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shall be forever estopped by such failure from thereafter claiming such American citizenship (54 Stat. 1168–1169; 8 C.S.C. 801) * * *.
This section was superseded on December 24, 1952, by section 319 (a) (1), quoted below, which insofar as it is relevant to the instant case has been interpreted to make still timely the arrival in the United States before 25 years of age of a child within the provisions of section 401 (a) who on that date had not yet attained 23 years of age (SI. & N. Dec. 511):
(a) From and after the effective date of this Act a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by
(1) obtaining naturalization in a foreign state upon his own application, upon an application filed in his behalf by a parent, guardian, or duly authorized agent, or through the naturalization of a parent having legal custody of such person: Provided, That nationality shall not be lost by any person under this section as the result of the naturalization of a parent or parents while such person is under the age of twenty-one years, or as the result of a naturalization obtained on behalf of a person under twenty-one years of age by a parent, guardian, or duly authorized agent, unless such person shall fail to enter the United States to establish a permanent residence prior to his twenty-fifth birthday: And provided further, That a person who shall have lost nationality prior to January 1, 1948, through the naturalization in a foreign state of a parent or parents, may, within one year from the effective date of this Act, apply for a visa and for admission to the United States as a non-quota immigrant under the provisions of section 101(a) (27) (E)
Absent any evidence of his intent to reacquire Italian nationality by establishing residence in Italy, the resumption of Italian nationality by the applicant's father under Article IX of the Italian law of June 13, 1912, may be deemed his “naturalization” within the meaning of section 2 of the Act of March 2, 1907, only if he has voluntarily and unambiguously manifested acceptance of Italian nationality by a deelaration or overt action. Upon such manifestation during the effective period of that section, the final constituent element of voluntary "naturalization" comes into being, and the legal consequences are loss of nationality under section 2 (9 I. & X. Dec. 660; Int. Dec. No. 1259). There is no evidence of such manifestation on the part of the father prior to the repeal of section 2 on January 13, 1941, and, therefore, no basis upon which to conclude that when section 401 (a) became effective on that date he was a person who had been expatriated by naturalization in a foreign country within the meaning of the legislation it superseded. Nor was the applicant herself old enough prior to that date to have performed any action constituting an election of Italian nationality on her part, assimilable to an act of acceptance on the part of her father and capable independently of effecting her loss of United States nationality (Cf. 1 I. & X. Dec. 476 and 196 and 3 1. & N. Dec. 761).
The second proviso to section 401 (a) can scarcely have been aimed at expatriating a child who during the effective period of the 1907 Act automatically derived a foreign nationality as a result of the conferring of such nationality upon his parent by operation of law when the parent's acquisition of that nationality was not itself a “naturalization" within the meaning of the 1907 Act. It has been a long-standing rule, therefore, and one that is here reaffirmed that under such circumstances the child is not under the necessity of complying with that proviso (3 I. & N. 761, 765, supra).
With regard to the first provisos to section 401(a) and section 349(a) (1), in the instant case the applicant's father voted in a political election in Italy in 1946, an action that if performed prior to January 13, 1941, might be regarded as a manifestation of his acceptance of Italian nationality sufficient to constitute under the precedents cited the last element in his naturalization in a foreign country within the meaning of section 2 of the Act of March 2, 1907. That section had Then been repealed and superseded by the Nationality Act of 1940.
The Nationality Act specifically provided in section 408 that the loss of nationality thereunder shall result solely from the performance by a national of the actions or fulfillment of the conditions set out in that Act (54 Stat. 1171; 8 U.S.C. 808). And the language of section 401(a) rules out loss of nationality thereunder by the applicant's parent on the basis of acquisition of a foreign nationality by operation of law by specifically limiting such loss to a naturalization obtained "upon his own application.” There is no evidence indicating that applicant's parent at any time on or after January 13,1941, obtained Italian nationality upon his own application. Giving the evident intended effect to section 408, it can only be found that, when he voted in 1946, he performed an action separately designated as expatriatory in section 401 (e) of the Nationality Act and not that he was naturalized within the meaning of section 401(a). In view of the foregoing, there has been no “naturalization” within the meaning of that section and
the applicant is not a person required to comply with the first proviso cto section 401 (a) or section 349(a)(1). No discussion is necessary,
therefore, with regard to the timeliness in relation to those provisos of her entry into the United States when she was 27 years of age, and favorable action on her application for a certificate of citizenship is warranted.
ORDER: It is ordered that the application be granted and that a certificate of citizenship be issued.
Interim Decision # 1310
MATTER OF LOUIE
In DEPORTATION Proceedings
Decided by Board December 12, 1963
Service in the U.S. Navy for 1 year, 9 months, and 20 days does not satisfy the
minimum period of 24 months in active duty status required by section 244 (b), Immigration and Nationality Act, as amended, notwithstanding the same period of service is considered by the Department of Navy to have satisfied the requirements of 2 years of service on active obligated duty for which inducted.
The case is before us by certification. The special inquiry officer found respondent deportable upon the charge stated above and denied his application for suspension of deportation. The issue is whether the respondent is eligible for suspension of deportation.
Section 244(a)(1) of the Immigration and Nationality Act under which application is made for suspension of deportation has a requirement that the applicant have been physically present for a continuous period of seven years in the United States prior to becoming deportable; however an exception to this requirement is made for one who “has served for a minimum period of twenty-four months in active duty status of the Armed Forces of the United States * * *(section 244(b) of the Immigration and Nationality Act, 8 U.S.C. 125+(b) (Supp. IV)).” The issue is whether the respondent who actually spent one year nine months and twenty days on active duty with the Navy is within the exception.
Respondent a 32-year-old married male, a native and national of China, came to the United States in 1951 to join his father who has been a resident of the United States since 1913. Respondent gained admission upon a false claim to United States citizenship. He made short visits to Hong Hong in 1960 and 1962.
Respondent who was inducted into the United States Navy on November 17, 1955, for two years of active service was transferred to the Reserves on September 6, 1957 after having served one year nine months and twenty days. He was obligated to serve in the Reserves until November 16, 1961 but failed to perform any Reserve obligation.
The official Armed Forces Report of Transfer received by respondent from the Navy reveals that he was inducted for two years of service and that he served one year nine months and twenty days. A letter dated December 20, 1962, from the Department of the Navy, Bureau of Naval Personnel, at Washington, D.C., reveals that under certain circumstances, enlisted personnel may be separated three months or less prior to the normal date of expiration of active obligated service, provided such early separation is in the best interest of the government and that such service is considered to have satisfied the requirement that the person serve two years on active obligated duty. The respondent is, therefore, considered by the Navy to have fulfilled his obligation to serve on active duty for a period of twenty-four months toward his Naval Reserve obligations (Ex. 5).
The special inquiry officer stated that despite the Navy's view of the respondent's service, the fact was respondent had not served the full twenty-four months required by the statute; he therefore did not come within the exception created by the statute. Counsel believes that the decision of the Department of the Navy that respondent has served twenty-four months on active duty should be controlling as to the length of the respondent's service. He points out that the immigration law expressly provides in some instances that the decision of branches of the Department of Defense are conclusive as to the existence of service. He points out that the congressional history of the legislation reveals that it was desired to benefit aliens who had served honorably for a stated period of time in the Armed Forces of the United States. He believes that in fixing the twenty-four month period of active duty, Congress was referring to a minimum period of service, and he points out that the respondent has satisfactorily completed his minimum period of service. In the event that the decision is adverse to the respondent, counsel requests that the decision be certified to the Attorney General for a final administrative order.
We believe the special inquiry officer has ruled properly. The law makes eligibility for relief dependent on proof that an alien has served at least 24 months in an active duty status. Respondent has not served this minimum period. The law makes no exception; it does not provide that acceptance of a lesser period of service by the Department of Defense shall constitute a waiver of the law's requirement. It is clear, therefore, that respondent who has served less than twentyfour months has failed to establish his eligibility for relief. While it may well be that Congress did not envision the situation before us, and would have made provision to grant relief if it had, the fact remains that there is no authority to accept less than proof of at least twenty-four months of active duty service.