HUANG

11 I. & N. Dec. 190

• Court: Board of Immigration Appeals
• Decided: July 1, 1965
• Docket: 1472
• Status: Published

Opinion

Interim Decision #1472

Maw.= OF HUANG

In Section 245 Proceedings

A-13974856 A--13974858

Decided by Regional Commissioner May 27, 1965 Applicanta, aliens who were born in the United States under diplomatic status, :::*fict have never departed from this country, and who would be eligible for - the issuance of noaquota immigrant visas if abroad, are deemed to be lawful permanent residents of the United States; therefore, their applications for adjustment of status pursuant to section 245. Immigration and Nationality Act, as amended, are denied.

The applications were denied by the District Director, Baltimore, Maryland, on the ground that applicants were not inspected and ad- mitted. or paroled into the United States as required by section 245 of the Act. We have taken jurisdiction by way of certification as provided by 8 CFR 1014 to resolve the question as to whether ap- plicants may be considered lawful permanent residents of the United States. Ann Lillian Huang and Byron Dean Huang were born in Wash- ington, 1).0., on March 10, 1952, and December 16, 1953, respectively. At the"time of their birth their father was a duly accredited diplo- matic representative of the Republic of China assigned to the Chi- nese Embassy, Washington, D.C. Applicantemother, a native and former citizen•of China,, became a permanent resident of the United States pursuant to section 6 of the Refugee Relief Act of 1953. On October 5, 1959, she was naturalized . as a. citizen of this country. Her petitions to classify applicants and their father as nonquota 'immigrants were approved June 29, 1964. The father was granted status as a permanent resident under section 245 of the Act as of August 12, 1964, and is now engaged in private 14usiness. It is settled that the applicants who were born in the United States did not acquire citizenship under the Fourteenth Amendment to the United States Constitution as they were not born subject to 190 Interim Decision 44472

the jurisdiction of the United States. United 'States -v. Wong Kim Ark, 169 U.S. 642. They have never departed the United States and now desire to become citizens of this country and remain here per- manently. 11 they are considered to be lawful permanent residents of the United States, they may immediately proceed towards natural- ization. A. similar case was the subject of an opinion dated December 10, 1946, by the General Counsel of the Service who concluded "that a person who is an alien because he was born in the United States under diplomatic status 'and who has continued to ,reside in this 'country, may be considered' as lawfully admitted to the United States with respect to deriving citizenship through a jaarent or parents and aim; so far as concerns section 701 of the Nationality Act of 1940." Section 701 of the Nationality Act of 1940 provided for the naturalization of persons who served honorably in the mili- tary or naval services in the United States and who had been law- fully admitted to the United States. The General Counsel reasoned that it would be absurd and a vain thing to require aliens who are born in the United States and have never left this country to depart and be readmitted sin: ply to effect a lawful admission. He pointed out that aliens in this category, never having been out of the United States, are not subject to de- . portainudehmgolaws,thedprinovs of those laws relate only to aliens who have entered the United States. Although the Nationality Act of 1940 has been repealed, the reasons underlying the General Counsel's opinion are applicable here. The applicants have grown up as a part of our American population. They are not amenable to deportation. Their parents no longer have diplomatic status and in fact, as stated above, one parent is a United States citizen anti the other a permanent resident. It is also noted that during minority the domicile'of the child is that . of the domicile of the parents. 19 C. J. 411: Yarborough v. Yar- borough, 290 U.S. 202, 90 ALR 924. We are not aware of any administrative or judicial decisions un- der the Immigration and Nationality Act which would preclude a finding that these applicants are lawful permanent residents of the United States. It lies been established that, if they were outside this country, they would be eligible for issuance to them of immi; grant visas and for admission 1 t S permanent residents. Accordingly, in light of the foregoing, and after careful considera- tion of all the evidence before us, we conclude the applicants may

191 Interim Decision #1472 be considered to be lawful permanent residents of the United States. For this reason we shall'concur with the decision of the District Di- rector, Baltimore, Maryland, and enter the following order. ORDER!• It is ordered that the applications be denied. It is further ordered that applicants be considered to be lawful permanent residents of the United States.