lowing the dismissal, respondent applied to the special inquiry officer (in accordance with authority granted to the special inquiry officer in the Board's order dismissing the appeal) for reopening of proceedings so that she could file an application for the withholding of her deportation on the claim of physical persecution under section 243 (h) of the Act, 8 U.S.C. 1253 (h). At the reopened hearing, the respondent declined to make a designation of the country to which her deportation should be directed whereupon the special inquiry officer specified the Federal Republic of Germany (West Germany) as the place of deportation. Respondent then designated East Germany as the place of deportation and at the same time pursued an application under section 243 (h) of the Act to withhold her deportation stating that she would be subject to physical persecution if delivered to the hands of the officials of the East German government. (The East German government is not recognized by the United States.) The special inquiry officer denied the application pointing out that the Service did not contemplate deporting respondent to East Germany, and he refused to permit respondent to submit evidence concerning persecution in East Germany. Counsel contends that respondent cannot be deported to West Germany since she did not reside there, has no right to claim the citizenship of that country, and remained there only long enough to obtain the visa with which she came to the United States.

The place to which deportation may be ordered is determined by one of the steps in a three-step plan designed by Congress. Step one provides that the alien shall be deported to a country designated by him if that country is willing to accept him. If the alien fails to make such designation, the next step contemplates the deportation of the alien to the country of which he is a subject, national or citizen, if such country is willing to accept him. If such country refuses to accept him, then the third step permits the Attorney General to order deportation to a country selected in his discretion from any one of the seven categories listed in the section (Leong Leun Do v. Esperdy, 197 F. Supp. 604 (S.D.N.Y. 1961; section 243 (a) of the Act, 8 U.S.C. 1253(a)).

Applying the three-step plan to the facts before us, we find that in accordance with step one, respondent was given an opportunity to designate a place of deportation. This she first refused to do, but ultimately designated East Germany, following the designation with the request that the deportation be withheld because she would be faced with physical persecution if returned there. The designation of a country followed by a request for withholding deportation to that country is, in effect, a withdrawal of the designation (Chao Chin v. Murff, 168 F. Supp. 349 (S.D.N.Y., 1958)). This brings us to step two. Respondent claims that the country of which she is a subject,

national, or citizen is East Germany, and as we have indicated she does not desire to be deported there because of her fear of physical persecution. This being so, there is no need to proceed further with step two. Step three permits deportation to the country in which the alien was born and where his place of birth is situated at the time he is ordered deported, or the country which had sovereignty over the birthplace at the time of his birth. In the eyes of the law, the United States considers all of these places to be West Germany. Deportation is also authorized to a country in which the alien resided prior to entering the country from which he entered the United States. In this case, respondent resided in West Germany before embarking at Copenhagen for the United States. There is ample justification for selecting West Germany as the place of deportation.

Counsel contends, moreover, that under judicial construction of the Act, before deportation to a country can be ordered, the Service must make a showing that the proposed country has agreed to accept the alien. Luv. Rogers, 164 F. Supp. 320 (D.C. 1958), is cited. When designating a country in step three as a place of deportation, there is no requirement that preliminary inquiry be addressed to the country to which deportation is ordered (other than perhaps to the seventh country in the list-a country which is willing to accept the alien into its territory). Lu v. Rogers, supra, cited by counsel was one in which deportation was contemplated to a country of which the alien was a subject, national or citizen. In such event inquiry must be made as to whether the country is willing to accept the alien. In the instant case, this preliminary inquiry is not required.

Since the Government does not intend deporting respondent to East Germany, her offer to establish that she would suffer physical persecution if deported there was properly rejected.

Contentions concerning the reopening of proceedings to enable respondent to apply for an adjustment of status under section 245 of the Act (8 U.S.C. 1255) have been previously considered. Matter of A—V—, A-10659043 (November 20, 1959), cited by counsel (now found in 8 I. & N. Dec. 554, 558) is not pertinent.

The appeal will be dismissed.

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

MATTER OF BUSTILLOS-RUIZ

In EXCLUSION Proceedings

A-13040423

Decided by Board August 7, 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 resident of Mexico who commutes to his employment in the United States, even though he has never established a residence in the United States.

(2) The retention provisions of section 301 (b), Immigration and Nationality Act, as amended by section 16, Act of September 11, 1957, that a United States citizen come to the United States and be continuously physically present for at least five years, do not require the taking up of a residence in the United States. cf. Matter of Bustillos-Ruiz, Interim Decision #1256.*

EXCLUDABLE: Act of 1952-Section 212 (a) (20) [8 U.S.C. 1182 (a) (20)]—Immigrant without visa.

An order entered by the special inquiry officer on March 29, 1962, excludes this applicant as an alien immigrant not in possession of a valid immigration visa (8 U.S.C. 1182 (a) (20)). The special inquiry officer concludes that the applicant failed to retain his United States citizenship derived by birth abroad to parents one of whom was a citizen of the United States, because he did not come to the United States prior to attaining the age of 23 years and therefore is required to have documentation. The case has been certified by the special inquiry officer for an interpretation of section 301 (b) of the Immigration and Nationality Act (8 U.S.C. 1401(b)) as modified by section 16 of Public Law 85-316 (Act of September 11, 1957) and for final decision.

The applicant, a married male, 24 years of age, sought to enter the United States through the port of El Paso, Texas, on February 4, 1962. He applied for entry as a United States citizen and was detained for an exclusion hearing.

The applicant was born in Mexico on January 2, 1938, of lawfully married parents one of whom was a citizen of the United States, the

*See also, Matter of Flores-Maldonado, Int. Dec. No. 1235.

other an alien. He was issued a United States citizen identification card on September 2, 1954, when 16 years of age (p. 2 of Ex. 2). It is conceded that the applicant acquired United States citizenship under the provisions of Revised Statute 1993, as amended by the Act of May 24, 1934.

The applicant has come to the United States for employment on numerous occasions during the period 1954 to February 4, 1962. He has resided in the United States for periods of one to six months during the course of his employment. From September 1960 through the first week of July 1961 the applicant was employed in El Paso, Texas, and commuted daily from his home in Juarez, Mexico. Since July of 1961 the applicant has been employed in the United States at Delano, California, from August 24, 1961, to on or about November 24, 1961; at Columbus, New Mexico, during the month of December 1961, and he resided in his mother's home in El Paso, Texas, while not employed from January 1, 1962, until January 13, 1962.

The applicant has never established a residence in the United States. He has always entered the United States heretofore as a citizen. The special inquiry officer concludes that the applicant now requires an immigration visa to enter because he is no longer a citizen by reason of the provisions of section 301 (b) of the Immigration and Nationality Act (supra).

1

Loss of nationality 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).2 Section 16 of the Act of September 11, 1957, provides that in the administration of section 301(b) (supra)

1

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

2 See U.S. Code Congressional and Administrative News, Vol. 2, 85th Cong., 1st Sess. pp. 2019 and 2020.

"absences from the United States of less than 12 months in the

aggre

gate, 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."

Section 301 (b) of the Immigration and Nationality Act differs from its predecessor, section 201(g) of the Nationality Act of 1940. The present statute requires that the child "shall come to the United States" prior to attaining the age of 23 years while section 201 (g) provided that the child "must reside in the United States" for a total of five years between the ages of 13 and 21 years. [Emphasis supplied.] Notwithstanding the difference in language the special inquiry officer is of the opinion that in order for the foreign-born child to retain his citizenship under section 301 (b) (supra) he must enter the United States for permanent residence before attaining the age of 23 years, and shall thereafter be physically present in the United States for at least five years following any such entry prior to age 23 and after age 14. The special inquiry officer is also of the opinion that section 16 of Public Law 85-316 (supra) avails the applicant nothing because as a condition precedent to computing allowable absences from the United States the foreign-born citizen child must "take up a residence in the United States" prior to his 23d birthday.

3

The special inquiry officer refers to several congressional committee reports as the basis for his conclusion in this regard. It is true that the Senate committee did recommend in its report of April 20, 1950 (#1515, footnote 1) that the "child born abroad of one citizen parent and one alien parent must in order to retain his United States citizenship enter the United States for permanent residence before attaining the age of 23." The committee, however, prefaced this recommendation with a statement that ". . . the provisions of existing law relative to citizenship of children born abroad of a citizen parent or parents are confusing and difficult to administer and interpret, particularly with reference to residence requirements, both of parents and children." Senate Report #1515 accompanied the first "omnibus bill" introduced by Senator McCarran on April 20, 1950. There were three revisions of his original bill prior to the introduction of a final version in the form of a "clean bill," S-2550, on January 29, 1952.

The House Committee on Immigration in a later report, dated February 14, 1952, which accompanied House Resolution 5678, enacted as the Immigration and Nationality Act of 1952 on June 27, 1952, made no mention of an "entry into the United States for permanent resi

'Senate Report #1515, 81st Cong., 2nd Sess., April 20, 1950, p. 713. Senate Report #1137, 82nd Cong., 2nd Sess., January 29, 1952, p. 39. House Report #1365, 82nd Cong., 2nd Sess., February 14, 1952, p. 33.