States citizenship within a reasonable period after learning of his possible claim to such citizenship; and that under the circumstances he might properly be issued limited documentation valid for a period to enable him to proceed forthwith to the United States to begin compliance with the retention provisions of section 301 (b) of the Immigration and Nationality Act.

Matter of C-S-, Int. Dec. No. 1218, involved a native-born Cuban, born May 31, 1933, who acquired United States citizenship through his father under revised section 1993. The applicant did not know of his citizenship until many years later in 1959 and voted in a Cuban political election on November 3, 1958, while unaware of his United States citizenship. The Board of Immigration Appeals relied on the case of Rogers v. Patokoski, 271 F. 2d 858 (9th Cir. 1959), which held, on closely similar facts, that voluntary acts abroad of voting and serving in the armed forces of a foreign country did not result in expatriation where the individual was unaware of his United States citizenship. The Attorney General compared the decisions in Perri v. Dulles, 206 F. 2d 886 (3rd Cir. 1953), and Petition of Acchione, 231 F. 2d 845 (3rd Cir. 1954), which held that the two-year period established by section 401 (a) of the Nationality Act of 1940, during which a dual national must return to the United States or forfeit his American citizenship, did not run until he became aware of his United States citizenship. The court in Perri v. Dulles, supra, held that for constitutional reasons the two-year period of limitations must also be regarded as not beginning to run until the plaintiff learned that he had a claim to American citizenship; for to provide that a citizen "shall be forever estopped" from claiming citizenship by his failure to return to the United States at a time when he was fully unaware of his citizenship would certainly be to deprive him of it arbitrarily and without his knowledge, much less his concurrence. The Attorney General stated that the presumption in section 349 (b) is addressed only to the question of whether the asserted act of expatriation was committed voluntarily or under duress, and that it had no application to a case such as the present in which the acts were performed voluntarily but without the knowledge of the individual's United States citizenship. The Attorney General cited the Supreme Court holding that where a deprivation of the person's right of citizenship is involved, the facts and the law should be construed as far as reasonably possible in the favor of the citizen (Nishikawa v. Dulles, 356 U.S. 129 (1958)). He refused to attribute to Congress an intention that United States citizenship of an individual should be forfeited by reason of actions taken at a time when he was unaware of his citizenship.

It is believed that the language of the Attorney General in Matter of C-S-, Int. Dec. No. 1218, is broad enough to include the present case of the applicant. Section 301 (b) of the Immigration and Nationality Act is not a provision relating to expatriation but it does involve a forfeiture of a claim to United States citizenship upon failure to meet the prescribed conditions. In this respect it is similar to the provisions of section 401 (a) of the Nationality Act of 1940 that a dual national return to the United States within the two-year statutory period or suffer the loss of citizenship, which has been construed not to run until the individual became aware of his claim to United States citizenship. The Attorney General has endorsed the holding in those cases and it appears to be but a logical extension to hold that the forfeiture provisions of section 301 (b) of the Immigration and Nationality Act requiring continuous physical presence in the United States between the ages of 14 and 28, do not operate to deprive an individual of United States citizenship until he has had a reasonable opportunity to come to the United States as a United States citizen after learning of such claim to citizenship. Under the circumstances of this case, which clearly show that the applicant did not become aware of his possible claim to United States citizenship until February 1962 when he was so informed by officials at the American Consulate, was documented as a citizen by December 1962 and then proceeded immediately to the United States, it is concluded that citizenship has not terminated under section 301 (b). The decision of the special inquiry officer will be reversed.

ORDER: It is ordered that the decision of the special inquiry officer dated June 10, 1963, be reversed and that the applicant be admitted as a United States citizen.

* Perri v. Dulles, 206 F. 2d 586, 591 (3d Cir. 1953); Petition of Acchione, 213 F.2d 845 (3d Cir. 1954).

369

Interim Decision #1303

MATTER OF NAPELLO

In VISA PETITION Proceedings

A-12363457

Decided by Board September 27, 1963

A marriage by proxy in Mexico, following a divorce obtained in absentia in Mexico to terminate a prior marriage, is not valid under the immigration laws and will not sustain a visa petition to accord nonquota status on behalf of the second spouse.

The petitioner filed a visa petition to obtain nonquota status for the beneficiary as his spouse, and on May 11, 1962 the petition was approved by the District Director of the Service in New York City. On November 23, 1962 the petitioner was informed of the intention of the Service to revoke approval of the petition, and on February 1, 1963 an order of revocation was entered. The case is before us on the petitioner's appeal from that decision.

The petitioner has established that he is a native-born citizen of the United States. He was first married to Amelia Casalone on September 24, 1950 at New York City, New York. On April 30, 1960 he obtained a divorce from her in a Mexican court. The petitioner and his first wife were not in Mexico at that time. On April 19, 1962 the petitioner married the beneficiary at Washington, D.C. After the Service informed the petitioner concerning the intention to revoke the approval of the visa petition, the petitioner and the beneficiary were married by proxy in Mexico on January 16, 1963. The sole issue to be determined is whether the beneficiary is the spouse of the petitioner as required by section 101(a)(27) (A) of the Immigration and Nationality Act (8 U.S.C. 1101 (a) (27) (A)).

We have carefully reviewed the entire record. On January 31, 1963 the petitioner wrote to the District Director of the Service enclosing a certificate concerning the Mexican marriage on January 16, 1963. This evidence was not before the District Director at the time his decision of February 1, 1963 was rendered. However, we have given consideration to that marriage and to the petitioner's letter addressed to this Board on June 15, 1963 enclosing a photostatic copy of the original Mexican marriage certificate of January 16, 1963.

The petitioner no longer relies on his marriage to the beneficiary at Washington, D.C. on April 19, 1962 but instead on the proxy marriage in Mexico on January 16, 1963. He has stated that the marriage has been consummated. He contends that the validity of his marriage is to be determined by the law of the place where it was contracted; that his proxy marriage in Mexico is valid in that country; and that a marriage that is valid where contracted is valid everywhere unless contrary to public policy.

The controlling decision concerning Mexican divorces is Matter of P—, 4 I. & N. Dec. 610, decided by the Acting Attorney General on March 18, 1952. In that case, the Acting Attorney General had stated that the rule to be applied was: "that the validity of a marriage is governed by the law of the place of celebration." There, the parties to a marriage mutually agreed that it should be terminated, and the wife went to Mexico for the purpose of instituting divorce proceedings after which she returned to the United States. The Mexican divorce was granted in 1947 and a few days thereafter the woman remarried. In 1951, the man was married in Germany and subsequently filed a visa petition for his wife. He was in the armed forces of the United States and his superior officers had advised him that the Mexican divorce was legal. We ascertained that Mexican divorce decrees had apparently been accepted as valid by German authorities. Under the circumstances, we held that the validity of that petitioner's marriage in Germany should be recognized.

The case of this petitioner presents an entirely different factual situation. In Matter of P-, supra, the parties had mutually agreed that the marriage should be terminated, and we stated that we were impressed with the evident good faith of the parties. In the case before us, it is not clear that the first wife had any actual knowledge concerning the institution of the Mexican divorce proceeding. As indicated in the District Director's order of February 1, 1963, it appears that, by reason of the Mexican divorce, the petitioner's subsequent marriage to the beneficiary at Washington, D.C., is not recognized as valid in the District of Columbia. We believe it is obvious that Matter of P- does not sanction such a procedure as was resorted to in this case, that is, the expedient of a proxy marriage in Mexico for the purpose of curing a marriage which was invalid under the laws of the District of Columbia. Accordingly, we hold that the petitioner has not established that the beneficiary is his lawful spouse within the meaning of 8 U.S.C. 1101 (a) (27) (A). It follows that the action of the District Director in revoking approval of the visa petition was correct, and the appeal will be dismissed.

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

MATTER OF IRIE

In DEPORTATION Proceedings

A-13212870

Decided by Board October 23, 1963

(1) Neither the Board of Immigration Appeals nor the special inquiry officer has authority to adjudicate an application for a waiver of the foreign residence requirement of section 212(e), Immigration and Nationality Act, as amended. (Reaffirms Matter of Rosenblatt, Int. Dec. No. 1260.)

(2) Jurisdiction to fix voluntary departure date lies with the district director. If an alien fails to effect voluntary departure within the time accorded him, the district director is vested with the power to deport him expeditiously notwithstanding that an application for relief may be pending, if the district director, after consideration of the bona fides of the application, the length of time adjudication will take, the ability of the alien to depart and return, the probability of the success of the application, and other pertinent factors, decides that the policy of the law will be defeated unless the alien promptly departs. CHARGE:

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

This is an appeal from the order of the special inquiry officer requiring respondent's deportation upon the ground stated above, denying his application for adjustment of status to that of a permanent resident, and granting voluntary departure. Appeal will be dismissed. Respondent, a 43-year-old married male, an alien, a native and citizen of Japan entered the United States on June 24, 1958 as an exchange visitor for a period ending June 30, 1963. He has remained without authorization. Deportability is conceded. The respondent's application for adjustment of status to that of a permanent resident under section 245 of the Act was denied on the ground that he had not established that an immigrant visa is immediately available to him. A visa is not available because, respondent having been admitted as an exchange visitor is not eligible for the issuance of an immigrant visa until he has been absent from the United States for two years.

The requirement as to absence may be waived; in fact, respondent filed an application for such a waiver with the District Director prior