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its outlying possessions of parents, one of whom is an alien and the other a citizen of the United States, to comply with the residential (sic) requirements of section 301 (b) of the Immigration and Nationality Act, notwithstanding the fact that within the 5 years during which they are required to be continuously physically present in the United States, they may leave the United States for short periods. This proposal is predicated on the fact that many persons, particularly children, falling within the purview of the above-cited section of the law, spend the requisite 5 years in the United States while attending school. Under the present wording of the law, they are prevented from leaving the United States during that time even for the purpose of spending their vacation with their parents residing abroad. Realizing that there is hardship involved, the committee proposes to authorize a certain degree of statutorily limited leniency in the administration of that section of the Immigration and Nationality Act (House Report No. 1199, supra, p. 6). Section 301(a) (7) of the Act shows also that legislative foresight was exercised to insure that honorable service in the Armed Forces of the United States would be taken into consideration in computing the period of physical presence required of a parent to transmit citizenship to a child born abroad. But these are the only areas in which a Congressional intent is clearly shown.

It would be patently erroneous to infer from the failure on these two occasions to provide legislatively for the problem in the instant case that Congress intended the performance of military service abroad in the Armed Forces of the United States to work forfeiture of United States citizenship. Rather, the Congressional inaction must be viewed in the light of the fact that constructive residence and physical presence in the United States are concepts regularly given effect in the field of immigration and nationality law, and that these concepts are manifestly applicable to section 301 (b).

Thus, in Matter of L-B-D—(4 I. & N. Dec. 639 (1952) ), in considering the question of whether United States citizenship was retained under a statute which required the child to take up residence in the United States before 16 years of age, the Attorney General ruled that the retention requirements were satisfied although factually residence was not taken up until after that age because of conditions beyond the control of the child.

Similarly, in Matter of J-MD— (7 I. & N. Dec. 105 (1956)), the Board of Immigration Appeals had under consideration a section of the Immigration and Nationality Act authorizing suspension of deportation if an alien, among other prerequisites, had “been physically present in the United States for a continuous period of not less than seven years.” (Section 244.)*

In that case the alien factually for a time had been abroad in the Armed Forces of the United States. The Board drew a distinction

*See Appendix IV.

between such an absence, which was under the compulsion of military orders, and a voluntary absence such as that stemming from service as a seaman on merchant vessels. In reaching its conclusion that the alien should be regarded as continuously physically present in the United States and hence eligible for suspension of deportation, the Board during its discussion made some comments that are particularly apposite to the present applicant's situation: It is a well-settled rule of statutory construction that a case may be within the meaning of a statute and not within its letter, and within its letter and not within its meaning; and that a statute should be construed so as to carry out the intent of the legislature, although such construction may seem contrary to the letter of the statute (Stewart v. Kahn, 78 U.S. 493, 504 (1870) ; Church of the Holy Trinity v. United States, 143 U.S. 457, 459, 472 (1892)). We believe it is inconceivable that Congress could have intended that one who risked his life in active combat duty in a foreign country would thereby be barred from suspension of deportation whereas another alien, who performed no military duty and who was thus able to remain in the United States, would be entitled to the benefits of section 244(a) (1) of the Immigration and Nationality Act. It is our considered opinion that an alien who, while residing in the United States, is inducted into the Armed Forces of this country and serves honorably is to be regarded as being physically present in the United States during such service even though part or all of his tour of duty is in a foreign country. (p. 107) After the reopening as directed in the published decision and submission of the case to Congress later in 1956 under the procedure required by the statute where the granting of suspension of deportation is approved, the record of lawful admission for permanent residence was created, the deportation proceedings were canceled, and in due time the alien was naturalized (Matter of Jung, A8 951 834).

In two other cases (Matter of s-, 8 I. & N. Dec. 221, and Matter of S-,8 I. & N. Dec. 226 (1958)), the Board of Immigration Appeals had under consideration section 301(b), the identical section of law involved in the present case. In those two cases, factually the coming to the United States and consequently the beginning of physical presence in this country were not in sufficient time to permit a full five years' physical presence to accumulate before 28 years of age. The Board nevertheless concluded that the applicants were to be regarded as having constructively complied with the provisions of section 301 (b), basing its conclusions upon the fact that failure to take up timely physical presence was due to circumstances beyond the control of the children.

Additionally, in a number of unreported cases, aliens who factually at some time during the statutory period had been temporarily absent from the United States in the Armed Forces of the United States were nonetheless regarded by the courts as continuously resident and physically present in the United States during the time they were so abroad and as having met those statutory qualifications for naturalization.

In all of the foregoing cases, there was the common factor—as there is in the instant one-that literal compliance with the letter of the law was presented by the action of the Government itself.

Based on the foregoing and in the absence of a clear legislative directive that under circumstances such as those in the instant case the concept of constructive physical presence in the United States is inapplicable to section 301(b), this Service adheres to the view that his physical presence in the United States within the meaning of section 301(b) has not been interrupted and he has not forfeited his United States citizenship. His application for a certificate of citizenship will, therefore, be granted.

The conclusion that the applicant has not been divested of United States citizenship by reason of his absence from this country pursuant to military orders is consistent with the well-settled principle of law that no conduct results in expatriation unless it is engaged in voluntarily (Nishikawa v. Dulles, 356 U.S. 129). To hold that the applicant was voluntarily outside the United States within the contemplation of section 301(b) loses sight of the obligations inherent in military service.

ORDER: It is ordered that the action of the Regional Commissioner in granting subject's application for a certificate of citizenship be approved.

APPENDIX I
Section 1993 U.S.R.S., as amended May 26, 1934:

Any child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States; but the rights of citizenship shall not descend to any such child unless the citizen father or citizen mother, as the case may be, has resided in the United States previous to the birth of such child. In cases where one of the parents is an alien, the right of citizenship shall not descend unless the child comes to the United States and resides therein for at least five years continuously immediately previous to his eighteenth birthday, and unless, within six months after the child's twenty-first birthday, he or she shall take an oath of allegiance to the United States of America as prescribed by the Bureau of Naturalization.

APPENDIX II

IMMIGRATION AND NATIONALITY ACT

Section 301. (a) The following shall be nationals and citizens of the United States at birth:...

(7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in computing the physical presence requirements of this paragraph.

(b) Any person who is a national and citizen of the United States at birth under paragraph (7) of subsection (a), shall lose his nationality and citizenship unless he shall come to the United States prior to attaining the age of twenty-three years and shall immediately following any such coming be continuously physically present in the United State[s] for at least five years: Provided, That such physical presence follows the attainment of the age of fourteen years and precedes the age of twenty-eight years.

(c) Subsection (b) shall apply to a person born abroad subsequent to May 24, 1934: Provided, however, That nothing contained in this subsection shall be construed to alter or affect the citizenship of any person born abroad subsequent to May 24, 1934, who, prior to the effective date of this Act, has taken up a residence in the United States before attaining the age of sixteen years, and thereafter, whether before or after the effective date of this Act, complies or shall comply with the residence requirements for retention of citizenship specified in subsection (g) and (h) of section 201 of the Nationality Act of 1940, as amended.

APPENDIX III

Section 16 of the Act of September 11, 1957:

In the administration of section 301 (b) of the Immigration and Nationality Act, absences from the United States of less than twelve months in the aggregate, during the period for which continuous physical presence in the United States is required, shall not be considered to break the continuity of such physical presence.

APPENDIX IV IMMIGRATION AND NATIONALITY ACT Section 244. (a) As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien who

(1) applies to the Attorney General within five years after the effective date of this Act for suspension of deportation; last entered the United States more than two years prior to the date of enactment of this Act; is deportable under any law of the United States and is not a member of a class of aliens whose deportation could not have been suspended by reason of section 19 (d) of the Immigration Act of 1917, as amended; and has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application, and proves that during all of such period he was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in exceptional and extremely unusual hardship to the alien or to his spouse, parent or child, who is a citizen or an alien lawfully admitted for permanent residence: or

MATTER OF SARKISSIAN

In DEPORTATION Proceedings

A-11069398

Decided by Board September 27, 1962

(1) Where respondent, a native and citizen of Syria, obtained, in an assumed

name, a birth certificate with which he secured a passport from the Republic of Lebanon, a “no valid passport" charge under section 212(a) (26) of the Immigration and Nationality Act is sustained since said passport did not show

his identity and correct nationality. (2) Respondents willful misrepresentation to be the individual named in the

Lebanese passport he presented in procuring his nonimmigrant visa is material under section 212(a) (19), since he would have been excludable at time of entry

had he disclosed his true name. cf. Matter of Boo, Int. Dec. No, 1247. (3) In light of the contradiction inherent in counsel's request that respondent be

permitted to complete his schooling after which the Government could "send him back at that time" and since respondent has presented no evidence, other than his own unconvincing testimony, to corroborate his claim, he has failed to establish that because of his Armenian origin and his religious beliefs he would be subject to physical persecution under section 243(h) if deported

to Syria. (4) Where, following hearing in November 1961 on respondent's section 243(h) application, there had been no decision by, nor even a recommendation to the Regional Commissioner prior to the amendment of the regulations effective January 22, 1962 (Title 8, CFR, 26 F.R. 12110, Dec. 19, 1961), the reopening of the hearing after that date for determination of the application in accordance with the amended regulations was the proper procedure.

CHARGES :

Order: Act of 1952—Section 241(a) (1) 18 U.S.C. 1251 (a) (1) ]-Excludable

at entry under 8 U.S.C. 1182(a) (19)—Visa procured by fraud or mis

representation. Lodged: Act of 1952-Section 241 (a) (1) [8 U.S.C. 1251 (a) (1) ]—Excludable

at entry under 8 U.S.C. 1182(a) (26)-Nonimmigrant not in possession of valid passport.

This case is before us on appeal from a decision of a special inquiry officer granting voluntary departure and directing that the respondent be deported if he fails to depart voluntarily.

The respondent is a 28-year-old unmarried male, native and citizen of Syria, whose only entry into the United States occurred on Septem

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