Interim Decision #1389 

MATER OF 1V1001t3fAlf 

In SECTION 245 Proceedings 

A-12977383 

Decided by District Director July 28, 1984 

An alien who entered as a nonimmigrant student and who was born in the 

United States but was expatriated under section 401(e) of the Nationality 

Act of 1940 is not precluded by section 245(e), Immigration and Nationality 

Act, as amended, from adjusting her status to that of a lawful permanent 

resident under section 245(a) of the Act since she is not, in fact, a native of 

a country contiguous to the United States, even though under section 202 (a) (3) 

of the Act she is considered, for quota purposes, as having been born in 

Canada and to be a nonquota immigrant under section 101(a) (27) (C) of the 

Act. 

The applicant was born in Meade, Kansas on August 8, 1910 and was 

a United States citizen at birth. Her parents were also born in the 

United States. Her father first went to Canada on May 15, 1912, 

being followed on August 23, 1912 by the applicant, her mother, and 

other children in the family. Her father was naturalized in Canada 

on April 19, 1915. In Apri11920, the applicant and family returned to 

the United States. On September 11, 1923, the applicant returned to 

Canada and was married in 1951 to Stanley Moorman, a naturalized 

citizen of Canada. 

The applicant voluntarily voted in Canadian provincial elections on 

May 10, 1952 and September 19, 1956. At that time she knew she 

had been born in the United States and the record does not establish 

that she had been informed by any official that she had no claim to 

United States citizenship. By her act of voting on May 10, 1952, the 

applicant lost her United States citizenship under the provisions of 

section 401(e) of the Nationality Act of 1940. 

Section 245 of the Immigration and Nationality Act, as amended, 

provides that the status of an alien who was inspected and admitted 

or paroled into the United States may be adjusted by the Attorney 

General, in his discretion, to that of an alien lawfully admitted for 

permanent residence. Subparagraph (c) of seetion. 245 further pro708 
Interim Decision #1389 

vides that the provisions of the section shall not be applicable to any 

alien who is ". . . a native of any country contiguous to the United 

States .. .". 

Section. 202(a) (3) of the Act provides that "an alien born in the 

United States shall be considered as having been born in the country 

of which he is a citizen or subject, or if he is not a. citizen or subject 

of any country then in the last foreign country in which he had his 

residence as determined by the consular officer;". 

The last-cited section serves the purpose of providing a means to 

determine the quota to which an immigrant born in the United States 

shall be chargeable. Under the terms of this section, the applicant 

is considered to be a nonquota immigrant under section 101 (a) (27) 

(C) of the Act, as though she were born in Canada. Although by its 

terms, the applicant, for quota purposes, is considered as having been 

born in Canada, she is not, as a matter of fact, a native of Canada, a 

country contiguous to the United States. She is not precluded under 

section 245(c), therefore, from being granted status as a lawful 

permanent resident. 

The applicant last entered the United States on January 28, 1963 

as a student in practical nursing under the provisions of section 

101 (a.) (15) (F) of the Act. She was inspected and admitted. She is 

in all respects eligible to have her status adjusted to that of a lawful 

permanent resident under section 245 and her application. will be 

granted. 

It is ordered that the application for status as a lawful permanent 

resident under section 245 of the Immigration and -Nationality Act, 

as amended, be approved. 

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