IN THE MATTER OF A—-, 2 IN Dec. 799 (BIA 1947)

A-7734445.Board of Immigration Appeals Executive Office for Immigration Review U.S. Department of Justice
Decided by Central Office January 29, 1947. Decided by Board April 25, 1947. Decided by Central Office May 26, 1947. Decided by Board June 30, 1947. Ruling by Attorney General July 22, 1947.

Citizenship — Child born abroad — One citizen parent — Section 201 (i) of the Nationality Act of 1940, as amended — United States military service after child’s birth.

Citizenship is acquired under section 201 (i) of the Nationality Act of 1940, as amended, by a child born abroad prior to July 31, 1946, of but one citizen parent, even if the United States military service of the citizen parent commenced subsequent to the birth of the child, all the essential facts having occurred during the period specified by the statute.

EXCLUDED BY BOARD OF SPECIAL INQUIRY:

Act of 1924 — No immigration visa.

Executive Order No. 8766 — No passport.

BEFORE THE CENTRAL OFFICE

(January 29, 1947)

BEFORE THE CENTRAL OFFICE

(January 29, 1947)

Discussion: This record relates to a 4-year-old male, native of Canada, who was lawfully admitted as an alien on April 21, 1943, but was returned to his parental home in Canada about Christmas of that year. His mother continued to have his resident alien’s border-crossing card revalidated until August 24, 1944. The applicant’s mother testified that the applicant was taken back to Canada to live about Christmas 1944, and a form executed at the port of entry shows that the child abandoned domicile in the United States approximately Christmas 1944. The applicant last applied for admission for permanent residence as a citizen of the United States at Niagara Falls, N.Y., on November 15, 1946. His mother, who accompanied him, testified before a Board of Special Inquiry which was concluded at hearings on December 11, 1946. The Board voted 2 to 1 to exclude as an alien not in possession of a valid immigration visa and passport. No appeal was made on behalf of the alien. The record was submitted for review under OI 136.1 I.

The applicant was born on September 7, 1942, in Canada. His mother is a native and citizen of Canada. His father was a native-born

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citizen of the United States who resided in this country continuously from birth, with the exception of a few months’ temporary residence in Canada. The applicant’s father was inducted into the Army of the United States on November 16, 1942, when the applicant was 2 months and 9 days old and when the father was 20 years and 7 months of age.

The case turns on the construction to be given Public Law 571 which is section 201 (i) of the Nationality Act of 1940, as amended, and which became effective on July 31, 1946. Its pertinent part provides:

SEC. 201. The following shall be nationals and citizens of the United States at birth:
(i) A person born outside the United States and its outlying possessions of parents one of whom is a citizen of the United States who has served or shall serve honorably in the armed forces of the United States after December 7, 1941, and before the date of the termination of hostilities in the present war as proclaimed by the President or determined by a joint resolution by the Congress and who, prior to the birth of such person, has had ten years’ residence in the United States or one of its outlying possessions, at least five of which were after attaining the age of twelve years, the other being an alien * * *

Two questions are presented:

1. Is Public Law 571 retrospective so as to confer citizenship on a child born subsequent to December 7, 1941, and before the termination of hostilities; and
2. If retrospective, does it confer citizenship on a child born between December 7, 1941, and the termination of hostilities (December 31, 1946) but before the parent served honorably in the armed forces of the United States where such service, however, was within the specified period?

As to the first question the Director of Research and Educational Services of this Service recently requested the opinion of the General Counsel on the issue:

“Does section 201 (i) of the Nationality Act of 1940, as amended, confer United States citizenship upon persons born after January 12, 1941, and before July 31, 1946?”

The Acting Commissioner approved the conclusion that section 201 (i) conferred United States citizenship upon any person born after December 7, 1941 (the date after which honorable service in the armed forces was required), and before July 31, 1946 (the date of the amendatory act), if the citizen parent at the time of the child’s foreign birth possessed the qualifications set forth in section 201 (i) (56213/777 A, Nov. 25, 1946).

The matter was referred to the Department of State for concurrence and in the event that the Department should not concur in the interpretation, it was recommended that the question be presented to the Attorney General to obtain a final administrative ruling. The matter

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is settled insofar as the immediate case is concerned by the opinion approved by the Acting Commissioner, since the honorable service in the armed forces of the United States on the part of the citizen father occurred after December 7, 1941, and before December 31, 1946.

As to the second question mentioned above, the factual situation was not discussed where a child might have been born after December 7, 1941, but before December 31, 1946 (the date when hostilities ceased and after which honorable service in the armed forces did not confer the benefits of the Act), and before the parent served honorably in the armed forces of the United States. However, the opinion approved above includes the following statements:

It is further my opinion that if that intention of the Congress is to be given effect, this statute must be held to have retrospective as well as prospective application and that it is declaratory of the status at birth of such children whenever they were born. For it seems clear, both from consideration of the amendment and other provisions of the section of which it is a part, that the citizenship attaches at birth if at all. However, the statute clearly refers only to a child who is born of parents one of whom is a citizen of the United States who has served or shall serve honorably in the armed forces of the United States after December 7, 1941, and before the date of the termination of hostilities in the present war as proclaimed by the President or determined by a joint resolution by the Congress. This language must mean that these qualifications on the part of the parent are to be present at the time of the birth of the child. Otherwise, the parent is not such a parent as is described by the statute. I therefore read the statute to mean that, at the time of the birth of the child, one of his parents must be not only a citizen but also a citizen who at that time is serving or previously has served honorably in the armed forces at some time after December 7, 1941, and before the date of termination of hostilities. * * *

The conclusion approved includes provision that the “citizen parent at the time of the child’s foreign birth possessed the qualifications set forth in section 201 (i).” It is, therefore, concluded that the applicant does not have a valid claim to citizen ship under section 201 (i) of the Nationality Act of 1940, as amended. His alienage is otherwise conceded.

Order: It is ordered that the finding of the Board of Special Inquiry that the applicant is an alien be affirmed.

BEFORE THE BOARD

(April 25, 1947)

Discussion: The applicant was born in Canada September 7, 1942. His mother is a citizen of Canada, and his father, now dead, was a citizen of the United States. The mother claimed that the applicant was a citizen of the United States. Two members of a Board of Special Inquiry voted that he was not a citizen of the United States and excluded him on the grounds stated above. The third member

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was of the opinion that his claim to citizenship was valid. The case comes here under 8 C.F.R. 90.3 (a) (8).

The mother was admitted to the United States for permanent residence in 1943. The child was also admitted in 1943, but he abandoned his residence in this country, apparently in December 1944. The mother wishes to take the child to the United States for permanent residence. He does not possess an immigration visa or a passport.

The applicant’s claim to citizenship rests on the United States nationality of his father and on the father’s service in the armed forces during World War II. The father was born in the United States on April 10, 1922, and resided in this country continuously except for a 2-month period during which he lived in Canada, apparently in 1942. He was married in Canada early in that year. At the time the child was born, the father was 20 years and 5 months of age. The father was inducted into the United States Army in November 1942, when he was 20 years and 7 months old. He was discharged in July 1943, but he reenlisted in the armed forces and he was killed in action in a plane crash in February 1944.

The applicant’s claim to citizenship rests on section 201 (i) of the Nationality Act of 1940, as amended. This subsection was added by Public Law 571, approved July 31, 1946. As originally enacted, section 201 of the Nationality Act provided “The following shall be nationals and citizens of the United States at birth * * *.” There followed several categories. Subsection (i) is now added to these categories. It reads as follows:

(i) A person born outside the United States and its outlying possessions of parents one of whom is a citizen of the United States who has served or shall serve honorably in the armed forces of the United States after December 7, 1941, and before the date of the termination of hostilities in the present war as proclaimed by the President or determined by a joint resolution by the Congress and who, prior to the birth of such person, has had ten years’ residence in the United States or one of its outlying possessions, at least five of which were after attaining the age of twelve years, the other being an alien * * *”

As the Central Office points out, the case before us presents two questions:

(1) Is subsection (i) retrospective; that is, does it confer citizenship on a child born prior to July 31, 1946, the date of approval of Public Law 571?
(2) If it is retrospective, does it confer citizenship where the citizen parent’s military service took place subsequent to the birth of the child?

We agree with the Central Office that the first question must be answered in the affirmative and we think the entire statutory history, which is set forth below, supports this view. The Central Office is of the opinion that the second question must be answered in the negative. With this we do not agree.

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We turn to the legislative history in order to determine the intent of Congress in enacting the legislation. This history shows that subsection (i) was proposed and passed because of the harsh operation of section 201 (g). Section 201 (g) appears in the Nationality Act of 1940 as originally enacted. It confers citizenship on a person born outside of the United States of parents one of whom is a citizen of the United States and the other an alien. It requires, however, that the citizen parent, prior to the birth of the child, has had 10 years’ residence in the United States, at least 5 of which were after attaining the age of 16 years. Obviously, therefore, it was impossible to fulfill this last condition where the child was born when the citizen parent was less than 21 years old. In that type of case, the citizen parent had not resided in the United States for 5 years after attaining the age of 16 years. The Board of Immigration Appeals decided two cases of this kind, holding that the child did not acquire citizenship, and the Attorney General approved its rulings (Matter of L—- G—-, 56158/377, an Matter of S—- F—-, 56158/818, decision of the Attorney General, Sept. 1, 1944). In each case the citizen mother had resided in the United States virtually her entire life, and the child was born while the mother was on a temporary visit abroad and before she had reached the age of 21.

As a direct result of these cases it was decided to recommend that section 201 (g) be amended. On November 20, 1944, the Attorney General wrote letters to the Speaker of the House and Senator Russell, Chairman of the Committee on Immigration. In these letters he stated:

I invite your attention to a provision of the Nationality Code which has resulted in considerable hardship to citizens and their families, and which may be of considerable importance to members of the armed forces of the United States serving abroad.

He then pointed out that under the act of May 24, 1934, which was in force until the Nationality Act of 1940 became effective, a child born abroad of parents one of whom was a citizen and the other an alien acquired United States citizenship, if the citizen parent had resided in the United States prior to the birth of the child, and if the child came to the United States and resided here for 5 years immediately prior to his eighteenth birthday. He then referred to section 201 (g) of the Nationality Act of 1940 and continued:

The rigid conditions added by the Nationality Act of 1940 have prevented the children of certain members of the armed forces of the United States from acquiring citizenship at birth. Many members of the armed forces have married abroad and have had children prior to attaining the age of 21. Under the limitations of the Nationality Act of 1940, these children unfortunately are not citizens of the United States if their mothers are aliens, since it is impossible for the citizen-father in such an instance to have resided five years in the United States after attaining the age of sixteen, as required by the act. The result is a severe hardship

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to the families of many citizens of the United States who are rendering service in the armed forces. The problem involves natural-born citizens as well as naturalized citizens. Doubtless the contingency which I have summarized was not in contemplation at the time of the enactment of the Nationality Act of 1940.

To meet this problem the Attorney General recommended the enactment of legislation and he attached a proposed bill.[1] On November 21, 1944, Representative Dickstein, Chairman of the House Committee on Immigration and Naturalization, introduced a bill exactly in the language proposed by the Attorney General (78th Cong., 2d sess., H.R. 5513). This bill sought to amend section 201 (g) simply by cutting the residence requirement of the citizen parent to 5 years subsequent to his thirteenth birthday. The committee reported the bill favorably (78th Cong., 2d sess., H. Rept. No. 1931). It made only two changes in the bill. The first of these is immaterial. The second changed the word “thirteenth” to “twelfth.” The committee took this action because enlistment in the United States armed forces could take place at the age of seventeen and the Committee wished to take care of the few cases which might arise in the group of 17-year-old enlistees.

The committee stated in its report:

The purpose of the bill, primarily, is to preserve the citizenship of infant children born abroad to our servicemen who are under 21 years of age at the time of the birth of the child.

The committee pointed out that under section 201 (g), “no citizen-parent, where the other parent is an alien, can transmit his United States citizenship to his child if the parent is under 21 years of age at the time of the birth of the child * * *.” It continued:

In the present war we have drafted thousands of boys 18 years of age, and it is only natural that in their foreign service a certain proportion will marry girls who are citizens of other countries and have children born to them. Most certainly these citizens of ours who are fighting for their country, willing to give their lives for their country, should have the privilege of their citizenship descending upon their children.

H.R. 5513 passed the House on December 12, 1944 (90th Cong. Rec. 9429). In the debate on the floor of the House, Chairman Dickstein made statements similar to those which appear in the committee report. He explained that the bill was intended primarily for the benefit of servicemen, who would suffer from the operation of the existing law if the bill was not passed.[2]

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The bill died, however, with the end of the Seventy-eighth Congress. On January 3, 1945, Chairman Dickstein introduced H.R. 388, which was identical with H.R. 5513 as it had passed the House. The House committee reported the bill favorably (H.R. 256, 79th Cong., 1st sess.). The report was virtually identical with Report No. 1931 of the previous session, discussed above. It set forth the Attorney General’s letter of November 20, 1944.

This bill was explained on the floor of the House by Mr. Dickstein and by Representative Mason. Both stated that the bill was designed to correct the harsh operation of the Nationality Act of 1940; that is, section 201 (g), where the child was born before the citizen parent had reached the age of 21.[3]
Representative Rees of Kansas offered an amendment. Apparently this amendment was proposed in conformance with a suggestion by the State Department that legislation be confined to children of members of the armed forces.[4] The bill was passed with this amendment. Through faulty draftsmanship, however, the amendment operated to exclude children of members of the armed forces from the benefits of the legislation rather than to confine the law to such children.[5]

The Attorney General pointed this out in a letter to Senator Russell dated July 30, 1945, and he set forth a new bill which he thought would carry out the intent of the House.[6] The Senate committee redrafted H.R. 388, but it did not follow the language proposed by the Attorney General (79th Cong., 2d sess., S. Rept. 989). Instead of amending section 201 (g), the Senate committee proposed a new subsection (i), and the bill which it drafted was passed without change by both Houses.

In its report the committee said:

The purpose of the proposed legislation is to amend the Nationality Act of 1940 to provide that our citizens who have served in World War II may transmit citizenship to their children born abroad to their alien wives regardless of the fact that the citizen parent has not had the present required residence in the United States, namely, of 10 years, 5 of which must be subsequent to the citizen parent’s sixteenth birthday.

When the bill came before the floor of the Senate for debate, Senator Ball explained it in language similar to that of the committee report. The bill was then passed by the Senate without further discussion.[7] On July 22, 1946, the House agreed to the Senate amendment.[8]

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We think the intent of Congress is clear from the foregoing review of the legislative history. Subsection (i) was remedial legislation and it should be construed liberally for the class for whose benefit it was intended.[9] We agree with the conclusion reached in a memorandum of November 21, 1946, from the General Counsel to the Commissioner of Immigration, approved by the Acting Commissioner on November 25, 1946, to the effect that section 201 (i) is retrospective; that is, that it confers citizenship on children born prior to the date of approval of the subsection, July 31, 1946. The references in the committee reports and on the floor of both Houses to children born prior to the time when the legislation was being considered show clearly that it was the purpose of Congress to confer citizenship on such children as well as on those who might be born subsequent to July 31, 1946.

We think also that the language of the statute, in the light of the legislative history, should be construed to apply to children born prior to the date when the citizen parent commenced military service, as well as those born subsequently. The General Counsel in the memorandum referred to above states:

* * * The citizenship attaches at birth, if at all * * * The statute clearly refers only to a child who is born of parents one of whom is a citizen of the United States who has served or shall serve honorably in the armed forces of the United States after December 7, 1941 * * * This language must mean that these qualifications on the part of the parent are to be present at the time of the birth of the child. Otherwise, the parent is not such a parent as is described by the statute. I therefore read the statute to mean that, at the time of the birth of the child, one of his parents must be not only a citizen, but also a citizen who at that time is serving or previously has served honorably in the armed forces at some time after December 7, 1941, and before the date of termination of hostilities. [Italics in original.]

We think that this conclusion gives a wholly unwarranted effect to the use of the word “is.” It was the intent of Congress to benefit young citizens who served in the armed forces during World War II by enabling them to transmit citizenship. Congress attached two conditions:

(1) The parent must be a citizen who served in the armed forces during the war after December 7, 1941, and
(2) The parent must have resided in the United States prior to the birth of the child, for a specified period.

We do not think that Congress was interested in whether the military service had begun prior to the birth of the child. It is true that the committee reports and the statements on the floor, as set forth above, refer to children born abroad after the father had gone overseas on

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military service. We think, however, that these references were made because the overwhelming majority of cases to which the law would apply fell into that category. We do not think that these statements should be taken to mean that Congress proposed to restrict the benefis of the legislation to this category.[10] The legislative history shows quite plainly that Congress was intent on remedying the harsh situations which resulted from section 201 (g). Under the act of May 24, 1934, which was in operation until the Nationality act of 1940 came into effect, a child born abroad of a citizen parent who had not reached the age of 21 acquired citizenship. Section 201 (g) prevented such a child from acquiring citizenship at birth, and subsection (i) was designed to remedy this situation, where the citizen parent suffered the dangers of military service during the war. We think it is unrealistic to construe the statute to require the specified conditions to occur in any particular order. There is no indication that Congress had before it the case of a child born before his father commenced his military service. Certainly, if Congress had considered such a case, and had desired to exclude such a child from the benefits of the law, it could have done so quite simply by inserting the phrase “prior to the birth of such person” after the clause “of parents one of whom is a citizen of the United States who, * * *.” The other condition imposed, namely, the period of residence, is specifically required to have taken place prior to the birth of the child.

As the memorandum of the General Counsel, referred to above, points out, Congress on other occasions has conferred citizenship on persons born abroad long after the date of birth. Section 205 of the Nationality Act of 1940 is a case where United States citizenship may depend on whether or not an illegitimate child is legitimated, in other words, on whether or not an individual performs an act which may take place many years subsequent to the birth of the child. Under the interpretation of subsection (i) at which we have arrived, the law would relate back only to children born after January 12, 1941, because subsection (i) was designed to remedy the situation resulting from section 201 (g), which came into operation on January 13, 1941.

The General Counsel states in his memorandum:

* * * Having ascertained what seems to have been the intention of the legislature in enacting this bill, it behooves us to give effect to that intention, not to defeat it by forced or overstrict construction, or to thwart the beneficent provisions of this remedial statute by technicalities not within the minds of the legislature.

With this we agree. We think, however, that it would be wholly inconsistent with this principle to restrict the benefits of the legislation

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to children born subsequent to military service of the citizen parent, on the ground that the statute employs the word “is” in describing the conditions which must be met by the citizen parent. We think that this reasoning operates precisely to defeat the legislative intention “by forced or overstrict construction” and that it operates “to thwart the beneficent provisions of this remedial statute by technicalities not within the minds of the legislature.”

We conclude that under section 201 (i) of the Nationality Act of 1940, as amended, the applicant is now a citizen of the United States.

Findings of Fact: Upon the basis of all the evidence presented, it is found:

(1) That the applicant was born in Canada in September 1942 of a Canadian citizen mother and a United States citizen father;
(2) That the father, prior to the birth of the applicant, had resided in the United States continuously since his birth in April 1922;
(3) That the father served honorably in the United States military forces beginning in November 1942;
(4) That the applicant desires admission for permanent residence but does not possess an immigration visa or a passport.

Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:

That under section 201 (i) of the Nationality Act of 1940, as amended, the applicant is now a citizen of the United States and the immigration laws relating to aliens do not apply to him.

Other Factors: There are no other factors.

Order: It is ordered that the ruling of a majority of the Board of Special Inquiry be reversed and that the applicant be admitted as a citizen of the United States.

BEFORE THE CENTRAL OFFICE

(May 26, 1947)

Discussion: On January 29, 1947, the Service found that the applicant had not derived citizenship under the provisions of section 201 (i) of the Nationality Act of 1940, as amended (Public Law 571 of July 31, 1946), and affirmed the finding of the Board of Special Inquiry that he was an alien. The Board of Immigration Appeals has found him to be a citizen.

The pertinent portion of section 201 reads as follows:

SEC. 201. The following shall be nationals and citizens of the United States at birth:
(i) A person born outside the United States and its outlying possessions of parents one of whom is a citizen of the United States who has served or shall serve honorably in the Armed Forces of the United States after December 7, 1941, and before the date of the termination of hostilities in the present war as

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proclaimed by the President or determined by a joint resolution by the Congress and who, prior to the birth of such person, has had ten years’ residence in the United States or one of its outlying possessions, at least five of which were after attaining the age of twelve years, the other being an alien * * *.

Two issues were presented:

(1) Is subsection (i) retrospective; that is, does it confer citizenship on a child born prior to July 31, 1946, the date of approval of Public Law 571?
(2) If it is retrospective, does it confer citizenship where the citizen parent’s military service took place subsequent to the birth of the child?

Since these are purely questions of law, the facts in the case which are fully set forth in the orders of this Service and the Board of Immigration Appeals dated January 29, 1947, and April 25, 1947, respectively, will not be repeated.

Both the Service and the Board of Immigration Appeals were of the opinion that the first question must be answered in the affirmative; that is, the subsection confers citizenship on a child born prior to July 31, 1946, the date of the approval of Public Law 571. However, the Service took the position that section 201 (i) does not confer citizenship where the citizen parent’s military service took place subsequent to the birth of the child; while the Board’s opinion is to the contrary.

There is considerable merit to the contention of the Board of Immigration Appeals that because the overwhelming majority of the cases would consist of those in which the citizen father commenced his military service prior to the birth of the child, particularly as there was no indication that Congress had before it the case of a child born before his father commenced such service, the references made in the committee reports and statements on the floor of Congress should not be taken to mean that Congress proposed to restrict the benefits of the legislation to the first category. However, in view of the express wording of the section and its legislative history, which will be outlined in some detail, there is doubt as to the correctness of the Board’s interpretation.

The committee report dated February 22, 1946, which accompanied the bill stated in part:

Under existing law, in order to have citizenship vested at the time of birth in a child born abroad, one of whose parents is a citizen and the other an alien, it is necessary that the citizen parent must have resided in the United States for a period of 10 years, 5 of which are required to be after his sixteenth birthday. Therefore, citizenship cannot descend to a child unless the citizen parent is at least 21 years of age before he begins to reside outside the United States.
The Department of State and the Immigration and Naturalization Service hold that a citizen of the United States who, while residing in this country, enlists or is inducted into the armed forces of the United States and as a member thereof is ordered to serve in a foreign country in pursuit of his military duties is considered

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as residing in this country during such tour of duty abroad within the meaning of section 201 (g) of the Nationality Act of 1940.
This holding takes care of the foreign-born child of a citizen parent who becomes 21 years of age before the birth of the child. In other words, the citizen parent may leave the United States prior to his twenty-first birthday in pursuance of his duties in the armed forces of the United States, and as he is considered, for the purposes of section 201 (g), as continuing to reside in the United States, a child born to him after his twenty-first birthday will be a citizen at birth. However, this interpretation does not take care of the child of a citizen parent who leaves the United States while in the armed forces prior to his 21st birthday and whose child is born prior to the time the citizen parent becomes 21 years of age. This is so because the statute requires that in order to pass citizenship on to the child at birth the parent must have resided in the United States at least 5 years subsequent to the citizen parent’s sixteenth birthday.
When the House considered and passed the bill, it intended to amend the law solely for the purpose of benefiting members of our armed forces. Through error, the bill, as it passed the House, granted relief to all persons except service people. The committee wishes to correct this error. It is believed that in the interest of better drafting, the intended legislation, which is but temporary in nature, should be carried as a separate provision of law so that its provisions may not be confused with permanent legislation. This can be accomplished by striking out all after the enacting clause and inserting the new provisions quoted hereinbove. (S. Rep. No. 989, 79th Cong., 2d sess.) [Italics supplied.]

On March 5, 1946, in explaining the measure, Senator Ball informed the Senate:

Mr. PRESIDENT. This is a bill to confer citizenship on the children of American soldiers under the age of 21 who have married alien wives on overseas service.
Under existing law, in order for the children of such servicemen to be citizens a soldier must be more than 21 years of age, because the law requires that he must have resided continuously in the United States for 5 years after his 16 (sic) birthday. The State Department has construed residence in the United States to include service in the armed forces, even though it may be abroad. But that does not take care of the boys under the age of 21 who may have married and may have children before they reach the age of 21. All the bill does is to take care of such a situation, and make such children citizens of the United States (Congressional Record, Mar. 5, 1946, p. 1955). [Italics supplied.]

On March 25, 1946, Congressman Lesinski, Chairman of the House Committee on Immigration and Naturalization, was called upon to explain the bill and the following discussion took place:

Mr. LESINSKI. Mr. Speaker, this is to make sure that the children born abroad of our soldiers are born into United States citizenship. In other words, one parent is a citizen and the other is an alien. Citizenship does not descend to the child by birth unless the citizen parent has resided for a period of 10 years in the United States, 5 of which must be after its sixteenth birthday.
Inasmuch as we enlisted youngsters at 17 and drafted them at 18, many of our boys have married foreign girls and had babies born to them before the twenty-first birthday of the citizen father.
All this is to provide that as far as our service people are concerned, they merely must have 5 years of their 10 years’ residence in the United States subsequent to the twelfth birthday instead of the sixteenth birthday. In other words, a child born in a foreign land, although of an American parent, must live in America

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at least 10 years, 5 of which must be after the age of 16. They were drafted at 18 and they never had time to live that 5 years after they were 16. So it is simply releasing that one particular item.
Mr. MARTIN of Massachusetts. Their service in the American Army prevented them from complying with the provisions of the law?
Mr. LESINSKI. That is correct. (Congressional Record No. 53, Mar. 26, 1947, p. A1734.) [Italics supplied.]

In a letter dated July 24, 1946, addressed to the Bureau of the Budget by the Attorney General in which he recommended approval of the enrolled bill, which subsequently became section 201 (i) of the Nationality Act of 1940, the Attorney General pointed out:

The rigid conditions added by the Nationality Act of 1940 have prevented children of some members of the armed forces of the United States from acquiring citizenship at birth. Many members of the armed forces have married abroad and have had children prior to attaining the age of 21. Under the limitations of section 201 (g) of the Nationality Act, these children are not citizens of the United States if their mothers are aliens, since it is impossible for the citizen-father in such a situation to have resided 5 years in the United States after attaining the age of 16, as required by the act. The result is a severe hardship to the families of many citizens of the United States who have or are rendering service in the armed forces. The problem involves natural-born citizens as well as naturalized citizens. [Italics supplied.]

It seems clear from the foregoing that the purpose of the legislation was to confer citizenship only on the children of citizen members of our armed forces who because of the war were serving abroad and who in may cases should reasonably be expected to have foreign-born children before reaching the age of 21. Conversely, it is reasonable to assume that where a child was born prior to its citizen parent’s entry into the armed forces the mere fact of the service of the parent thereafter since it was not the proximate cause of the child being born abroad
should not serve to invest him with citizenship under the provisions of section 201 (i) of the Nationality Act of 1940, as amended.

The interpretation to be given section 201 (i) of the Nationality Act of 1940, as amended, was considered by the General Counsel of this Service on November 21, 1946, and his conclusions were approved by the Acting Commissioner. His construction of the section, which is the basis for the Service’s holding that the applicant is an alien, was called to the attention of the Department of State for a statement concerning their interpretation of the statute. The reply of the legal adviser of that Department dated January 28, 1947, shows that he agreed with the view expressed by the General Counsel that section 201 (i) was retrospective in effect; however, he did not clearly indicate the position of the Department of State with regard to the question involved in this appeal.

File No. 56213/777 which contains the legislative history of the act and file No. 56213/777 — A which contains the opinion of the General

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Counsel and the letter of the Department of State referred to are attached for ready reference (not here attached).

Since the Board’s decision is contrary to the decision of the Commissioner and as a definitive opinion should be obtained to guide the agencies concerned with the enforcement of this section of law, the matter should be certified to the Attorney General for final decision, as provided by 8 C.F.R. 90.3 (b).

Order: It is ordered that pursuant to 8 C.F.R., 90.3 (b) the case be returned to the Board of Immigration Appeals for certification to the Attorney General for final decision.

BEFORE THE BOARD

(June 30, 1947)

Discussion: This case involves an interpretation of section 201 (i) of the Nationality Act of 1940, as amended. Subsection (i) was added to the statute by Public Law 571, approved July 31, 1946. It reads as follows:

SEC. 201. The following shall be nationals and citizens of the United States at birth:

* * * * * * *

(i) A person born outside the United States and its outlying possessions of parents one of whom is a citizen of the United States who has served or shall serve honorably in the armed forces of the United States after December 7, 1941, and before the date of the termination of hostilities in the present war as proclaimed by the President or determined by a joint resolution by the Congress and who, prior to the birth of such person, has had ten years’ residence in the United States or one of its outlying possessions, at least five of which were after attaining the age of twelve years, the other being an alien * * *

The applicant was born in Canada in September 1942. His mother was a citizen of Canada. His father was a native-born citizen of the United States who had resided in this country until shortly prior to the birth of the child. When the child was born the father was 20 years and 5 months old. Two months later he was inducted into the United States Army. Later he served overseas, and he was killed in a plane crash in 1944.

This Board agrees with the Service that section 201 (i) is retrospective; that, is, it confers citizenship on children born prior to July 31, 1946.[1] The issue between this Board and the Service is whether section 201 (i) confers citizenship where the citizen parent’s military service commenced subsequent to the birth of the child. On April 25, 1947, we decided this question in the affirmative.

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Briefly, we reasoned as follows: The statutory history of Public Law 571 shows that Congress wished to remedy the harsh operation of section 201 (g), which appears in the Nationality Act of 1940 as originally enacted. Under the act of May 24, 1934, which was in force until the Nationality Act became effective, a child born abroad with one citizen parent, acquired United States citizenship if the parent had previously resided in this country. However, under section 201 (g) of the Nationality Act, the child does not acquire citizenship if at the time of its birth the citizen parent is less than 21 years old. The legislative history of Public Law 571 shows that it was the intention of Congress to correct the harsh results of section 201 (g) where the citizen parent incurred the trials and dangers of military service in the United States armed forces during World War II. The Committee Reports and the explanation of the bill by its sponsors on the floor of Congress refer to children born abroad after the fathers had gone overseas on military service. But the over whelming majority of cases to which the law would apply fell into this group, and the references should not be taken to mean that Congress intended to confine the benefits of the law to this category. And this is especially true in view of the fact that the attention of Congress was not called to the case of a child born prior to the father’s induction into military service.

In our opinion, the plain language of the statute covers children born prior to the inception of military service by the parent. Subsection (i) speaks of a parent who is a United States citizen “who has served or shall serve” in the armed forces. The words “or shall serve” refer, we think, to cases where the military service began after the child was born. The words “who has served”, in themselves, are wholly sufficient to encompass cases where the military service began prior to the birth of the child.[2]

We think that this plain language should not be restricted on the ground that the legislative history contains reference to the situation in which Congress was primarily interested. If the interpretation of the language is so limited, it means that the section does not confer citizenship (1) where the birth of the child occurred prior to the parent’s induction; (2) where the birth occurred subsequent to the father’s induction, but prior to his overseas service; and (3) where the child was born subsequent to the father’s induction, but the father’s military service took place solely within the United States. We may point out, here, that citizenship would be acquired, in any of the above

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cases, if the parent was over 21 at the time the child was born, and thus was in a position to meet the residence requirements of section 201 (g). We think it is unreasonable to suppose that Congress modified section 201 (g) solely for the benefit of children born after the citizen parent had gone overseas on military service, but denied the benefits of the law in the three situations outlined above.

There are other instances where the broad language of a statute is applied even though the legislative history shows that the attention of Congress was primarily focused on a narrower situation. Two examples are section 401 (j) of the Nationality Act of 1940, as amended, and Public Law 271, approved December 28, 1945, known as the War Brides Act.[3]

As we emphasized in our previous decision, section 201 (i) was remedial legislation, and it should be liberally construed. We do not think that Congress intended to deprive a child of the benefits of the statute simply because he was born 2 months prior to the commencement of his citizen father’s military service, rather than 2 months subsequent thereto, where all the essential facts occurred during the period specified by the statute. We see no basis for holding that the statutory conditions are required to occur in a particular chronological order.

Accordingly, we adhere to our decision that the applicant is a citizen of the United States by birth under section 201 (i) of the Nationality Act of 1940, as amended.

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Order: It is ordered that no change be made in the decision of this Board dated April 25, 1947.

As the order of the Board is contrary to the recommendation of the Commissioner, in accordance with section 90.3, title 8, Code of Federal Regulations, the Board refers the case to the Attorney General for review of its decision.

BEFORE THE ATTORNEY GENERAL

(July 22, 1947)

The findings of fact, conclusions of law, and order of the Board of Immigration Appeals dated June 30, 1947, are hereby approved and adopted.

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