Interim Decision #1256 

MATTER or Busrnzos-Burz 

In EXCLUSION Proceedings 

A-13040423 

Dooided by Board October 26, 1962 

Where the rentention provisions of section 301(b) of the Immigration and Nationality Act can be met by an interpretation of section 16, Act of September 11, 

1957, which permits the periods of permissible absence to be included in the 

computation of the required period of physical presence, as well as by an 

interpretation which requires the periods of absence to be compensated for by 

additional periods of physical presence, it is unnecessary to adopt one or the 

other of such interpretations in deciding the case. of. 2fatter of Tioatfllos- 

.Ruis, Interim Decision *1243. 

The Board of Immigration Appeals on August 7,1962, entered an 

order directing the reopening of this case for the introduction of additional evidence on the issue of whether the applicant's physical presenoe in the United States has been sufficient for the retention of his 

United States citizenship acquired at birth (section 301(b) of the Immigration and Nationality Act, as amended by section 16 of Public law 

85-316; 8 U.S.C. 1401(b) and 1401b). The order also directed that 

the case be certified to the Board for final decision pursuant to 8 CFR 

3.1(c). The case is again before us following a reopened hearing 

accorded the applicant on September 5,1962. 

The applicant, a married male, 24 years of age, was born in Mexico 

on Jan. 2,1938, of lawfully married parents, one of whom was a citizen 

of the United States, the other an alien. He applied for entry as a 

United States citizen at the port of El Paso, Texas on February 4, 

1962. He was excluded as an alien not in possession of an immigration 

visa (section 212(a) (20), Immigration and Nationality Act, 8 U.S.C. 

1182(a) (20) ). The special inquiry officer concluded that the applicant had lost his United States citizenship by failing to establish a residence in the United States prior to his 23rd birthday and therefore 

required documentation to enter as an alien. 

Our decision of August 7,1962, rejected the special inquiry officer's 

interpretation of section 301 (b) , as amended, to wit: that in order for 

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the foreign-born child to retain citizenship acquired at birth 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 5 years following any such entry prior to the age 23 

and after age 14. We also rejected the special inquiry officer's interpretation 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 residence in the United States" prior to his 23rd 

birthday. 

The Board's decision of August?, 1962, is based on our conclusion 

that it was the intent of Congress to eliminate the residential requirements for retention of citizenship formerly embodied in section 201(g) 

of the Immigration and Nationality Act of 1940 when they enacted 

section 301(b) of the Immigration and Nationality Act (supra). We 

reasoned that it 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 now found in 

the retention provisioni of section 301(b) of the Immigration and 

Nationality Act. 

Section 301(b) of the Immigration and Nationality Act provides 

in substance that a child born abroad to parents, one of whom is an 

alien, retains his United States citizenship provided he comes to the 

United States prior to attaining the age of 23 years and immediately 

following any such coming he is physically present in the United States 

for a continuous period of at least 5 years, which physical presence 

must follow the attainment of 14 years and precede the age of 28 

years. The amendment to section 301(b) permits absences from the 

United States of less than 12 months in the aggregate during the period for which continuous physical presence is required. A limited 

interpretation could construe that portion of the amendment which 

reads "during the period for which continuous physical presence in 

the United States is required" to mean that the foreign-born citizen 

must have a continuity of actual physical presence in the United States 

totaling 5 years prior to attaining the age of 28 years and this 5-year 

period must not be interrupted by total absences which aggregate 12 

months or more (8 U.S.C. 1401b). 

The aggregate of the applicant's absences from the United States 

between his 23rd birthday (January 2, 1961) and February 4, 1962, 

the date he applied for admission, totals 178y2days (see appendix A, 

Board's decision, August 7, 1962). Under the limited interpretation 

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of the statute and the amendment, the applicant must have a continuity 

of actual physical presence in the United States immediately preceding 

January 2, 1961 (23rd birthday) which will compensate for the 1781% 

days of absences noted above. Furthermore, after compensating for 

1781,E days of absences, the applicant, in order to establish actual 

presence in the United States for a continuous 5-year period which is 

not interrupted by total absences which aggregate 12 months or more, 

must establish that his absences have not exceeded 1853/2days during 

any 5-year period running from a date certain prior to his 23rd 

birthday and ending on a date prior to his 28th birthday (January 2, 

1966). 

Appendix I attached to the special inquiry officer's opinion of September 20, 1962, is a computation of the applicant's physical presence 

in Mexico between April 1, 1959 and December 31, 1960. The computation shows that for the period September 16, 1959, through December 31, 1960, the applicant was physically present in Mexico for 

a total of 163%2 days which is less than 1851/2 days of allowable 

absences for this period. 

The applicant sought to enter the United States as a citizen on February 4, 1962. Between September 16, 1959, and 12:00 midnight on 

February 3, 1962, there is a span of 872 days or 2 years 4 months and 18 

days. During this period the applicant has been absent from the 

United States for a total of 3421/12 days. Accordingly, if the applicant had been admitted as a citizen on February 4, 1962, it would have 

been mathematically possible for him to acquire a continuity of actual 

physical presence in the United States totaling 5 years prior to his 

28th birthday because during the period September 16, 1959 through 

February 3, 1962, the total of his absences amount to some 221 1/12days 

less than one year (see Appendix I attached to the special inquiry 

officer's opinion). 

Using September 16, 1959, as the beginning of the continuous 5-year 

period, the applicant has been physically present in the United States 

for a total of 1 year 5 months and 12 days as of February 4, 1962, the 

date he sought to enter. Accordingly, between September 16, 1959, and 

a date certain in September of 1965 the applicant can acquire a 

continuity of actual and potential physical presence in. the United 

States totaling 5 years prior to attaining the age of 28 years and 

during fbie period the applicant may be absent from the United States 

for not more than 221 days_ Since the evidence now of record meets 

the test of continuous actual physical presence according to a limited 

interpretation of the statute as amended, we will affirm that portion of 

the special inquiry officer's decision which applies this test and the 

order admitting the applicant as a citizen of the United States. 

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Our decision of August 7,1962, is based upon the premise that any 

foreign-born who acquired United States citizenship at birth pursuant to the provisions of section 301(a) (7) of the Immigration and 

Nationality Act (8 U.S.C. 1401 (a) (7) ) could retain the citizenship so 

acquired by coming to the United States prior to attaining the age 

of 23 years and following any such coming by being actually physically 

present in the United States for periods of time which have a continuity of 5 full years between his 14th and 28th birthdays. The permissible absences allowed by section 16 of Public Law 85-316 (supra) 

were not included in the computation of the required continuous 5-

year period as "constructive presence." 

The special inquiry officer is of the opinion that it was the intent 

of Congress to adopt the "constructive presence" theory when they 

enacted section 16 of Public Law 85-316. Section 16 reads in pertinent part "absences from the United States of less than 12 months in 

the aggregate, dwring 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" (emphasis supplied). The 

special inquiry officer maintains that the term "period" as used in the 

emphasized portion of section 16 (supra) refers to the period of 5 years 

of physical presence, rather than to the period between the ages of 14 

and 28 years during which the 5 years of physical presence must occur. 

Under the special inquiry officer's theory any absences of less than 12 

months within a, continuous 5-year period would count as "constructive 

presence." 

The applicant herein is admissible M the United States as a citizen 

under the limited interpretation of the "actual physical presence" 

requirements set forth in section 301(b) as amended by section 16 of 

Public Law 85-316 (supra). He is also admissible as a. citizen under 

the "constructive physical presence" theory advocated by the special 

inquiry officer. Since a clear cut issue with regard to the "continuity 

of physical presence" theory vis a vis the "constructive physical 

presence" theory is not before us in this case we see no need to adopt 

either theory at this time. An appropriate order will be entered. 

ORDER : It is directed that the order entered by the special inquiry officer on September 20,1962 admitting the applicant as a citizen 

of the United States be and the same is hereby affirmed. 

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