of such nationality by operation of law certainly constitutes naturalization in one sense of the term, naturalization in the sense intended by the statute does not occur until the individual has appropriately manifested an intent to accept the foreign nationality. Acceptance thus does not serve to give legal effect to a naturalization which has already occured; it is itself an element of the naturalization made expatriating by the statute.

The construction of the statute which is proposed by the Department of State would lead to anomalous results. It would require a holding that a United States citizen naturalized in a foreign country by operation of law who may have accepted all the benefits of that status, who may even have renounced United States citizenship, would nevertheless not have lost his United States citizenship unless he had taken an oath of allegiance to the foreign state, the only other act made expatriating by section 2. I cannot doubt that such a result would be contrary to the intent of the Congress that enacted the Act of 1907, and that it would also be contrary to this Nation's often expressed recognition of the inherent right of expatriation. 15 Stat. 223–224; Savorgnan v. United States, supra, at 497–98.

Because litigation involving nationality usually arises in the context of an assertion of United States citizenship by an individual and the claim of expatriation by the Government (although compare Kawakita v. United States, 343 U.S. 717 (1952)), it is sometimes overlooked that expatriation found its place in the law initially not as a weapon of the Government but as a right of the individual. It is true, of course, that "rights of citizenship are not to be destroyed by an ambiguity," Perkins v. Elg, supra, at 337, but when a United States citizen becomes naturalized by operation of law in a foreign country and by his subsequent course of conduct clearly manifests an intention to accept the rights and obligations that go with his new nationality, I do not believe that it does violence to the language of the Act of 1907 to hold that he has expatriated himself, notwithstanding that the tender of a new status under foreign law and its acceptance by the individual do not occur contemporaneously. I believe it is more realistic and more consistent with the policy of our nationality legislation to regard the naturalization by operation of law as in effect a continuing offer, the acceptance of which completes the act of naturalization in a foreign state made expatriating by section 2.10

10 This conclusion makes it unnecessary to consider whether an expatriation may arise in such a situation otherwise than under the provisions of the Act of 1907. See 39 Ops. A.G. 411, 412 (1940); United States ex rel. Rojak v. Marshall, 34 F.2d 219, 220 (W.D. Pa. 1929); United States ex rel. DeCicco v. Longo, 46 F. Supp. 170, 174 (D. Conn. 1942); contra, Leong Kwai Yin v. United States, 31 F.2d 738, 740 (C.A. 9, 1929).

Such doubts as might be raised by the contrary argument are set at rest by the long history of administrative and judicial application of the voluntary acceptance rule, Barsanti v. Acheson, supra; 3 Hackworth's Digest, 211–215.

IV

As has been stated, my purpose in reviewing this case in its present posture is to resolve the conflict in interpretation between the Department of State and the Board of Immigration Appeals over continued adherence to the voluntary acceptance rule. I hold that an overt voluntary act manifesting clearly and unambiguously a decision to accept a foreign nationality previously acquired by operation of law results in the loss of United States citizenship under section 2 of the Act of 1907. What acts consitute such an acceptance and what factual showing is required to establish their character I find it unnecessary to consider at this time.

The case is remanded to the Board of Immigration Appeals for disposition in accordance with the views set forth herein.

MATTER OF ROSENBLATT

In DEPORTATION Proceedings

A-10588440

Decided by Board January 18, 1963

Neither the Board of Immigration Appeals nor the special inquiry officer, in deportation proceedings, has jurisdiction to grant or to review the denial of a waiver of the foreign-residence requirements of section 212 (e) of the Immigration and Nationality Act, as amended. (Reaffirmed, Matter of Irie, Int. Dec. No. 1304.)

CHARGE:

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

The case comes forward on appeal from the order of the special inquiry officer dated October 8, 1962, denying the respondent's application for adjustment of status pursuant to section 245 of the Immigration and Nationality Act, denying the application of the respondent for suspension of deportation pursuant to section 244(a) (5) of the Act but granting the respondent's application for the privilege of voluntary departure in lieu of deportation, with the further order that if respondent failed to depart as required, the privilege of voluntary departure would be withdrawn and the respondent would be deported from the United States to the Republic of the Philippines on the charge contained in the order to show cause.

The record relates to a native and citizen of the Philippine Islands 33 years old, female, who last entered the United States through the port of Honolulu, Hawaii, on January 10, 1955, at which time she was admitted as an exchange visitor to receive training as a medical doctor. Her last extension of temporary stay in the United States expired December 4, 1961, but she has failed to depart from the United States. Deportability on the charge contained in the Order to Show Cause is established.

The respondent has made application for adjustment of status to that of a permanent resident pursuant to the provisions of section 245

of the Immigration and Nationality Act. The respondent was originally admitted as an exchange visitor to receive training as a medical doctor. She therefore comes under the provisions of 8 CFR 245.1 which provides in pertinent part:

Pursuant to section 212(e) of the Act, an alien who has or has had the status of an exchange alien or of a nonimmigrant under section 101(a) (15) (J) of the Act is not eligible for the benefits of section 245 of the Act unless he has complied with the foreign residence requirements of section 212(e) of the Act or has been granted a waiver thereof.

Section 212(e) of the Immigration and Nationality Act, as added by the Act of September 21, 1961 (P.L. 87-256), the Mutual Educational and Cultural Exchange Act of 1961, provides as follows:

No person admitted under section 101(a)(15)(J) or acquiring such status after admission shall be eligible to apply for an immigrant visa, or for permanent residence, or for a nonimmigrant visa under section 101 (a) (15) (H) until it is established that such person has resided and been physically present in the country of his nationality or his last residence, or in another foreign country for an aggregate of at least two years following departure from the United States: Provided, That such residence in another foreign country shall be considered to have satisfied the requirements of this subsection if the Secretary of State determines that it has served the purpose and the intent of the Mutual Educational and Cultural Exchange Act of 1961: Provided further, That upon the favorable recommendation of the Secretary of State, pursuant to the request of an interested United States Government agency, or of the Commissioner of Immigration and Naturalization after he has determined that departure from the United States would impose exceptional hardship upon the alien's spouse or child (if such spouse or child is a citizen of the United States or a lawfully resident alien), the Attorney General may waive the requirement of such twoyear foreign residence abroad in the case of any alien whose admission to the United States is found by the Attorney General to be in the public interest: And provided further, That the provisions of this paragraph shall apply also to those persons who acquired exchange visitor status under the United States Information and Educational Exchange Act of 1948, as amended.

The respondent submitted an application for a waiver to the Immigration and Naturalization Service and on June 11, 1962, was informed by the District Director, Los Angeles District, that the application for a waiver had been denied (Ex. 5). The special inquiry officer has concluded that the granting of the waiver under section 212(e) lies within the jurisdiction and the discretion of the District Director and that the authority to grant such a waiver has not been delegated to a special inquiry officer; therefore, he has no authority either to act in connection with such an application for a waiver or to review any decision made by the District Director upon an application for a waiver.

Counsel contends that the provisions of section 235 (a) of the Immigration and Nationality Act (8 U.S.C. 1225 (a)) and of the regulations 8 CFR 242.17 (a) are broad enough to allow the special inquiry

officer to examine every aspect of the respondent's eligibility for adjustment of status. He summarizes his argument by stating that the Board has been granted jurisdiction to review the decision of the special inquiry oflicer as to eligibility for adjustment of status under section 245 of the Act and, unless there is a specific statute or regulation to the contrary, the question of eligibility must also include a determination of the applicant's eligibility for a waiver of the two-year residence requirements.

The nonimmigrant status of the respondent is defined in section 101 (a) (15) (J) of the Immigration and Nationality Act as added by section 109 (b) of the Act of September 21, 1961 (The Mutual Educational and Cultural Exchange Act of 1961) as an alien having a residence in a foreign country which he has no intention of abandoning who is a bona fide student, scholar, trainee, teacher, professor, research assistant, specialist, or leader in a field of specialized knowledge or skill, or other person of similar description, who is coming temporarily to the United States as a participant in a program designated by the Secretary of State, for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training, * * *.

The legislative history dealing with this amendment discloses that a special new nonimmigrant visa was designed to serve solely the purposes of the Mutual Educational and Cultural Exchange Act of 1961 (H.R. 8666). By administrative arrangement a type (J) visa had been issued pursuant to authority in section 201 of the Educational Exchange Act. The main purpose of this new language is to reserve the (F) visa for students other than exchange students and made the new (J) type nonimmigrant available solely to nonimmigrants selected under the exchange program. The placing of exchange aliens in a separate category (J) would also simplify the administration of the two-year foreign residence requirement contained in the new subsection (b), which reenacts and amplifies P.L. 84-555 but contains one important change in existing law, namely, the requirement of the finding by the Secretary of State that the 2-years' residence abroad of an exchange alien, if not occurring in the country from which he came to the United States, was in accord with the basic purpose of the exchange program. The purpose of this modification of the existing requirement was to avoid a situation where an exchange alien trained in the United States prefers to spend the required two years in a country well supplied with the skills which he acquired in the United States to the obvious detriment of his own country or other areas where his skills could be better utilized.1 To make available the services of exchangees

1

1 Volume 2, U.S. Code Congressional and Administrative News (87th Cong. 1st Sess. 1961) 2774.