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Service to enter into an agreement whereby alien passengers brought to a Canadian port may be preexamined at such ports of arrival in such circumstances and under the same conditions as vessels and aircraft arriving at continental United States ports of arrival and the Trans-Canada Airways are signatories to that so-called Canadian agreement.

In a communication dated July 6, 1950, of the Attorney General it was concluded that, under the provisions of the Air Commerce Act of 1926, where a fine in the amount of $1,000 is imposable, such amount would be mitigated to the extent of $500, except in aggravated cases. The principal contention on the part of counsel, in a voluminous brief filed in connection with this and similar matters, is that this passenger on the occasion of arrival in Canada was not destined to the United States but rather she was destined to Canada, and that being & native-born Canadian, the carrier was compelled to fulfill its responsibility to transport Canadians to their homeland, this being the normal requirement imposed upon Canadian common carriers.

It is for this reason that the line seeks that no fine be imposed. Early following the passage of the act of 1924, the Board of Review held that a common carrier cannot refuse to transport a native of Canada to the land of his nativity (Matter of 0—, 55574/659). That precedent remains unreversed and has continued as a precedent since such determination.

After careful consideration of all of the evidence of record, it is the conclusion of this Board that a violation of the act approved May 26, 1924 (supra), has not been established. (See Matter of Plane TCN, File F-0109-18, B. I. A., July 21, 1952.)

Order: It is ordered that the appeal from the decision of the Acting Assistant Commissioner of Immigration and Naturalization dated December 10, 1951, be and the same is hereby sustained.

IN THE MATTER OF D- N▬▬▬▬▬▬▬▬

In DEPORTATION Proceedings

A-6047835

Decided by Board July 24, 1952

Citizenship-derivation-Section 5*, act of May 24, 1934, 5 years' residence. (1) The requirement in section 5* of the act of May 24, 1934, that the citizenship of a minor child shall begin 5 years after the child commences to reside permanently in the United States, is not violated by the absence of such child from the United States for a period of 21⁄2 years, when it is shown that the absence was of a temporary nature. In that situation, the child may be regarded as constructively residing in the United States.

(2) Acquisition of United States citizenship under section 5 of the act of May 24, 1934, is not affected by the fact that the child is temporarily absent from the United States on the date of the completion of the 5-year period of permanent residence.

CHARGES:

Warrant: Act of 1924-No immigration visa.

Act of 1918-No passport.

BEFORE THE BOARD

Discussion: This is an appeal from an order dated October 25, 1951, by the Acting Assistant Commissioner in which deportation on the charges stated above was directed.

Respondent contends he is a citizen of the United States.

The facts are fully stated in the orders of the hearing officer and Acting Assistant Commissioner. Briefly, the respondent was born in Italy on March 24, 1923, of alien parents. His father became a naturalized citizen of the United States on November 9, 1931. Respondent was lawfully admitted to the United States for permanent residence on September 16, 1937. On January 4, 1940, his father died. Respondent testified as follows. He returned to Italy on March 16, 1940, for the purpose of visiting his mother who had always resided in Italy and making arrangements to bring her to the United States. (He was in possession of a reentry permit which was valid to March 14, 1941.) Two days after his arrival in Italy he was arrested for being in a forbidden area; accused of being an American spy and without trial was sentenced to imprisonment for apparently an in

*Editor's note.-Should be section 2.

definite duration. He was in prison until October 25, 1940, when to get out of jail, he joined the Italian Army where he served until December 3, 1943. Upon the surrender of Italy, he made his way to the allied forces where he was assigned a plane and flew as a volunteer escorting American bombing planes. On one of his missions over Greece, he was shot down and taken a German prisoner on February 4, 1944. He was imprisoned by the Germans until March 25, 1945. During his confinement in order that he might be treated as an American prisoner, he represented himself to be one H- Ma staff sergeant of the United States Armed Forces. He feared that if it had been learned that he were an Italian pilot he would have been shot. On March 25, 1945, he was liberated. He continued to pose as H-M- and in June 1945 was returned to the United States on an American troop transport. He has remained in the United States continuously since that date with the exception of several short pleasure visits to Canada.

The record reveals that on March 13, 1941, he made application. for an extension of his reentry permit on the ground that he was unable to secure transportation to the United States; and that on January 2, 1942, respondent married in Italy with a person apparently a native and citizen of Italy.

The respondent's claim to United States citizenship is based upon section 5* of the act of May 24, 1934, which provides:

SECTION 5. That a child born without the United States of alien parents shall be deemed a citizen of the United States by virtue of the naturalization of or resumption of American citizenship by the father or mother: Provided, That such naturalization or resumption shall take place during the minority of such child: And provided further, That the citizenship of such minor child shall begin years after the time such minor child begins to reside permanently in the United States.

It is apparent from the facts, that the 5-year period of residence in the United States could not have been completed by the respondent until September 16, 1942. The Service has found that the respondent abandoned his residence in the United States when he departed on March 16, 1940, because as a minor he was in the legal custody of his mother who was a resident of Italy, and because he was emancipated either by military service in Italy or by his mariage.

Respondent contends that at all times it was his intention to return to the United States and only the pressure of events prevented his

return.

A temporary absence during the required 5-year period will not be considered an abandonment of that residence. The child may

*Editor's note-Should be section 2, act of May 24, 1934, amending section 5, act of March 2, 1907.

be regarded as constructively residing in the United States during the temporary absence, (Matter of L—, 56143/149, July 1, 1943, B. I. A.) We must therefore decide whether the respondent's absence may be considered a temporary one.

Respondent testified that he departed for the purpose of visiting his mother and bringing her back to the United States. He was in possession of a valid reentry permit and a return trip ticket. Almost a year after his arrival abroad he made application for an extension of his reentry permit. He stated that he had always had the intention of coming back to the United States and residing here permanently.

We believe his conduct abroad was not inconsistent with his intention to return to the United States. Respondent testified that except for the first 2 days of his visit abroad, he was imprisoned for about the first 8 months; that thereafter, he joined the armed forces of Italy solely to obtain his release from imprisonment. Except for a period of about 2 months, when the respondent voluntarily worked with the allied forces, he was not a free agent. During that 2-month period and during most of the period respondent was abroad transportation to the United States was not available. His marriage in Italy is not inconsistent with an intent to return to the United States especially in view of the fact that the alien insisted that he was tricked into the marriage and it does not appear that he lived with his wife for more than a few days. The Service view that the controlling element is the fact that legal custody of respondent was in his mother is not supported by authority nor is such interpretation required by the statute. The Service fails to set forth the basis for their conclusion that the respondent who entered the United States for permanent residence and who was abroad on a temporary visit was in the legal custody of his mother. Certainly, where a child with a claim to United States citizenship under section 2 of the act of May 24, 1934, completes 5 years of residence in the United States while still a minor after lawful admission for permanent residence and the record establishes his intention of remaining permanently in the United States, even if it is possible to find he is in the lawful custody of a parent abroad, it would not be argued that the child had not acquired United States citizenship.

In addition to the facts stated above, we note that the respondent returned to the United States as soon as he possibly could. We believe that the record establishes that the respondent remained abroad after he had left for a temporary visit solely because of conditions beyond his control. We find a fixed intention at all times to return to the United States and a course of conduct abroad that was consistent with a desire to return to the United States. We find the respondent com

pleted the 5 years' residence required to retain United States citizenship. We will therefore proceed to determine the effect his military service in Italy had upon his United States citizenship.

Respondent served in the Italian Army until December 3, 1943, when he voluntarily left and attached himself to allied forces. Under the circumstances set forth in the instant case, we do not believe respondent's service in the armed forces of Italy was voluntary. It could therefore not cause his expatriation. Respondent alleges he was arbitrarily sentenced to a term of imprisonment, the duration of which he was not informed. He was actually confined under this sentence. Nothing in the record contradicts his testimony. A choice between confinement indefinitely under such circumstances and joining the armed forces of Italy could not be termed a voluntary one.

Since the record establishes that the respondent is a citizen of the United States who has never become expatriated, and there is nothing in the record to reveal expatriation, the warrant of arrest will be canceled and the proceedings terminated. The appeal will be sustained.

Order: It is ordered that the appeal be sustained and the proceedings terminated.

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