MATTER OF CHIN

In Visa Petition Proceedings

A-14891224

Decided by Board September 25, 1974

Petitioner sought preference immigrant status under the Immigration and Nationality Act for the beneficiary as his adopted son pursuant to sec. 12 of the Hong Kong Births and Deaths Registration Act which considers every child of every Chinese male to be a legitimate child, and deems the Chinese male to be the father of the child. Beneficiary's birth was duly registered, listing petitioner as beneficiary's father. The petition is denied because petitioner who was a native and citizen of the United States, and who was not in China when the beneficiary was born, cannot be considered as a “Chinese male" as contemplated by the above registration act, nor can the relationship required by section 101(b)(1)(C) of the Act be said to exist. The petition was properly denied.

This case is before us upon the motion of the Service to reconsider our decision of June 18, 1969 in which we approved the instant visa petition. The motion will be granted, the order granting approval of the petition will be withdrawn, and the petitioner's appeal will be dismissed.

The United States citizen petitioner is seeking preference status for the beneficiary as his adopted son under the Immigration and Nationality Act. He asserts that the beneficiary was born in Hong Kong on February 10, 1960 as the result of his relationship with a servant living in his household in Hong Kong. He claims that he took the servant as his concubine according to Chinese law and custom, and that the beneficiary is therefore his legitimate son. A birth certificate issued by the Registrar of Births in Hong Kong has been presented. That certificate indicates that the beneficiary's birth was registered on March 30, 1960, and it names the petitioner as the father.

In our prior opinion we agreed with the district director's finding that the petitioner had not established that the beneficiary's mother was his concubine. See Matter of Kwan, 13 I. & N. Dec. 302 (BIA 1969). Nevertheless, we determined that, by virtue of Section 12 of the Hong Kong Births and Deaths Registration Ordinance, the beneficiary was the petitioner's legitimate child. That latter conclusion was in error.

Section 12 of the Hong Kong Births and Deaths Registration Act provides:

In the case of an illegitimate child, no person shall, as father of such child, be required to give information concerning the birth of such child, and there shall not be entered in the register the name of any person as father of such child, except at the joint request of the mother and of the person acknowledging himself to be the father, and such person shall in such case sign the register together with the mother. For the purposes of this Ordinance every child of every Chinese male shall be deemed to be a legitimate child, and such Chinese male shall be deemed to be the father of such child. (Emphasis supplied.)

The petitioner is a native-born United States citizen who was domiciled in the United States at the time of the beneficiary's birth and thereafter. Consequently, we hold that the petitioner is not a "Chinese male" for the purposes of Section 12 of the Hong Kong Births and Deaths Registration Ordinance. We therefore retract the language in our prior decision holding that the beneficiary was the petitioner's legitimate child by virtue of Section 12. Additionally, we note that the petitioner has submitted no evidence to show that the beneficiary qualifies as his legitimated child under section 101(b)(1)(C) of the Immigration and Nationality Act.

The Service's motion to reconsider will be granted, our prior order approving the visa petition will be withdrawn, and the petitioner's appeal will be dismissed.

ORDER: The motion is granted, our decision of June 18, 1969 is withdrawn, and the appeal is dismissed.

MATTER OF TUITASI

In Deportation Proceedings

A-20053062

Decided by Board September 26, 1974

One born in Western Samoa in 1952 who was adopted in American Samoa in 1971 by two nationals of the United States does not acquire United States nationality under section 308 of the Immigration and Nationality Act. One does not acquire United States nationality merely by asserting an allegiance to the Unites States.

CHARGE:

Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant-remained

longer.

ON BEHALF OF RESPONDENT:

Byron B. Park, Esquire

681 Market Street

San Francisco, California 94105

In a decision dated March 15, 1974, an immigration judge found the respondent deportable, but granted her the privilege of voluntary departure. The respondent, who contests the finding of deportability, has appealed from that decision. The appeal will be dismissed.

The respondent, whose natural parents were natives of Western Samoa, was born in that country in 1952. When she was approximately one year old, the respondent was taken to American Samoa by a person she describes as her aunt. She was raised in American Samoa and formally adopted in 1971 by two nationals of the United States. The respondent has never returned to Western Samoa, and the record does not disclose the fate of her natural parents.

The respondent testified that in 1969 she submitted a written request to Western Samoan authorities for the issuance of a passport. This request evidently was denied, and respondent thereafter obtained a document entitled "Certificate of Identity" from the Office of the Attorney General in American Samoa. This document describes her birth, residence and adoption. It also contains the statement that "[s]he is not entitled to either a Western Samoan Passport or a United States National Certificate of Identity."

The respondent entered the United States in August of 1972 as a

visitor. She received a change of nonimmigrant status conditioned upon the posting of a maintenance of status bond. She failed to post the bond and overstayed her visit. The immigration judge found her deportable as a nonimmigrant who has remained beyond the authorized length of her stay. The only issue in the case is whether she is a noncitizen national of the United States, and thus not deportable.

The respondent bases her claim to United States nationality upon section 101(a)(22) of the Immigration and Nationality Act. Section 101 (a)(22) provides:

The term "national of the United States" means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.

The respondent maintains that she owes permanent allegiance to the United States, and therefore qualifies as a national. The acquisition of nationality for a noncitizen national, however, is not governed by section 101(a)(22); it is governed instead by section 308.1 Section 308 of the Act provides:

Unless otherwise provided in section 301 of this title, the following shall be nationals, but not citizens of the United States at birth:

(1) A person born in an outlying possession of the United States on or after the date of formal acquisition of such possession;

(2) A person born outside the United States and its outlying possessions of parents both of whom are nationals, but not citizens, of the United States, and have had a residence in the United States, or one of its outlying possessions prior to the birth of such person; and

(3) A person of unknown parentage found in an outlying possession of the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in such outlying possession.

American Samoa is an outlying possession of the United States. Section 101(a)(29), Immigration and Nationality Act. The respondent, however, was not born in American Samoa, nor were her natural parents nationals of the United States. Accordingly, she did not acquire United States nationality at birth under the terms of section 308. Except for the acquisition of nationality in conjunction with the acquisition of citizenship, the Act provides no other means by which the respondent could have acquired United States nationality.

Congress has established rigorous procedures which govern the acquisition of both lawful permanent resident status and United States citizenship for aliens. Nationality has attributes akin to each of these. See e.g. Matter of B—, 6 I. & N. Dec. 555 (BIA 1955). We cannot accept

'We are not concerned in this case with special legislative enactments or with any acquisition of nationality which may occur upon the transfer of territory between nations. See Matter of B-, 3 I. & N. Dec. 729 (BIA 1949); 8 M. Whiteman, Digest of International Law 104-113 (1967).

the respondent's unstated, but underlying, assumption that Congress would permit an alien to acquire United States nationality merely by asserting an allegiance to the United States.

The respondent is an alien; her deportability has been established by evidence that is clear, convincing, and unequivocal. The question of whether the respondent has a status in American Samoa which will permit her to reside there is not before us.

ORDER: The appeal is dismissed.

Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily within 31 days from the date of this order or any extension beyond that time as may be granted by the district director; and in the event of failure so to depart, the respondent shall be deported as provided in the immigration judge's order.