96 Calif. 532 (1892), reheard 102 Calif. 254 (1894)). There is no proscription against the state adopting legislation which makes legitimate within the operation of its laws children who are illegitimate in other jurisdictions, or that such statutes be limited in their applicability to children who were born in the state or whose parent or parents were then domiciled in the state, or that such laws be dependent for operation on acts occurring within the state (Estate of Lund (supra)). The applicant's father was domiciled in California for many years after the applicant's birth, including the year 1913 when she contacted her father in that state, where both were then domiciled. Since the acts of recognition by the father in France are sufficient by themselves to satisfy the "recognition" required by the California statute, and since the father's conduct toward the applicant in California in 1913 likewise is sufficient to satisfy that requirement of the law, certainly both together amply establish such recognition and together with the other factors herein set forth establish that the applicant was legitimated under section 320 of the California Civil Code. The court in the case of Estate of Gird (supra), noted that the word "family" is not a technical word and that it is of flexible meaning. The court stated that the word was to be construed in accordance with the context of the statute and, also, from the subject matter to which it relates, and that every case must depend upon its particular circumstances. The court held that the "family" contemplated by this statute may consist only of the woman with whom the father is living with out of marriage and their illegitimate child. Her father's taking the applicant into his family circle in the United States did not consist of her entering his home or residing there, as she was then married and at first living with her husband and children and later returning to Oregon to resume employment there. The case of Louie Wah Youv. Nagle, 27 F. (2d) 573 (1928), establishes that legitimation under section 320 of the Civil Code of California suffices to confer United States nationality under the nationality laws of this country. Under the provisions of the statute under consideration, as construed by the courts of California, it is immaterial whether the legitimation occurred during the applicant's minority or thereafter. (Estate of Lund (supra)). The age limitation for legitimations under the Nationality Act of 1940, is not applicable to the instant case. (Matter of L-, 0500-23945, 0501-9733, C. O. 1948 (Int. Dec. 144, 3, I & N. Dec. 225) Since the effect of the applicant's legitimation is retroactive and confers the full status and rights of a legitimate child as of the date of her birth, the prior order in this case entered on November 16, 1949, denying the application should be withdrawn, and the application granted. Order: It is directed that the order entered in this case on November 16, 1949, denying the application of FPW—— P▬▬ for Fa certificate of citizenship, be and it is hereby withdrawn. It is further ordered, That the application of F——— P—— W▬▬ P—— for a certificate of citizenship be granted. Citizenship was acquired September 13, 1877. IN THE MATTER OF N- J Q In EXCLUSION Proceedings A-7982346 Decided by Central Office April 30, 1951 Citizenship-Acquisition at birth by child born abroad between May 24, 1934, and January 13, 1941-R. S. 1993, as amended by the act of May 24, 1934— Retention conditions-Section 201 (g) and (h) of the Nationality Act of 1940-(See Int. Dec. No. 242). A child acquired United States citizenship at birth abroad on February 18, 1935, to a native-born United States citizen parent, under R. S. 1993, as amended by the act of May 24, 1934 (the other parent being an alien); and such citizenship status did not cease because he has not taken up residence in the United States by the time he reached the age of 16 years, as required by section 201 (g) and (h) of the Nationality Act of 1940 (the child arriving in the United States, with the intention of residing here permanently, just prior to his 16th birthday, at Shemya, Aleutian Islands, Alaska). EXCLUDED BY BOARD OF SPECIAL INQUIRY: Act of 1924-No Immigration visa. BEFORE THE CENTRAL OFFICE Discussion: This record relates to a native of China, single, who arrived at the port of New York on February 19, 1951, ex TransCanadian plane CF-TFG. He applied for admission as a United States citizen. He was held for a Board of Special Inquiry which found that he had ceased to be a citizen by reason of his failure to comply with the requirements of section 201 (g) and (h) of the Nationality Act of 1940. He was thereupon excluded as an alien not in possession of an unexpired immigration visa, and as one who did not present an unexpired passport or official document in the nature thereof. He has appealed from the excluding decision. The appellant was born on February 18, 1935. His mother is a native and citizen of China. The evidence satisfactorily establishes that his father is a native-born citizen of the United States. Section 201 of the Nationality Act of 1940 provides, in part: (g) A person born outside the United States and its outlying possessions of parents one of whom is a citizen of the United States, who, prior to the birth of such person, had had 10 years' residence in the United States or one of its outlying possessions, at least 5 of which were after attaining the age of 16 years, the other being an alien: Provided, That in order to retain such citizenship, the child must reside in the United States or its outlying possessions for a period or periods totaling 5 years between the ages of 13 and 21 years: Provided further, That, if the child has not taken up a residence in the United States or its outlying possessions by the time he reaches the age of 16 years, or if he resides abroad for such a time that it becomes impossible for him to complete the 5 years' residence in the United States or its outlying possessions before reaching the age of 21 years, his American citizenship shall thereupon cease. (h) The foregoing provisions of subsection (g) concerning retention of citizenship shall apply to a child born abroad subsequent to May 24, 1934. In arriving at the conclusion that the appellant was an alien, the Board pointed out that he had arrived in New York when he was 16 years and 2 days old. The appellant traveled to the United States by air. During the course of the hearing he testified that he left Hong Kong on February 15, 1951; that he first landed at Okinawa; then at Tokyo; then at someplace whose name he did not know; then at Vancouver where he was examined by United States immigration officers and where he remained for 1 day and 2 nights; and finally at New York. His counsular travel affidavit bears the stamp of this Service showing that primary inspection in his case was deferred at Vancouver, British Columbia, Canada, on February 16, 1951, and that the plane on which he traveled was CPA Flight 306/15 from Hong Kong to Vancouver, British Columbia. When counsel appeared before the Central Office he presented a letter dated March 20, 1951, signed by J. D. Roach, general agent of the Canadian Pacific Railway; Minneapolis, St. Paul & Sault Ste. Marie Railroad; and the Canadian Pacific Airlines, Limited, the pertinent portion of which reads as follows: The Canadian Pacific Air Lines at Vancouver advise that Flight 306 on which Q N▬▬ J— was a passenger ex Hong Kong February 15 arrived Shemya 5:36 a. m. February 16 and left Shemya 7:57 a. m. the same date, Shemya Local Time. Flight did not stop at Anchorage and arrived Vancouver 8:50 p. m. February 16. Counsel contends that since Shemya belongs to the United States and as the applicant arrived there prior to his 16th birthday, he did not relinquish under section 201 (g) of the Nationality Act of 1940, the United States citizenship which he acquired at birth under section 1993 of the Revised Statutes, as amended by the act of May 24, 1934. Section 101 (d) of the Nationality Act of 1940 provides "The term 'United States' when used in a geographical sense means the continental United States, Alaska, Hawaii, Puerto Rico, and the Virgin Islands of the United States." Shemya is located in the Aleutian Islands. The Aleutian Islands are included in the territory ceded to the United States by Russia by the treaty of March 30, 1867. 48 U. S. C. 21 (act of August 24, 1912) provides that "The territory ceded to the United States by Russia by the treaty of March 30, 1867, and known as Alaska, shall be and constitute the Territory of Alaska under the laws of the United States, the Government of which shall be organized and administered as provided by said laws." Shemya is, therefore, part of the United States within the meaning of that section. Section 104 of the Nationality Act of 1940 provides that "For the purposes of sections 201, 307 (b), 403, 404, 405, 406, and 407 of this act, the place of general abode shall be deemed the place of residence." The appellant has testified that he was coming to this country to reside permanently. As soon as he arrived in the United States with that intention, it immediately became his place of general abode. Thus, if he had landed at New York prior to his 16th birthday, there would be no question that his place of residence had then become the United States and that he had retained his citizenship. Merely because he entered at Shemya and then had to leave the United States for a short period en route to his final destination would not change that fact. We find therefore, that upon his arrival at Shemya on February 16, 1951, which was two days prior to his 16th birthday, he took up his place of residence in the United States. He is, therefore, a citizen of this country and his appeal must, therefore, be sustained. Order: It is ordered that the appeal be sustained and the appellant admitted to the United States as a citizen. |