Interim Decision #1280 

MATTER OF MAT1TRANA 

In DEPORTATION Proceedings 

A-10582918 

Decided by Board April12,1963 

A person born in Puerto Rico on October 4, 1931, of a native-born Spanish citizen 

father and a Cuban citizen mother who came to Puerto Rico in 1913 and 1922, 

respectively, who, shortly after birth, was -taken by her parents to Spain where 

she resided until her entry at San Juan, P.R., on May 17, 1957, was issued a 

national document of identity as a Spanish citizen in 1952 and was issued a 

Spanish passport, was a national or citizen of Spain at birth under the provisions of Article 17 of the Civil Code of Spain, as amended by the Act of December 9, 1931; therefore, she did not acquire United States citizenship under 

the provisions of section 5b of the Act of March 2, 1917, as amended by the 

Act of June 27, 1934, since she was a citizen or national of a foreign power 

(Spain) residing abroad permanently on June 27, 1934. 

CHARGE : 

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excludable 

at time of entry under section 212(a) (20) [8 U.S.O. 1182 (a) (20) ; 

immigrant, no Tine. 

The case comes forward on appeal from the order of the special inquiry officer dated November 6, 1962 finding the respondent to be an 

alien and ordering that she be deported to Spain on the charge contained in the order to show cause. 

The facts of the case are not in dispute. The record relates to an 

unmarried female who was born. in Manati, Puerto Rico on October 4, 

1931. She last entered the United States at San Juan, Puerto Rico on 

May 17, 1957 in possession of United States Passport No. 471 issued at 

Madrid, Spain on May 8, 1957 and was admitted as a United States 

citizen. At the time of her entry she possessed no immigration document other than a Spanish passport which had been issued to her on 

May 14, 1957 at Madrid, Spain showing her nationality as "Spanish 

by origin." She testified at the original hearing on May 29, 1958 that 

she applied for a Spanish passport after she had received her United 

States passport because she was required to do so by the Spanish police 

before she could obtain permission to leave Spain (pp. 12 & 18). At 

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the time of her last entry she intended to reside permanently in the. 

United States. 

The respondent and her parents left for Spain shortly after her birth 

and the respondent resided in that country until her entry at San Juan, 

Puerto Rico on. May 17, 1957. During that period of approximately 

26 years her father had died in Spain in September 1937 and the respondent and her family continued to reside in that country where 

the respondent obtained her schooling and employment. 

The respondent testified that her father was a citizen of Spain and 

never had or acquired any other nationality and that her mother was a 

citizen of Cuba at the time of the respondent's birth and acquired no 

other nationality except possibly that of Spain by virtue of her marriage. The mother stated that the respondent's father, Luis Cueto 

Ibanez, first came to Puerto Rico about 1913 or 1914; that she arrived 

in Puerto Rico on January 1, 1922 ex SS. Magallanes accompanied by 

her husband and that they remained until 1931, subsequent to the birth 

of the respondent. The mother testified that between April 11, 1899 

and Apri112, 1900 she resided in Spain (Ex. 4). 

The Service obtained a certified copy of the affidavit contained in 

the respondent's passport file executed by her at the American Embassy 

at Madrid, Spain on July 11, 1956 in the course of which she stated 

that she had obtained National Document of Identity No. 2809982 

issued to her on January 14, 1952 by the Direction General of Security, Madrid, Spain to enable her to travel within Spain. The discovery that the respondent had been issued a national document of 

identity as a Spanish citizen on January 14, 1952 prompted the special 

inquiry officer to grant a Service motion to reopen on the basis of new 

evidence after an earlier decision of another special inquiry officer 

dated August 19, 1958 had terminated proceedings. on the ground 

that the respondent acquired United States citizenship under the 

provisions of the Act of March 2, 1917 as amended by the Act of 

June 27, 1934 and that respondent's alienage had not been established. 

In granting the motion to reopen. the special inquiry officer observed 

that the better procedure might have been to institute a new deportation proceeding by way of a new order to show cause and to submit 

all the prior evidence in the new proceeding. Inasmuch as the evidence adduced at the prior hearing and at the reopened hearing have 

been considered by the special inquiry officer in reaching his decision, 

and in the absence of any objection to the grant of the motion to reopen by counsel, it is believed that due process has been observed and 

that the failure to issue a new warrant does not vitiate the proceeding? 

Es parte Guest, 287 F. 884 (D.C. R.I., 1923) ; Valerie v. Mane, 148 F. Supp. 

1940 (197.0) ; Pineiro-Lopez v. Sonnet:Ty, 293 F. 2d 040 (1901) ; Matter of C—, 

4 I. & N. Dee. 415. 

257 

768-456-05-13 
Interim Decision #1280 

The special inquiry officer, in a long and thorough decision, has set 

forth the treaties and statutes relating to acquisition of United States 

citizenship by a person born in Puerto Rico and no purpose would 

be served by repeating them at length. We shall however set forth 

the provisions of section 5 and section 5b of the Act of March 2, 1917 

as amended by June 27, 1934 and Article 17 of the Civil Code of Spain 

as amended by the Act of December 9, 1931. The former provides as 

follows: 

Section 5. That all citizens of Puerto Rico as defined by section seven of the 

Act of April twelfth, nineteen hundred . . . and all natives of Puerto Rico, who 

were temporarily absent from that island on April eleventh, eighteen hundred 

and ninety-nine, and have since returned and are permanently residing in that 

island, and are not citizens of any foreign country, are hereby declared, and 

shall be deemed and held to be citizens of the United States . . . (8 U.B.C. 5). 

(Emphasis supplied.) 

Section 5b (added by the Act of June 27, 1934). All persons born in Puerto 

Rico on or after April 11. 1899 (whether before or after the effective date of 

this Act) and not ottizen8, subjects, or nationals of any foreign power, are hereby 

declared to be citizens of the United States: Provided, That this Act shall not 

be construed . . . to extend such citizenship to persons . . . who are now 

residing permanently abroad and are citizens or subjects of a foreign country . . . (Emphasis supplied.) (48 U.S.C. 733b) 

The Civil Code of Spain, as amended by the Act of December 9, 

1931 provides as follows: 

Article 17. The following persons are Spanish nationals : . . . (2) A. person 

whose father or mother is a Spanish national, even if that person was born 

outside of Spain. (Laws Concerning Nationality, United Nations Legislative 

Series, ST/LRG/SER. 0/4,19554, Page 437). 

It is clear at the outset that the respondent's father, who was a nativeborn Spanish citizen and who did not come to Puerto Rico until 1913 

or 1914, did not acquire Puerto Rican nationality or United States 

citizenship; neither did respondent's mother. There is no question 

then of derivative citizenship through either parent. The respondent, 

who was born in Puerto Rico after April 11, 1899, to -wit, on October 

4, 1931, was at birth a Spanish national under Article 17 of the Civil 

Code of Spain and does not qualify either under section 5 or section 

5b of the Act of March 2, 1917 since she was a citizen or national of 

a foreign power, namely, Spain. 2It may be noted that birth in 

Puerto Rieo prior to January 13, 1941 did not result in vesting of 

United States citizenship under the provisions of section 202 of the 

Nationality Act of 1940 or its successor statute, section 302 of the 

Immigration and Nationality Act, if the person so born was not actually or constructively a resident of Puerto Rico on January 13, 1941. 3 

2 Cf. Conrad". Dulles,155 F. Supp. 542 (D.C. P.R., 1955). 

Puig Jimenez v. Glover, 255 F.24 54 (1 Oir., 1953). 

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It is quite clear that the respondent and her family abandoned their 

residence in Puerto Rico in 1931 and resided in Spain thereafter, with 

the intention and the actual effect of taking up permanent abode 

there. The respondent was never prevented from returning to her 

residence in Puerto Rico and did not have any constructive residence 

in Puerto Rico. For that reason she does not fall -within the scope 

of section 202 of the Nationality Act of 1940 or section 302 of the 

Immigration and Nationality Act. 

The respondent's father did not reside in Puerto Rico on April 11, 

1899 or at any time prior to 1913. Therefore, he did not acquire any 

claim to United States nationality under Article 9 of the Treaty of 

April 11, 1899 or to Puerto Rican nationality under the provisions of 

section '7 of the Act of 1900. The respondent's father could not have 

opted to retain Spanish nationality because that option could only be 

exercised by Spanish subjects, natives of the Spanish peninsula, residing in Puerto Rico on April 11, 1899, not by those, like the respondent's 

father, who became residents thereafter. Those born after the date of 

April 11, 1899, whose parents had opted their Spanish nationality, 

were clearly not United States nationals or citizens . 4 

Counsel has cited section 10 of the Political Code of Puerto Rico 

of 1902 and Article IX, section 5 of the Constitution of the Commonwealth of Puerto Rico to buttress his argument that the respondent 

at least acquired Puerto Rican nationality, if not United States citizenship. The United States citizenship or nationality of natives of 

Puerto Rico is effected only through the Treaty of April 11, 1899 between the United States and Spain and the applicable statutes, such 

as the Act of April 12, 1900, the Act of March 2, 1917, as amended by 

the Act of June 27, 1934, section 202 of the Nationality Act of 1940 

and section 302 of the Immigration and Nationality Act. Hence, no 

Puerto Rican law or constitutional provision in derogation of or contradiction of any United States treaty or statute is effective.' 

By virtue of the provisions of Article 17 of the Civil Code of Spain 

as amended by the Act of December 9, 1931, the issuance to her of a 

national document of identity as a Spanish citizen as early as January 

14, 1952, which she admitted in her affidavit of 1956 executed before the 

United States Consul at Madrid, and the issuance to her of a Spanish 

passport, the respondent was a citizen of Spain at birth. Inasmuch 

as she was a citizen, subject or national of a foreign power, to wit, 

Spain, residing abroad permanently on June 27, 1934, she did not 

acquire United States citizenship on that date by virtue of the provisions of section 513 of the Act of March 2, 1917 as amended by the 

• Conrad v. Dune.; 155 F. Supp. 542; Matter of 0— M—, let. Dec. No. 1124. 

'Puerto Rico v. Shen Co., 302 U.S. 253: Downes v. Bidwell, 182 U.S. 244 (1901). 

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Interim Decision #1280 

Act of 1934. The respondent could have acquired United States 

nationality or citizenship by virtue of birth in Puerto Rico under no 

other provision of law. Hence, the respondent is an alien and is 

'deportable as charged in the order to show cause. The attorney has 

specifically declined to request the privilege of voluntary departure. 

The order of deportation entered by the special inquiry officer is the 

only order possible under the circumstances. 

ORDER: It is ordered that the appeal from the order of the special inquiry officer dated November 6, 1962 be and the same is hereby 

dismissed. 

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