IN THE MATTER OF A

In DEPORTATION Proceedings

55913/37

Decided by the Board August 4, 1952

Citizenship, status: Married native-born woman, act of June 25, 1936, as amended: Meaning of clause "resided continuously."

(1) A temporary absence from the United States unaccompanied by an intent to abandon United States residence, does not break the continuity of residence required under the provisions of the act of June 25, 1936, as amended, so as to permit the restoration of United States citizenship status on July 2, 1940, to a native-born woman who had lost her citizenship by marriage to an alien.

CHARGES:

Warrant Act of 1917-Found managing a place habitually frequented by

prostitutes.

Act of 1917-Found deriving benefit from the earnings of a

prostitute.

BEFORE THE BOARD

Discussion: This is an appeal from an order dated December 3, 1951, by the Assistant Commissioner providing for the deportation of the respondent on the grounds stated above.

Counsel claims that the respondent is a citizen of the United States and is therefore not subject to deportation. We agree with counsel that the respondent is a citizen of the United States and that the proceedings should be terminated. The question as to the citizenship of the respondent is the sole issue involved.

The Service has found that the respondent was born in the United States on February 5, 1894; that on April 11, 1914, she married a native and a citizen of Spain who never became a citizen of the United States; and that he died at Los Angeles, Calif., on February 3, 1945.

The appellant has resided in the United States continuously with the exception of a stay in Spain from about May to September 1916. At the time of her departure she apparently had only one child. She was taken with her. If the appellant can be regarded as having resided continuously in the United States since the date of her marriage, she would be a citizen under the act of July 2, 1940, which amended the act of June 25, 1936, and which reads as follows:

That hereafter a woman, being a native-born citizen, who has or is believed to have lost her United States citizenship solely by reason of her marriage

prior to September 22, 1922, to an alien, and whose marital status with such alien has or shall have terminated or who has resided continuously in the United States since the date of such marriage, shall be deemed to be a citizen of the United States to the same extent as though her marriage to said alien had taken place on or after September 22, 1922: Provided, however, That no such woman shall have or claim any rights as a citizen of the United States until she shall have duly taken the oath of allegiance * * *. [Matter in italic was added by amendment of July 2, 1940.]

The facts as shown by the record concerning the absence are as follows: At a hearing on May 18, 1936, appellant's husband testified that he had been a resident of the United States since about 1909 or 1910; that he resided continuously in the United States until he was injured in a mine on June 21, 1915; that he was hospitalized until January 24, 1916; that he received $650 in compensation; that he thereupon took a trip to Spain; and that when he arrived in Spain, he went to the home of his mother. In answer to the question "what did you do while you were in Spain? Visit?," he answered:

I visited there and I started a little business there, buying coal and one thing and another, but I decided I didn't like it much and went back to the United States.

He stated he remained in Spain about 6 months and that he took his wife and his daughter with him. At the same hearing, the appellant testified that her trip to Spain was the first time she has been away from home; and that when she entered the United States, she told immigration officials that she "was born and raised in the United States and went to Spain for a trip." An unsigned form bearing the heading "Passport Data For Alien Deportees" and the date "March 4, 1936" apparently completed from information furnished by the appellant, contains the statement that the appellant "Was in Spain, with husband, 6 months in 1916, on visit."

In his brief, counsel states that it is the contention of the appellant that the trip to Spain was purely a personal visit and that at no time was there any intention to maintain residence outside the United States. He states that prior to leaving the United States, the husband of the appellant had accepted employment in the coal mines at Clarksburg, W. Va., which he would commence upon his return to the United States.

A letter dated March 27, 1936, from a coal company reveals that the husband of the respondent was employed as a miner from April 4, 1914, to June 21, 1915; that on the latter date, he fractured his leg; that he was in the company hospital until January 24, 1916, at which time he resumed work. A letter dated April 3, 1936, from another mining company reveals the respondent's husband was employed at various intervals from March 1914 to July 1931; and that he was employed by them in July 1917.

The act of June 25, 1936, as amended by the act of July 2, 1940, does not define the clause "resided continuously." However, the term "resided continuously" within the United States has been found in laws relating to naturalization since the basic naturalization act of June 29, 1906. It was well settled at the time of the amendment of July 2, 1940, that the requirement of "continuous residence" insofar as it concerned naturalization of aliens, did not necessitate continual physical presence in the United States during every moment of the period, and that temporary absences unaccompanied by an intent to abandon residence in the United States, did not operate to interrupt the continuity of residence, (United States v. Rockteschell, 208 F. 530 (C. C. A. 9, 1913); In re Barron, 26 F. (2d) 106 (E. D., Mich., 1928)). We see no reason to apply a different meaning to the words "continuous residence" found in the act under consideration than the meaning applied to an identical term in the naturalization laws at the time of the passage of said act. We will so interpret it.

While the record shows that appellant's husband engaged in business in Spain during his sojurn there, we note he regarded his stay as a visit. We note further that appellant's testimony that she went to Spain for a trip, implies an absence that was in the nature of a temporary visit; and that in the form apparently completed by the applicant in 1936 when there was no occasion to misrepresent the nature of her stay in Spain, she characterized the stay as a visit. We note that she and her husband returned to the United States after a short absence. Under such circumstances, we do not feel a finding of abandonment of domicile in the United States is required. Since the respondent was abroad on a temporary visit only, the continuity of her residence was not broken and she may be regarded as having resided continuously in the United States for the purpose of the act of July 2, 1940.

We have previously held that the amendment of July 2, 1940, to the act of June 25, 1936, conferred as of the date of its enactment the status but not the rights of citizenship. A native-born citizen woman who had lost her citizenship by marriage to an alien but who had resided in the United States continuously since such marriage, regained her status as a United States citizen on July 2, 1940, though she had not taken an oath of allegiance, Matter of B-, 1, I. & N. 283 (B. I. A., 1942). In that opinion, we also held that the Nationality Act of 1940 does not purport to deprive a person of the status of citizenship acquired under the act of June 25, 1936, as amended. The respondent, being a citizen of the United States, is not deportable. Proceedings should be terminated. An order to that effect will be entered. Order: It is ordered that proceedings be and the same are hereby terminated.

IN THE MATTER OF F

In EXCLUSION Proceedings

A-7985857

Decided by Board August 6, 1952

Juvenile Delinquency Act (Federal 1938): Applicable when offense committed in 1947-Perjury: Juvenile under 18 in 1947, Federal offense.

(1) Under the provisions of the Federal Juvenile Delinquency Act of 1938, a juvenile is a person who has not attained his 18th birthday.

(2) Perjury before an officer of this Service in 1947 by an alien who had not then attained his 18th birthday is deemed to be an act of juvenile delinquency and not a crime within the meaning of section 3 of the Immigration Act of 1917, as amended.

EXCLUDED:

Act of 1917-Admits crime involving moral turpitude, to wit:

Perjury.

BEFORE THE BOARD

Discussion: The appellant, a 22-year-old single male, native and citizen of Mexico, applied for admission to the United States at Calexico, Calif., on May 28, 1952, as a temporary visitor for a period of 6 weeks. At the time of his arrival, he was destined to College Station, Tex., for the purpose of attending the summer cotton school at the Agricultural and Mechanical College of Texas. He presented for inspection Mexican immigration form 5-C 559558, issued in his name on January 12, 1949, and nonresident alien's border crossing identification card No. 522255, issued in his name at Calexico, Calif., on September 5, 1951, valid until September 4, 1952, bearing the following notation: Limited to Calexico city limits. No admission to exceed 48 hours. There was also attached to the appellant's Mexican immigration form 5-C, nonimmigrant visa No. 442, issued in the appellant's name on May 20, 1952, at the American consulate in Mexicali, Baja California, Mexico, valid for 3 months from date of issue and valid for a single journey to the United States.

After a hearing conducted at Calexico, Calif., on May 28, 1952, a board of special inquiry found the appellant inadmissible to the United States under the provisions of section 3 of the Immigration

Act of 1917, in that, he is an alien, who admits the commission of a felony or other crime or misdemeanor involving moral turpitude, to wit: Perjury. This case is now before us on appeal from the excluding decision entered by the board of special inquiry on May 28, 1952.

It appears that the appellant remained in the United States for a period of 3 months, after obtaining admission thereto at Calexico, Calif., early in 1947, by presenting a birth certificate of a citizen of the United States born at Calexico, Calif. On May 24, 1947, he attempted to re-enter the United States by stating under oath to an officer of the Service that he was a citizen of the United States born at Calexico, Calif. The record discloses that the chairman of the board of special inquiry asked the appellant a question based on a prior proceeding, wherein the appellant in sworn statements dated March 26 and March 30, 1951, admitted the foregoing and after allegedly receiving an adequate definition and an explanation of the crime of perjury, admitted the commission of such crime, when he stated under oath to an officer of the Service at Calexico, Calif., on May 24, 1947, that he was a citizen of the United States by virtue of birth at Calexico, Calif.

The question of whether the respondent made a valid admission of the crime of perjury, after having been given an adequate definition and having the elements of such crime explained in understandable terms can only be determined on the basis of the evidence of record. Since, the alleged definition, explanation, and admission of the commission of the crime of perjury on May 24, 1947, are not part of the record, we are unable to determine whether the appellant made a valid admission that he committed the crime of perjury, in connection with his application for admission as a United States citizen on May 24,

1947.

In any event, the record shows that the appellant was 17 years and 1 month of age at the time he sought admission to the United States as a citizen thereof on May 24, 1947, by executing the oath of a returning citizen and stating under oath to an officer of the Service that he was a citizen of the United States by virtue of birth at Calexico, Calif. The applicable statute relating to juvenile delinquents in effect at that time, provided as follows: "A juvenile' is a person 17 years of age or under, and ‘juvenile delinquency' is an offense against the law of the United States committed by a juvenile and not punishable by death or life imprisonment" (18 U. S. C. 921 (1940 Ed.) June 16, 1938, ch. 486, sec. 1, 52 Stat. 764). The phrase "17 years of age or under" in section 921, title 18 (supra), was generally interpreted to mean those persons who had not reached their 18th birthday. The appellant was a juvenile on May 24, 1947, and his offense must be considered a delinquency and not a crime.