in Greece; in February 1962 he married a United States citizen. A visa petition filed by respondent's wife was approved on April 12, 1962. Respondent filed an application for adjustment of status under section 245 (a) of the Act at his deportation hearing on July 2, 1962.

The agents of the steamship line to which respondent was destined when he entered the United States have furnished the information that respondent's entry was for the purpose of employment as a seaman on a vessel (Ex. 7). The respondent admits that when he came to the United States he had a seaman's book to ship as a crewman and that he came here to reship on a vessel of the line on which he had arrived (pp. 13, 14).

In arriving at the finding of ineligibility, the special inquiry officer relied upon section 245.1 of Title 8 of the Code of Federal Regulations (Supp. 1962) which provides in pertinent part as follows:

An alien who on arrival in the United States was serving in any capacity on board a vessel or aircraft, or was destined to join a vessel or aircraft in the United States to serve in any capacity thereon, or was not admitted or paroled following inspection by an immigration officer is not eligible for the benefits of section 245 of the Act. ****

The Attorney General is given the power to prescribe the regulations for the enforcement of section 245 (a) of the Act. His regulation is binding upon the Board. The regulation excludes from the benefits of section 245 (a) of the Act a person coming to the United States to join a vessel on which he is to serve as an alien crewman; respondent is such a person. The appeal must be dismissed.

ORDER: It is ordered that the appeal be and the same is hereby dismissed.

2 For reasons hereinafter set forth no discussion of counsel's contentions will be made; however, so that the contentions may be understood, pertinent portions of the law and regulations will be set forth.

Section 245 (a) of the Immigration and Nationality Act (8 U.S.C. 1255(a)) reads as follows:

The status of an alien, other than an alien crewman, who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if * * *

The term "crewman" is defined to mean "a person serving in any capacity on board a vessel or aircraft" (section 101 (a) (10) of the Act, 8 U.S.C. 1101(a) (10)).

An "alien crewman" is described as follows:

[A]n alien crewman serving in good faith as such in any capacity required for normal operation and service on board a vessel (other than a fishing vessel having its home port or an operating base in the United States) or aircraft, who intends to land temporarily and solely in pursuit of his calling as a crewman and to depart from the United States with the vessel or aircraft on which he arrived or some other vessel or aircraft; (section 101 (a) (15) (D), 8 U.S.C. 1101 (a) (15) (D)).

MATTER OF SZAJLAI

In SECTION 341 Proceedings

A-13081544

Decided by Assistant Commissioner October 5, 1962

Subject's absence abroad in the United States armed forces during the period of physical presence required by section 301 (b) of the Immigration and Nationality Act, as amended, for retention of United States citizenship, is regarded as constructive physical presence in the United States within the meaning of that section.

The subject has applied to this Service for a certificate of citizenship, claiming to have acquired United States citizenship at birth abroad to a citizen mother and an alien father. The District Director and the Regional Commissioner have concluded that the application should be granted, a conclusion in which this office concurs.

Applicant's mother was born in the United States on January 23, 1917, and lived in this country until 1921. On September 30, 1934, she was married to applicant's father, an alien, and the applicant was born in Hungary on May 14, 1936. He was admitted to the United States for the first time on July 22, 1958, as a citizen of the United States in possession of a United States passport. Thereafter, he was inducted into the Armed Forces of the United States on May 13, 1960 and, under military orders, served overseas on foreign duty from October 5, 1960 until May 12, 1962, when he was returned to the United States.

It is conceded that under Section 1993 U.S.R.S., as amended May 26, 1934 (48 Stat. 797), the applicant became a citizen of the United States at the time of his birth. It is also undisputed that under section 301 (b) of the Immigration and Nationality Act (66 Stat. 163), his arrival in the United States in 1958, at which time he was over 16 but under 23 years of age, was timely for the purpose of permitting him then to be recognized as a citizen of the United States (Lee You Fee v. United States, 355 U.S. 61; Matter of M—, 7 I. & N. Dec. 646).

A question arises, however, with regard to whether he may still be considered a citizen in view of the factual interruption of his physical presence in this country by his absence abroad in the service of the Armed Forces of the United States.

Under section 301 (b) of the Act, the applicant, in order to retain his United States citizenship, is required to complete five years' continuous physical presence in the United States before reaching 28 years of age. Section 16 of the Act of September 11, 1957 (71 Stat. 644), permits temporary absences from the United States during the period of required physical presence without a break in its continuity, provided these absences in the aggregate are less than 12 months.

As the applicant's absence abroad totaled more than 12 months, section 16 is ineffective to preserve the continuity of the period of physical presence in the United States which began to accumulate with his 1958 entry and, in view of his age when factually he resumed physical presence in the United States, he is not in a position to accumulate a new five-year period of continuous physical presence here before he becomes 28 years old. Under section 301 (b), therefore, his service abroad in the Armed Forces of the United States will have had the extraordinary effect of depriving him of his United States citizenship, unless his physical presence may be regarded as having continued to accumulate in the United States during the time he was serving abroad. Forfeiture of citizenship under such circumstances would be so palpably an absurd and inequitable result that resort may be had to the legislative history of the Act for any light it may shed.

The legislative history of section 301 (b), as well as related sections, is of no assistance in determining the Congressional intent concerning the effect of absence abroad in the Armed Forces of the United States upon the period of physical presence being accumulated as compliance with the conditions for retention of citizenship. The original provisions of that section were found to be harsh and unduly restrictive, however, and section 16 was enacted to alleviate the hardships imposed. As to this ameliorative legislation, the reports on the bills which preceded its enactment (Senate Report No. 1057 on S. 2792 and House Report No. 1199 on H.R. 8123, 85th Congress, 1st session) indicate that there were then in contemplation only the results which would follow from voluntary absences from this country, as in the cases of students in the United States who might proceed abroad for the purpose of spending summer vacations with their parents residing there:

The amendment to section 1 will permit nationals and citizens of the United States at birth, born outside the geographical limits of the United States and

3 See Appendix III.

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-M-D— (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

4 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.