ArrER

or 0—M—

In DEPORTATION Proceedings
A-11753508

Decided by Special Inquiry Officer September 12, 1960
Approved by Board January 12,1961
Citizenship—Native of Puerto Rico born in 1908 of Spanish parentage.
(1) Born in Puerto Rico in 1908 of Spanish parents who came to live there
prior to the Island's annexation by the United States and who moved to
Spain shortly after his birth in 1908, respondent, who, since that time, except for a year's stay in the United States as a tourist (1946-47), had not
been in Puerto Rico or other United States territory until his entry on
December 21, 1957, when he was admitted as a nonimmigrant visitor; who
is recognized by the Spanish government as a citizen of Spain; and who
has never filed any declaration or taken any affirmative action to elect or
preserve Spanish, Puerto Rican or United States citizenship is held not to
have acquired Puerto Rican citizenship at birth in 1908 under section 7 of
the Act of April 12, 1900, as a result of the declaration to retain Spanish
nationality filed by respondent's father on November 22, 1899, in accordance
with the provisions of. Article IX of the Treaty of Peace with Spain (proclaimed April 11, 1899), which declaration operated with equal effect to
retain the Spanish nationality of respondent's mother, although she herself
took no independent action in this respect, both parents thereby continuing
to hold Spanish nationality and neither acquiring Puerto Rican citizenship
under the 1900 Act.
(2) Respondent did not acquire United States citizenship under section 5 of
the Act of March 2, 1917, as he was not within Its provisions, not having
become a citizen of Puerto Rico under section 7 of the Act of April 12, 1900.
(3) Respondent has not complied with provisions of subsequent Acts relating
to acquisition of United States citizenship by natives of Puerto Rico in
that (a) he has held Spanish nationality continuously since birth; (b) he
has not resided in United States territory on specified statutory dates; and
(c) ne nas not mane any aeciaration in statutory terms to obtain United
States citizenship.
CHARGE:
Order : Act

of

1052—Section 241 (a) (9)

[8 U.S.O. 1231 (a )

(a)]—railed to

comply with conditions of nonimmigrant status.
BEFORE 1.171h SPECIAL INQUIRY OFFICER

(September 12, 1 960)
DISCUSSION: The order to show cause in this case was issued
June 25, 1958, alleging deportability on the charge shown in the

188

caption hereof. The initial hearing was held on September 5, 1958,

following which the special inquiry officer entered an order on February 10, 1959, in which he concluded that deportability had been
established on the charge contained in the order to show cause and
ordered the respondent's deportation. The decision was appealed
to the Board of Immigration Appeals which, by order dated
June 19, 1959, dismissed said appeal. On October 19, 1959, the
District Director of the Immigration and Naturalization Service
at San Juan, Puerto Rico, made a motion to the Board of Immigration Appeals to reconsider its decision. This motion was made
principally because it was felt that, on the basis of the reasoning
set forth in the motion, the Board should reconsider its decision
and find in favor of the alien (sic) on his appeal. The Board of
Immigration Appeals, by order dated December 4, 1959, withdrew
the outstanding order of deportation and remanded the case to the
special inquiry officer for further proceedings in order to develop
that aspect of the case relating to the possibility of acquisitions of
Puerto Rican citizenship by the respondent through his mother, and
also for the purpose of having the case reconsidered by the special
inquiry officer in accordance with the suggestions contained in the
motion by the District Director. The motion by the District Director was made not only because he felt that the finding should be
made in favor of the respondent but also because certain statements
were made in the decision of the special inquiry officer and in that
of the Board of Immigration Appeals which were not in accord
with views long held by the Immigration and Naturalization Service. The Board stated in its decision of December 4, 1959, that it
was not the Board's intention to disturb any administrative practices of long standing unless good cause exists.' Reopened hearing
was held on May 16, 1960, at the conclusion of which the Service
and counsel for the respondent were afforded the opportunity to
submit briefs. Such briefs were submitted and the case is ready
for decision.
The issue in the case is solely whether alienage of the respondent
has been established. If it has been established, the respondent is
deportable.
The evidence in the case does not appear to be conflicting. The
issue is purely one of law.
The evidence reflects that the respondent was born in _Puerto
Rico during October 1908, the son of J-0— and L—M—. The
respondent testified that his parents were married by proxy and that
thereafter his mother came to Puerto Rico to reside with his father
prior to the annexation of Puerto Rico. Both of respondent's parents were born in Spain. The respondent's father, on November 22,
,

I The Board also directed that the case be certified to it for final decision.

189

1899, in San Juan, Puerto Rico, executed a "Declaration of Nationality in Accordance with the. Provisions of Article IX of the Treaty
of Peace Between the United States and Spain" in which he stated
that he is a native of the Spanish Peninsula, a Spanish subject,
married to and that he wishes to preserve fidelity to the Spanish Crown. In that declaration he named five of his children, the
older two aged thirteen and fourteen, born in Spain, and the
younger three aged three months to six years, born in Puerto Rico.
The respondent Testified that when he was about six or eight months
old, either in the latter part of 1908 or early 1909, the family moved
to Spain and that with the exception of a period of one year cornmencing in July 1946 the respondent was not in Puerto Rico or
American territory until his last entry into the United States on

December 21, 1957, at which time he entered at the port of Miami,
Florida, and was admitted as a nonimmigrant for pleasure until
June 21, 1958. lie has been employed as an art critic at a salary
of $200 a month commencing prior to the time the period of his admission expired. The one year during which he was in the United
States commencing in July 1946 was a period he spent in New York
as a tourist. The last entry of the respondent into the United
States took place following his departure from Cuba (where he
lived from 1951 to 1057) for this country. Upon his arrival in the
United States he prevented a Cuban passport with a nonimmigrant

visitor's visa and a Form I-94A, which shows birth at Havana,
Cuba. It also appears that at the time of his arrival he was in
possession of a Spanish passport showing birth in San Juan, Puerto
Rico, in October 1910, and a certificate of nationality issued by the
Consul General of Spain in New York on November 6, 1946, showing the same date and place of birth.. Whether the respondent was
born in 1908 or 1910 is immaterial to the conclusion in this case.
The evidence shows clearly that not only was the respondent's

father born in Spain but that his mother was born there too, and
his testimony indicates that their marriage took place in 1889. He
stated that he, the respondent, was recognized- by the Spanish Government as a citizen of Spain.
There is no evidence that the respondent's mother ever filed a
declaration of nationality in accordance with the provisions of
Article IX of the treaty, such as was filed by the respondent's
father. Exhibit R-1 is a certificate stating that the records of the
Department of State of Puerto Rico do not show that any decla-

was filed by L—M—G— to preserve her allegiance to the
Crown of Spain. The respondent testified that he never filed any
declaration or took any affirmative action to elect, choose or preserve Puerto Rican, American, or Spanish nationality.
The reason given by the respondent for entering the United
ration

190

States with a Cuban passport s not material to the decision in this
case.
Only two further pieces of evidence need be mentioned. The first
is a baptismal certificate showing the baptism of E—O— on February 16, 1909, in San Juan, with birth having taken place at San
Juan, October 12, 1908, and that the person baptized was the son of
J-0— and L—M—, both of Puerto Rico. Exhibit R.-3b is a certificate from the Bureau of Vital Statistics, Department of Health,
Puerto Rico, showinoi that a search of the books from October 12,
.1904 to 1915, failed-. to disclose the registration of the birth of
E—O—M. This negative certificate was issued to the respondent
May 20, 1960.
Respondent is married to a citizen of Cuba. His wife resides in
Cuba.
THE GOVERNMENT'S PRESENT CONTENTION

In its brief, dated June 13, 1960, filed after the conclusion of the
argued that the respondent is an alien
and subject to deportation and asserted in connection with the
question of alienage that:
(1) Respondent's father's declaration to preserve Spanish
allegiance was effective as a declaration to preserve the
Spanish nationality of the respondent's mother as well,
even though she took no independent action in that respect;
reopened hearing, the Service

(2)

Section 7 of the Act of April 12, 1900 did not confer

Puerto Rican citizenship on the respondent because he was
neither residing in Puerto Rico on April 11, 1899 (having
been born in 1908), and because he could not take Puerto
Rican citizenship through either of his parents because
neither of his parents had Puerto Rican citizenship as they
had elected to retain Spanish nationality;
(3) As the respondent did not become a citizen of Puerto Rico
under the Act of April 12, 1900, he did not become a citizen of the United States under the provisions of section 5
of the Act of March 2, 1917;
(4) The respondent became a Spanish subject at birth through
his parents.
RESPONDENT'S PRESENT CONTENTION

The respondent, through his counsel, contends that he became a
through his father under the Act of April 12,
1900, and a citizen of the United States under the provisions of
section 5 of the Act of March 2, 1917. Counsel also asserts that the
respondent's case should be governed by the determination made by
citizen of Puerto Rico

191

the Department of State that the respondent's
citizen of the United States.

e

was a

GENERAL STATEMENTS

(1) The civil rights and political status, which include citizenship, of native inhabitants of Puerto Rico are solely those which
are determined by Congress. In other words, native inhabitants of
Puerto Rico acquire no citizenship status in Puerto Rico or the
United States solely by virtue of the treaty between the United
States and Spain or solely by virtue of residence in Puerto Rico.
Their citizenship status in Puerto Rico or in the United States is
only that conferred upon them by Congress. This principle was
adequately set forth by the Supreme Court of the United States in
Downey v. Bidwell, 182 U.S. 244 (1901), where, at page 279, the
court stated as follows:
We are also of opinion that the power to acquire territory by treaty impower to govern such territory, but to prescribe upon what
terms the United States will receive its inhabitants, and what their status
shall be in what Chief Justice Marshall termed the "American Empire." There
seems to be no middle ground between this position and the doctrine that if
their inhabitants do not become, immediately upon annexation, citizens of the
United States, their children thereafter born, whether savages or civilized,
are such, and entitled to all the rights, privileges, and Immunities of citizens.
If such be their status, the consequences will be extremely serious. Indeed,
it Is doubtful if Congress would ever assent to the annexation Of territory
upon the condition that its inhabitants, however foreign they may be to our
habits, traditions, and modes of life, shall become at once citizens of the
United States. In all its treaties hitherto the treaty-making power has made
special provision for this subject; • * * in the case of Porto Rico and the
Philippines, "that the civil rights and political status of the native inhabitants * * shall be determined by Congress." In all these cases there is an
implied denial of the right of the inhabitants to American citizenship until
0d-ingress by further action shall signify its assent thereto.
plies nut only the

(2) In a deportation case the Government has the burden of establishing alienage.
(3) Because of the order of December 4, 1959, by the Board of
Immigration Appeals, I am not bound by the order of February 10,
1959, by the special inquiry officer nor by the order of June 19,
1959, by the said Board.
(4) A clear understanding of the applicable legal principles
would be difficult without having, as part of this opinion, the text
of various matters referred to herein. For this reason, there are
appended hereto and hereby made a part of this opinion, the following:
(a) Appendix A—Article IX of the Treaty Between the
United States and Spain, proclaimed April 11, 1899;

(b) Appendix B—Section 7 of the Act of April 12, 1900;
192

(c) Appendix C--Section 5 of the Act of March 2. 1917, as
amended;
(d) Appendix D—The text of Immigration and Naturalization
Service General Order Number 213, dated January 29,
1935, dealing with the administrative interpretation relating to citizenship of natives or inhabitants of Puerto Rico;

(e) Appendix E Section 202, Nationality Act of 1940;
(f) Appendix F Sertion 302, Immigration and Nationality
—

—

Act.

QUESTIONS RAISED IN THIS CASE BUT NOT NECESSARY TO BE DISPOSED OF AND NOT DISPOSED OF
BECAUSE OF THE CONCLUSIONS REACHED
HEREIN

(1) Whether a person who acquired Puerto Rican citizenship
under section 7 of the Act of April 12, 1900 was required to be
residing in Puerto Rico on March 2, 1917, in order to acquire
United States citizenship wider the provisions of section 5 of the
Act of March 2, 1917. I may state, however, by way of obiter
dictum that it is my conclusion that such a question, where pertinent, must be answered in the negative.
(2) Whether Puerto Rican citizenship could be obtained by
virtue of the provisions of section 7 of the Act of April 12, 1900
(by an individual born in 1908 in Puerto Rico) through a person's
mother, a native of the Spanish Peninsula, who herself might have
acquired Puerto Rican citizenship under section 7 of the Act of
April 12, 1900. By way of obiter dictum, it is stated that it is my
view that this question must be answered in the affirmative in cases
where the issue becomes pertinent.
DID RESPONDENT GAIN PUERTO RICAN CITIZENSHIP
AND/OR UNITED STATES CITIZENSHIP THROUGH
HIS FATHER?

The respondent's father was born in Spain. Under the provisions of Article I(1) of the Spanish Constitution the father was
born a Spanish citizen. Flournoy and Hudson, A Collection of
Nationality Laws, p. 526, and H. Doc. No. 326, 59th Congress, 2d
Session, p. 510. 'There is no evidence that he ever lost his Spanish
citizenship. On the contrary, it appears from the evidence that he
retained his Spanish citizenship. When the United States acquired
Puerto Rim fluid Spain, Article IX of the treaty with that coun
try proclaimed on April 11, 1899 (see Appendix A) made Provision
for Spanish subjects who were natives of the Peninsula residing in
Puerto Rico to preserve their allegiance to the Crown of Spain by
193
854877-63- -14

making a declaration of their decision to preserve their allegiance
to the Crown of Spain within a year from the date of the exchange
of ratifications of the treaty. It was further provided in Article
IX that in default of such declaration they shall be held , -o have
renounced allegiance to the Crown of Spain and to have adopted
the nationality of the territory in which they now reside. The
term "Peninsula," as used in Article IX of the treaty, included
Spain but obviously did not include Puerto Rico, The respondent's
father did preserve his allegiance to the Crown of Spain in accordance with the provisions of the treaty by making the required declaration on November 22, 1899. Thereafter when Congress enacted
the Act of April 12, 1900, section 7 thereof conferred Puerto Rican
citizenship on certain people but two things were necessary "(1)
that the applicant was a Spanish subject, native of the Peninsula,
or a Spanish subject, native inhabitant of Porto Rico on April 11,
1899, or was born of such a person subsequent thereto; (2) that
the applicant must have resided in Porto Rico on April 11, 1899,
and have continued to reside therein until the date when the act of
Congress mentioned went into effect, April 12, 1900, or have been
born subsequent to the date of the annexation, April 11, 1899, to a
person who was on that date a Spanish subject, native of the Peninsula or a native inhabitant of Porto Rico, and who acquired
American nationality under the treaty and the statute" (emphasis
supplied). III Hackworth, Digest of International Law, pp. 141,
142. From this it will be seen that the respondent's father would
have acquired Puerto Rican citizenship on April 12, 1900, except
for the fact that section 7 of that Act removed him from the classes
of persons who acquired Puerto Rican citizenship by virtue of the
exception which states "except such as shall have elected to preserve
their allegiance to the Crown of Spain on or before the eleventh
day of April nineteen hundred, in accordance with the provisions
of the treaty * * *." The respondent's father, therefore, did not
acquire Puerto Rican citizenship under the Act of April 12, 1900,
and there is no evidence that he acquired it in any other way
thereafter.
We now come to the crucial point in the argument advanced by
respondent's attorney, namely, that the respondent acquired Puerto
Rican citizenship under section 7 because, he alleged, the respondent
was a child born subsequent to April 11, 1899, to an inhabitant of
Puerto Rico who was a Spanish subject on that date and residing
in Puerto Rico from that date to April 12, 1900.
As pointed out above by the emphasized portion of that part of
the essential requisites to acquire Puerto Rican citizenship, Hackworth, who, at the time of preparing his monumental text was legal
advisor for the Department of State, was of the opinion that for a
194

person born in Puerto Rico, as, for example, this mg/mm-1mq was
in 1908, to have acquired Puerto Rican citizenship through his
father, that father must have been one who acquired American
nationality under the treaty with Spain and section 7 of the Act
of April 12, 1900. We have seen, however, that the respondent's
father did not acquire Puerto Rican citizenship under the 1900 Act
because he had, prior to the effective date of that Act, made a declaration to preserve his allegiance to the Crown of Spain. Respondent's counsel, therefore, reads that part of section 7 of the Act of
April 12, 1900 which provides "except such as shall have elected to
preserve their allegiance to the Crown of Spain * * *" as affecting
only the individual who made the election insofar as the right of
that individual to acquire Puerto Rican citizenship is concerned.
What he failed to do was to accord to this quoted language in section 7 its true meaning. namely, that it was a definitive description
-of a class of persons who did not acquire Puerto Rican citizenship
under section 7 of the Act of April 12, 1900 and, therefore, the

phrase "and their children born cubsoquent thereto" in section 7

actually related to the children of fathers (and perhaps mothers)
who were not of the so defined excepted class. To state it another'
way, children born in Puerto Rico after April 11, 1899, in order to
acquire Puerto Rican citizenship under section 7 of the Act of
April 12, 1900 had to be children of a father who himself acquired
Puerto Rican citizenship under that Act. That is the only kind of
father discussed in section 7. This interpretation is borne out by
the provisions of section 1 of General Order 213 of the Immigration
-and Naturalization Service (see Appendix D) which interprets the
Act of April 12, 1900 as conferring Puerto Rican citizenship upon
a child born subsequent to April 11, 1899, to a parent who acquired
Puerto Rican citizenship in accordance with other provisions of
section 1 of that General Order, which other provisions excluded a
man who made a declaration that he elected to preserve his allegiance to Spain.
It is axiomatic that the interpretations of a statute fairly sus-

ceptible of different constructions, by an agency of the Government
charged with executing it, are entitled to great respect. IticLaren
v. Fleischer, 256 U.S. 477 (1921). It is my view that the Act of
April 12, 1900 is not fairly susceptible of different constructions
but, even if it were, Hackworth, the legal advisor for the State Department, and the Immigration and Naturalization Service have
interpreted section 7 of the Act of April 12, 1900 not as respondent's
counsel would have us interpret it, but rather as set forth above.
As we shall see hereafter, the Secretary of Labor and the Secretary
of the Interior also interpreted the law as did the Department of
State and the Immigration and Naturalization Service.
195

Reliance need not be put merely upon Hackworth and General
Order Number 213. The United States District Court for the District of Puerto Rico had before it in 1957 a declaratory judgment
action pursuant to the provisions of section 360(a) of the Immigration and Nationality Act in which the facts were as closely akin to
those in the instant case as can be hoped to be found: Conrad v.
Dulles, 155 F. Supp. 542. In that case the plaintiff was born in
Puerto Rico in September 1906. The plaintiff's father resided in
Puerto Rico on April 11, 1899, but was at plaintiff's birth a Spanish
subject because he had, on or brefore April 11, 1900, elected to preserve allegiance to the Crown of Spain in accordance with Article
IX of the treaty between the United States and Spain. The court
found that the subject was not a citizen of the United States under
section 7 of the Act of April 12, 1900 and section 5 of the Act of
March 2, 1917.
This leads us to the question which has thus far not been treated,
namely, whether iebpundent in the instant case acquired United

States citizenship through his father under the provisions of the
Act of March 2, 1917, as amended. The case of Conrad v. Dulles,
supra, says such a person did not acquire United States citizenship
under that Act. Section 5 of the Act of March 2, 1917 confers
United States citizenship upon citizens of Puerto Rico as defined
by section-7 of the Act of April 12, 1900, and all natives of Puerto
Rico who were temporarily absent from that island on April 11,
1899, and since have returned and are permanently residing on that
island and are not citizens of any foreign country. The respondent
in the instant case did not become a citizen of Puerto Rico through
his father under the Act of April 12, 1900, as has already been
pointed out, and consequently did not acquire United States citizenship through his father under the provisions of section 5 of the
Act of March 2, 1917. In Hackworth, supra, p. 144, it is stated
"Now, then, if * * * never obtained the condition of citizen of Porto
Rico, it seems to be clear that he was not made a citizen of the
United States by the provisions of Section 5 * * s." While the individual in that case was born in Puerto Rico in 1879 of a French
father, it nevertheless makes clear that the instant respondent could
not have acquired United States eitizenship through his father because
he, the respondent, never acquired Puerto Rican citizenship (see
also General Order 213, Appendix D).
Additionally, the Service points out on page 4 of its brief that
section 5c was added on May 16, 1938, to the Act of March 2, 1917,
because Congress sought to afford relief, as stated by the Secretary
of Labor,
to persons who were born in Puerto Rico on or after April 11, 1899, of fathers
who preserved their allegiance to Spain under the treaty of peace with Spain.

log

Persons born 01 SUM falhera are not citizena of the 'United Stater, in the
absence of their having taken formal proceedings therefor.

This purpose of section 5c of the Act of March 2, 1917, as
amended, was thus gleaned from a statement of the Secretary of
Labor set forth in Senate Report Number 1679, accompanying H.R.
4275, 75th Congress. Similarly, in the same report (p. 5 of Service
brief) the Acting Secretary of the Interior, in response to an inquiry from the Chairman of the House Committee on Insular Affairs to the Director, Division of Territories and Island Possessions,
is quoted in part as stating :
The primary purpose is to admit to United States citizenship a limited class
of Puerto Ricans, who, through ignorance of the law or misunderstanding,
failed to take advantage of the opportunity to become such citizens under
sections 5, 5a, and 5b of the Organic Act for that island, the Act of March 2,
1917 * * and of June 27, 1934 • •
About 6,000 residents of Puerto Rico are involved, concerning whose status
there appears to have been considerable popular confusion and misunderstanding. They are descendants, born in the island since its cession to the United
States, of Spanish subjects who eiecteil, uu ur before April 11, 1900, to retain
their allegiance to the Crown of Spain in accordance with Article IX of the
Treaty of Peace which terminated the Spanish-American War. The descendants of Spanish subjects who so elected are not citizens of the United States,
although born and residing in Puerto Rico, unless naturalized, or unless, on
or before March 4, 1928 (or else within one year after reaching their majority), they or their ancestors filed declarations, as provided in sections 5
and 5a of the Organic Act, availing themselves of the privilege of becoming
American Li tiLens.

Whether the respondent acquired United States citizenship under
that Act in his own right will be treated in another portion of this
opinion. It is sufficient at this point to state that under the amendment to that Act and under the Nationality Act of 1940 and the
Immigration and Nationality Act the respondent could not acquire
United States citizenship through his father.
A second contention raised by respondent's attorney is that the
respondent's situation is the same as that of respondent's brother,
G—, who was held to have acquired United States citizenship. This
is not a valid argument. G— was born in San Juan, Puerto Rico,
July 10, 1898, and resided there until subsequent to April 12, 1900,
and was, therefore, himself (and not through his father) directly
within the provision 5 of 3e;etion 7 of the Act of April 10, 1900, and
thus acquired Puerto Rican citizenship in his own right. He waa
an infant and not a native of the Peninsula, and could not as a matter of law make a declaration to preserve Spanish allegiance It is
also almost axiomatic at this late date that the father's declaration
to preserve his (the father's) allegiance to the Crown of Spain did
not serve to preserve Spanish allegiance for a child born in Puerto
Rico in 1898, residing in Puerto Rico at the time of the cession of
-

-

-

197

those islands, even though that child's name is mentioned in the
father's declaration. See Hackworth, Supra, pp. 142, 143. G—
acquired Puerto Rican citizenship; the respondent did not.
DID RESPONDENT GAIN PUERTO RICAN CITIZENSHIP
AND/OR UNITED STATES CITIZENSHIP THROUGH
HIS MOTHER?

We have just seen that the respondent did not gain Puerto Rican
and/or United States citizenship through his father. If he could
have gained Puerto Rican citizenship and/or American citizenship
through his mother pursuant to the 1900 and 1917 Acts, it would be
only if his mother became a Puerto Rican citizen under section 7 of
the 1900 Act. His mother did not make a separate declaration to
retain allegiance to the Spanish Crown. The question, therefore,
is whether the declaration of allegiance made by the respondent's
father had like effect upon rccpondcnt'c mother. If it did, than

she did retain allegiance to the Spanish Crown and did not acquire
Puerto Rican citizenship under section 7 of the Act of April 12, 1900.
Authorities on this point are scarce. The brief of June 13, 1960,
filed by the Service argues that since the respondent's mother was
also a native of the Spanish Peninsula, with the right to make such
a declaration to retain Spanish allegiance, her husband's declaration was effective as a declaration to preserve her Spanish nationality even though she herself took no independent action in that
respect. That brief points out that the position of the Service on
that point is more fully expounded in the case of Maria Marroig
Vda. de Frontera (petition for naturalization No. 4738, filed in the
District Court of the United States for Puerto Rico, on January 14,
1947). The opinion of the Service, a copy of which is attached to
the Service brief, is dated October 20, 1947, and bears file Number
2849—P 4738. The arguments in that opinion are persuasive. It will
not he necessary for me to set out those arguments in this opinion
because the District Court of the United States for the District of
Puerto Rico in the Frontera case handed down a decision on December 20, 1948, in which the court concluded (Mrs. Frontera was in the
same position as the respondent's mother so far as the material
facts are concerned) that the declaration to retain Spanish nationality executed by petitioner's husband also operated to preserve the
petitioner's Spanish nationality. The court pointed out that at the
time of the Tieaty or Peace bet ween the United States and Spain all

countries recognized the principle that the nationality of a woman
on marriage merged in that of her husband and that she lost her own
nationality and acquired his. The court then pointed out that under
Article 22 of the Spanish Civil Code of 1889 "A married woman follows the condition and nationality of her husband." The court's
198

reasoning continues by adding that it should be borne in mind that
petitioner was a native of the Spanish Peninsula and, therefore,
eligible to retain her Spanish nationality under the provisions of
Article IX of the Treaty; that she was admitted to Puerto Rico as a
Spanish subject in 1910, obtained a Spanish passport in 1939, and
reentered the United States in 1939 under a special provision of law
relating to persons who had retained Spanish nationality under the
Treaty with Spain, and that the petitioner was also recognized as a
Spanish subject by Spain. The court, however, finally concludes as
follows: "Under the authorities heretofore cited (some of which
were cited in the Service opinion), the Court holds that at the time
of the Treaty between the United States and Spain, petitioner's nationality was merged with that of her husband and, therefore, petitioner remained a subject of the Spanish Crown" (parenthetical
clause added).
In view of this holding by the court in the Frontera petition matter and in view of the cogent reasoning advanced in the Service's
opinion in that matter, and particularly in the absettee of authorities to the contrary, I conclude that the respondent's father's declaration to retain allegiance to the Spanish Crown had the same
legal effect on his wife that her own declaration of allegiance to
the Spanish Crown would have had had she been able to make, and
had she made, a declaration of allegiance. This being the situation,
the respondent's mother did not acquire Puerto Rican citizenship
under section 7 of the 1900 Act. The respondent, therefore, did
not acquire Puerto Rican citizenship at his birth in 1908 through
his mother. There is no evidence that he in any way acquired United
States citizenship under any act through his mother. As a matter of
fact, it appears rather clear that his mother is at the present time
recognized in Spain as a Spanish citizen and that /she at no time
took any Affirmative action in accordance with the requirements of
the applicable statutes to acquire United States citizenship.
DID RESPONDENT ACQUIRE PUERTO RICAN AND/OR
UNITED STATES CITIZENSHIP IN HIS OWN RIGHT?

We have just seen that the respondent did not acquire Puerto Rican
and/or American citizenship through his father or his mother. There
is nothing in section 7 of the Act of April 12, 1900, which would
have conferred Puerto Rican citizenship on the respondent in his own
right because in order for a person to acquire Puerto Rican citizenship in his own right under that motion of law it would have been
necessary for the person to have been a Spanish subject, a native
inhabitant of Puerto Rico on April 11, 1899, and to have resided
there on that date and have continued to reside there until April 12,
1900. The respondent was born in 1908 and, therefore, did not

199

acquire Puerto Rican citizenship in his own right under section 7
of the 1900 Act.
When the respondent's father retained his allegiance to the Spanish Crown he retained, of course, his Spanish citizenship. Under
Article 1(2) of the Constitution of Spain "children of a Spanish
father or mother, although born out of Spain" are' Spaniards.

H. Doc. No. 326, 59th Congress, 2d Session, p. 510. (It is noted that
in Flournoy and Hudson, A Collection of Nationality Laws, p. 526,
Article 1(2) of the Spanish Constitution is translated as "The Children: of Spanish parents, although born outside Spain," are Spaniards.) Furthermore, Article 17(2) of the Spanish Civil Code of
1889 provides that "The children of a Spanish father or Spanish
mother, although born outside Spain," are Spaniards (II. Doc. No.
326, supra, and Flournoy and Hudson, supra, p. 537). It is, there-

fore, clear that when the respondent was born in 1908 he acquired
Spanish nationality through his parents. At this point it is well to
mention that respondent's counsel in his brief, dated June 22, 1960,
seems to argue that it is inconsistent to hold that the respondent's
father's declaration to retain allegiance to the Spanish Crown could
have no effect on the respondent and yet the respondent's father's
Spanish citizenship would have some effect on the respondent. There
is nothing unusual about this situation. There are many instances
where the law of the blood

(jug sanguinity)

applies co far as the

transmission of citizenship from father to son is concerned. The
father's declaration of retention of Spanish allegiance did not deprive the respondent of anything because the respondent was not yet
born when the father made the declaration. At the time the respondent was born there was no statute granting him Puerto Rican citizenship or United States citizenship but there was a Spanish law giving
him Spanish citizenship. With regard to the brother, G — , who is
also mentioned in this connection in the respondent's attorney's
brief, G—'s citizenship rested on a different footing; it rested on
G—'s own situation because, among other things, G— was born in
Puerto Rico prior to the proclamation of the Treaty with Spain.
Other acts of Congress (Act of March 4, 1927, adding section 5a to
the Act of March 2, 1917; the Act of June 27, 1934, adding section
5b to the Act of March 2, 1917; and the Act of May 16, 1938, adding
section 5c to the Act of March 2, 1917; section 202 of the Nationality
Act of 1940, and section 302 of the Immigration and Nationality
Act, all set out in the appendices) relate to the acquisition of United
States citizenship by natives of Puerto Rico under certain circumstances. All of them, however, require one or more of the following:
(1) Residence in territory over which the United States exercises sovereignty on dates fixed in the statutes;
(2) That the individual concerned not be a national of any
foreign country;
200

aerlpration to acquire American citizenship be made
That
in accordance with the terms of the statute.
The respondent at birth was a citizen of Spain and he has apparently continued to be such until the present time. He did not have
his residence in United States territory, as required by the various
statutes, on the dates mentioned therein, and he has never made
a formal declaration to acquire United States citizenship pursuant

(3)

to the provisions of any of the statutes. He did not acquire Puerto

Rican or United States citizenship in his own right.
CONCLUSION

It is my conclusion that the respondent is an alien. This opinion
has been lengthier than it would ordinarily have been but it was
felt desirable to cover the area in detail because of the paucity of
available material on the subject.
FINDINGS OF FACT AND CONCLUSION OF LAW

I hereby adopt the allegations and the charge in the order to show
cause as my findings of fact and conclusion of law, respectively.
FZECTION

The respondent, at the initial hearing, elected Cuba as the counto which he wishes to be deported in the event deportation is to
take place.
ORDER: It is ordered that the respondent be deported from the
United States in the manner provided by law on the charge contained
in the order to show cause.
It is further ordered that this case be certified to the Board of
Immigration Appeals for final decision by that Board.
try

APPENDIX A

ARTICLE IX OF THE TREATY OF PEACE BETWEEN THE
UNITED STATES AND SPAIN PROCLAIMED APRIL 11,
1899
Spanish subjects, natives of the Peninsula, residing in the territory over
which Spain by the present treaty relinquishes or cedes her sovereignty, may
remain in such territory or may remove therefrom, retaining in either event
all their rights of property, including the right to sell or dispOse of such
property or its proceeds; and they shall also have the right to carry on their
industry, commerce and professions, being subject in respect thereof to seen
laws as are applicable to other foreigners. In case they remain in the territory they may preserve their allegiance to the Crown of Spain by making,
before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their decision to preserve such Line-

201

glance; In default of which declaration they shall be held to have renounced
It and to have adopted the nationality of the territory in which they may
reside.
The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress.
(30 Stat. 1754; Treaty Series No. 343; Malloy, Treaties, II, 1690.)
APPENDIX B

SECTION 7 OF THE ACT OF APRIL 12, 1900
Sec. 7. That all inhabitants continuing to reside therein who were Spanish
subjects on the eleventh day of April, eighteen hundred and ninety-nine, and
then resided in Porto Rico, 1 and their children born subsequent thereto. shall
be deemed and held to be citizens of Porto Rico, and as such entitled to the
protection of the United States, except such as shall have elected to preserve
their allegiance to the Crown of Spain on or before the eleventh day of April
nineteen hundred, in accordance with the provisions of the treaty of peace
between the United States and Spain entered on the eleventh day of April.
eighteen hundred and ninety-nine; and they, together with such citizens of
the United States as may reside in Porto Rico, shall constitute a body politic
under the name of The People of Porto Rico, with governmental powers as
hereinafter conferred, and with power to sue and be sued as such.

APPENDIX C

SECTION 6 OF THE ACT OF MARCH 2, 1917, AS AMENDED
Sec. 5. That all citizens of Puerto Rico, as defined by section seven of the
Act of April twelfth, nineteen hundred, "temporarily to provide revenues and
a civil government for Puerto Rico, and for other purposes," 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: Provided, That any person hereinbefore described may retain
his present political status by making a declaration, under oath, of his decision to do so within six months of the taking effect of this Act before the
district court in the district in which he resides, the declaration to be in
form as follows:
"I,
, being duly sworn, hereby declare my Intention not to
become a citizen of the United States as provided in the Act of Congress conferring United States citizenship ripen citImens of Puerto Rico and certain
natives permanently residing in said Island."
In the case of any such person who may be absent from the island during
said six months the term of this proviso may be availed of by transmitting a

declaration, under oath, in the form herein

provided within sir months of the

taking effect of this Act to the executive secretary of Puerto Rico; And provided further, That any person who is born in Puerto Rico of an alien parent
and is permanently residing in that island may, if of full age, within six
1 The spelling of "Porto Rico" was changed to "Puerto Rico" by the Act of
May 17, 1932 (47 Stat. 148).

202

months of the taking effect of this Act, or if a minor, upon reaching his
majority or within one year thereafter, make a sworn declaration of allegiance to the United States before the United States District Court for Puerto
Rico, setting forth therein all the facts connected with his or her birth and
residence in Puerto Rico and accompanying due proof thereof, and from and
after the making of such declaration shall be considered to be a citizen of
the United States.
Sec. ha.' That all citizens of the United States who have resided or who
shall hereafter reside in the island for one year shall be citizens of Puerto
Rico: Provided, That persons born in Puerto Rico of alien parents, referred
to in the last paragraph of section 5, who did not avail themselves of the
privilege granted to them of becoming citizens of the United States, shall
have a period of one year from the approval of this Act to make the declaration provided for in the aforesaid section: And provided further, That persons who elected to retain the political status of citizens of Puerto Rico may
within one year after the passage of this Act become citizens of the United
States upon the same terms and in the same manner as is provided for the
naturalization of native Puerto Ricans born of foreign parents.
Sec. 5b.' All persons born in Puerto Rico on or after April 11, 1899 (whether
before or after the effective date of this Act), and not citizens, 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 as depriving
any person, native of Puerto Rico, of his or her American citizenship heretofore otherwise lawfully acquired by such person; or to extend such citizenship
to persons who shall have renounced or lost it under the treaties and/or laws
of the United States or who are now residing permanently abroad and are
citizens or subjects of a foreign country: And provided further, 3 That any
woman, native of Puerto Rico and permanently residing therein, who, prior
to March 2, 1911, had lost her American nationality Dy reason or her marriage to an alien eligible to citizenship, or by reason of the loss of the United
States citizenship by her husband, may be naturalized under the provisions
of section 4 of the Act of September 22, 1922, entitled "An Act relative to the
naturalization and citizenship of married women," as amended.
Sec. 519.4 (sic) Section 404(e) of the Nationality Act of 1940 (U.S.C., Title 8,
sec. 804(c)), shall not be applicable to persons who acquired citizenship under the provisions of sections 5 and ha of this Act.
Sec. 5c. 5 That any person of good character, attached to the prlucIples of
the Constitution of the United States, and well disposed to the good order and
happiness of the United States, and born in Puerto Rico on or after April 11,
1899, who has continued to reside within the jurisdiction of the United States,
whose father elected on or before April 11, 1960, to preserve his allegiance to
the Crown of Spain in accordance with the provisions of the treaty of peace
between the United States and Spain entered into on April 11, 1899, and who,
by reason of misinformation regarding his or her own citizenship status failed
within the time limits proscribed by section 6 or motion 6a hereof to

e'er-

I Added by the Act of March 4, 1927 (44 Stet. 1418).
Added by the Act of June 27, 1934 (48 Stet. 1245). Repealed by the Act
of June 27, 1952 (66 Stet. 279).
a Second proviso repealed by sec. 504 of the Act of October 14, 1940 (54
Stet. 1173).
4 Added by the Act of June 25, 1948 (62 Stat. 1015). This amendment is
retroactive to October 13, 1945.
'Added by the Act of May 16, 1938 (52 Stet, 337). Repealed by sec. 504
of the Act of October 14, 1940 (54 Stat. 1173).

203

cise the privilege of establishing United States citizenship and has heretofore
erroneously but in good faith exercised the rights and privileges and performed the duties of a citizen of the United States, and has not personally
sworn allegiance to any foreign government or ruler upon or after attainment
of majority, may make a sworn declaration of allegiance to the United States
before any United States district court. Such declaration shall set forth
facts concerning his or her birth in Puerto Rico, good charactr, attachment
to the principles of the Constitution of the United Slates, and being well disposed to the good order and happiness of the United States, residence within
the jurisdiction of the United States, and misinformation regarding United
States citizenship status, and shall be accompanied by proof thereof satisfactory to the court. After making such declaration and submitting such proofs,
such person shall be admitted to take the oath of allegiance before the court,
and thereupon shall be considered a citizen of the United States.
APPENDIX D

TEXT OF GENERAL ORDER NUMBER 213
DATED JANUARY 2.9, /.93.5
13y; virtue of and pursuant to the authority vested in me under Revised
Statutes, section 161 (U.S.C., Title 5, sec. 22), and other provisions of law,
the following regulations interpreting section 7 of the Act of April 12, 1900
(31 Stat. 79; U.S.C., Title 48, sec. 733) ; sections 5 and 5a of the Act of
March 2, 1917 (39 Stat. 953, U.S.C., Title 8, sec. 5; 44 Stat. 1418-1419, U.S.C.,
Title 8, sec. 5a) ; and section 5h of said Act of March 2, 1917, as added by
Act of June 27, 1934 (48 Stat. 1245) are prescribed for the gridance of officers and employees of the Immigration and Naturalization Service:

Puerto Rican Citizenship Under the Act of April 12, 1900
Sec. 1. Under the provisions of section 7 of the Act of April 12, 1900 (31
Stat. 79, U.S.C., Title 48, sec. 733)(a) An inhabitant of Puerto Rico who was a Spanish subject on April 11,
1899, and continued to reside in Puerto Rico until April 12, 1900. became on
April 12, 1000, a citizen or Puerto Rico unless on or before April 11, 1900,
he made a declaration before a court of record that he bad elected to preserve his allegiance to Spain;
(b) A child born at any time subsequent to April 11,
to a parent
preceding subwho acquired Puerto Rican citizenship in accordance with
section (a) was himself vested with Puerto Rican citizenship.

United States Citizenship Under the Act of March 2, 1917
Sec. 2. Under the provisions of sections 5 and 5a of the Act of March 2,
1917 (39 Stat. 953, U.S.C., Title 8, sec. 5; 44 Stat. 1413-1419, U.S.C., Title 8,
sec. 5a), the following are citizens of the United States:
(a) A person who on Motel! 2, 1917, was a citizen of Puerto RICO as Qefined in section 7 of the Act of April 12, 1900, and section 1 of these regulations; and who did not within six months after March 1, 1917, make a declaration under oath before the district court in the district in which he resided,
retaining the political status he then bad;
(b) A native of Puerto Rico who was temporarily absent from that island
on April 11, 1899, who had returned and was permanently residing therein on

204

March 2, 1017, who wan not on March 2, 1017, a riti ,Len of any foreign country and who within six months after March 1, 1917, did not make a declaration under oath before the district court in the district in which he resided,
retaining the political status he then had;
(c) A native of Puerto Rico, born of an alien parent, who was permanently
residing in that island on March 2, 1917, and who, within six months after
March 1, 1917, or within one year after attaining the age of twenty-one if he
was not twenty-one years of age on March 2, 1917, or within one year after
March 2, 1027 (regardless of his age), made a sworn declaration of allegiance
to the United States before the United States District Court for Puerto Rico;
and
(d) A person who elected to retain the political status of a citizen of
Puerto Rico and who within one year after March 3, 1927, made a sworn
declaration of allegiance to the United States before the United States District Court for Puerto Rico.

United States Citispnship Under the Act of June $7, 1934
Sec. 3. A person born in Puerto Rico on or after April 11, 1899, who was
not a citizen of the United States on June 27, 1934, became a citizen on
:nine 27. 1934. unless(a) He was on that date a citizen, subject, or national of any foreign
power; or
(b) Prior to June 27, 1934, he had renounced or lost United States citizenship under the treaties and/or laws of the United States; or
(c) Ile was on that date residing permanently abroad and was a citizen
or subject of a foreign country.
APPENDIX E

SECTION 202 OF THE NATIONALITY ACT OF 1940
Sec. 202. All persons born in Puerto Rico on or after April 11, 1899, subject to the jurisdiction of the United States, residing on the effective date of
this Act in Puerto Rico or other territory over which the United States exercises rights of sovereignty and not citizens of the United States under any
other Act, are hereby declared to be citizens of the United States.
APPENDIX F

SECTION 302 OF THE IMMIGRATION AND
NATIONALITY ACT
Sec. 302. All persons born in Puerto Rico on or after April 11, 1899, and
jurisdiction of the United States,
residing on January 13, 1941, in Puerto Rico or other territory over which the
United States exercises rights of sovereignty and not citizens of the United
States under any other Act, are hereby declared to be citizens of the United
Mateo ao of January 13, 11441
All persons born in Puerto Rico on or after
January 13, 1941, and subject to the jurisdiction of the United States, are
citizens of the United States at birth.
prim. to January la, 1041, subject to the

205

BEFORE THE BOARD

(January 12, 1961)
DISCUSSION: When this case was first before us on June 19,
1959, we dismissed respondent's appeal from an order of a special
inquiry officer entered on February 9, in which it was concluded that
alienage had been established and that respondent was deportable on

the charge contained in the order to show cause. When we last considered this en sf. on December 4, 1959, on motion of the District
Director, we remanded the case to the special inquiry officer for
further proceedings and consideration with respect to the possibility
of respondent having acquired Puerto Rican citizenship. On September 12, 1960, the special inquiry officer entered an order finding
that the respondent is an alien and ordering that respondent be deported from the United States on the charge contained in the order
to show cause. This case is before us on certification for a final
decision as directed in our aforementioned order of December 4, 1959.

The respondent testified that he was born in Puerto Rico in October 1908. A certificate from the Bureau of Vital Statistics, Department of Health, Puerto Rico, issued to the respondent on May 20,
1960, shows that a search of the books from October 12, 1904 to
1915, failed to disclose the registration of the birth of E—O—M—.
In support of his claimed birth in Puerto Rico, respondent did present a baptismal certificate showing the baptism of E 0 , the son
of J-0-- and L—M—, both of Puerto Rico, on February 16, 1909,
in San Juan, with birth having taken place at San Juan on October 12, 1908. Respondent testified that his parents were married by
proxy in about 1889 and he supposes his mother came to Puerto Rico
upon being married. Respondent testified that both his mother and
father were born in Spain. The respondent's father, in November
1899, in San Juan, Puerto Rico, executed a "declaration of nationality
in accordance with the provisions of Article IX of the Treaty of
Peace between the United States and Spain" in which he stated that
he is a native of the Spanish Peninsula, a Spanish subject, married
to L , and that he wishes to preserve fidelity to the Spanish Crown.
He named five children in the declaration, the older two age 13 and
14, born in Spain, and the younger three, age 3 months to six years,
born in Puerto Rico. Respondent testified that when he was about
six or eight months old, in the latter part of 1908 or early 1909,
his family moved to Spain and that with the exception of a period
of one year commencing in July 1940 he was not in Puerto Rico or
American territory until his last entry into the United States on
December 21, 1957, when he entered at the port of Miami and was
admitted as a nonimmigrant for pleasure at the port of Miami until
June 21, 1958.
Counsel excepts to the conclusion of the special inquiry officer
-

—

206

—

that respondent was never a citizen of Puerto Rico or a citizen of
the United States. Counsel argues that respondent should be considered a citizen of Puerto Rico according to section 7 of the Act
of April 12, 1900, and as such entitled to become an American citizen
by reason of the provisions of section 5 of the Act of March 2, 1917.
Counsel points out that although respondent's brother G—, who
was born in Puerto Rico before 1899, was included in the declaration
of the father preserving allegiance to Spain, it has nevertheless been
held that G— is a citizen of the United States by reason of birth
in Puerto Rico, the son of Spanish subjects.
The sole issue in this case is that of nationality since respondent is clearly deportable on the charge contained in the order to
show cause if alienage has been established. He accepted employment as an art critic at a salary of $200 a month before the time
that the period of his admission expired.
Article IX of the Treaty with Spain proclaimed on April 11, 1899,
and which is applicable to the acquisition of Puerto Rico from
Spain, provided that Spanish subjects who were native., of the Peninsula and were residing in Puerto Rico could preserve their allegiance to the Crown of Spain by making, before a court of record,
within a year from the date of the exchange of ratifications of the
Treaty, a declaration of their decision to preserve such allegiance
and that in default of such a declaration they shall have been held
to renounce allegiance to Spain and to have adopted the nationality
of the territory in which they resided. The Treaty further provided that the civil rights and political status of the native inhabitants of the territory "shall be determined by the Congress."
Section 7, Act of April 12, 1900, mentioned by counsel, provides
in part : "That all inhabitants continuing to reside therein who
were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in Porto Rico, and their
children born subsequent thereto, shall be deemed and held to be
citizens of Porto Rico, and as such entitled to the protection of the
United States, except such as shall have elected to preserve their
allegiance to the Crown of Spain on or before the eleventh day of
April nineteen hundred, in accordance with the provisions of the
Treaty of Peace between the United States and Spain entered into on
the eleventh day of April, eighteen hundred and ninety nine . . ."
(Emphasis supplied.)
Respondent's father, having been born in Spain, was a citizen of
that country (Article I(1) of the Spanish Constitution, Flournoy
and Hudson, Nationality Laws, p. 526). By filing the required declaration on November 22, 1899, respondent's father preserved his
Spanish citizenship. Hence, he did not become a citizen of Puerto
Rico under section 7 of the Act of April 12, 1900, since that law
-

207

excepted from the provisions of Puerto Rican citizenship those who
had elected to preserve their allegiance to the Crown of Spain on
or before the 11th day of April 1900. Consequently, neither did the
subject acquire Puerto Rican citizenship under section 7 of the Act
of April 12, 1900, since Puerto Rican citizenship was bestowed under
that law on the children born subsequent to April 11, 18M, of former
Spanish subjects who had not elected to preserve their Spanish
citizenship. The appeal will be dismissed and the order of the

special inquiry officer directing deportation approved.
ORDER: It is ordered that the appeal be dismissed and that the
order of deportation be and the same is hereby approved.

208


Interim Decision #1336

MAerran or

GAItVEY

In DEPORTATION Proceedings
A-12317960
Decided by Board May .13 1964
A nonimmigrant student who pursued a full course of study but accepted parttime employment without having applied for permission to do so as required
by applicable regulations (8 OFR 214.2(f) ) has violated her nonimmigrant
status and Is deportable under section 241(a) (9), Immigration and Nationality

Act.
Outten :
Order: Act of 1952--Section 241(a) (9) [8 U.S.O. 1251(a) (9)3—After adlainkikm as nonimmigrant and subsequent change to another nonimmigrant status under section 248 of the Act, failed to comply with
the conditions of changed status.

The case presents an appeal from an order entered by the special
inquiry officer on March 9, 1964, granting the respondent's request
that she be permitted to depart voluntarily from the United States,
in lieu of deportation, and directing that if she fails to depart when
and as required she be deported from the United States to Jamaica,
British West Indies, on the charge set forth in the order to show cause.
The respondent, a 34-year-old female, native and citizen of Jamaica,
has resided continously in the United States since her admission at
New York, New York, on or about May 26, 1960, as a nonimmigrant
visitor for pleasure. The respondent's status was changed from that
of a nonimmigrant visitor for pleasure to that of a nonimmigrant
student and she was authorized to remain in the United States in the
latter status until March 22, 1964. Deportion proceedings were instituted against the respondent on March 2, 1964.
A hearing in deportation proceedings was held at New York, New
York, on Maroh 9, 1964, at which time the respondent and counsel
who represented her at the deportation hearing admitted the truth
of the several factual allegations set forth in the order to show cause
and conceded deportsbility on the charge stated therein. When the
respondent was 'asked if she had been gainfully employed, without
permission from the United States Immigration and Naturalization

Interim Decision #1336
Service, as a domestic in New York City from the summer of 1963
until December 1963, she replied, "Yes." The respondent's present
counsel by brief and in oral argument on appeal urged that her status
as a nonimmigrant student be reinstated and the proceedings terminated inasmuch as she has regularly attended and still attends the
Academy of Designing in New York, New York, where she is pursuing a full course of study in dress design. Counsel argued that
she has not violated the terms of her nonimmgrant student status and,
as a consequence thereof, she is not subject to deportation on the charge
set forth in the order to show cause, notwithstanding her admission
that she was gainfully employed as a domestic in New York City
without permission of the Service from the summer of 1963 until
,

December 1963.

Counsel contends that the respondent's acceptance of part-time employment, tiring a, period of temporary financial need, did not violate
the conditions of her nonimmigrant student status so long as she continued to pursue a full-time course of study at a, school approved by
the Attorney General. Counsel stated that the Immigration and
Nationality Act is completely silent with respect to a restriction upon
the part time employment of nonimmigrant students; that neither section 101(a) (15) (F), which defines the status of a nonimmigrant student, nor section 248 of the Act, which authorizes the change of a nonimmigrant status, specifically restricts the acceptance of part-time
employment by a nonimmigrant. According to counsel the only requirements for maintenance of student status is the maintenance of a
residence in a foreign country which the student has no intention. of
abandoning and a bona fide intention of the student to pursue a full
course of study at an established institution of learning approved by
the Attorney General.
The aforementioned arguments of counsel are without merit. Section 214 of the Immigration and Nationality Act, as amended, states
that "the admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney
General may by regulations prescribe, * * * to insure that at the expiration of such time or upon failure to maintain the status under which
he was admitted, or to maintain any status subsequently acquired under
section 248 of the Act, such alien will depart from the United States?'
(Emphasis supplied.)
Section 248 of the Immigration and Nationality Act, as amended,
provides "the Attorney General may, under such conditions as he may
prescribe, authorize a change from any noninamigrant classification
to any other nonimmigrant classification in the case of any alien lawfully admitted to the United States as a nonimmigrant who is con-

520

Interim Decision #1336
tinuing to maintain that status, * * *." Part 248.2, 8 CFR, states
that "application for a change of nonimmigrant classification shall be
made on Form 1-506. If the application is granted, the alien's nonimmigrant status under such reclassification shall be subject to the
terms and conditions applicable generally to such classification and to
such other additional terms and conditions, * *." 8 CFR 214.2(f)
among other things provides that a student shall apply for permission
to accept employment on Form 1-538 and may be granted or denied
without appeal by an officer in charge of a suboffice or a district director. There is nothing in this record to show nor has any claim been
made by the respondent or counsel who represented her at the deportation hearing or by counsel who is now representing her that she, the
respondent, complied with the provisions of Part 214.2(f), 8 CFR,
supra, which required her to make application for permission to accept
employment on Form 1 538. The respondent never applied to the
Service for permission to accept employment of any kind. The applicable regulations require that the respondent be subject to the terms
and conditions applicable generally to her changed status as a nonimmigrant student. The record clearly establishes that the respondent
failed to comply with the conditions of her changed status, in that, she
did not apply to the Immigration and Naturalization Service for permission to accept employment as required by the applicable regulations (8 CFR, 214.2(f) ). Hence, she is subject to deportation on the
charge set forth in the order to show cause.
After carefully considering all the evidence of record, together with
counsel's representations on appeal, we find nothing therein that warrants any change being made in the decision of the special inquiry
officer who has accorded the respondent the privilege of voluntary
departure, which is the maximum discretionary relief available to her.
Accordingly, the following order will be entered.
ORDER: It is ordered that the appeal be dismissed.
-

521


Interim Decision 4t1687

Mawr= or VOLOR •

In Deportation Proceedings
A-11587815
Decided by Board January 23, .1967
Neither the Board of Immigration Appeals nor Cie special inquiry officer has
jurisdiction to consider in deportation proceedings the validity of the 1960
older entered by the District Director rescinding respondent's adjustment of
- status granted under section 245 of the Immigration and Nationality Act, as
amended.

CHARGE
Order: Act of 1052—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excludable
at time of entry--section 212(a) (20)—no immigrant
visa.

ON BEHALF OF RESPONDENT :

ON Bansis or &swim:
Irving A. Appleman
Appellate Trial Attorney

Harold D. Safi; Esquire
15 Maiden Lane
New York. New York 10038

Respondent's appeal from the order of the special inquiry officer
finding him deportable on the ground stated above and granting him
voluntary departure will be dismissed.
Respondent, a 28-year-old male, a native and citizen of Greece, admitted as a crewman on March 15, 1958, deserted the vessel and married a United States citizen. He applied for adjustment of status
(section 245 of the Act) on March 25, 1959. The Service granted his
application on April 23, 1959. The Service notified respondent on
May 16, 1960 that it proposed to rescind the adjustment—the Service
believed that respondent obtained his adjustment on the basis of a
fraudulent marriage. Respondent hired an attorney who by letter
dated June 13, 1960 asked for an opportunity to present respondent's
case. The Service notified counsel on June 17, 1960 that an interview
was set for June 23, 1960. Counsel and respondent did not appear. On
June 27, 1960, counsel was telephonically advised to appear -with the
alien on July 1, 1960. Neither counsel nor the respondent appeared
on this date. The District Director entered an order rescinding the
44

Interim Decision. #168T
adjustment of status and on July 21, 1960 addressed letters to respondent and counsel advising them respondent's status had been rescinded
Counsel's copy of the letter was delivered; respondent's copy, sent
by certified mail, was returned to the Service as undeliverable. Respondent had moved a month or two after hiring his attorney. He
thought that his attorney had told him that rescission proceedings had
terminated favorably in his favor.. After receiving the advice, he did
not agiin see his attorney. He did not file a change of address card..
He thought it was unnecessary to do so as he was a. permanent resident,
and had an alien registration card.
In March 1965, respondent returned to the United States after ir
short stay in Mexico where he went to obtain a divorce. Sometime in
1965, he applied for naturalization and then discovered that he was
considered illegally in the United States. Deportation proceedings
were started on June 10, i965.
ReSriOndent is charged in deportation proceedings with having entered the United. States without a visa on his return from Mexico in
1965. Counsel contends respondent did not need a visa upon this return
because he had the alien 'registration card on which a legally resident
alien can return to the United States and respondent must be considered a legally resident alien since the rescission, proceedings were
invalid because of procedural defects, the lack of due process, the
failure to permitte. present his .case and to,eiarnine the evidence
against hini, •a4 thelabsence. ctf basis for rescission
the apecial'inquiry 'cikeirr while permitting counsel to make his
statement as to the rescission *weeding for the record., rePsed to
Ciiiiiider; airy' atta k' on the validity of the proceeding. 'The special

c

inquiry officer pointed out that if it could be reopened, there would
come into play the statutory provision barring the rescission of an
adjustment of status after the passage of five years. Thus, even though

a, justifiable case for rescission were established by the Service upon
the reopened hearing, it would be prevented from rescinding the adjustment. The appellate trial attorney also contends that since the
Service is content to stand upon the rescission record, respondent can
obtain review by requesting the District Director to reconsider the
rescission proceeding or by obtaining judicial review. He contends
that neither the Board nor the special inquiry officer has jurisdiction
to review the validity of the rescission proceeding.
We do not believe that either we or the special inquiry officer have
the jurisdiction to consider the validity of the rescission proceeding
under the circumstances of this case. Under the regulations in effect
at the time of the rescission, the order in a rescission proceeding was
made by the District Director. (Appeal, if any, was to the Regional
45

Interim Decision #1687
Commissioner.) (22 F.R. 9801 (1957), 23 F.R. 9124 (1958).) No regulation ever made the decision of the District Director that of the
Board.
A reconsideration of the District Director's decision must be made
under present regulations. These regulations provide that a motion for
reopening or reconsideration of a rescission proceeding is to be decided ". . . by the officer who has the jurisdiction over the proceeding
or who made the decision." (8 CFR 103.5, 246.8, revised as of January
1, 1965.) There is no rescission proceeding pending over which we have
jurisdiction. The rescission decision was made by the District Director;
an administrative reconsideration of the rescission order can be made
only by him. Under the circumstances of this case, we are bound by
the order rescinding the adjustment of status (see Matta?. of DeG--,
8I. &N. Dec. 325).
After the adjustment of status was rescinded, respondent was not
a legally permanent resident. Upon his return to the United States
from Mexico, he was making an "entry." He was then required to
present a visa in order to obtain admission to the United States legally
for permanent residence. Since he was without a visa and since there
was no prejudicial error in the conduct of the deportation proceeding,
we find the charge is sustained.
Counsel's letter of December 28, 1966 and the Service reply of January 4, 1967 (served on counsel on the same date) have been considered. The evidence establishing that the respondent had no legal status
in the United States when he left for Mexico, and.that he did not have
a visa when he returned is chair unequivOcal and convincing.
' appeal be and the same is hereby
ORDER: It is ordered that the
dismissed.

46


Interim Decision #1508

MAT= or Orriz-Pntrro
• In Deportation. Proceedings
A-1966833
Decided by Board July 16, 1965

While the record fails to reveal any intent to circumvent the normal visa-issning process in the case of a native and citizen of Chile who entered the
United•States as a nonimmigrant visitor, prior to Lie departure from Chile
be resigned his employment as a police officer, within 10 days after arrival
in the United States he obtained a social security card, and thereafter he
accepted gainful employment at which time he refereed the unused portion
of his round trip ticket to his wife in
-

Chile

to be

addition.

redeemed; in

while respondent is statutorily eligible for adjustment of status pursuant to
section 245, Immigration and Nationality Act, as amended, he has no close
family ties or dependents in this country'■, his wife and 3 children are natives, citizens, and residents of Chile, and on the bails of the entire record
his case fails to measure up to the standard required for the favorable exercise of the Attorney General's discretion.
Caesars:
Order: Act or 1552—section 24(a) (1) (8 U.S.c. 32.01(a) (1)3—Excludable
212(i) (20), no valid immigrant visa.
Act of 1952 Section 241(a) (9) (8 U.S.C. 1251(a1(9)) Failed to
comply with nonimmigrant status.
—

Act of 1050

—

—

Section 211(a) (2) (9 V.S.C. 1251(a) (2)]

—

remained

longer.

This case presents an appeal from an order entered by the special
inquiry officer on May 17, 1965 denying the respondent's application
requesting that his immigrant status be adjusted to that of a permanent resident as provided in section 245 of the Inimigration and
Nationality Act but granting him permission to depart 'Voluntarily
from the United States, in lieu of deportation, and directing that
he be deported from the United States to Chile, the country designated by the respondent, on the charge set forth in the order to show
cause in the event he fails to depart when and as required.
The respondent, a 26-year-old 'married male, native and citizen
of Chile,-has had continuous residence in the United:States since his
admission at Miami, Florida vn or about September 19. 1964 as a
317

Interim Decision #1508
nonimmigrant visitor for pleasure, authobzed to remain in the
United States in such status until January 15, 1965. The respondent's initial application for adjustment of status to that of a permanent resident filed at the Miami office of the Service on December
2, 1964 was subsequently denied by the Service. The aforementioned
application was subscribed and sworn to • by the respondent on
December 16, 1964 and on the same date the respondent in an affidavit subscribed and sworn to before an officer of the Service deposed
that when applying for his immigrant visa in Chile he advised the
United States Consul that he would like to visit the United States
for six months. The respondent stated he resigned his position as a

police officer in Chile on August 1, 1964 and obtained his nonimmigrant visa On September 15, 1964; that he purchased a round-trip
ticket for his passage from Chile to the United States and return.
He asserted that he secured a Social Security card within ten days

after his arrival in the United States and has been gainfully employed in a, laundry in Miami, Florida since November 1, 1964 at
which time he returned the unused portion of his ticket to'his wife
in Chile to be redeemed.
Deportation proceedings were instituted against the respondent
on March 23, 1965 when the order to show cause was served upon
him. A hearing in deportation proceedings was held at Miami,
Florida on April 7, 1965 at which time the respondent through
counsel admitted the truth of the several factual allegations set forth
in the order to show cause and conceded deportability on the charges
stated therein. The respondent renewed his application for adjustment of status to that of a permanent resident under section 245 of
the Immigration and Nationality Act (p. 3). The respondent testified his wife and three children are natives, citizens and residents
of Chile (p. 4). Counsel during the deportation hearing advised
the special inquiry officer that he had mistakenly admitted the truth
of allegations 6 and 7 iri the order to show cause. Counsel and the
respondent admitted the truth of the remaining allegations in the
order to show cause and conceded that the respondent is subject to
deportation under the provisions of section 241(a) (2) of the Immigration and Nationality Act. The evidence of record clearly establishes that the respondent is subject to deportation under the
provisions of section 241(a) (2) of the Immigration and Nationality
Act, in that, he has remained in the United States for a longer
time than authorized.

The sole 'issue for our consideration is whether the respondent's
application for adjustment to that of a permanent resident under
section 245 of the Immigration and Nationality Act merits favorable
exercise of the Attorney General's discretion. This Board has con818

Interim Decision #1508
sistently held that the extraordinary discretionary relief provided. in
section 245 of the Act can only be granted in meritorious cases; that
the burden is always upon the alien to establish that his application
for such relief merits favorable consideration (8 C.FR 242.1'7 (d) 5 of.
Matter of G —, 9 L & N. Dec. 938). Section 245 of the Immigration
and Nationality Act provides that the status of en alien * * may
be adjusted by the Attorney General in his discretion and under
such regulations as he may prescribe * * 7. Hence, the grant of an
application for adjustment of status as provided in section '245 of
the Act is discretionary with the Attorney General. The facts detailing the respondent's_ travelling to New York, Now York, immediately after his arrival in the United States and his returnipg to
Miami, Florida,. where he secured gainful employment, as well as
the remaining facts in this ease, have been fully and adequately
covered. by the special inquiry officer and need. no further discussion
herein.
After an exhaustive study of this 'record, it is our considered
opinion that the respondent's explanation of what he meant when he
stated "tourist to stay" in answering Question 7 on his 245 application is credible and reasonable. In this connection, the respondent
testified that his application. was filled out by a 12-year-old boy
Who understood the English language. The respondent testified that
the answers to the questions set forth in his application for 'adjustment of status to that of a permanent resident were furnished by
him (Form I-486, Ex. 3), We find nothing in this record that in
any manner indicates that the respondent intended to circumvent
the normal immigration visa-issuing process when he applied for
and obtained big nonimmigrant visa at the office of the United States
Consul in Santiago, Chile. Counsel on appeal urged that the respondent's immigrant status be adjusted to that of a permanent
resident as provided in section 245 of the Immigration and Nationality Act inasmuch as he is eligible therefor and is a person of good
moral character. It appears that the respondent is eligible to receive an immigrant visa and is admissible to the United States for
permanent residence. Likewise, it appears that an immigrant visa
will be immediately available to the respondent if his application
for adjustment of status is approved. However, the applicable statute does not contemplate that all aliens who meet the required legal
standards will be granted adjustment of status to that of a, permanent resident Since the grant of an application for adjustment of status is a matter of discretion and of administrative grace, not mere
eligibility; discretion must be exercised by the Attorney General

even though statutory prerequisites have been met. Moreover, the
319

Interim. Decision #1508
respondent has no close family ties or dependents living in the
United States and as previously noted his wife and three children
are natives, citizens and residents of Chile. We find that there are
no outstanding equities in this ease:
After carefully considering the entire record, together with counsel's representations on appeal, the decision of the special inquiry
officer will be affirmed. The grant of the discretion provided in Section 245, supra, must be reviewed against all the evidence present
in this record and, when so viewed, we do not think that the special
inquiry officer's denial of the respOndent's application for adjustment
of status to that of a permanent resident was Unreasonable or unjustified. It is our considered_ opinion that this case does not meet

or measure up to the standards required for an approvEll of an application for adjustment of status to that of a permanent resident as
provided. in section 245, supra. Accordingly, the following order
will be entered.
ORDER: It is ordered that the appeal be dismissed.

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