to Turkey where he remained until November 1945, when he returned to the United States for permanent residence again. During the period from December 22, 1929, until October 1, 1945, the grandfather was continuously employed by Socony-Vacuum Oil Co., an American corporation, said employment being continuously in Turkey where he resided with his family, including the subject's father. The subject's father resided continuously with the grandfather in Turkey until May 1944 when the subject's father returned to the United States, at which time he was under 22 years of age. While in Turkey, the subject's father worked from 1941 to 1942 with the United States military attaché in Ankara and from 1942 until 1944 with the Office of War Information in Istanbul. After the father's return to the United States he served in the United States Army from December 1, 1944 until November 18, 1946 when he was honorably discharged. He then went to work for the Texas Petroleum Co., an American corporation, and in 1947 left for the Belgian Congo where he married the subject's mother on

November 4, 1947. The subject was born on May 18, 1948, in the Belgian Congo and based upon the father's allegation that the father resided in New York from the time of his birth until February 12, 1947, the applicant was included in the father's United States passport as a United States citizen and was admitted to the United States at the port of New York on September 11, 1948, as a United States citizen, being accompanied by his citizen father and his alien mother. Subsequently, the Department of State on March 21, 1949, advised the subject's father that the father did not fulfill the required residence qualifications for passing on American nationality to the subject who was born abroad, by reason of the father's continuous residence in Turkey from 1926 to 1944.

Although the record shows that the subject's father had a total period of residence in the United States of less than 6 years since the time of his birth, less than 3 years of which was after he attained the age of 12 years, counsel contends that subject's father nevertheless fulfilled the residence requirements of section 201 by reason of the fact that the father's presence in Turkey during his minority was not residence outside the United States within the meaning of section 201, as amended, and that the domicile of the grandfather, which was in the United States, by reason of his employment abroad in behalf of an American firm or corporation engaged in the development of foreign trade and commerce of the United States, should be imputed to the subject's father as residence under said section 201.

There appears to be no basis to dispute the fact that the grandfather's domicile since 1907 was in the United States and that the father's domicile, during the minority of the father, was that of the grandfather's, and accordingly was also in the United States. There is no disagreement with the matters set forth in counsel's memorandum insofar as they deal with the question of domicile and residence generally, but there is disagreement with counsel's conclusion that the subject's father did meet the residence requirements of section 201 (g) or (i) in view of the specific and special restricted meaning of that residence as defined by Congress in section 104 of the Nationality Act of 1940.

It appears that the only question in issue is where was the place of general abode of the grandfather and father, for section 104 of the Nationality Act provides that for the purpose of section 201 of that act, the place of general abode shall be deemed the place of residence. The regulations in connection therewith in part 301.8 of title 8 of the Code of Federal Regulations state that for the purpose of section 201 the place of a person's general abode shall be deemed the place of his residence, and that, the place of general abode of a person is his principal dwelling place.

It is well settled that an infant, being non sui generis, cannot fix his own domicile but acquires and keeps during his minority the domicile of his father (Lamar v. Micou, 112 U. S. 452). In this case it is clear that the subject's father was not domiciled in a foreign country but was domiciled in the United States, throughout the period of his absence. Domicile, however, is not decisive of the question of residence as defined by section 104 of the Nationality Act of 1940.

Residence is a term of broad content, having no exact legal meaning, and sometimes when used in a statute or constitution means a domicile and involves physical presence in a place without requiring intent to make it one's home, which is involved in the domicile concept (U. S. v. Stabler, 169 F. (2d) 995). Domicile is not decisive of residence which has varying meanings that must be understood in connection with the context of statute and legislative purpose (Downs v. Collector of Internal Revenue, 166 F. (2d) 504).

In addition to the aforesaid definition of residence for the purposes. of the Nationality Act of 1940 as to certain sections of that act including section 201, a further expression of the legislative intent, with reference to section 201 appears in the explanatory comment to this section in the report of the joint committee, when said act was proposed.

In the commentary to subsection (c) of section 201 the following was stated:

In normal times, with increased facilities of transportation, the numbers of persons sojourning or residing temporarily in states of which they are not nationals is likely to increase. Even now there are large numbers of Americans who reside abroad, not merely for pleasure or because they have a preference for life in foreign countries, but because they are engaged in promoting American interest, commercial or other. In the great majority of these cases husband and wife are both citizens of the United States. In such cases it is altogether likely that the children will be taught to speak the English language from infancy and will be so brought up that they will be truly American in character. This is likely to be the case where both parents are citizens of the United States even though neither one resides abroad for the purpose of promoting American interests. It seems reasonable and expedient that citizenship in all such cases should be conferred upon the children at birth, without any condition except that one of the two citizen parents must have resided in the United States prior to the child's birth. The latter condition is similar to that which appeared in the old law, and it has never met with serious objection, since it is so patently reasonable. Its retention in subsection (c) hereof seems quite desirable, since it would not be a wise policy to extend citizenship indefinitely to generations of persons born and residing in foreign countries. The case of a child born abroad to parents of whom only one is a citizen of the United States, the other being an alien presents greater difficulties and requires correspondingly stricter limitations. In the commentary to subsection (g) the committee pointed out as follows:

This subsection is based upon section 1993 of the Revised Statutes, as amended by section 1 of the act of May 24, 1934 (48 Stat. Pt. 1,797).