Matter of J-W-F-

Cite as 6 I&N Dec. 200

IN THE MATTER OF J W F-

In DEPORTATION Proceedings

V-905856

Decided by Board July 7, 1954

Status-Citizen under section 1994 of the Revised Statutes-Philippine national, racially Chinese.

A native of the Philippine Islands, racially Chinese, who became a United States national on April 11, 1899, by virtue of the Treaty of Paris, did not acquire United States citizenship under section 1994 of the Revised Statutes through her marriage to a citizen husband in 1909. Section 2169 of the Revised Statutes in effect at that time limited naturalization to " aliens being free, white persons, and to aliens of African nativity and to persons of African descent."

DEPORTABLE :

Act of 1924-Remained longer-Visitor.

BEFORE THE BOARD

Discussion : This is a motion to reopen to reconsider our decision of July 24, 1953. It is alleged that there is additional testimony available concerning the nationality of the respondent and her parents . The respondent is a 63-year-old married female, who last entered the United States at San Francisco on February 20, 1950, as a visitor, and remained. She first entered this country in 1945 as a United States citizen and departed in 1947. At the time of last entry she stated that she was a citizen of China, of the Chinese race. In warrant proceedings, she has testified under oath that she was born in the Philippine Islands in 1890 or 1891 ; and that her parents were natives and citizens of China, racially Chinese (full blood) . She testified that she was first married on January 1, 1909, in the Philippine Islands and that her husband by that marriage is deceased ; and that she was next married on July 12, 1951, in the United States. It appears that her second marriage has been annulled and that she is presently married to a legally resident alien. She has been found deportable and has been authorized to depart voluntarily.

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Counsel's brief sets forth certain nationality laws applicable to persons born in the Philippine Islands. After a thorough discussion, he has concluded that this respondent, a native of the Philippine Islands, was a subject of Spain at birth; that by the Treaty of Paris on April 11, 1899, she became a national of the United States ; and that on January 1, 1909, she became a United States citizen by marriage to an American citizen pursuant to section 1994 of the Revised Statutes of the United States ( 10 Stat. 604) . Section 1994 of the Revised Statutes (repealed September 22, 1922) which was in effect at the time of the alleged marriage of this respondent in 1909 reads as follows : Any woman who is now or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen. ***

The pertinent section of law quoted above and a similar provision of law (Act of February 10, 1855) were construed by the Attorney General in an opinion on July 30, 1907 (27 Op. Atty. Gen. 507) in which it was held that the words "who might herself be lawfully naturalized" in such statutes " refer to the class or race who might be lawfully naturalized," and did not require compliance with other conditions of the naturalization laws. Since the facts in this case show that this respondent is of the (full blood) Chinese race, the issue presented is whether she was of a race or class eligible to be naturalized at the time of her marriage. It appears that the naturalization laws were originally limited to "any alien being a free white person." 1 Such laws were later extended to aliens of African nativity and persons of African descent.2 Section 2169 of the Revised Statutes in effect in 1909 at the time of the marriage of this respondent provided : The provisions of this title ( naturalization) shall apply to aliens [being free white persons, and to aliens] of African nativity and to persons of African descent.

The issue relative to classes or races who are "white persons" within the meaning of section 2169 of the Revised Statutes, has been considered in many instances for the purpose of determining eligibility to naturalization. This Board considered the question in Matter of K , A-2655247, 2, I. & N. Dec. 253 (Atty. Gen. , May 26, 1945) . We found that the Supreme Court of the United States had construed the meaning of the term "white persons" on two occasions and had held that the words imported a racial Act of March 26, 1790, 1 Stat. 103 ; act of January 29, 1795, 1 Stat. 414; act of April 14, 1802, 2 Stat. 153; act of May 26, 1824, 4 Stat. 69. *Act of July 14, 1870, 16 Stat. 254; act of February 18, 1875, 18 Stat. 380 ; section 2169, Revised Statutes.

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test and "were meant to indicate only a person of what is popularly known as the Caucasian race. " 3 In our decision in Matter of K——, (supra) , we noted that certain races, like the Japanese, the Chinese and the (East) Indians, were not white races.4 It must, therefore, be concluded that this respondent, who is of the Chinese race, was not a person of the white or Caucasian race or any other race or class eligible to citizenship within the provisions of section 2169 of the Revised Statutes of the United States in 1909 ; and, therefore, she was not a person who could be lawfully naturalized at the time of her marriage in 1909. She, therefore, did not acquire United States citizenship by such marriage. Counsel contends that respondent was a United States national at the time of her marriage and that the provisions of section 2169 and section 1994 of the Revised Statutes, applicable to aliens, do not apply to respondent who was not an alien; that respondent was not Chinese, but a citizen of the Philippines ; and that citizens of the Philippines (United States nationals) were not racially ineligible for United States citizenship. It is not easy to follow the reasoning of counsel, particularly pages 7 and 8 of his brief. Apparently he believes that respondent's ineligibility to citizenship because of race was eliminated when she became a United States national . By the Treaty of Paris between the United States and Spain on December 10, 1898 (30 Stat. 1754) , Spanish subjects, natives of the Philippine Islands, residing in that territory, were declared citizens of the Philippine Islands, except those who elected to preserve allegiance to the Crown of Spain. By act of Congress on July 1, 1902 (32 Stat. 691) all inhabitants of the Philippine Islands continuing to reside there who were Spanish subjects on April 11, 1899, and their descendants, were deemed citizens of the Philippine Islands, nationals of the United States. Therefore, citizens of the Philippine Islands were not aliens initially because they did not owe allegiance to any foreign government, but to the United States. Consequently, prior to June 29, 1906, no Philippine citizen could become a citizen of the United States because under the then existing naturalization law (Revised Statutes 2169 ) , the right of naturalization was limited to "aliens being free white persons, and to aliens of African nativity and to persons of African descent." Not being an alien, a Philippine citizen, * Ozawa v. United States, 260 U. S. 178 (1922) ; United States v. Thind, 261 U. S. 206 (1923) . * See also Chinese Exclusion Act of May 6, 1882 (8 U. S. C. 363 ) which prohibited judicial naturalization of Chinese persons (repealed December 17, 1943, 57 Stat. 600) .

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regardless of his race or class, could not be naturalized. However, section 30 of the act of June 29, 1906 (34 Stat. 606) provided that all persons not citizens of the United States could proceed toward naturalization. However, section 30 of the act of June 29, 1906, 5

did not remove the requirement of eligibility as to race or color. A citizen of the Philippines could proceed toward naturalization, but must meet all of the legal requirements including racial eligibility. We find from the foregoing discussion that under the applicable naturalization laws this respondent, a native of the Philippine Islands, national of the United States, racially Chinese, was ineligible for naturalization in 1909. Consequently, she was a person who could not be lawfully naturalized within the provisions of Revised Statutes, section 1994. Obviously she did not acquire United States citizenship by her marriage to a United States citizen in 1909. A reopening of the proceedings would avail the respondent nothing. The motion will be denied. She will be given another opportunity to depart voluntarily. Order: It is ordered that the motion be and the same is hereby denied. It is further ordered that the order of the special inquiry officer of April 24, 1953, and order of this Board of July 24, 1953, and warrant of deportation issued pursuant thereto, be withdrawn, and that the alien be permitted to depart from the United States voluntarily without expense to the Government, to any country of her choice, within such period of time and under such conditions as the officer-in-charge of the district deems appropriate. It is further ordered that if the alien does not depart, when and as required, the privilege of voluntary departure shall be withdrawn without further notice or proceedings, and the alien deported pursuant to law on the charge in the warrant of arrest. Toyota v. United States , 268 U. S. 402 (1925) ; De La Ysla v. United States, 77 F. ( 2d) 988 ( 1935) .

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