Interim Decision 40302 

MATTER OF YANEZ-CARRILLO 

In EXCLUSION Proceedings 

, A-13536165 

Decided by Board August 27, 1963 

The retention provisions of section 301(b), Immigration and Nationality Act, 

requiring continuous physical presence in the United States for at least 5 

years between the ages of 14 and 28, do not operate to deprive an individual 

of United States citizenship until he has had a reasonable opportunity to 

come to the United States as a U.S. citizen after learning of such claim to 

citizenship. 

EsoLtmanrx: Act of 1052—Section 212(a) (20) [8 U.S.C. 1182(a) (20)1—Immigrant without visa. 

The case comes forward pursuant to certification by the special inquiry officer of his decision dated June 10, 1963, finding the applicant 

to be an alien and excludable as an immigrant not in possession of 

proper documents. 

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

native of Mexico, single, who seeks admission into the United States 

as a United States citizen. He was born in Mexico on June 24, 1935. 

His father was a native and citizen of Mexico who never resided in 

the United States, but his mother was born in Ysleta, Texas, and is 

a citizen of the United States. She resided in the United States 

for various periods prior to the birth of the applicant. The applicant's parents married in Mexico on October 15, 1932, and he is the 

legitimate issue of that marriage. The applicant entered. the United 

States for the first time as a citizen on January 7, 1963, in possession 

of a United States citizen's identity card issued to him at the American 

Consulate at Juarez, Mexico, on the same date. Previously he had 

entered and remained in the United States on different occasions as 

a nonimmigrant agricultural worker from September 1955 to December 1955, September 1956 to December 1956, September 1957 to 

January 1958, May 1958 to August 1958, September 1959 to December 

1959, and September 1960 to September 1961. The last two periods 

have been corroborated by the Service and there is no reason to doubt 

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the applicant's testimony as to the dates he came to the United States 

as a nonimmigrant worker. 

The applicant testified that he went to the American Consulate in 

February 1962 to inquire about an immigrant visa and at that time 

learned for the first time that he might be a United States citizen 

through his mother. Prior to that date he had never known he might 

have a claim to United States citizenship nor had he ever discussed 

the possibility with a United States Government official. At the end 

of December 1962, the applicant received a letter from the American 

Consulate in Juarez, Mexico, which informed him that he could be 

issued a document as a citizen of the United States and that it would 

be necessary for him to proceed immediately to the United States to 

live. 

The applicant's claim to United States citizenship rests upon section 

1993, Revised Statutes, as amended by the Act of May 9,4, 1934, through 

his mother who is a citizen of the United States and who had been 

present in the United States prior to hie birth. Under section 201(g) 

of the Nationality Act of 1940, the applicant was required to reside 

in the United States before his sixteenth birthday; but under sections 

301(b) and (c) of the Immigration and Nationality Act of 1952, he 

could regain United States citizenship by coming to the United States 

prior to his twenty-third birthday and by being continuously physically present in the United States for at least five years, providing that 

such physical presence followed the attainment of the age of 14 years 

and preceded the age of 28 years. Section 16 of the Act of September 11, 1957, states that absences from the United Stites of less than 

twelve 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. The applicant here reached his twenty-third birthday on June 24, 1958, at which 

time he had been in the United States for four different periods as an 

agricultural worker. However, there was an absence in excess of 

twelve months from August 1958 until September 1959 which broke 

the continuity of his residence and the time prior thereto could not 

be computed for the purposes of complying with the physical presence 

requirement of section 301(b) of the Act. 

The Department of State in a memorandum (Ex. 6) expresses the 

opinion that the evidence of record establishes that the applicant was 

never aware of his possible claim to United States citizenship through 

his mother prior to January 16, 1962, on which date his mother applied for a United States citizen's identification card at the Consulate. 

On the basis of the Attorney General's opinion of May 24, 1962 (Matte?. of C—S—, Int. Dee. No. 1281), it was concluded that the applicant had applied at the Consulate for a determination of his United 

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Interim Decision #1302 

States citizenship -within a reasonable period after learning of his 

possible claim to such citizenship; and that under the circumstances 

he might properly be issued limited documentation valid for a period 

to enable him to proceed forthwith to the United States to begin compliance with the retention provisions of section 301(b) of the Immigration and Nationality Act. 

Matter of C--B—, Int. Dec. No. 1218, involved a native-born Cuban, 

born May 31, 1933, who acquired United States citizenship through 

his father under revised section 1993. The applicant did not know 

of his citizenship until many years later in 1959 and voted in a Cuban 

political election on. November 3, 1958, while unaware of his United 

States citizenship. The Board of Immigration Appeals relied on the 

case of Rogers v. Patokoski,271 F. 2d 858 (9th Cir. 1959), which held, 

on closely similar facts, that voluntary acts abroad of voting and 

serving in the armed forces of a foreign country did not result in 

expatriation where the individual was unaware of his United States 

citizenship' The Attorney General compared the decisions in Perri v. 

Dulles, 206 F. 2d 886 (3rd Cir. 1953), and Petition of Acoldone, 231 F. 

2d 845 (3rd Cir. 1954), which held that the two-year period established 

by section 401(a) of the Nationality Act of 1940, during which a dual 

national must return to the United States or forfeit his American 

citizenship, did not run until he became aware of his United States 

citizenship. The court in Perri v. Dulles, supra, held that for constitutional reasons the two-year period of limitations must also be 

regarded as not beginning to run until the plaintiff learned that he 

had a claim to American citizenship; for to provide that a citizen 

"shall be forever estoppel" from claiming citizenship by his failure 

to return to the United States at a time when he was fully unaware 

of his citizenship would certainly be to deprive him of it arbitrarily 

and without his knowledge, much less his concurrence. The Attorney 

General stated that the presumption in section 349(b) is addressed 

only to the question of whether the asserted act of expatriation was 

committed voluntarily or under duress, and that it had no application 

to a ease such as the present in which the acts were performed voluntarily but -without the knowledge of the individual's United States 

citizenship. The Attorney General cited the Supreme Court holding 

that where a deprivation of the person's right of citizenship is involved, the facts and the law should be construed as far as reasonably 

possible in the favor of the citizen (Nishilcawa v. Dulles, 356 U.S. 129 

(1958) ). He refused to attribute to Congress an intention that United 

States citiz .rship of an individual should be forfeited by reason of 

actions taken at a time when he was unaware of his citizenship. 

'Matter of C—A--, Int. Dec. No. 1175 (1901). 

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It is believed that the language of the Attorney General in Matter 

of C—B—, Int. Dec. No. 1218, is broad enough to include the present 

case of the applicant. Section 301(b) of the Immigration and Nationality Act is not a provision relating to expatriation but it does 

involve a forfeiture of a claim to United States citizenship upon failure 

to meet the prescribed conditions. In this respect it is similar to the 

provisions of section 401(a) of the Nationality Act of 1940 that a dual 

national return to the United States within the two-year statutory 

period or suffer the loss of citizenship, which has been construed not 

to run until the individual became aware of his claim to United States 

citizenship.2The Attorney General has endorsed the holding in those 

cases and it appears to be but a logical extension to hold that the . 

 forfeiture provisions of section 301(b) of the Immigration and Nationality Act requiring continuous , physical presence in the United 

States between the ages of 14 and 28, do not operate to deprive an 

individual of United States citizenship until he has had a reasonable 

opportunity to come to the United States as a United States citizen 

after learning of such claim to citizenship. Under the circumstances 

of this case, which clearly show that the applicant did not become 

aware of his possible claim to United States citizenship -until February 

1962 when he was so informed by officials at the American Consulate, 

was documented as a citizen by December 1962 and then proceeded 

immediately to the United States, it is concluded that citizenship has 

not terminated under section 301(b). The decision of the special 

inquiry officer will be reversed. 

ORDER: It is ordered that the decision of the special inquiry 

officer dated June 10, 1963, be reversed and that the applicant be 

admitted as a United States citizen: 

Perri v. Dulles, 206 F. 2d 586, 591 (3d Cir. 1953) ; Petition of Accliione, 213 

F. 2d 845 (3d Cir. 1954). 

869 

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