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or decree in force under the Kingdom of Hawaii which grants citizenship to minor children of naturalized aliens by taking up their residence in Hawaii and that, therefore, the applicant did not become a citizen of the Kingdom of Hawaii and did not acquire United States citizenship by the annexation of the Islands. Despite this communication, the State Department issued the respondent's father a passport in 1919.
No legal authority is cited to overcome the prior administrative holdings as evidenced by the issuance of passports and by the admission to the United States as a citizen of the respondent and his father, other than a reiteration of the negative declaration by the Immigration Bureau in 1917 as to lack of success in finding any law or decree on the subject. The extent or thoroughness of the search for such law is not indicated. No legal source is quoted to establish this position. There is no indication that an attempt was made to
. seek an opinion from a valid authoritative source, such as the Governor or the Attorney General for Hawaii who might search the law or the Hawaiian Archives in order to hand down a ruling which would be sufficient to overcome the prior administrative finding of citizenship.
The record reflects that the citizenship of the respondent's father, through whom the respondent claims citizenship, was conceded on many occasions in the past and that the father, as well as the respondent, had been issued United States passports with which they were duly admitted into the United States. Such a prima facie case of citizenship is not overcome by a mere statement that the Service has been unable to find any cases on the particular point involved. The holding by the special inquiry officer, which is correct in itself, to the effect that a child born of Hawaiian parents does not acquire Hawiian nationality jure sanguinis, is, however, irrelevant to the point of derivation of citizenship subsequent to birth by taking up residence in Hawaii during minority. It is, therefore, concluded that the respondent has prima facie shown that he is a citizen of the United States and that the Service has failed to establish alienage by a preponderance of reasonable, substantial, and probative evidence, and has failed to overcome the case for citizenship presented by respondent. Accordingly, the proceedings must be terminated.
Order: It is ordered that the proceedings be and the same are hereby terminated.
BEFORE THE BOARD
(March 10, 1960)
Discussion: The case comes forward upon motion of the District Director, Honolulu District, dated October 7, 1959, requesting that the deportation proceedings be reopened in accordance with 8 CFR 3.2.
We last considered this case on May 26, 1959, and the facts are fully set forth in that decision. Briefly, the record relates to a native of China, born December 4, 1919, who last entered the United States at the port of Honolulu on January 12, 1953, in possession of a United States passport. The father of respondent, L- -S L, was born March 7, 1889, in China, the son of L- -C whose citizenship status is not contested. The citizenship status of the father was conceded on a number of prior occasions, as was the citizenship status of this respondent, until the denial of an application for a certificate of citizenship under section 341 of the Immigration and Nationality Act on October 10, 1956. In our prior order we fully reviewed the case and held that the respondent had made a prima facie showing that he is a citizen of the United States which the Service has not overcome by a preponderance of reasonable, substantial and probative evidence, thus failing to sustain its burden of establishing alienage in the deportation proceedings.
In support of the instant motion there have been submitted copies of pages from the bound volume of Hawaiian Civil Code published in 1884 dealing with article VIII, "Naturalization of Foreigners," furnished by the Hawaiian Department of Archives; copies of an Act of November 25, 1887 amending the naturalization law, sections 428, 429, 431 and 433; articles 17, 18 and 19 of the Hawaiian Constitution of July 3, 1894; and a decision in the cases of K-Kand K-H- We have examined these exhibits as well as certain supplemental information contained in a publication entitled “Naturalization in Hawaii” by Maude Jones, Archivist, Public Archives of Hawaii.
Neither the statutory material nor the Hawaiian Constitution contains any reference to acquisition of citizenship by foreign-born children of citizens of Hawaii. The cases of K-K
-K- and K-H— support the premise that Hawaiian citizenship could not be acquired at birth by nonresident alien children. The cases are not deemed to be dispositive of the issue present herein inasmuch as the applicants for admission in those cases were 27 and 22 years of age, respectively, at the time of first coming to the United States and, therefore, no derivation of citizenship during minority was possible The supplement to the motion refers to a case which holds that no one acquires citizenship in the Hawaiian Kingdom unless he is born abroad of Hawaiian parents, either native or naturalized, during their temporary absence from the Kingdom, a holding contrary to that enunciated in the K- cases. The second reference in the supplemental material merely refers to a denial of an application because of the fact that there was no law in the Kingdom of Hawaii at that time (1903) to cover a case which involved a Chinese child born shortly before his father was naturalized and who came to Hawaii at the age of 13.
In our decision of May 26, 1959, we referred to the numerous prior administrative findings that the petitioner's father had acquired United States citizenship as well as the fact that as late as 1953 the respondent himself was granted a United States passport. We concluded that the respondent had established a prima facie case of United States citizenship and that the Service had failed to establish alienage by a preponderance of reasonable, substantial and probative evidence. We do not believe that the allegedly new "evidence” submitted should make any change in our prior decision.
In addition, we note that the burden of proof on the Service to overcome a prior adjudication of citizenship in the District of Hawaii is a stronger one than we enunciated previously and inasmuch as this case arises in the same district, the burden upon the Service is to establish by clear, convincing and unequivocal evidence that respondent is not a citizen of the United States and was not such a citizen at the time of his entry. In the case of Lee Hon Lung v. Dulles, 171 F. Supp. 830 (1959), the United States Court for the District of Hawaii was hearing a case which the Court of Appeals for the Ninth Circuit had remanded after setting forth the standard of proof referred to above. The Court held that in view of the appellate court's ruling that the trier of fact may only set aside a finding of a board of special inquiry for fraud or error by evidence which is clear, unequivocal and convincing, that the 1924 decision of the board of special inquiry admitting plaintiff as an American citizen, although not res judicata, was determinative of the issues in the case.
In view of the standards set forth by the appellate and District Courts in the same jurisdiction in which the present case is being heard, we have no other course but to come to the conclusion that the prior determinations of citizenship, while not res judicata, are determinative of the citizenship issues in this case in the absence of a showing of error by evidence which is clear, unequivocal and convincing. That burden has not been met by the Service in the instant deportation proceeding.
Order: It is ordered that the motion be and the same is hereby denied.
* Lee Hon Lung v. Dulles, 261 F.2d 719, 724.
MATTER OF G
In DEPORTATION Proceedings
Decided by Board Jay 28, 1959
Act of September 11, 1957, section 7—Eligibility, parent-child relationship.
the definition of section 101 (b) (1) and (2) of the Immigration and Nationality Act and, therefore, eligible to qualify for relief under section 7 of the Act of September 11, 1957. (Overrules Matter of G-, A-7444373, Int. Dec. No. 954.)
Order: Act of 1952-Section 241 (a) (1) 18 U.S.C. 1251 (a) (1), 1952 ed.)—
Excludable at entry as an alien who was not a nonquota immigrant as specified in his visa.
BEFORE THE BOARD
Discussion: The case comes forward pursuant to the provisions of 8 CFR 3.1(h) (1) (iii) requesting referral to the Attorney General for review.
The record relates to a native and citizen of Hungary, born December 23, 1897, who first entered the United States for permanent residence in 1913. He became a naturalized citizen on October 23, 1922. The respondent made several trips to Czechoslovakia, the last absence being from May 1939 until his return to the United States on March 28, 1950. On October 7, 1946, the respondent refused an opportunity for repatriation at the American Consulate in Prague, Czechoslovakia, and thereupon lost his American citizenship by expatriation through residence abroad.
The respondent's first wife had died in 1924 and his second wife whom he married in 1926 became a naturalized citizen in 1928. The respondent's relationship with his second wife was not harmonious and after a number of separations the wife secured a divorce on January 24, 1945, in the State of New Jersey while the respondent was in Czechoslovakia, service being made by publication. Subsequent to the divorce, she paid a short visit in 1947 to the respondent in Czechoslovakia. The evidence indicates respondent's awareness of the fact that his wife had divorced him. Despite the divorce, the second wife, a United States citizen, filed a visa petition in the respondent's behalf as a result of which he obtained a nonquota visa under section 4(a) of the Immigration Act of 1924 from the American Consulate at Prague, Czechoslovakia, on December 12, 1949, and was duly admitted on March 28, 1950. In connection with a petition for naturalization in 1955, the respondent testified that he had been separated from his wife for the past 15 years but did not disclose the fact of divorce, claiming he did not believe that she had divorced him.
In deportation proceedings the special inquiry officer denied all discretionary relief and ordered deportation on the charge contained in the order to show cause. On appeal, the Board on May 13, 1958, sustained the finding of deportability, but in view of his 30 years' residence in the United States and the fact that he had a citizen son in this country ordered the proceedings reopened to permit the respondent to establish eligibility for relief under the last clause of section 7 of the Act of September 11, 1957 (Public Law 85-316), and granted advance permission to reapply for admission after deportation. A reopened hearing was given the respondent, and the special inquiry officer in a decision dated June 16, 1958, found the respondent ineligible for relief under section 7 of Public Law 85–316 on the theory that the respondent was not a "parent" as defined in section 101 (b)(1) and (2). This conclusion was based on the fact that respondent's son was over 21 years of age, whereas the definitions of "child" and "parent" in section 101 (b) (1) and (2) of the Immigration and Nationality Act refer to the child as being an unmarried person under 21 years of age. By order dated Septem
. ber 25, 1958, the Board affirmed the finding of the special inquiry officer without discussion. The Board merely adopted the language of the special inquiry officer who quoted section 14 of Public Law 85–316 which provides that except as otherwise specifically provided in this Act, the definitions contained in subsection (a) and (b) of section 101 of the Immigration and Nationality Act shall apply to section 7 of this Act, and then adopted the conclusion of the special inquiry officer that since there was nothing "otherwise specifically provided,” the definitions of section 101(b) (1) and (2) of the Immigration and Nationality Act controlled the meaning of the word "parent" as used in section 7 and that the definition stated that the relation of parent exists only when the offspring is an unmarried person under 21 years of age. Upon reconsideration, a further study of the statutory language and of the legislative history leads us to the conclusion that the strict interpretation of the special inquiry officers should be modified.
The term "parent" is defined in relation to the term "child" in section 101(b) (1) and (2) of the Immigration and Nationality Act and reads as follows: