MATTER OF V— 

In SECTION 341 Proceedings 

A-12664565 

Decided by Regional Commissioner February 2,1962 

Approved by Assistant Commissioner February 20, 196's 

Citizenship—Acquisition at birth abroad—Section 301(a)(7) of 1952 Act—Physical presence of citizen parent—Savings clause preserves residence in outlying possession which has since becuute independent country. 

(1) Applicant born in Philippine Islands in 1958 held to have acquired United 

States citizenship under section 301(a) (7) of Act through his father who 

was born in the United States in 1931 and resided in the Philippine Islands 

from September 1936 until May 1954. 

(2) The term "outlying possession" as used in section 301(a) (7) includes, in 

addition to the territories enumerated in section 101(a) (29) of the Act, any 

other territory which was, In fact and in law, an outlying possession of the 

United States during tne period of a citizen parent's pliybical presence 

therein. 

(3) Citizen parent's residence in Philippine Islands from September 1936 until 

July 3, 1946, when they ceased to be a possession of the United States, 

conferred upon him the status of physical presence in an outlying posses , 

 sion of the United States which was preserved by section 405 of the Act. 

BEFORE THE REGIONAL COMMISSIONER 

DISCUSSION: On September 28, 1961, the applicant's fatherapplied for the issuance of a certificate of citizenship to the applicant 

in accordance with the provisions of section 341 of the Immigration 

and Nationality Act and related regulations. The record establishes that the applicant was born in the Philippine Islands, a 

foreign state, on January 11, 1958. His mother also was born in 

the Philippine Islande, and first entered the T_Tnited States on 

January 14, 1960. She has advanced no claim to United States nationality. The applicant's father was born in Stockton, California, 

on February 23, 1931, and thus became a United States citizen at 

birth by reason of the constitutional provision. Therefore, the applicant's claim to United States citizenship must be resolved in 

accordance with the requirements of section 301(a) (7) of the 

Immigration and Nationality Act. 

The issue presented in the case involves a determination as to 

whether or not the applicant's father, prior to the applicant's birth, 

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was physically present in the United States or its outlying possessions for at least ten years, of which period five years must have 

been accumulated after he arrived at his fourteenth birthday (section 301(a) (7). Immigration and Nationality Act). The evidence 

of record establishes that the applicant's father was continuously 

physically present in the United States from February 23, 1931,, 

the date of his birth, until his departure for the Philippine Islands 

in September 1936, a period of physical presence totaling five years 

and seven months. He resided in the Philippine Islands without 

interruption until his return to the United States on May 3, 1954. 

Thereafter, he was continuously physically present in the United 

States until his enlistment in the United States Air Force on July 27, 

1954, and he- has served continuously in the Air Force since that 

date. Under the proviso to section 301(a) (7) of the Act, all periods 

of service in this country's armed forces must be considered as 

physical presence in the United States. Thus, the applicant's citizen father has unquestionably been physically present. in the United 

states for an additional period of three years and eight months 

prior to the applicant's birth, and such physical presence was accumulated after he arrived at his fourteenth birthday. 

A consideration of the total physical presence amassed by the 

applicant's father, permits a narrowing of the issue to the single 

question: Does his continuous residence in the Philippine Islands 

from September 1936 to July 4, 1946, when the Islands beyond 

dispute ceased to have the status of an outlying possession of the 

United States, nonetheless constitute physical presence in an outlying possession of the United States for the purposes of section 

301(a) (7) of the Immigration and Nationality Act? This is the 

crucial question. If it is answered in the affirmative, it is mathematically certain that the father will have more than sufficient 

physical presence prior to the birth of the applicant to satisfy the 

prerequisites of section 301(a) (7) of the Act. 

The record discloses that a Department of State official at the 

American Embassy, Manila, Philippine Islands. issued this applicant. United States Passport #155733 on February 10, 1959, predicated upon a finding of citizenship acquired at birth abroad, pursuant to section 301(a) (7) of the Immigration and Nationality Act. 

In making the finding of citizenship, the continuous residence of the 

applicant's father in the Philippine Islands prior to July 4, 1946, 

was credited as physical presence in an outlying possession of the 

United States for the purpose of completing the five years' physical 

presence after age fourteen, which the father needed to confer 

citizenship upon the applicant under the section (Exhibits 5 and 

6). Direct inquiry of the Department of State elicited a statement 

that the action taken by the American Embassy in Manila was in 

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complete accord with the official position of the Department Thus 

it is clear that the Department of State has given an affirmative 

answer to the decisive question. 

Administrative decisions in cases involving the acquisition of 

citizenship at birth abroad under sections 201(e) of the Nationality 

Act of 1910 (Matter of 4-575 (1951) ) and 201(g)-of the same 

statute (Matter of Y—, 7-667 (195S)) have held that a parent's 

residence in the Philippine Islands prior to July 4, 1946, was residence 

in an outlying possession of the United States for the purpose of those 

sections. Further, it is pertinent to observe that in the decision last 

cited such holding prevailed even though the child beneficiary was 

born in 1949, when the Philippine Islands, beyond any shadow of 

doubt, haxl ceased to be an outlying possession of the United States. 

The decisions cited above give no reason to suppose that a different viewpoint should prevail in the case under consideration. Indeed, the similarity in the respective factual situations would seem 

to prompt the opposite conclusion. Nonetheless, proper adjudication must consider first of all whether the mere language change 

from "residence" as used in sections 201(e) and (g) of the Nationality Act of 1940 to "physical presence" as used in section 301 

(a) (7) of the Immigration and Nationality Act could conceivably 

require a viewpoint in the area of discussion different from that 

expressed in the administrative decisions. Also material to the deliberations may be the significance of the change in the statutory 

definition of an outlying possession of the United States which 

in the Nationality Act of 1940 (section 101(e)) embraces by interpretation the Philippine Islands; whereas, in the Immigration and 

Nationality Act (section 101(a) (29) ), the definition omits all direct 

or implied reference to the Islands. Finally, and perhaps of the 

greatest importance, will be an essential evaluation of any impact 

which the savings clause in section 405(a) of the 7mmigr9tion and 

Nationality Act may have upon the question at hand. 

We must look to the Congressional committee reports in an effort 

to determine the underlying Congressional intent and purpose in 

substituting "physical presence" in the 1952 Act for the "residence" 

of the 1940 Act. Further, such reports may shed light upon why 

the definition of outlying possessions of the United States was 

modified in the current statute, and thus enable us to evaluate the 

significance of the modification in terms of the question before us. 

Report No. 1137, 82d Congress, 2(1 Session, the Senate Report on 

S-2550, which became the 1952 Immigration and Nationality Act, 

reflects (page 38) that "The bill carries forward substantially 

those provisions of the Nationality Act of 1910 which prescribe 

who are citizens by birth * * *. These conditions have been re, 

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defined in the bill to meet more realistically the fact that we have 

many members of our Aimed Forces serving abroad who have married alien spouses and have children born in foreign countries." 

There is no indication in the committee reports that the language 

change was for purposes other than the elimination of troublesome 

problems involving "constructive" residence which had theretofore 

been encountered, and to make it clear that "residence" meant 

"physical presence" and nothing else. That the residence of the 

applicant's father in the Philippine Islands was in fact physical 

presence is clearly evident from the record. It is concluded then 

that the language change from "residence" to "physical presence" 

has no significant relationship to the question under consideration. 

Of potentially greater moment in our deliberations is the change 

which has been made in the definition of outlying possessions of the 

United States. Admittedly, in eliminating all direct and indirect 

reference to the Philippine Islands from the new definition (section 

101(a) (29)), the Congress may have intended to destroy for the 

purposes of the 1952 Act the former acknowledged status of the 

Islands as an outlying possession of the United States. Yet, the 

committee reports identified, supra, contain no language to give the 

slightest indication that the modified definition was other than a 

realistic enumeration of the outlying possessions of the United 

States, as they existed at the time the 1952 legislation was under 

consideration by the Congress. It cannot be denied that at such 

time the Philippine Islands had ceased to have the aforementioned 

status. The Islands had then become an independent nation and for 

such reason, obviously, could not be included in the definition. 

Furthermore, the phraseology of the definition finally adopted in no 

way specifically states or infers that it is to be applied retrospectively 

in the sense that it was intended to be destructive of the status of 

"outlying possession," as it may have been recognized throughout 

an earlier period under former law. In the absence of specific 

language to the contrary, we cannot impute to the lawmakers a 

desire to legislatively disregard what had previously been, in fact 

and law, an outlying possession of the United States. 

While it appears clear that the term "outlying possessions" in 

section 301(a) (7) of the Immigration and Nationality Act necessarily is inclusive of those territories specifically enumerated as 

such in section 101(a) (29) of the same Act, it is here concluded 

that such term, as used in section 301(a) (7), also was intended to 

include any other territory which was, in fact and law, an outlying 

possession of the •United States during the period of the citizen 

parent's physical presence therein. Any other construction would 

result in a substantial reduction in the number of children who 

could acquire citizenship at birth abroad to parents of mixed na561 

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tionality, not through any change in the substantive provisions of 

the law relating to the acquisition of citizenship, but through a modification in a definition which was never intended to cause that result. 

Any other construction would belie the Congressional committee 

reports which indicate that the provisions of the Nationality Act 

of 1940 relating to the acquisition of citizenship at birth were 

carried forward unchanged in the Immigration and Nationality 

Act, save for clarifying modifications having no apparent connection with or relationship to the question under consideration. 

The savings clause of the Immigration and Nationality Act (section 405(a)) provides: 

Nothing contained in thts Act, unless otherwise specifically provided therein, 

Alan be construed * * g' to affect any * * * status, condition, right in process 

of acquisition, act, thing, liability, obligatluu, or matter, rival or criminal, done 

or existing, at the time this Act shall take effect; but as to all such * * 

statutes [sie--sta tues] conditions, rights, acts, things, liabilities, obligations, 

or matters the statutes or parts of statutes repealed by this Act are, unless 

otherwise specifically provided therein, hereby continlIPti In force and effect. 

The courts, in their interpretations of the law, have always been 

zealous in safeguarding the rights of citizens from the sometimes 

unforeseen and unintended destructive effects of new legislation. 

In accord with this fundamental policy, they have given.section 405 

(a), the savings clause of the Immigration and Nationality Act, the 

broadest and most liberal construction holding that, by reason of 

its grace, many diverse procedural and substantive rights or conditions arising under the immigration and nationality laws were preserved to citizen and alien alike. In United States v. Menarche, 

348 U.S. 528 (1955), the Supreme Court stated that the savings 

clause manifests a well-established policy not to destroy advantages 

gained under prior laws and that the policy of preserving such 

rights was intended to apply to matters both within and without the 

specific contemplation of Congress. See also United States v. 

Kershner, 228 F.2d 142 (1955) ; United States v. Lehmann, 136 F. 

Supp. 458 (1955) ; Sitemberg v. United States, 348 U.S. 540 (1955). 

The father of this applicant had acquired the status or condition 

of a United States citizen who had been physically present from 

September 1936 through July 3, 1946, in the Philippine Islands, 

which were then an outlying poccession of the United States. His 

acquisition of this status or condition was completed and perfected 

under the Nationality Act of 1940, prior to the repeal of that statute 

by the Immigration and Nationality Act. Such status or condition 

existed intact on December 24, 1952, when the latter Act became 

effective and, as a consequence, was saved and continued unchanged 

by virtue of section 405(a), the savings clause of the Act. Accordingly,, on January 11, 19h8, when this applicant, was born, the preserved status or condition of the father, as described, was a proper 

562 
substantive element to be considered in determining whether his 

child, the applicant, then acquired United States citizenship under 

the provisions of section 301(a) (7) of the Immigration and Nationality Act. In other words, the father's physical presence in the 

Philippine Islands during a period when the Islands were uniformly regarded as an outlying possession of the United States, was 

saved as physical presence in an outlying possession of the United 

States for the purposes of section 301(a) (7) of the Immigration 

and Nationality Act, notwithstanding the provisions of section 101 

(a) (29) of the same statute. This conclusion is a realistic one and, 

in principle, is believed to be entirely consistent with the position 

taken by the courts in their application of the savings clause. Fundamentally, it is also in conformity with the well-reasoned decision 

entered in Matter of Y—, 7-667, which has been referred to at an 

earlier point in this discussion. 

Upon the premise of the authority cited and the reasoning set 

forth herein, it is concluded that the physical presence of the applicant's father in the Philippine Islands during the period September 

1936—July 3, 1946, constituted physical presence in an outlying possession of the United States within contemplation of section 301(a) 

(7) of the Immigration and Nationality Act. It is further found 

that at the time of the applicant's birth in the Philippine Islands 

on January 11, 1958, his father was a United States citizen who had 

been previously physically present in the United States and an outlying possession of the United States for a period of ten years, at 

least five years of such period having been after he arrived at his 

fourteenth birthday, and that the applicant's mother at the time of 

the applicant's birth was an alien. Consequently, it is finally concluded that the applicant acquired citizenship of the United States 

at birth on January 11, 1958, under section 301(a) (7) of the Immigration and Nationality Act, and is entitled to the issuance of a 

certificate of citizenship. 

ORDER: It is ordered that the application of S—K—V— for a 

certificate of citizenship be granted. 

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