Prior to July 1, 1940, section 15 of the Immigration Act of 1924 contained no statutory authority for imposing conditions of admission with respect to government officials and their families who entered the United States in a diplomatic capacity. The act of July 1, 1940, amended Section 151 of the 1924 act to provide for this authority with the proviso that no official of a foreign government or a member of his family shall be required to depart from the United States without the approval of the Secretary of State. This Board has held that Section 15 (supra), as amended in 1940, is applicable to aliens who were admitted to the United States under clause (1) of Section 3 (1924 Act) prior to July 1, 1940, the effective date of the amendment. In other words, the amended section is retroactive. The Assistant Commissioner, relying on judicial precedent that section 15 (supra), is not self-executing, questions the effect of the foregoing conclusion by this Board with regard to the deportability of aliens in the absence of any regulation imposing conditions of ad

3

1 Sec. 15 of the 1924 act, as amended July 1, 1940, reads as follows: "The admission to the United States of an alien excepted from the class of immigrants by clause (1), (2), (3), (4), (5), (6), or (7) of section 3, or declared to be a nonquota immigrant by subdivision (e) of section 4, shall be for such time and under such conditions as may be by regulations prescribed (including, when deemed necessary for the classes mentioned in clause (2), (3), (4), or (6) of section 3 and subdivision (e) of section 4, the giving of bond with sufficient surety, in such sum and containing such conditions as may be by regulatious prescribed) to insure that, at the expiration of such time or upon failure to maintain the status under which admitted, he will depart from the United States: Provided, That no alien who has been, or who may hereafter be, admitted into the United States under clause (1) or (7) of section 3 as an official of a foreign government, or as a member of the family of such official, or as a representative of a foreign government in or to an international organization, or an officer or employee of an international organization, or as a member of the family of such representative, officer, or employee, shall be required to depart from the United States without the approval of the Secretary of State."

Prior to the amendment, the present proviso concluding section 15 was not then a part of the section and the opening sentence read as follows:

"The admission to the United States of an alien excepted from the class of immigrants by clause (1) (except a government official and his family), (2), (3), (4), (5), or (6) of section 3. ***”

'Matter of D—— P—, A-4074327 (formerly 56043/906), July 31, 1941; Matter of G A-1256369 (formerly 55974/884), January 27, 1941. 'Chung Yim v. U. S., 78 F. (2d) 43 (C. C. A. 8, 1935), cert. den., 56 S. Ct. 150. This case in substance holds that sec. 15 (1924 act) is not self-executing but requires the promulgation of regulations before it can affect the right of an alien to remain in this country. It also holds that a regulation in effect when the alien entered, setting forth conditions of entry with regard to nonimmigrants, was not invalid because it did not make provisions for their deportation notwithstanding a subsequent regulation promulgated after entry which provided that nonimmigrants who failed to maintain status should be deported.

mission at the time of entry or subsequent to entry, the breach of which would be a ground of deportability under the immigration laws. The Service disposes of this question by finding that the failure of the respondents to maintain their diplomatic status does not subject them to deportation because "there has not been and there is not now any regulation making maintenance of status a condition prerequisite to remaining in the United States on the part of a government official and his family who were duly admitted to the United States prior to May 16, 1944."

We agree with the Assistant Commissioner's conclusion that section 15 (supra) requires the promulgation of regulations to make it effective. We do not agree, however, that there is no regulation which affects the operation of the statute insofar as the deportability of the respondents is concerned.

This Board in the DP

case (supra) determined that section

15, as amended, is retroactive with respect to failure to maintain status as well as the date of an alien's entry. In this connection we said: *** One who was admitted under Section 3 (1) and who no longer has a status under this provision of law fails to maintain the status under which admitted not only on the date that failure first occurred, but continuously from that time onward. There is no sound distinction between one who for the first time ceased to maintain a status under clause (1) of section 3 after the enactment of the law of July 1, 1940, and one who ceased to maintain such status prior to that date and continued his noncompliance with the statute thereafter."

8 C. F. R. 110.29 is one of the regulations intended to "execute" section 15, as amended (supra), by setting forth the period of time and conditions of admission for aliens with official status as well as visitors and traders. Prior to May 27, 1944, an exception to this section read as follows: "A government official and his family shall be admitted without limitation of time and shall not be required to maintain their specific status or to give bond." This exception was amended effective May 27, 1944, by deleting from the paragraph the words "to maintain their specific status or."

Accordingly, subsequent to May 27, 1944, alien government officials have been required by regulation as well as statute to maintain their specific status. The facts of the case at bar indicate that the respondents ceased to maintain their official status when the government official husband/father returned to China in 1946. Applying the same reasoning to the regulations as we have applied to the statute (sec. 15, supra), we are of the opinion that the condition set forth in 8 C. F. R. 110.29 as it now reads is applicable to alien government officials and their families who were admitted prior to the amendment of the controlling statute but who, subsequent to the amendment of

8 C. F. R. 110.29, have continued their noncompliance with the statute. In other words, the amendment of 8 C. F. R. 110.29 (a) executed section 15 as of May 27, 1944, and failure to maintain status thereafter on the part of government officials and their families who were admitted prior to July 1, 1940, places them in the same category as those government officials admitted subsequent to May 27, 1944. As the respondents have failed to maintain status under section 3 (1) of the Immigration Act of 1924 and the regulations now in effect, they are subject to deportation under the provisions of sections 14 and 15 of the Immigration Act of 1924, as amended.

This conclusion is supported by the report of the Committee on Immigration and Naturalization of the House of Representatives that accompanied the bill which later became the amended section under discussion (Report No. 2645, House of Representatives, 76th Cong., 3d sess., to accompany H. R. 10112). In this respect we find the following:

The purpose of the bill is to require aliens who were admitted to the United States as officials of foreign governments to maintain their status or depart from the United States.

It was stated by the witnesses appearing that such a bill was very necessary at this time in view of the fact that many individuals were admitted as officials of foreign governments or connected in some way with the regular officials of foreign countries that in many instances their connection with the foreign government has terminated but under present law they are permitted to remain.

Clearly, the purpose of the amendment to section 15 (supra) as set forth in the above-quoted congressional report should not be thwarted. Discussion as to Eligibility for Suspension of Deportation: The respondents are a Chinese family consisting of a mother, her two sons and a daughter. They have resided continuously in the United States since February 3, 1939. The husband/father returned to China in 1946 to accept a professorship at the National Peking University.

The elder male respondent is employed as a private Chinese tutor. The younger male respondent is a scholarship student at Harvard University. He is employed during the school term in the university dining hall and otherwise employed during summer vacation. The daughter is also a student. The mother was gainfully employed during 1945 as a scenery and costume designer. She has been supported by a fund provided by her husband before he departed for China.

The respondents are not subject to deportation under any of the categories mentioned in section 19 (d) of the Immigration Act of 1917, as amended. They have submitted numerous letters and affidavits attesting to their good moral character. Reports of character investigation are favorable. The files of the Federal Bureau of Investigation disclose no criminal record. The respondents have

all testified that if permitted to remain permanently, they intend to become citizens of the United States. Under the circumstances, since they have resided in the United States for more than 7 years and appear to be persons of good moral character, we will enter an order suspending their deportation.

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

(1) That the aliens are not ineligible for naturalization in the United States;

(2) That the aliens have been of good moral character for the preceding 5 years;

(3) That the aliens have resided continuously in the United States since February 3, 1939;

(4) That after full inquiry no facts have been developed which would indicate that the aliens are deportable under any of the provisions of law specified in section 19 (d) of the Immigration Act of 1917, as amended.

Suspension of Deportation-Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded:

(1) That the aliens are eligible for suspension of deportation under the provisions of section 19 (c) (2) (b) of the Immigration Act of 1917, as amended.

Order: It is ordered that deportation of the aliens be suspended under the provisions of section 19 (c) (2) (b) of the Immigration Act of 1917, as amended.

It is further ordered, That the order entered by the Assistant Commissioner on March 14, 1950, be and the same is hereby withdrawn.

It is further ordered, That if during the session of the Congress at which this case is reported, or prior to the close of the session of the Congress next following the session at which this case is reported, the Congress passes a concurrent resolution, stating in substance that it favors the suspension of such deportation, the proceedings be canceled upon the payment of the required fee and that the aliens be charged to the quota for China.

In the Matter of H

In EXCLUSION Proceedings

A-7427671

Decided by Central Office March 31, 1950

Citizenship-Expatriation by naturalized citizen by residence abroad-Section 404 of the Nationality Act of 1940—Residence in country of which formerly a national-British subject in Canada.

A native of England a British subject, came to Canada and lived there from 1904 to 1919; then he lived in the United States from 1919 to January 1946 since when he lived in Canada. He was not a Canadian National when he left Canada in 1919, nor has he acquired Canadian Nationality since January 1946, within the meaning of the Canadian Nationals Act of 1921. He became naturalized in the United States in May 1924. Such a person is not held to have expatriated himself under the provisions of section 404 of the Nationality Act of 1940, under the circumstances indicated.

EXCLUDED BY A BOARD OF SPECIAL INQUIRY:

Act of 1924-No immigration visa.
Executive Order 8766-No passport.

BEFORE THE CENTRAL OFFICE

Discussion: The facts in this case may be briefly stated. The appellant was born in England in 1877. He entered Canada in 1904 and resided there until 1919. He lived in the United States from 1919 to January 1946. He became a naturalized United States citizen on May 8, 1924. On January 7, 1946, he departed to Canada and has resided in Canada until the date of the present application. He now seeks to return to the United States as a citizen of this country.

The narrow question presented is whether the appellant has lost. United States citizenship by his residence in Canada on and after January 1946. The Board of Special Inquiry concluded that the appellant had forfeited United States nationality pursuant to the provisions of section 404 (b) of the Nationality Act of 1940, as amended, and ordered exclusion on the above-stated grounds.

Section 404 (b) of the Nationality Act reads:

Sec. 404. A person who had become a national by naturalization shall lose his nationality by: