dence" in order to retain United States citizenship. This report merely states that:

In order to retain citizenship derived through one citizen parent, the child is required to be physically present in the United States for a continuous period of five years between his 14th and 28th birthdays. (House Report 1365 to accompany House Resolution 5678 at page 76).

4

We are confident that it was the intent of Congress to eliminate the residential requirements for retention of citizenship formerly embodied in section 201 (g) of the Nationality Act of 1940. The managers on the part of the House committee in their conference report accompanying the final version of House Resolution 5678 expressly state "The conferees believe that the final version of this legislation would preclude any strained construction which would distort its general purpose and its particular provisions." It would certainly be a "strained construction" that would "distort" the retention provisions of the present Act if we were to equate such phrases as "must reside in the United States" and "has not taken up residence in the United States," the language used in the retention provisions of former section 201 (g), with the phrases "he shall come to the United States" and "be continuously physically present in the United States," the language found in the retention provisions of section 301(b) (supra).

The special inquiry officer maintains that this Board has ruled in two reported decisions that sections 301 (a) through (c) of the Immigration and Nationality Act require the child to "take up residence in the United States before reaching the age of 23" in order to retain citizenship obtained by birth abroad (p. 9 of special inquiry officer's opinion citing Matter of S-, 8 I. & N. Dec. 221, and Matter of S—, 8 I. & N. Dec. 226 (December 23, 1958)). The issues in both cases are concerned with whether citizenship, lost under sections 201 (g) and (h) of the Nationality Act of 1940, is restored by sections 301 (b) and (c) of the Immigration and Nationality Act. It was our original belief that the savings clause found in section 405 (c) of the 1952 Act controlled rather than the provisions of section 301 (c) which reads "subsection (b) shall apply to a person born abroad subsequent to May 24, 1934." We overruled our formed decision 5 and ordered both applicants admitted notwithstanding the fact that they both arrived. subsequent to their 23rd birthday. The evidence established that they were prevented from complying with the retention provisions of the 1952 Act by the previous erroneous interpretation of sections 301 (b) and (c).

'Conference Report, House #2096, U.S. Code Congressional and Administrative News, 82nd Cong., 2nd Sess., Vol. 2 at p. 1754. "Matter of B-, 5 I. & N. Dec. 291, BIA, 1953.

While it is true that in both of the cited cases we have used the phrase "take up permanent residence" in the text of the opinions, it is clear that the use of this phrase is not germane to the issue involved and may be considered "obiter dictum." The decision of the Regional Commissioner in the Matter of M—, 7 I. & N. Dec. 646, 650 (February 13, 1958) states the correct rule as follows:

In order to retain his United States citizenship and in accordance with Sections 301 (b) and (c) of the Immigration and Nationality Act, applicant (is) required to come to the United States prior to his attainment of the age of 23 years and immediately following any such coming to be physically present in the United States for at least five years, which physical presence period must follow the attainment of the age of 14 years and precede the age of 28 years.

The applicant meets the first test set forth in Matter of M(supra). He came to the United States prior to attaining the age of 23 years. The question to be resolved is whether it is mathematically possible for the applicant to establish a continuity of five years of physical presence in the United States prior to attaining the age of 28 years on January 2, 1966. (Emphasis supplied.)

The question is complicated by the fact that the applicant was physically present in Mexico for various periods of time ranging from approximately 12 hours to several weeks between his 23rd birthday on January 2, 1961, and the date he sought to enter the United States as a citizen some 13 months later on February 4, 1962. However, if the applicant's absences aggregate "less than 12 months*** following any *** coming (to the United States) *** prior to attaining the age of 23 years," then such absences do not break the continuity of the required five years of physical presence in the United States (section 301 (b), Immigration and Nationality Act as amended by Public Law 85-316) (8 U.S.C. 1401 (b) and 1401b).

The mathematical computation of the applicant's absences, in Mexico between his 23rd birthday on January 2, 1961, and the date he was excluded at El Paso, Texas, on February 4, 1962, is found in Appendix A. Based upon the record of the applicant's testimony our computation shows that he was absent in Mexico a total of 17811⁄2 days or approximately six months during this period. This figure is computed on the basis of 12 hours' physical presence in the United States while commuting daily from Juarez, Mexico, to his employment in the United States. We have also charged the applicant with absences in Mexico when the record discloses that he had a day off or was unem

6

"The applicant testified concerning his employment at the Auto Center Car Wash, El Paso, Texas, as follows:-"I worked 7 days a week except sometimes when I was given Monday off but this was not all the time." (pp. 6 and 7). The applicant also testified that he had Wednesdays off while working at the Diff's Car Wash in El Paso, Texas (p. 8).

ployed. We realize that he may have entered the United States during this period in search of employment, but we have no way of ascertaining such entries.

The applicant's absences from the United States during the fiveyear period between his 23rd and 28th birthday aggregate approximately six months. Accordingly, when the applicant applied for admission on February 4, 1962, some 13 months after his 23rd birthday, it was impossible for him to acquire five years of physical presence in the United States prior to his 28th birthday (January 2, 1966) unless the aggregate of his absences for a period immediately preceding his 23rd birthday amounts to less than six months. The statute provides that the applicant may acquire the required five years of physical presence at any time subsequent to his 14th and prior to his 28th birthday provided he comes to the United States before he attains the age of 23 years (8 U.S.C. 1401 (b)). There must be, however, a continuity of actual physical presence in the United States totaling five years prior to attaining the age of 28 years and this five-year period must be not be interrupted by total absences which aggregate 12 months or more (8 U.S.C. 1401b).

Concerning the applicant's physical presence in the United States for a period immediately preceding his 23rd birthday, the record discloses that he commuted from his home in Juarez, Mexico, to his employment at the Auto Center Car Wash, El Paso, Texas, for the period September 1, 1960, through January 1, 1961. According to our computation, based upon the applicant's testimony (pp. 6 and 7), he was physically present in the United States for approximately 60 days during this period (see Appendix B).

The applicant, had he been admitted on February 4, 1962, could have acquired three years and eleven months of physical presence prior to his 28th birthday on January 2, 1966. Between January 1, 1961, his 23rd birthday, and February 4, 1962, the date he applied for admission, the applicant was physically present in the United States for a total of seven months. The aggregate of the applicant's absences in Mexico for the period September 1, 1960, to February 4, 1962, amounts to approximately eight months during this 17-month period. The applicant's potential and actual physical presence in the United States as of February 4, 1962, totals four years and eight months for the period September 1, 1960, to January 2, 1966.

The question resolves itself into whether it can be established on this record that the applicant can acquire five years of physical presence in the United States prior to his 28th birthday which is not interrupted by total absences aggregating 12 months or more during a period subsequent to January 1, 1960, and prior to February 4, 1962. According to our computation the applicant must have more than four

65

months of physical presence in the United States during the eightmonth period, January 1, 1960, to September 1, 1960, as we have accounted for absences which aggregate approximately eight months for the 17-month period, September 1, 1960, to February 4, 1962.

The applicant testified that "during the slow part of the season" (January to September) when he was not employed as an agricultural worker he would obtain employment in "the restaurant and construction business" for periods of "one day, three days, maybe a week" (pp. 13 and 14). The applicant also testified he was employed on a ranch at Columbus, New Mexico, from September 1, 1959, through December 31, 1959 (pp. 12 and 13). He would work on the ranch for a period of 15 to 22 days and then returned to Mexico for "a few days up to a week" after which he would again return to the ranch and that this kept up during the whole season (pp. 12 and 13).

We are unable to compute on the basis of the foregoing testimony whether the applicant has sufficient physicial presence in the United States during the period January 2, 1960, to September 1, 1960, which when added to his actual and potential physical presence of four years, eight months, as of the date he sought to enter (February 4, 1962) would make it mathematically possible for him to have a continuity of actual and potential physicial presence totaling five years prior to his 28th birthday (January 2, 1966).

By the same token we are unable to compute on the basis of the record as it now stands whether it is mathematically possible for the applicant to acquire a continuity of five years of physical presence running from a date certain while employed at Columbus, New Mexico, in the fall of 1959 to a date certain in 1965. There is the possibility that the applicant during the period September 1959 to February 4, 1962, a span of some two years, five months, has been physically present in the United States for periods which total more than one year, five months, with absences which aggregate less than 12 months.

Here we are concerned with loss of nationality acquired at birth. Every effort should be made to establish compliance with section 301 (b) as amended by section 16 of Public Law 85-316 (8 U.S.C. 1401 (b) and 1401b). We are mindful of the fact that the burden is upon the applicant to establish his admissibility as a citizen of the United States. We note, however, that the only evidence with regard to the applicant's physical presence in the United States for the period January 1, 1960, to September 1, 1960, is his testimony that he was intermittently employed in restaurants and in the construction business for periods of "one day, three days, maybe a week."

We will, under the circumstances, remand the case to the special inquiry officer for additional evidence of the applicant's physical presence in the United States during the period January 1, 1960, to Sep

tember 1, 1960. Evidence should also be developed as to whether it is mathematically possible to establish the applicant's physical presence in the United States from a date certain in the fall of 1959 to a date certain in 1965 which has a continuity of five years and which is not interrupted by total absences which aggregate 12 months or more.

ORDER: It is directed that the hearing in this case be reopened for the purposes stated in the foregoing opinion.

It is further directed that the case be certified to the Board of Immigration Appeals for final decision pursuant to 8 CFR 3.1 (c).

APPENDIX A

Computation of the Applicant's Physical Presence in Mexico Between Jan. 2, 1961. His 23d Birthday and Feb. 4, 1962, the Date He Applied for Admission at El Paso, Tex.

Computed on the basis of eight hours of employment and 4 hours travel andņunch time.

APPENDIX B

Computation of the Applicant's Physical Presence in Mexico for the 4-Month Period Prior to His 23d Birthday on Jan. 2, 1961

•Computed on the basis of 12 hours' employment, travel and lunch time in the United States and allowing 4 Mondays as time off spent in Mexico out of a total of 17 Mondays in this period.