IN THE MATTER OF A

Citizenship-Expatriation, section 352 (a) (1) of Immigration and Nationality Act-Exceptions, section 353 (5) (A) of Immigration and Nationality Act.

To obtain the benefit of the exemption in subsection (5) (A) of section 353 of the Immigration and Nationality Act so as to prevent loss of nationality by a naturalized citizen under section 352 (a) of the act it is not necessary for the naturalized person to register every six months at a Foreign Service office. The registration requirement is applicable to cases within subsection (5) (B) of section 353 where the naturalized person is prevented from returning to the United States by reason of the ill health of a parent, spouse, or child but not to cases such as the instant one where the claim to exemption is based upon the naturalized person's own ill health.

EXCLUDABLE:

Act of 1952-Section 212 (a) (20)-No immigrant visa.

BEFORE THE BOARD

Discussion: This case comes forward on appeal from the order of the special inquiry officer entered October 17, 1957, finding that the applicant lost citizenship under the provisions of section 352 (a) (1) of the Immigration and Nationality Act by residing for 3 years in her native country and that as an alien she is inadmissible on the ground stated above.

The record relates to a 59-year-old female, a native of Canada, who seeks admission as a United States citizen. She testified that she married a United States citizen on June 8, 1921, and while no evidence of the marriage nor of the nationality of her husband has been presented, the applicant has exhibited a letter from the American Consular Service, St. Stephen, New Brunswick, dated August 8, 1933, indicating that her application for registration as an American citizen executed on June 23, 1933, had been approved. It will be assumed for the purpose of this proceeding that satisfactory evidence has been submitted to establish that the applicant acquired citizenship through marriage on June 8, 1921.

The applicant testified that she lived in the United States from 1933 until she commenced to reside with her daughter in St. Stephen, New Brunswick, Canada, on or about May 10, 1953. Previous to going to St. Stephen, she had resided with another daughter in Michigan from September 14, 1952. Before she resided with her daughter in Michigan, she had maintained an apartment in Calais, Maine, and had given up this apartment some 8 months prior to going out to Michigan, but had maintained a room in Calais in which she stored her things and for which she paid $3.00 a month. She gave up this room in April 1957 because of a fire and moved her remaining possessions to her daughter's in St. Stephen. When the applicant returned from Michigan she merely stopped during the night in Calais and proceeded directly to the daughter in St. Stephen. The applicant has continued to reside in St. Stephen, N.B., Canada, until her application for admission as a citizen at the port of Calais, Maine, on October 14, 1957.

The applicant, having acquired United States citizenship through marriage, is regarded as a citizen through a derivative form of naturalization. The term "residence" means the place of general abode; the place of general abode of a person means his principal actual dwelling place in fact, without regard to intent. Residence is considered continuous for the purposes of section 352 of Title III where there is a continuity of stay but not necessarily an uninterrupted physical presence in a foreign state or states outside the United States (section 101 (a) (33), Immigration and Nationality Act).

From the testimony of the applicant it appears clear that her place of general abode or principal actual dwelling place in fact was at St. Stephen, N.B., Canada, with her daughter since May 1953. Nor do we think this conclusion is altered by the fact that the applicant paid $3.00 a month for a room in Calais, Maine, where she stored some personal possessions and which the evidence indicates she had not used as an apartment for some time prior to going to Canada.

There remains for consideration the question of whether the applicant comes within any of the exceptions to section 352 (a) such as provided in section 353, for it is to be remembered that under section 352 (b) the time during which a person has had residence abroad solely or principally for a reason or purpose within the scope of any provision of section 353 shall not be counted in computing quantum of residence in section 352 (a). During the course of the hearing the applicant testified that she was ill during a considerable period of her residence abroad as a result of a heart attack, and in connection with her appeal has indicated that she suffered a heart attack on May 25, 1955, and for about a year and a half was unable to look after herself and was of necessity forced to remain with her daughter in St. Stephen, N.B., Canada. The special inquiry officer has rejected the possible application of section 353 (5) to the applicant's case because she never registered with the American consul during that period and concludes that she is accordingly not protected by the exemption in question. With this conclusion we must differ.

Section 353 provides in pertinent part as follows:

SEC. 353. Section 352 (a) shall have no application to a national who — * * *

(5) has his residence abroad and is prevented from returning to the United States exclusively (A) by his own ill health; or (B) by the ill health of his parent, spouse, or child who cannot be brought to the United States, whose condition requires his personal care and attendance: Provided, That in such case the person having his residence abroad shall, at least every six months, register at the appropriate Foreign Service office and submit evidence satisfactory to the Secretary of State that his case continues to meet the requirements of this subparagraph [emphasis supplied]; or (C) by reason of the death of his parent, spouse, or child: Provided, That in the case of the death of such parent, spouse, or child the person having his residence abroad shall return to the United States within six months after the death of such relative.

Section 353 consists of 10 paragraphs of exceptions concerning which section 352 is not effective. Examination of section 353 (5) shows that it is broken down into 3 parts designated as subparagraph (A), (B), and (C), each separated by a semicolon. There is no proviso to subparagraph (A) of paragraph (5) of section 353, whereas subparagraphs (B) and (C) each contain provisos. It would, therefore, appear that the proviso, that the person having his residence abroad shall at least every six months register with the appropriate Foreign Service office and submit evidence satisfactory to the Secretary of State that his case continues to meet the requirements of that subparagraph, refers only to subparagraph (B). Similarly, there is a proviso to subparagraph (C). There is no such proviso and no requirement of registration in the case of a person who is residing abroad and is prevented from returning by reason of his own ill health as provided in subparagraph (A).

This conclusion is fortified by a reference to the comment of the Senate Committee on the Judiciary relating to the excepted class in respect to a naturalized citizen who is residing abroad because of ill health (Senate Report No. 1137, 82d Congress, 2d Session, page 48). Referring to section 353 (5) of the Immigration and Nationality Act, the report pointed out:

The next excepted class in the present law relates to a naturalized citizen who is residing abroad because of ill health. This class has been broadened by the bill to include a naturalized citizen who is residing abroad because of the ill health of a parent, spouse, or child who cannot be brought to the United States, and whose condition requires the continued care and attendance of the naturalized citizen. When the naturalized citizen claims an exemption from loss of nationality based on the ill health of someone other than himself, he must under the bill register at the appropriate Foreign Service office at least every 6 months and submit satisfactory evidence that he is still entitled to the exemption. [Emphasis supplied.]

It, therefore, appears that there is no restrictive proviso in the case of a person who is residing abroad and continues to do so because of his own ill health.

In the instant case, the applicant claims that she was incapacitated by a heart attack for a period of approximately a year and a half subsequent to May 1955. This period of illness occurred during the 3-year period the applicant resided in Canada after May 1953 and, if the illness is established, the period would not be counted in computing the quantum of evidence required for expatriation under section 352 (a) (1). The case will accordingly be remanded in order to afford the applicant an opportunity to produce satisfactory evidence of her illness and whether it was of such a nature as to prevent her return to the United States.

Order: It is ordered that the case be remanded for further proceedings in accordance with the foregoing paragraph.