versary date of the date of the filing of the declaration of intention is valid. (Section 332, Nationality Act of 1940; 8 C. F. R. 322.1 (c) and 8 C. F. R. 322.2 (c).)

We find the reasoning of the court in the case of In re Babjak (supra), equally appropriate to a determination of the question under consideration herein. As previously indicated (38 Op. A. G. 10), under the provisions of 1993 Revised Statutes as amended by the act of May 24, 1934, the child born abroad of parents one of whom is a citizen of the United States and has previously resided in the United States and the other an alien, acquires United States citizenship at birth. This conclusion is equally applicable to section 201 (g) of the Nationality Act of 1940. Such citizenship is subject to being divested if the retention conditions are not complied with, and these conditions are regarded as conditions subsequent and not as conditions precedent. Here, the appellants have reached the United States on the anniversary date of their 16th birthday. It is apparent that by thus arriving in the United States they have evidenced an intention to retain their citizenship and to show that their real attachment is to this country. A divestiture of American citizenship should not be predicated upon an ambiguity. Where the language of the statute is capable of more than one construction, that construction is favored by law which will best preserve a right or prevent a forfeiture. It has been shown that the intent of Congress in enacting this legislation was not punitive. In view of the judicial precedents as to computation of time so as to prevent a forfeiture and preserve a right and with due regard to the purpose of the enactment of the legislation, we conclude that the language used in section 201 (g) of the Nationality Act of 1940 requiring the child to take up residence in the United States by the time he reaches the age of 16 years, and requiring him to complete 5 years' residence in the United States before reaching the age of 21 years, includes within its scope a person who arrives in this country on the anniversary date of his 16th birthday. We accordingly find that the appellants were United States citizens at birth, and that they have complied with the retention conditions set forth in section 201 (g) of the Nationality Act of 1940 by arriving in the United States on the anniversary date of their 16th birthday, and that they are to be regarded as United States citizens.

Order: It is ordered that the appeal be and the same is hereby sustained and that the appellants be admitted as citizens of the United States.

IN THE MATTER OF S

In VISA PETITION Proceedings

VP 04-92

Decided by Central Office April 1, 1952

Visa petition-Marriage, validity of proxy marriage in Japan-Veteran's wife, admissibility under Public Law 717, as amended (March 19, 1951)-Effect of dishonorable discharge following honorable discharge.

(1) Marriage in 1947 in Japan performed by Japanese or Christian ceremony, wherein one of the parties was a United States citizen under military authority, subsequently registered in 1951 in accordance with Japanese law, considered valid as of date of registration and not deemed to be a proxy marriage, despite fact that United States citizen spouse was no longer under military authority or in Japan at time of registration. (Cf. 4, I. & N. Dec. 209.) (2) Dishonorable discharge following honorable one does not preclude wife of veteran from reciving benefits of Public Law 717, as amended (March 19, 1951).

BEFORE THE CENTRAL OFFICE

Discussion: The visa petition was executed on June 15, 1951, pursuant to section 9 of the Immigration Act of 1924, and Public Law 717, as amended by Public Law 6, for the purpose of establishing that the beneficiary, T-—— S▬▬▬▬▬ S———, is entitled to nonquota status in the issuance of an immigration visa as the wife of a citizen of the United States as contemplated by section 4 (a) of the Immigration Act of 1924.

S

The petition was denied by the District Director at Philadelphia, Pa., October 23, 1951, on the ground the petitioner was not eligible for the benefits of Public Law 717, as amended by Public Law 6, by reason of his dishonorable discharge from the Armed Forces of the United States on November 22, 1949.

In addition to the question of petitioner's eligibility under Public Law 717, as amended, because of his dishonorable discharge, there is also a question as to the validity of his marriage.

With reference to the validity of the marriage, the petitioner alleges he was married to the beneficiary by a Japanese priest, in Japan, on September 3, 1947. He has submitted a photostatic copy of notification of marriage, which sets forth that he and the beneficiary were married in a religious ceremony on September 3, 1947, and that the

marriage was registered by the mayor of Fukuoka, Japan, on August 29, 1951. The marriage appears to be of the type referred to in the Petition of L-, VP-455179, March 28, 1952, C. O. In that case reference was made to arrangements which had been made by the Department of State, the United States military authorities, and the Japanese civil authorities, whereby marriages performed by Japanese or Christian ceremony could be subsequently registered in accordance with Japanese law, where the United States citizen spouse was no longer under military authority and was no longer present in Japan. In the L-case, it was determined that such marriages were valid as of the date of registration and although one spouse was absent at the time of the registration, such marriage was not a proxy marriage. The marriage in the instant case may, therefore, be considered a valid marriage as contemplated by section 4 (a) of the Immigration Act of 1924, and Public Law 717, as amended by Public Law 6. There now remains the question as to whether petitioner's dishonorable discharge from the Armed Forces of the United States disqualifies him for the benefits of Public Law 717, as amended by Public Law 6. Public Law 6, 82d Congress, March 19, 1951, amended Public Law 717 to read as follows:

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 cases of such alien spouses of the 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 twelve months after the enactment of this Act, as hereby amended.

Although the petitioner was dishonorably discharged on November 22, 1949, he had previously received an honorable discharge on March 18, 1949, having served from March 5, 1946. Petitioner's first period of service and his honorable discharge on March 18, 1949, would, in itself, qualify him for the benefits of Public Law 717, as amended. However, consideration must be given the question as to whether his later dishonorable discharge from a subsequent period of service would disqualify him from such benefits.

A similar problem arose in the Matter of S, A-6389124, May 19, 1948, in which the spouse of a United States citizen sought to adjust her immigration status under Public Law 271. The citizen spouse had served in the United States Navy from January 26, 1942, to May 22, 1942, at which time he was honorably discharged. He again enlisted July 30, 1942, and following a conviction by a general court martial he was given a bad-conduct discharge on October 13, 1944.

260397-54- -41

Public Law 271 provided special benefits for alien spouses 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. In that case it was determined that the subsequent bad-conduct discharge did not nullify the benefits earned by the honorable service and discharge and that the spouse was eligible for the benefits of Public Law 271. It was stated that:

** there would appear to be no jurisdiction for extending the meaning of the statute with a delimiting effect not apparent from its present wording. That language is clear and explicit. It sets forth certain requirements to be met. Once met, the alien is entitled to the benefits thereof. No provision is made for the exercise of discretion or withholding of the benefits.

This view of the statute is not inconsistent with the evident intent of the legislature to confer a reward for meritorious service. Conceivably a citizen spouse might serve meritoriously for several years under hazardous combat conditions, receive an honorable discharge, thereafter reenlist and after a brief period of service receive a discharge under other than honorable conditions. To deny an application for the benefits of the act of December 28, 1945, on the ground that a dishonorable discharge has the effect of negativing any honorable service, might lead to inequity.

Moreover, to hold that the legislative intent was that the overall service shall have been honorable, leads necessarily to throwing open the citizen spouse's entire record of military service, and involves determination of such questions as the nature of the offense or offenses resulting in a bad conduct or dishonorable discharge; whether the citizen spouse had committed other crimes or offenses during his entire military career, or whether he had performed any meritorious acts. It is doubtful if it was intended that this Service examine thus behind the fact of a duly issued honorable or dishonorable discharge certificate into matters not generally deemed within its province, and not susceptible to accurate determination with information readily available.

This problem also arose in the Petition of G, A-7189522; 2270P-582466, a petitioner under the provisions of section 324A of the Nationality Act of 1940 seeking naturalization on the basis of his honorable service in the Armed Forces of the United States from August 14, 1945, to October 18, 1945, at which time he was honorably discharged; and from October 19, 1945, to September 10, 1948, at which time he was also honorably discharged. He again enlisted on September 13, 1948, and was dishonorably discharged April 22, 1949. It was determined that the petitioner met the requirements of section 324A by his honorable service and his honorable discharge prior to December 31, 1946. The court admitted him to citizenship despite the subsequent discharge under other than honorable conditions.

In view of the foregoing, it is concluded that petitioner's dishoncrable discharge on November 22, 1949, does not nullify the fact that he meets the requirements of Public Law 717, as amended by Public Law 6, by reason of his service and honorable discharge for the period from March 5, 1946, to March 18, 1949.

His petition for issuance of immigration visa may, therefore, be approved.

Information received informally from the Adjutant General's Office discloses that the petitioner's dishonorable discharge following conviction by a court martial was not because of desertion.

Order: It is ordered that the petition for issuance of immigration visa filed by LS, Jr., in behalf of T—— S▬▬▬▬▬▬S▬▬▬▬▬▬ be approved.