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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 attain

ing 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) Respondent's 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 Box, 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) [8 U.S.C. 1251(a)(1)]—Excludable at entry under 8 U.S.C. 1182 (a) (19)—Visa procured by fraud or misrepresentation. 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

ber 25, 1957, at which time he was admitted temporarily as a nonimmigrant student under the assumed name of Jirair Parkev Ananian, having obtained a passport in that name from the Republic of Lebanon. The special inquiry officer found that the visa was obtained by fraud or misrepresentation and that the respondent did not have a valid passport, and he concluded that both charges were sustained.

In the notice of appeal, counsel stated that deportability was contested, and that the appeal was also based on denial of applications under sections 244 (a) and 243 (h) of the Immigration and Nationality Act [8 U.S.C. 1254(a) and 1253 (h)]. No application was submitted under 8 U.S.C. 1254 (a), and the respondent does not meet the requirements of that statutory provision. The issues to be determined are, therefore, whether deportability has been established and whether deportation should be withheld under 8 U.S.C. 1253 (h).

Counsel did not file a brief, but we have carefully considered the statements in the notice of appeal. There is nothing to indicate in what respect counsel claims there was a failure to accord the respondent due process of law, and this contention is dismissed as being without merit.

Insofar as concerns the contention that the two charges are not sustained, the respondent admitted that he obtained a birth certificate in the name of Jirair Ananian; that he represented himself to be this individual in obtaining a passport from the Republic of Lebanon; and that he made a similar representation and claimed to be a Lebanese citizen when he procured his nonimmigrant visa (hearing of February 8, 1960, p. 9). 8 U.S.C. 1101 (a) (30) provides: "The term 'passport* means any travel document issued by competent authority showing the bearer's origin, identity, and nationality if any, which is valid for the entry of the bearer into a foreign country." Since the Lebanese passport did not show the respondent's identity and correct nationality, it was not a valid passport, and we hold that he was excludable at the time of entry under 8 U.S.C. 1182 (a) (26). Accordingly, the lodged charge is sustained.

With reference to the charge stated in the order to show cause, the respondent was excludable under 8 U.S.C. 1182 (a) (19) if he procured his visa in either of two ways—(A) by fraud or (B) "by willfully misrepresenting a material fact". The special inquiry officer held (decision, p. 5) that the respondent was deportable because his visa had been secured by one method or the other. However, there was no particular discussion of whether he procured the visa by fraud. The respondent obtained a birth certificate and a Lebanese passport by fraud, and we are satisfied that fraud was necessarily inherent in the procurement of the visa.

In connection with the question of whether the respondent procured his visa by willfully misrepresenting a material fact, there were cited Matter of S— and B—C—, Int. Dec. 1168 (A.G., 1961), and Matter of L-D-L-R-, Int. Dec. 1207 (1962). The special inquiry officer held that the respondent had not borne the burden of establishing that the misrepresentations did not cut off a line of inquiry which might have resulted in the denial of the visa. Counsel contends that the respondent met this burden of proof.

In Matter of S— and B—C—, supra, the Attorney General stated (p. 7) that the application of the test of materiality would turn on the answers to three questions. The second question was whether the misrepresentation tended to shut off a line of inquiry which was relevant to the alien's eligibility, and it was stated that a misrepresentation as to identity would almost necessarily have shut off a relevant investigation. However, before reaching this second question, the first question stated by the Attorney General must be considered. This is whether the alien was excludable on the true facts. As we have concluded above, this respondent was excludable at the time of entry under 8 U.S.C. 1182 (a) (26) because he did not have a valid passport. It was only the respondent's willful misrepresentation, identifying himself with the person named in the passport, that enabled him to procure the nonimmigrant visa, and it seems obvious that he would have been excluded under 8 U.S.C. 1182 (a) (26) when he applied for admission to the United States if he had disclosed his true name. The Attorney General specifically stated that if the alien was excludable on the true facts, the misrepresentation was material. It is only where the alien is not excludable on the true facts that the second and third questions stated by the Attorney General are to be considered. Hence, although we do not approve all of the special inquiry officer's reasoning on this matter, we do concur in his conclusion that the respondent was excludable at the time of entry under 8 U.S.C. 1182 (a) (19), and we conclude that he is deportable on the charge stated in the order to show cause.

The remaining issue relates to the respondent's application under 8 U.S.C. 1253 (h). The hearing on this application was completed on November 15, 1961. The special inquiry officer stated (Tr. p. 14) that the officer who questioned the respondent concerning this application had not made his recommendation to the Regional Commissioner prior to the amendment of the regulations effective January 22, 1962 (26 F.R. 12110), and counsel contends that the procedure in the respondent's case was defective for that reason. Since there had been no decision by the Regional Commissioner nor even a recommendation to him, we believe the Service followed the proper procedure in reopening the hearing in order that the determination of this application

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