of Spanish nationality under the provisions of section 3, article 17 of the Civil Laws.

Section 4 of article 17 of the Civil Laws of 1889 provides for the acquisition of Spanish citizenship by aliens who have acquired a denizenship (vecindad) in any town (pueblo) of the monarchy (law of October 2, 1877, 12 to 16). However, section 4 of article 17 is shown. in House Document No. 326, 59th Congress, Second Session, page 510, as reading as follows: "The following are Spaniards. (4) Those who, without them, may have gained a residence in any place in the monarchy." The case of Tristani v. Clark (Declaratory Judgment No. 4780, District Court of the United States for Puerto Rico, April 30, 1947, Central Office File A-6438573), contains a history of the Spanish law relating to the acquisition of Spanish nationality by persons born or residing in Puerto Rico. In the decision filed by the court in that case, the court stated that the only law dealing with the manner of acquiring denizenship until 1916 was the law of March 8, 1716. That law provided that the requirements which should be met by aliens to acquire vecindad (denizenship) was as follows:

There should be considered as a denizen (vecino) in the first place any foreigner who obtains the privileges of a native (naturaleza); he who was born in these kingdoms; he who becomes a convert to our Holy Catholic Faith; he who, living on his own resources, establishes his domicile; he who applied for and is granted denizenship (vecindad) in any town; he who marries a woman born in these kingdoms and has his domicile herein; and, if the wife is a foreigner that marries a native, she thereby acquires the same jurisdiction and domicile as her husband; he who settles and buys and acquires real estate and holdings; he who, having a profession, comes to stay and engage in that profession; and also in the same way he who settles and engages in mechanical employment or keeps a store in which to sell at retail; he who has functions municipal, honorary or of any kind that may be held by natives (naturales); he who has the enjoyment of pastures and advantages belonging to the denizens; he who lives ten years as a householder in these kingdoms; and likewise in all other cases where in accordance with the written law, the royal orders and laws, the foreigner acquires the privileges, of a native (naturaleza) *** and all those who have any one of the features here expressed must be declared as included.

The German Law of June 1, 1870, sections 5, 21, which was extended to the rest of Germany by the German Constitutional Law of April 22, 1871, contained the following provisions of law which may be pertinent in determining the case at bar; namely, section 5 which provided that "Marriage with a North German confers the citizenship of the husband on the wife" and section 21 which provided "North Germans who leave the territory of the Confederation and reside abroad ten years uninterruptedly lose their citizenship thereby ***. The period is interrupted by registration in the register of a consulate of the Confederation ***. Loss of citizenship incurred according to this provision extends also to the wife and to

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the minor children who are under the paternal authority, provided they are with the husband or father" (House of Representatives Document No. 326, 59th Cong., 2d sess., p. 328, 330).

It might be argued that petitioner's father, being a German national at the time of his marriage to petitioner's mother in 1888 bestowed German nationality upon her in accordance with section 5 of the German law mentioned above and that both parents lost their German nationality upon the completion of 10 years' residence in Puerto Rico by petitioner's father in 1893 in accordance with the provisions of section 21 of the same law. Thereafter he acquired Spanish nationality pursuant to the provisions of section 4 of article 17 of the Spanish Civil Laws of 1889 by his having acquired denizenship in Puerto Rico, the mother following his nationality pursuant to article 22 of the same Spanish Civil Law. Therefore, at birth petitioner acquired Spanish nationality only, pursuant to section 2 of article 17 of the same Spanish law by being the child of a Spanish father or Spanish mother. In support of such contention are the facts that petitioner's father established domicile in Puerto Rico and lived on his own resources there, that he married a woman born in the kingdom and had his domicile in Puerto Rico, that he may have kept a store in which to sell at retail and that he lived 10 years as a householder in Puerto Rico.

On the other hand, the record discloses that petitioner testified that her parents never declared themselves to hold allegiance to the Spanish Crown, that the father registered himself, his wife and petitioner as German nationals prior to 1899 and that the father was made German consul in 1899. It does not appear from the record when the registration as German nationals took place and particularly whether such registration took place between the 10-year period from 1883 to 1893. It might be argued that the father, in view of his affirmative action in regard to German nationality, retained such nationality which he had acquired at birth and, therefore, he did not lose his German nationality or acquire Spanish nationality. Having retained German nationality, he would have bestowed German nationality upon petitioner's mother, in accordance with section 5 of the German law mentioned above. The conclusion that petitioner's parents did not have Spanish nationality at the time of petitioner's birth is corroborated by the fact that the father was naturalized as a United States citizen in 1923 and the mother was naturalized on October 18, 1943. Had the parents been deemed to have Spanish nationality on April 11, 1899, they would have become Puerto Rican nationals on April 12, 1900, in accordance with the provisions of the act of that date (31 Stat. 79; 48 U. S. C. 733) and United States nationals on March 2, 1917, pursuant to the provisions of the act of that date (39 Stat. 953;

8 U. S. C. 5) and there would have been no need for them to become naturalized as United States citizens in order to acquire United States citizenship. Consequently, it must be deemed that the parents had not acquired Spanish nationality on or before April 11, 1899.

Thus, whether or not petitioner acquired Spanish nationality on or before April 11, 1899, is not free from doubt. Accordingly, the question of whether petitioner acquired United States nationality, pursuant to the acts of April 12, 1900, and March 2, 1917, is not free from doubt. 8 C. F. R. 373.10 provides in part that "where doubt of citizenship exists, the case shall be treated by the Service as though the applicant were an alien."

Since petitioner has not established that she was a Spanish national at the time of the acquisition of Puerto Rico by the United States, she is unable to establish that she acquired United States citizenship pursuant to the provisions of the act of April 12, 1900, and March 2, 1917, or any other act. The evidence of record establishes that petitioner was born in Puerto Rico of alien parents and she is, therefore, eligible to file a declaration of citizenship pursuant to the provisions of section 322 of the Nationality Act of 1940.

The case, however, is not as yet ready for presentation to the court, inasmuch as no recommendation has been made by the field office in regard to petitioner's attachment to the principles of the Constitution. and favorable disposition to the good order and happiness of the United States. The facts, findings, and conclusions contained in the memorandum of the District Director are hereby adopted.

It is ordered, That a copy of this memorandum be forwarded to the field office so that appropriate action may be taken in accordance with the foregoing.

IN THE MATTER OF S——

In BREACH OF BOND Proceedings

A-6738868

Decided by Central Office March 10, 1950

Bond-Delivery bond, upon release in expulsion proceedings-When breached— Where demand for delivery made on surety after alien's departure from United States-Administrative discretion.

Where an alien was released from the custody of the immigration authorities on the posting of a delivery bond, conditioned upon the alien's surrender to the immigration authorities when demanded in connection with deportation proceedings, the delivery bond may be considered breached when the alien was not surrendered upon demand of the surety even though such demand was made after the alien had departed from the country; and where the circumstances are such as do not justify favorable administrative discretion, such bond will be declared breached.

BEFORE THE CENTRAL OFFICE

Discussion: On May 16, 1949, a warrant was issued for the arrest of the alien on the charges that at the time of entry during March 1948 he was not in possession of an immigration visa; that he did not present an unexpired passport; that he admitted committing a crime involving moral turpitude prior to entry, to wit: Forgery; and that he had been convicted of a crime involving moral turpitude prior to entry, to wit: Forgery. On June 7, 1949, he was released from custody by the Miami office of this Service when a delivery bond in the sum of $1,000 was posted in his behalf. On June 20, 1949, his presence in Canada was verified when he presented himself at the Toronto, Ontario, Canada, office of this Service. On August 5, 1949, demand was made on the surety that the alien be delivered into the custody of the Miami office within 10 days after receipt of notification for a hearing. The surety advised that as the alien was in Canada it was not possible to comply with the demand. By not surrendering the alien, the conditions of the bond were violated.

In transmitting the case to the Central Office for determination as to whether the bond should be declared breached, the office of the District Director at Miami, Fla., states: "Since proper demand was not made on surety until after alien had departed for Canada, it would

appear that the bond should be canceled (Matter of L

A

R

de S

C. O. File A-7621680, August 17, 1949; Matter of J— C ·S―de SA, C. O. File A-9554762, August 17, 1949)." Although the delivery bonds were canceled in the cases cited by the Field Office, that action was purely in exercise of administrative discretion. From a legal standpoint, the conditions of those bonds were violated when the aliens were not surrendered in accordance with demands, and they might have properly been declared breached. Opinion of General Counsel in Matter of V G—, A-2890631, August 3, 1948. However, the instant case is not one in which the exercise of favorable administrative discretion is merited.

The record shows that on August 8, 1947, the alien had previously been made the subject of deportation proceedings, was released under a $1,000 delivery bond on August 25, 1947, and shortly thereafter departed to Canada. The bond exacted was canceled.

This, then, is the second time that by leaving the country, the alien has managed to avoid a final determination in a deportation proceedings instituted against him. In addition, he has a criminal record which renders the matter more aggravated. The bond will, therefore, be declared breached.

Recommendation: It is recommended that the outstanding delivery bond be declared breached and that appropriate steps be taken looking toward the collection of the liquidated damages thereunder. So ordered.