Interim Decision. #1248 

Marrmt or BagTrans-Rum 

In EXCLUSION Proceedings 

A-13040423 

Decided by Board Auguet 7, 1962 

(1) Retention requirements of section 301 (b) , immigration and Nationality Act, 

as amended by section 16, Aet 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 Destines-Ruiz, Interim Decision #1256.• 

ExCLIMaarm: Act of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20)1—Immigrant without visit. 

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 801(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. Dee. No. 1235. 

60 
Interim Decision #1243 

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, 1931. 

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, 1061, 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). 

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 2' is governed by section 301(b) of the Immigration and Nationality Act (8 

U.S.O. 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). 2Section 16 of the Act of September 11, 

1957, provides that in the administration of section 801(b) (supra) 

Paraphrase from section 301(a) (7) of the Immigration and Nationality Act 

(8 U.S.C. 1401(a) (7) ). 

' See 'U.S. Code Congressional and Administrative News, Vol. 2, Seth Cong., 1st 

Sess.—pp. 2019 and 2020. 

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Interim Decision #1243 

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

The special inquiry officer refers to several congressional committee 

reports 3as: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 McCarron. 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," 5-2550, 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 Juno 27, 1952, made 

no mention of an "entry into the United States for permanent resiSenate Report #1515, 81st Cong., 2nd Stns., April 20, 1950, p. 713. Senate 

Report #1167, and Cong., 2nd Seas., January 29, 1952, p. 39. lluuse Report 

*1365, 82nd Cong., 2nd Sees., February 14, 1952, p.33. 

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Interim Decision #1243 

deuce" 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 live years between his 14th and 28th birthdays. (House Report 1365 to 

accompany House Resolution 5678 at page 76). 

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." 4 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 8—, 8 I. & N. Dec. 221, and Matter of S—, 

8 I. & N. Dee. 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(e) 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 decisions 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 (e). 

4 Conference Renort, House #2096, U.S. Code Congressional and Administrative 

News, 82nd Cong., 2nd Sees., VoL 2 at p. 1754. 

Matter of B—, 5 L & N. Dec. 291, BIA, 1953. 

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Interim Decision #1243 

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 L & 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 28 year's and immediately following any such coining 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 pkysicaZ 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 85-816) (8 U.S.C. 1401 (b) and 11.01b). 

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 1781/2days 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 a or was uncinThe 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 au the time." (pp. 6 and 7). 

The applicant also testified that he had Wednesdays off while working at the 

Dill's Car Wash in El Paso, Texas (p. 8). 

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Interim Decision #1248 

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 approximstAly 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 conies 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 11-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, 1900, and prior to February 4, 1962. 

According to our computation the applicant must have more than four 

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as—i5E;--oz—G 
Interim Decision #1243 

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 

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 

miming 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 ass 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 Sep66 
Interim Decision #1243 

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 Alecto Between Jan, 2, 

1961. His 236 Birthday and .Feb. 4, 1962, the Date Be Applied for Admission 

at Er Paso, Tow. 

Period 

Total 

daysin 

period 

Activity 

Days off and 

weekendttipa to Mexico 

tt

las 

6•1 

Record page 

Jan. 2, 1961- 

May 15, 1961. 

134 Employed Auto Center 

Car Wash, El Paso, Tex. 

Monday oil estimated,4. 

'89 pp. 6 and 7. 

May 16,1961- 7 Unemployed 7 p. 8. 

May 22, 1061. 

May 23,1961- 

July 9, MI. 

48 Employed Did's Car Wash, 

ES Peso, Tex. 

Wednesdays off, 0 '27 pp. 7 and 8. 

July 10,1961- 44 Unemployed 44 p. 8. 

Aug. 23, 1961. 

Aug. 24, 3961- 

Nov. 24, 1961. 

93 Employed as agricultural 

laborer, Delano, Calif. 

No return trips to 

Mexico. 

 pp. 8 and 9. 

Nov.25, 1961- 0 Unemployed 8 

Nov.20, 1961. 

Dee. 1,3961- 

Dec. 31, 1961. 

Jan. 1,1962- 

31 

13 

Employed as agricultural 

laborer, Columbus, N. 

Men, 

Resided with mother at El 

24•hour weekend 

trips to Juarez, 

Mexico, 5. 

No return trip to 

5 p. 9. 

p. 9. 

Jan. 13, 1962. Paso, Ter. Mexico. 

Jan. 14,1962- 

Feb. 4. 1962. 

22 Employed picking cotton, 

Anthony, Tex., 3 days. 

Entered United 

States 7 a.m.— 

return to Mexico 

20% p.10. 

6 p.m. 

Total-- 398 3709 

•Comput*d an the bask of eight hems of employment and 4 boors travel and3tinch time 

APPENDIX B 

Computation of the Applicant's Physical Presence in Mexico for the 4Month 

Period Prior to His 28cl Birthday on Jan. 5, 1961 

Period 

T91 

e 

Activity Days of 

Total 

days in 

Mexico Record page 

Sept. 1,196o, 

through 

Jan. 10961. 

123 Employed Auto Center 

Car Wash, El Paso, Tex. 

Mondays off, 4 '6334 pp. 8 and 7. 

*Computed on the basis of 12 hours' employment, travel and lunch time in the United States and allow- ing 9 Mondays us than off spent in Mexico out of a total of 3.7 Mondays in this period. 

67