MATTER OF G— 

In EXCLUSION Proceedings 

A-11262507 

Decided by Board August 30, 1960 

Constructive presence in United States satisfies residence requirement in section 340(f) protecting against loss of citizenship upon cancellation of parent's 

naturalization. 

Miele wislorormaituu as to retention or United States ettizenstitp delayed 

passport applicant, who had acted diligently, from coming to the United 

States before attaining his 23d birthday on September 18, 1957, he is regarded as having been constructively present in the United States as of a 

date prior to his 23d birthday not only for purposes of retaining citizenship 

under section 301(b) and (c) of the Immigration and Nationality Act but 

also to satisfy residence requirement in section 340(f) preventing loss of 

citizenship upon cancellation of father's naturalization on June 5, 1958. 

EXCLUDABLE • Act of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20)]—No 

passport; no immigrant visa. 

BEFORE THE BOARD 

DISCUSSION: By order dated December 2, 1959, this Board dismissed the appellant's appeal from the order of the special inquiry 

officer finding that he 1-1 -ad lost. United States citizenship and that he 

was excludable as an immigrant without the proper documents. The 

District Director, Miami, has filed this motion asking that the appellant be found to be a citizen of the United States. The motion 

will be granted. 

The appellant was born in Lebanon on September 18, 1934. He 

became a citizen of the United States at birth through his father 

who had been naturalized in 1924 (section 1993, Revised Statutes, as 

amended). However, the law provided that a person such as appellant would lose United States citizenship on his 16th birthday if 

he failed to take up residence in the United States prior to that date 

(section 201(g) and (h) of the Nationality Act of 1940). The appellant's 16th birthday occurred in 1950; he had failed to take up 

his residence in he United States prior to that date. As of his 

16th birthday, therefore, he was no longer a United States citizen. 

In 1952, section 301(b) and (c) of the Immigration and Nationality Act changed the retention requirements so that a person born 

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abroad after May 24, 1034, of parents one of whom was a citizen 

would not lose United States citizenship unless he failed to come to 

the United States before attaining the age of 23. However, it was 

initially held that the benefits of these sections did not apply to 

one who had failed to retain his United States citizenship under 

the 1940 Act (Matter of B — , 5-291). While this interpretation was 

subsequently abandoned, it prevailed in February 1950 when appellant's father applied to the State Department for registration for 

himself and his son as United States citizens. The State Department, following the interpretation, advised him that his son had lost 

United States citizenship by failure to take up residence in the United 

States prior to his 16th birthday. 

On November 18, 1957, action by the Supreme Court established 

the rule that a person who had failed to comply with the retention 

provisions of the 1940 Act requiring him to be a resident of the 

United States before his 16th birthday, could nevertheless retain 

citizenship by complying with the provisions of section 301 (b) and 

(c) of the Immigration and Nationality Act which permit the retention of nationality if the national comes to the United States 

before reaching the age of 23 and was thereafter continuously 

physically present for at least 5 years between his 14th and 28th 

birthdays (Matter of M—, 7-646). 

Thus, the information which had been given to appellant's father 

by the State Department in 1956 while appellant was still under 23 

was incorrect; the provisions of section 301(b) and (c) of the Act 

applied to the appellant. The equities of such a situation gave 

birth to the rule that the person misinformed retained United States 

citizenship if, with due diligence, he applied for documentation 

before his 23d birthday and came to the United States expeditiously, 

for he is regarded as having constructively made a timely arrival 

in the United States, i.e., as having come before his 23d birthday 

(Matter of S—, 8-221; Matter of S—, 8-226). 

The appellant sought a United States passport on March 26, 1958, 

when he was over 23 years old. However, because misinformation as 

to his citizenship had been furnished by an official of the United 

States Government, his passport application was considered as having been filed in February 1956, the date of his fathsr'R registration 

as a United States citizen. The passport was issued on July 16, 

1958, and the appellant arrived in the United States on August 15, 

1958. 

Were it not for ti complicating factor which we shall now discuss, 

there would have been no bar to the appellant's admission as it citizen. 

He would have been considered as if he had been a resident of the 

United States from sometime before his 23d birthday. The corn65 

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plication arises from the fact that the naturalization of appellant's 

father was cancelled on June 5, 1958, under the provisions of section 340(d) of the 1952 Act. Section 340(f) of the Act provides 

that where cancellation of a parent's naturalization occurred under 

section 340(d), a person claiming United States citizenship through 

the parent shall lose his citizenship unless the person Was residing 

in the United States at the time of the cancellation. 

When these facts were brought to the attention of the special 

inquiry officer and the State Department, they both held that the 

appellant had lost United States citizenship upon the cancellation 

of the naturalization of his father because the appellant had not 

been living in the United States at the time of the cancellation. The 

Board affirmed this view. The District Director, Miami, points out 

in his motion that the appellant is deemed to be constructively in 

the United States as of a date prior to his 23d birthday (September 

18, 1957), to enable him to enjoy the retention prnvisinns of section 301(e) of the Act. It would be logical, the District Director 

believes, to hold that the constructive presence in the United States 

should also satisfy the requirements of section 340(f) so that it 

may be said that the appellant was in the United States on June 5, 

1958, when his father's naturalization was cancelled. The views of 

the district director were presented to the Department of State 

which has announced its concurrence in them. The Service representative does not oppose the motion. The logic of the motion is 

compelling. It will be granted. 

ORDER: It is ordered that the Board's order of December 2, 1959, 

be and the same is hereby withdrawn. 

It is further ordered that the appeal from the decision of August 

27, 1959, by the special inquiry officer be and the same is hereby 

sustained. 

It is furthered ordered that the appellant be admitted as a citizen 

of the United States. 

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