IN THE MATTER OF G----, 7 IN Dec. 591 (BIA 1957)
MATTER OF G----. In EXCLUSION Proceedings.
C-3452298Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice
Decided by Board October 29, 1957
Expatriation — Residence abroad — Effect of absences on continuity of foreign residence.
The statute which provides for loss of citizenship by a naturalized citizen who resides in a foreign state continuously for 5 years does not require that the foreign residence consist of uninterrupted physical presence. Hence, despite intervening absences and visits to the United States, a naturalized citizen who has maintained a place of foreign abode for 5 continuous years becomes expatriated.
EXCLUDABLE:
Act of 1952 — Section 212 (a) (20) (8 U.S.C. 1182 (a) (20)) — No immigrant visa.
BEFORE THE BOARD
BEFORE THE BOARD
Discussion: This is an appeal from the order of the special inquiry officer excluding the appellant upon the ground stated above. The appeal will be dismissed.
The special inquiry officer ruled that the appellant had become expatriated because she had maintained a foreign residence for 5 continuous years after naturalization in the United States in 1931. The special inquiry officer found that appellant had resided continuously in Cuba since August 1951. She applied for admission to the United States in September 1957. It is undisputed that from August 1951, the appellant has had her principal place of residence in Cuba. She has been physically absent from Cuba on short visits to the United States from time to time during the 5 years in question. It is the effect of these absences which we must consider.
The period of foreign residence relied upon by the special inquiry officer runs from August 1951 to August 1956. The portion from August 1951 to December 24, 1952, was accumulated while section 404 (c) of the Nationality Act of 1940 was in effect (8 U.S.C. 804 (c)). The remaining portion was accumulated under section 352 of the Immigration and Nationality Act (8 U.S.C. 1484) which isPage 592
now effective. For reasons we shall later state, we believe that the provisions of the Immigration and Nationality Act apply to the entire period of residence, even that portion accumulated before the passage of the Immigration and Nationality Act. However, we believe that expatriation resulted whether or not the Nationality Act of 1940 is applied to the portion of residence from August 1951 to December 24, 1952.
It is the administrative rule supported by considerable judiciary authority that the Nationality Act of 1940 did not require continuous physical presence in the foreign residence. Therefore, an absence from the place of foreign abode did not break the continuity of the foreign residence unless a new place of general abode was established in a new country (Matter ofC----, A-2033704, 4 IN Dec. 421; Garlasco v. Dulles,138 F. Supp. 796, S.D.N.Y., aff'd 243 F. (2d) 679, C.A. 2, 1957; but see Talbot v. Acheson, 110 F. Supp. 182). This record clearly reveals that the appellant did not establish a new general place of abode in the United States on any of her visits here. Her place of general abode remained in Cuba after August 1951. It follows that the residence accumulated while the Nationality Act of 1940 was in effect, is of the quality necessary to support expatriation.
The provisions of the Immigration and Nationality Act which are pertinent follow:
SEC. 352 (a) A person who has become a national by naturalization shall lose his nationality by— * * *
(2) having a continuous residence for five years in any other foreign state or states, except as provided in sections 353 and 354 of this title, whether such residence commenced before or after the effective date of this Act.
SEC. 101 (a) As used in this Act — * * *
(33) The term "residence" means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent. Residence shall be considered continuous for the purposes of sections 350 and 352 of title III where there is a continuity of stay but not necessarily an uninterrupted physical presence in a foreign state or states or outside the United States.
As far as is pertinent to the issue of continuity of foreign residence, the Immigration and Nationality Act made no change. It merely expressed specifically what had been the administrative interpretation of the Nationality Act of 1940. It specifically provided that residence could be continuous although there had been a physical absence. Thus, the period of residence accumulated while the Immigration and Nationality Act was in effect must be considered of the quality to bring about the appellant's loss of citizenship despite her frequent visits to the United States, since it is clear that she did not change her general place of abode during any of these visits after August 1951. Thus, the periods of residence accumulatedPage 593
under both acts total the necessary 5 years and resulted in expatriation.
If the rule that the Nationality Act of 1940 did not require uninterrupted physical presence in the foreign residence to bring about loss of citizenship is wrong, we would still find that the appellant had become expatriated by her residence in Cuba. This is because the Immigration and Nationality Act in express terms provides for loss of citizenship although there has been a physical absence from the place of foreign residence, and the act makes its provisions applicable to residence which occurredbefore the effective date of the act.
Because expatriation must be established by clear and convincing evidence, we have chosen a period of residence which is the most favorable to appellant's position. However, it is possible to rely upon the 5 consecutive years prior to appellant's application for admission. This would mean the period from September 1952 to September 1957. All residence during this period occurred under the Immigration and Nationality Act which became effective December 24, 1952, except for the residence from September 1952 to December 1952. If there was no physical absence during this short period, there would be no issue as to the effect of her visits to the United States, for the entire period in which any absence occurred would come within the provisions of the Immigration and Nationality Act.
Order: It is ordered that the appeal be and the same is hereby dismissed.Page 594