from 1912 until his death on May 19, 1950 except for a 30-day visit to Guam in 1932 (Ex. 4). The respondent's mother, a native of Saipan, married the respondent's father in Saipan on October 17, 1925 (p. 5 & Ex. 4).

A person born in Guam on or after April 11, 1899, and prior to January 13, 1941, became a noncitizen national of the United States at birth if his father at the time of such birth was an American noncitizen national (Matter of S-, 3 I. & N. Dec. 589, B.I.A., April 26, 1949). The respondent's father acquired noncitizen nationality at birth since the record shows that the respondent's grandfather was Guamanian at the time of the birth of the respondent's father on June 10, 1904 (Ex. 4).

1

The special inquiry officer concludes that the respondent derived United States citizenship through his noncitizen national father under the provisions of the Organic Act of Guam 1 notwithstanding the fact that the respondent's father died on May 19, 1950, some two and onehalf months prior to the enactment of the said Act on August 1, 1950. The special inquiry officer reasons that if the respondent's father were alive on August 1, 1950 he (the respondent's father) would have acquired United States citizenship. The special inquiry officer maintains that the death of the respondent's father does not affect the respondent's United States citizenship because as a child of a person born on the island of Guam subsequent to April 11, 1899 and as one who was residing on the island on the date of enactment of the Organic Act he (the respondent) derived United States citizenship pursuant to paragraphs (a) and (b) of section 206 of the Nationality Act of 1940 (8 U.S.C. 606-1950 Edition) (see Appendix A).

Section 206 (a) of the Nationality Act of 1940 declares two classes of persons and their children born after April 11, 1899 to be citizens of the United States provided they were residing on the island on August 1, 1950. The respondent does not qualify under paragraph (a) of section 206 (supra) because (1) he is not a child of a Spanish subject who was an inhabitant of the island of Guam on April 11, 1899 nor is he (2) the child of a person "born in the island of Guam who resided in Guam on April 11, 1899." The respondent's father was born on Guam on June 10, 1904, some five years subsequent to the cutoff date of April 11, 1899. Furthermore, the respondent's father gained nothing under section 206 (a) (supra) because he was deceased on the date of the enactment of the Organic Act and according to the record had not resided on Guam since 1912 except for a temporary visit of 30 days in 1932 (Ex. 4).

1 Section 4(a) of the Organic Act of Guam (64 Stat. 384) has been set forth in Appendix A.

Paragraph (b) of section 206 (supra) declares a third class of persons to be citizens of the United States, to wit, "all persons born in the island of Guam on or after April 11, 1899 . . . subject to the jurisdiction of the United States" provided such person if born before the date of enactment of the Act had "taken no affirmative steps to preserve or acquire foreign nationality." The respondent does not derive citizenship through his father under this provision because it does not extend to the children of the persons described therein. We conclude that the respondent, born in Saipan, has no claim to derivative citizenship under the Organic Act of Guam (Appendix A) by reason of his father's birth in Guam in 1904.

The question arises as to whether the respondent was born a noncitizen national of the United States. Prior to the effective date of the Nationality Act of 1940, January 13, 1941, there were no statutory provisions regulating the status at birth of children born outside of the United States, its territories, and possessions to noncitizen nationals of the United States. Section 204(b) of the Nationality Act of 1940 2 provided in substance that a person born outside of the United States and its outlying possessions on or after January 13, 1941 “of parents both of whom are nationals, but not citizens of the United States" who previously had resided in the United States or one of its outlying possessions, became nationals but not citizens of the United States at birth. This provision of the Nationality Act of 1940 does not affect the respondent because he was born prior to January 13, 1941 and according to the record his mother was not a national of the United States.

The Issue of Deportability

The respondent has been charged with deportability under section 241(a) (4) of the Immigration and Nationality Act (8 U.S.C. 1251(a) (4)) in that he has been convicted of two crimes involving moral turpitude after entry, to wit, petit theft and "making, drawing and passing certain worthless checks." These charges were not fully developed by the special inquiry officer because he concluded that alienage had not been established. Furthermore, it appears that the trial attorney for the Immigration Service shared the special inquiry officer's belief with regard to the respondent's citizenship (p. 12).

The Service representative suggests that the case be remanded to the special inquiry officer for further evaluation of the deportation charge in light of the Board's ruling with regard to the respondent's alienage and to afford the respondent an opportunity for the submis

28 U.S.C. 604 (b), 1940 Edition, now 8 U.S.C. 1408.

E

sion of additional evidence on the issue of his citizenship and his deportability. We will so order.

ORDER: It is directed that the case be remanded to the special inquiry officer for the purposes stated in the foregoing opinion.

APPENDIX A

Sec. 4. (a) Chapter II of the Nationality Act of 1940, as amended, is hereby further amended by adding at the end thereof the following

new section:

Sec. 206. (a) The following persons, and their children born after April 11, 1899, are hereby declared to be citizens of the United States, if they are residing on the date of enactment of this section on the island of Guam or other territory over which the United States exercises rights of sovereignty:

(1) All inhabitants of the island of Guam on April 11, 1899, including those temporarily absent from the island on that date, who were Spanish subjects, who after that date continued to reside in Guam or other territory over which the United States exercises sovereignty, and who have taken no affirmative steps to preserve or acquire foreign nationality. (2) All persons born in the island of Guam who resided in Guam on April 11, 1899, including those temporarily absent from the island on that date, who after that date continued to reside in Guam or other territory over which the United States exercises sovereignty, and who have taken no affirmative steps to preserve or acquire foreign nationality.

(b) All persons born in the island of Guam on or after April 11, 1899 (whether before or after the date of enactment of this section), subject to the jurisdiction of the United States, are hereby declared to be citizens of the United States: Provided, That in the case of any person born before the date of enactment of this section, he has taken no affirmative steps to preserve or acquire foreign nationality.

(c) Any person hereinbefore described who is a citizen or national of a country other than the United States and desires to retain his present political status shall make, within two years of the date of enactment of this section, a declaration under oath of such desire, said declaration to be in form and executed in the manner prescribed by regulations. From and after making of such a declaration any such person shall be held not to be a national of the United States by virtue of this Act.

209

MATTER OF FONG

In DEPORTATION Proceedings

A-9693010

Decided by Board March 1, 1963

An administrative appeal from a denial of suspension of deportation pending on October 24, 1962, the date of enactment of Public Law 87-885, must be dismissed in the case of an alien who entered the United States as a crewman since he is statutorily precluded by section 244(f) from obtaining the benefits of suspension under the provisions of the amendatory legislation.

CHARGE:

Warrant: Act of 1952-Section 241 (a) (9) [8 U.S.C. 1251(a)(9)]—Failed to comply-nonimmigrant seaman-Act of 1924.

The case comes forward on appeal from the order of the special inquiry officer dated October 22, 1962 denying the respondent's application for suspension of deportation under section 244(a) (5) of the Immigration and Nationality Act, granting him the privilege of voluntary departure in lieu of deportation and further ordering that if the respondent failed to depart as required he be deported to the Republic of China on Formosa on the ground stated above.

The record relates to a native and citizen of China, 50 years old, male, who last entered the United States at the port of Philadelphia, Pennsylvania on August 17, 1950 as a member of the crew of the SS "Ulysses." Deportability has been conceded.

The case was last before us on November 6, 1961 on appeal from an order entered by the special inquiry officer on September 6, 1961, denying the respondent's motion requesting a reopening of the proceedings for the purpose of affording him an opportunity to apply for suspension of deportation under section 244 (a) (5) of the Immigration and Nationality Act because respondent had been served with a final order of deportation. It appears that a warrant of arrest was served on the respondent on April 26, 1954 but a hearing record does not exist. A hearing was accorded the respondent on August 25, 1961 in connection with the motion to reopen to permit respondent to apply for suspension of deportation under section 244 (a) (5) of the Immi

gration and Nationality Act and portions of a record were reconstructed from documents available in the administrative file. These documents indicated that the respondent may have been accorded a hearing in deportation proceedings at New York on October 31, 1955 when a communication was addressed to him advising him of the voluntary departure privilege and if he failed to depart as directed he would be deported if he did not depart prior to December 2, 1955. An application for adjustment of immigration status under section 6 of the Refugee Relief Act of 1953 failed of approval of the 85th Congress and on June 12, 1958 he was notified to effect his departure from the United States on or before July 12, 1958. He failed to depart and the respondent was notified on September 4, 1958 that his deportation to China had been directed. On the same date a warrant was issued providing for his deportation under section 241(a)(2) of the Immigration and Nationality Act although the warrant of arrest served on him on April 26, 1954 charged him with being illegally in the United States under section 241 (a) (9) of the Immigration and Nationality Act in that after admission as a seaman under section 3 (5) of the Immigration Act of 1924 he failed to comply with the conditions of such status. Faced with the lack of a hearing record and the confusion existing in the administrative file, it was concluded that the requirements of section 242 (b) (4) were lacking. In view of the difficulty, if not the impossibility, of determining whether or not a final order of deportation had been entered in the case, it was ordered that the case be remanded for further proceedings in order to complete the record and to afford the respondent an opportunity to apply for such relief as might be available, if any.

At the hearings before the special inquiry officer held on December 15, 1961 and May 10, 1962 the respondent applied for suspension of deportation pursuant to section 244 (a) (5) of the Immigration and Nationality Act. The respondent's wife and child reside in China and he has no close relatives in the United States. He has resided in the United States continuously since his last admission on August 17, 1950. The respondent first entered the United States in 1943 as a seaman and claims to have lived here since November 1945 except for his various absences as a seaman until August 1950. He is employed as a cook earning $97 per week. His assets consist of $1,100 in savings; $1,500 in stock and $1,000 in miscellaneous personal effects. The quota for Chinese persons to which the respondent is chargeable is greatly oversubscribed at the present time and he cannot readily obtain an immigrant visa if granted the privilege of voluntary departure. The respondent has no arrest record except an arrest in October 1961 on a charge of disorderly conduct which was dismissed.