IN THE MATTER OF N- K————— D—————

In VISA PETITION Proceedings

VP-442306

Decided by Board May 14, 1951

Decided by Acting Attorney General, July 26, 1951

Visa petition-Alien beneficiary unmarried minor child of a race eligible to citizenship (Chinese)-Petitioner, United States citizen father who served in the armed forces of World War II and has an honorable discharge certificate-Eligibility of beneficiary for nonquota immigration visa issued under section 4 (a) of the Immigration Act of 1924, as amended-Applicability of Public Law 717, approved August 19, 1950.

Public Law 717, approved August 19, 1950, is regarded as being in pari materia with the Immigration Act of 1924, as amended, and as operating as an amendment thereof; an alien beneficiary unmarried minor child of a race eligible to citizenship (Chinese) of a United States citizen father who served in the armed forces of World War II and has an honorable discharge is deemed eligible for a nonquota immigration visa issued under section 4 (a) of the Immigration Act of 1924, as amended, such Chinese beneficiary not being otherwise so eligible in view of the provisions of section 2 of the act approved December 17, 1943, as amended August 9, 1946.

BEFORE THE BOARD

(May 14, 1951)

Discussion: The problem presented by the appeal here is whether beneficiary is entitled to nonquota status under section 4 (a), Immigration Act of 1924, in the issuance of an immigration visa by virtue of the provisions of Public Law 717, approved August 19, 1950. The pertinent facts are these: The petitioner, N—— K— is a citizen of the United States and the beneficiary is his minor son, NWM-. The petitioner executed visa petition on December 23, 1950, pursuant to section 9, Immigration Act of 1924, for the purpose of establishing that the beneficiary is entitled to a nonquota status in the issuance of an immigration visa, as the minor unmarried child of a United States citizen. Petitioner's United States citizenship has been conceded by the Immigration and Naturalization Service at the time of his admission at Boston, Mass., October 19, 1940, and in the approval of visa petition number 439033, filed in behalf of his wife, WY— M—, approved October 25, 1950. Petitioner submitted birth certificate showing that his child, the beneficiary, was

born in Hong Kong on February 3, 1950.1 He also submitted evidence of his honorable service in the United States Army from December 18, 1942, to January 27, 1946.

Public Law 717, approved August 19, 1950, reads:

To permit the admission of alien spouses and minor children of citizen members of the United States armed forces.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That notwithstanding the provisions of section 13 (c) of the Immigration Act of 1924, as amended (8 U. S. C., 213 (c)), alien spouses or unmarried minor children of United States citizens serving in, or having an honorable discharge certificate from the Armed Forces of the United States during World War II shall, if otherwise admissible under the immigration laws, be eligible to enter the United States with nonquota immigration visas issued under the provisions of section 4 (a) of the Immigration Act of 1924, as amended (8 U. S. C. 204 (a)): Provided, That in the case of such alien spouses of United States citizens serving in, or having an honorable discharge certificate from the Armed Forces of the United States during World War II, the marriage shall have occurred before 6 months after enactment of this act.

The Service concluded that the provisions of Public Law 717 do not benefit the minor child. The Service's reasoning appears in the fol

lowing excerpt:

'The Service found that the beneficiary did not derive United States citizenship at birth under sec. 201 (g) or 201 (h), Nationality Act of 1940, since the father did not have ten years residence in the United States prior to the birth of the child, as required. This issue is not before us.

2 This section reads:

"No alien ineligible to citizenship shall be admitted to the United States unless such alien (1) is admissible as a nonquota immigrant under the provisions of subdivisions (b), (d), or (e) of section 4, or (2) is the wife, or the unmarried child under 18 years of age, of an immigrant admissible under such subdivision (d), and is accompanying or following to join him, or (3) is not an immigrant as defined in sec. 3."

The phrase "ineligible to citizenship" referred to in sec. 13 (c) above, is defined in sec. 28 (c) of the same act as follows:

"The term "ineligible to citizenship,' when used in reference to any individual, includes an individual who is debarred from becoming a citizen of the United States under sec. 303 or 306 of the Nationality Act of 1940, as amended (54 Stat. 1140, 1141; U. S. C., title 8, secs. 703, 706), or sec. 3 (a) of the Selective Training and Service Act of 1940, as amended (55 Stat. 845; U. S. C., title 50, App. Supp. III), sec. 303 (a), or under any law amendatory of, supplementary to, or in substitution for, any such sections.

In the Matter of KL, VP-418706, January 19, 1951, involving the same problem, we took the position that Public Law 717 applied only to the wife and minor children of United States citizens who are serving or served in the armed forces of World War II which wife and children are racially eligible to citizenship. We further stated as follows: As Chinese the children are not racially ineligible to citizenship. However, under sec. 2, act of December 17, 1943 (57 Stat. 600), as amended, only Chinese wives of citizens are entitled to nonquota status. The children who wish to be admitted to the United States must make application under the quota.

In a letter to all district directors, dated September 6, 1950, file 56190/84, this Service stated:

"The act approved August 19, 1950, is regarded as being in pari materia with the Immigration Act of 1924, and as operating as an amendment thereof. If the aliens are racially eligible for citizenship and are related as described above to United States citizens who meet the above-noted qualifications, they are eligible for admission as nonquota immigrants under the 1924 act irrespective of the provisions of Public Law 717 (except husbands by marriage after December 31, 1947). Thus as to such alien spouses and unmarried minor children, Public Law 717 merely waives, (1) the racial ineligibility bar to admission and (2) the requirement that an alien husband be such by a marriage which occurred prior to January 1, 1948."

It is apparent that if the language of the circular letter dated September 6, 1950 (file 56190/84), is correct, then no problem would be presented by this case. On the one hand, the impression given by the circular letter is that the beneficiary hereof would be entitled to a nonquota status under section 4 (a), Immigration Act of 1924, but that impression is nullified by the following discussion in the Service's memorandum:

Section 2 of the act approved December 17, 1943, as amended August 9, 1946, provides:

"With the exception of Chinese alien wives of American citizens and those Chinese coming under the subsections (b), (d), (e), and (f) of section 4, Immigration Act of 1924 (43 Stat. 155; 44 Stat. 812; 45 Stat. 1009; 46 Stat. 854; 47 Stat. 656; 8 U. S. C. 204), all Chinese persons entering the United States annually as immigrants shall be allocated to the quota for the Chinese computed under the provisions of section 11 of the said act. A preference up to 75 per centum of the quota shall be given to Chinese born and resident in China."

Section 2 of the act approved December 17, 1943, as amended, does not provide for the granting of nonquota status to Chinese children of United States citizens. It does provide that they shall be admitted as quota immigrants. Therefore, the beneficiary is precluded from obtaining a nonquota immigration visa under section 4 (a) of the Immigration Act of 1924.

Section 6 of the Immigration Act of 1924 does not provide any preference within the quota to children of United States citizens. Beneficiary is, therefore, not entitled to any preference within the quota by reason of his relationship to the petitioner. Under the act approved December 17, 1943, as amended, the beneficiary is entitled to a preference within the quota by reason of his birth and residence in China. It is unnecessary to submit an application to this Service for approval of such preference.

Specifically, the Service takes the position that the language of Public Law 717 cannot benefit the child here, since the child is not one ineligible to naturalization. Section 303 (a), Nationality Act of 1940, as amended by the act of December 17, 1943. Therefore, it is reasoned, if Chinese persons are not within the provisions of section 13 (c)*, Immigration Act of 1924, Public Law 717, has no application to the beneficiary.

See footnote 2.

The position taken is that the provisions of Public Law 717 are restricted to those racially ineligible to become naturalized as citizens of the United States, who, of course, meet the other requirements; namely, "alien spouse or unmarried minor children of United States citizens serving in, or having an honorable discharge certificate from the Armed Forces of the United States during World War II shall, if otherwise admissible under the immigration laws, be eligible to enter the United States with nonquota immigration visas issued under the provisions of section 4 (a) of the Immigration Act of 1924, as amended."

The conclusion reached in this case is welded together by the application of the principle that Public Law 717 is in pari materia with the Immigration Act of 1924, and as operating as an amendment thereof.

The principle enunciated is not always easy to determine. Its application generally comes into play where there are two statutes in existence relating to the same person or thing or the same classes of persons or things, or the same purpose or object. The principle is of no help if there is no conflict. It is merely an extension of the principle that all parts of a statute should be construed together, and its corollary that an amendment and the independent portion of the original act should be construed together.5

These principles require extreme caution in their application, since, in the final analysis what is sought is the probable intent on the part of the legislature. To that end the things to be considered are the words of the statute itself, the nature, context and the subject of the statute, as well as the consequences of the various constructions. Public Law 717 is not an innovation, in the sense that it is the first deviation from a general law.

The phrase "ineligible to naturalization" in the act, does not appear to be a proviso, since the office of a proviso is to limit or restrict general language; and, generally, the expression of a proviso should be confined to that clause or part of the statute which directly precedes it in the statute, although this is not always so."

Nor does the phrase appear to be an exception to a general purpose." Thus the question arises, is there conflict or ambiguity in the act. Congress has previously legislated on the problem of facilitating and removing obstacles in the cases of alien spouses and children of servicemen abroad.

5

Sutherland Statutory Construction vol. II, p. 544, § 575.

6 U. 8. v. Bernays, 158 Fed. 793; Clay Center State Bank v. McKelvie, 19 F. (2d) 308.

'Sutherland, vol II.

On December 28, 1945, Congress enacted Public Law 271,8 the purpose of which was to expedite the admission to the United States of alien spouses, and alien minor children of citizen members of the United States Armed Forces and on June 29, 1946, it enacted a law (which was extended to December 1, 1948), to facilitate the admission to the United States of the alien fiancees and fiances of members of the Armed Forces of the United States.

The act of December 28, 1945, was amended on July 22, 1947, by providing that the alien spouse of an American citizen by a marriage occuring on or before 30 days of the enactment of this act, would not be considered as inadmissible because of race, if otherwise admissible

8 This act reads:

"To expedite the admission to the United States of alien spouses and alien minor children of citizen members of the United States Armed Forces.

"Act approved December 28, 1945 (59 Stat. 659; 8 U. S. C. 232–236).

14 [See secs. 3 and 16, of the act of February 5, 1917, and secs. 4 (a) and 9 of the act of May 26, 1924.]

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That notwithstanding any of the several clauses of section 3 of the act of February 5, 1917, excluding physically and mentally defective aliens, and notwithstanding the documentary requirements of any of the immigration laws or regulations, Executive order, or Presidential proclamations issued thereunder, alien spouses, or alien children of United States citizens serving in, or having an honorable discharge certificate from the armed forces of the United States during the Second World War shall, if otherwise admissible under the Immigration laws and if application for admission is made within 3 years of the effective date of this act, be admitted to the United States; Provided, That every alien of the foregoing description shall be medically exam ined at the time of arrival in accordance with the provisions of section 16 of the act of February 5, 1917, and if found suffering from any disability which would be the basis for a ground of exclusion except for the provision of this act, the Immigration and Naturalization Service shall forthwith notify the appropriate public medical officer of the local community to which the alien is destined: Provided further, That the provisions of this act shall not affect the duties of the United States Public Health Service so far as they relate to quarantinable diseases.

"SEC. 2. Regardless of section 9 of the Immigration Act of 1924, any alien ad mitted under section 1 of this act shall be deemed to be a nonquota immigrant as defined in section 4 (a) of the Immigration Act of 1924.

"SEC. 3. Any alien admitted under section 1 of this act who at any time returns to the United States after a temporary absence abroad shall not be excluded because of the disability or disabilities that existed at the time of that admission.

"SEC. 4. No fine or penalty shall be imposed under the act of February 5, 1917, except those arising under section 14, because of the transportation to the United States of any alien admitted under this act.

"SEC. 5. For the purpose of this act, the Second World War shall be deemed to have commenced on December 7, 1941, and to have ceased upon the termination of hostilities as declared by the President or by a joint resolution of Congress.

"SEC. 6. The alien spouse of an American citizen by a marriage occurring before 30 days after the enactment of this act, shall not be considered as inadmissible because of race, if otherwise admissible under this act."