an alien who was a member of the Armed Forces could, by returning with the Armed Forces, acquire a 'lawful admission' for naturalization purposes, Public Law 86 would have so provided." The court explained that Public Law 86 granted naturalization to an alien who had been lawfully admitted to the United States if he had served between 1950 and 1955 for a period of not less than 90 days, whereas Public Law 597, 54 Stat. 316 (with which we are concerned here), providing for the naturalization of aliens enlisting in the regular Army "after completion of five or more years of military service", was to apply to an alien who enlisted in the United States Army while in Europe. The court held that Chow was not eligible for naturalization under either statute, citing Petition of Leuthold, 116 F. Supp. 777 (D.C.N.J. 1953).

Petition of D'Auria, 139 F. Supp. 525 (D.C.N.J. 1956), held the entry into the United States of an alien in the Armed Forces is not such a "lawful admission" as came within the meaning of Public Law 86. The court found D'Auria not eligible for naturalization, despite two years in the United States Army, including duty overseas from December 28, 1953 to May 29, 1955. See also Petition of Santos, 169 F. Supp. 115 (D.C.N.Y. 1958).

This Board followed Dela Cena in Matter of G—, 8 I. & N. Dec. 21 (B.I.A. 1958). A native of Bulgaria enlisted in the Armed Forces in Europe. He entered the United States and was then given an undesirable discharge before completing five years' service. We held he was not eligible for the benefits of the Act of June 30, 1950, had not been lawfully admitted for permanent residence, and we ordered him deported on a no-visa charge. He refused to apply for voluntary departure.

It may be accepted, then, as established, that respondent's departure from and return to the United States as a member of the Armed Forces had no effect upon his admission status, because he had not completed five or more years of military service. While in the Armed Forces he was in a "suspended" status. When he became detached from the Armed Forces, for whatever reason, he resumed the status which was his prior to his enlistment. This holding is dictated and required by the proviso contained in section 284 of the Immigration and Nationality Act.

Counsel states that in Matter of G-, supra, and in Matter of Zefi, unrep., A-11006046 (B.I.A. July 21, 1959), the Board ordered deportation on the "no visa charge". He quotes Zefi as holding specifically that the "remained longer" charge was not a proper one (oral argument, p. 2). Counsel admits that there is no practical difference to the alien between a "no-visa" charge and a "remained longer" charge, but states that the legally sustainable and proper charge here is "no visa”.

There is a difference between G- and Zefi and the instant case. Gand Zefi enlisted in the Armed Forces abroad, and had made no entry prior to their entries with the Armed Forces. They admitted entering with the intention to remain. In those cases a "no-visa" charge was the correct one. In Zefi we stated that the alien was entitled to an opportunity to leave voluntarily in accordance with the requirement of U.S. ex rel. Sommerkamp v. Zimmerman, 178 F. 2d 45 (3rd Cir. 1949), and that he must be given this opportunity before he could be found to have "made an entry" into the United States. Once he was given the opportunity to depart voluntarily, and failed to avail himself of it, he could have been deported either on a "no-visa" or a "remained longer" charge. It happened that the order stated a novisa charge against Zefi; there was no specific holding by this Board that a "remained longer" charge was not a proper one.

Villarba-Reyes entered the United States at Guam as a nonimmigrant where he was employed for almost two years before he joined the Armed Forces. Section 284 relieved him of the limitations and restrictions of Title 2 only while he was "in the uniform of, or bears documents identifying him as a member of, such Armed Forces". This is the meaning of the proviso in section 284 that nothing contained in that section shall be construed to give any such alien rights, privileges, etc. which are not otherwise specifically granted by this Act. When he ceased to be a member of the Armed Forces he returned to his status as a contract worker admitted to the United States as a nonimmigrant for a specified period.

Respondent has been granted voluntary departure. By his failure to depart he became a contract worker who has "remained longer", and the charge set forth in the order to show cause is the correct one. We have no authority to confer the benefits of section 402 (e), as amended, upon an alien who has been honorably discharged after only four years of military service, even though it was his desire to continue in the career service. The appeal must be dismissed.

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

MATTER OF FLORES-MALDONADO

In EXCLUSION Proceedings

A-13039936

Decided by Board July 30, 1962

(1) Retention requirements of section 301(b), Immigration and Nationality Act, as amended by section 16, Act of September 11, 1957, may be satisfied by a United States citizen who commutes regularly from his residence in Mexico to his employment in the United States, even though he does not take up residence in the United States until after he has reached his 23d birthday. (2) Continuous physical presence in the United States for at least five years within the meaning of section 301 (b), Immigration and Nationality Act, as amended by section 16, Act of September 11, 1957, is computed on the basis of the number of hours actually spent in the United States each day, and does not require establishment of residence in the United States.* (3) A commuter may continue to reside abroad under section 301 (b), Immigration and Nationality Act, as amended by section 16, Act of September 11, 1957, provided his absences from the United States are less than twelve months in the aggregate during the period for which continuous physical presence is required. The establishment of a residence in the United States does not toll the physical presence requirements for retention of United States citizenship.* EXCLUDABLE: Act of 1952-Section 212 (a) (20) [8 U.S.C. 1182 (a) (20)]—Immigrant without visa.

The applicant, a native of Mexico, male, married, 23 years of age was issued a United States citizen's identification card on November 13, 1953. He presented his citizen's identification card when he attempted to enter the United States at El Paso, Texas on February 4, 1962. He was detained for a hearing before a special inquiry officer. An order entered by the special inquiry officer on March 5, 1962, excludes the applicant under section 212(a) (20) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(20)). The special inquiry officer found that the applicant had lost his United States citizenship by failing to establish his residence in the United States prior to attaining the age of 23 years (section 301 (b) of the Immigration and Nationality

*See also, Matter of Bustillos-Ruiz, Int. Dec. No. 1243, and Int. Dec. No. 1256.

Act; 8 U.S.C. 1401 (b)). The applicant appeals from the order of

exclusion.

The applicant was born in Mexico on August 22, 1938. He derived United States citizenship through his mother, who was born in California (Revised Statutes, 1993, as amended by the Act of May 24, 1934). The applicant concedes that he did not come to the United States to reside until September 28 or 29, 1961. Prior to that date he maintained his residence in Mexico but was employed in the United States.

The applicant defends on the ground that when he was issued his citizen's identification card on November 13, 1953, the immigration officer advised him that upon reaching the age of 23 years he would have to reside in the United States in order to retain his United States citizenship (R.H. p. 8). He testified that it was his impression that he had about a month or a month and a half after reaching his 23rd birthday to assume the required residence. Relying on the information given him by the immigration officer he did not remove his residence to the United States until September 28 or 29, 1961.

1

Loss of national by a person born outside of the geographical limits of the United States or its outlying possessions of parents one of whom is an alien and the other a citizen who has had ten years physical presence in the United States prior to the birth of such person 1 is governed by section 301 (b) of the Immigration and Nationality Act (8 U.S.C. 1401 (b)). Section 301 (b) provides that such person shall lose his United States nationality derived at birth "unless he shall come to the United States prior to attaining the age of 23 years and shall immediately following any such coming be continuously physically present in the United States for at least five years: Provided, that such physical presence follows the attainment of the age of 14 years and precedes the age of 28 years" (emphasis supplied).

Realizing that the five year continuous physical presence provision of section 301 (b) as originally enacted created a hardship for many citizens born outside of the United States whose families continued to reside abroad the Congress enacted section 16 of Public Law 85-316 (Act of September 11, 1957). Section 16 of the Act of September 11, 1957, provides that in the administration of section 301(b) (supra) "Absences from the United States of less than 12 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." (Emphasis supplied.)

1 Paraphrased from section 301 (a) (7) of the Immigration and Nationality Act (8 U.S.C. 1401 (a) (7)).

'See U.S. Code Congress and Administrative News, Volume 2-85th Congress-1st Sess-pp. 2019 and 2220.

The applicant was 15 years of age when issued a citizen's identification card on the occasion of his original entry at El Paso, Texas on November 13, 1953. According to the record he commuted regularly from his residence in Mexico to his employment in the United States during the period November 13, 1953, to September 28 or 29, 1961. He testified that he moved his family to El Paso, Texas on September 28 or 29, 1961, and that both of his children were born in El Paso. (p. 3 of Ex. 2.)

The applicant reached his 23rd birthday on August 22, 1961. He meets the first requirement set forth in section 301 (b) (supra) in that "he (came) to the United States prior to attaining the age of 23 years." The issue before us is whether the applicant can qualify under that portion of section 301 (b) as modified by section 16 of Public Law 85– 316 which permits "Absences from the United States of less than 12 months in the aggregate" during the required five years of continuous physical presence in the United States between the ages of 14 and 28 years. If the applicant can qualify, then he was admissible as a citizen of the United States when he sought to enter on February 4, 1962, and not required to present an immigration visa. (Emphasis supplied.)

The special inquiry officer maintains that section 16 of Public Law 85-316 does not apply in this case because the applicant "did not take up any residence in the United States prior to September 28 or 29, 1961, which is subsequent to his having reached his 23rd birthday and, consequently, as he does not appear to have commenced a residence in the United States prior to his 23rd birthday, any break in "residence thereafter or absence thereafter has not occurred so as to make section 16 of (Public Law 85-316) applicable." (Emphasis supplied.) (p. 7 R.H.) According to the special inquiry officer's interpretation of both sections 301 (b) and section 16 of Public Law 85-316 it is impossible for the applicant to acquire "five years of continuous physical presence in the United States" prior to attaining the age of 28 years because "he did not take up any residence in the United States prior to September 28 or 29, 1961" and for this reason the allowable "Absences from the United States of less than 12 months in the aggregate" during the period from his birthday on August 22, 1961, to August 22, 1966, cannot affect the applicant's case (p. 2, special inquiry officer opinion). (Emphasis supplied.)

The special inquiry officer's interpretation of both section 301 (b) of the Immigration and Nationality Act and section 16 of Public Law 85-316 equates the term "residence" with the term "physical presence." He has read into these statutes a technical term not expressly set forth therein. (Emphasis supplied.)

The term "residence" is defined by section 101 (a) (33) of the Immi