Javier ALCAREZ-GARCIA, aka Garcia Javier Alcarez, Petitioner, v. John ASHCROFT, Attorney General, Respondent, 293 F.3d 1155

Opinion by Judge CYNTHIA HOLCOMB HALL; Dissent by Judge Kozinski. OPINION CYNTHIA HOLCOMB HALL, Circuit' Judge. This case requires us to determine whether an individual who was physically present and working in the United States for 9 months out of the year for 8 years out of a 9-year period established residence for that 9-year time period under

section 201 -of the Nationality Act of 1940, 8 U.S.C. § 601(g) (1940). We conclude that he did, grant his petition, for review, and remand to the Board of Immigration Appeals (“BIA”). I. FACTS AND PROCEEDINGS BELOW A. Background Petitioner Javier Alcarez-Garcia was born in Mexico on December 6, 1952. Petitioner’s mother is a native and citizen of Mexico. Petitioner’s father, Crescencio Alcarez, was born in Texas on September 15, 1920, and was a United States citizen. He married Petitioner’s mother in 1942. Petitioner’s father died in 1988.

Petitioner’s father lived in the United States for 2 years from 1920 to 1922, at which'time his parents moved to Mexico. In 1943, Petitioner’s father obtained employment on a farm in Texas. Petitioner’s father worked on the same farm in the United States from 1943-1952, generally living 9 months (March-November) each of these years in Texas and spending the remaining 3 months with his family in Mexico. The only exception occurred in 1947, when he spent more time in Mexico than in Texas due to a bad crop season.

His wife lived with his parents in Mexico until approximately 1948 or 1949, at which time she and her children moved into a separate house in the same town. The wife and (then two) children never traveled to the United States during that period. According to Petitioner’s mother, Petitioner’s father began living exclusively in the United States beginning in 1956, and eventually, in 1963, sponsored his family for residency in the United States. It appears that Petitioner’s father worked for the same brick manufacturing company in California from 1959 until his death in 1988. B.

Lower Court Proceedings The INS commenced removal proceedings against Petitioner through issuance of a Notice to Appear dated April 4, 1997. The INS charged that Petitioner was removable for ■ a violation of 8 U.S.C. § 1182(a)(6)(A)© (1997), as an alien present in the United States without being admitted or paroled. Based on Petitioner’s prior violation of 8 U.S.C. § 1251(a)(2)(A)-(B) (1994), for which he was deported, the INS filed an additional charge asserting removability under 8 U.S.C. § 1182(a)(9)(A)(ii) (1997), which limits admission of aliens previously ordered removed.

The Immigration Judge found that Petitioner had failed to' prove a “substantial claim of derivative citizenship” because Petitioner’s father came to the United States just for seasonal work and thus had not established his residence there. The Immigration Judge sustained the charges against Petitioner and ordered his removal to Mexico.

The Board of Immigration Appeals (“BIA”) dismissed Petitioner’s appeal on the ground that derivative citizenship had not been demonstrated by a preponderance of the evidence, finding that “his [father’s] time in the United States was incidental to and dependent upon his employment which was not to exceed a definite, fixed period,” and thus that his father’s “place of general abode was with his family in Mexico.” Board of Immigration Appeals Order at 2. Petitioner then filed a petition for review with this court. We have jurisdiction pursuant to 8 U.S.C. § 1252(b). II.

STANDARD OF REVIEW Where as here, the BIA reviews the Immigration Judge’s decision de novo, our “review is limited to the decision of the [BIA], except to the extent that the Immigration Judge’s decision is expressly adopted by the Board.” Scales v. INS, 232 F.3d 1159, 1162 (9th Cir.2000). This appeal presents a mixed issue of law and fact; therefore, de novo review is appropriate. See Singh v. Ilchert, 63 F.3d 1501, 1506 (9th Cir.1995). The standard for proving a claim to United States citizenship is preponderance of the evidence. 8 C.F.R. § 341.2(c). III.

DISCUSSION The applicable law for transmitting citizenship to a child born abroad when one parent is a United States citizen is the statute that was in effect at the time of the child’s birth. Scales, 232 F.3d at 1162.

On December 6, 1952, the date of Petitioner’s birth, the governing statute provided, in part, that a person shall be a national and citizen of the United States at birth who is born outside the United States and its outlying possessions of parents one of whom is a citizen of the United States who, prior to the birth of such person, has had 10 years’ residence in the United States or one of its outlying possessions, at least five of which were after attaining the age of 16 years, the other being an alien; Provided, That, in order to retain such citizenship, the child must reside in the United States or its outlying possessions for a period or periods totaling 5 years between the ages of 13 and 21 years[.] 8 U.S.C. § 601(g) (1940) (emphasis added).

Because neither party disputes that Petitioner’s father resided in the United States from 1920-1922, the sole question is whether Petitioner’s father “resided” in the United States from 1943-1952, before Petitioner’s birth, while generally living and working in Texas for 9 months each year and visiting family in Mexico for 3 months each year.

Section 504 defines residence as the “place of general abode.” 8 U.S.C. § 504 (1940). The Supreme Court has interpreted residence under § 504 to be “the principal dwelling place of a person,” without regard to intent. Savorgnan v. United States, 338 U.S. 491, 505, 70 S.Ct. 292, 94 L.Ed. 287 (1950). The Supreme Court stated that, in contrast to other

definitions of “residence,” in § 504 “no mention is made of intent, and the actual ‘place of general abode’ is the sole test for determining residence.” Id. (quoting Report on Revision and Codification of the Nationality Laws of the United States (1940)).

The inquiry is one of objective fact, and one’s “intent as to ‘domicile’ or as to her ‘permanent residence,’ as distinguished from her actual ‘residence,’ ‘principal dwelling place,’ and ‘place of abode,’ is not material.” Id.; see also 7 Gordon et al., Immigration Law & Procedure § 93.02[5][c] (2001) (“[T]he Nationality Act’s definition did not necessarily contemplate the establishment of a domicile or place of permanent residence!”). Here, the objective facts favor finding the United States to be the Petitioner’s father’s place of residence from 1943-1952.

Petitioner’s father was physically present in the United States for 9 months each year (except 1947) during that period, only leaving to visit family in Mexico during his vacation months. The fact that Petitioner’s father spent nearly three quarters of his life during those years living and working in the United States demonstrates that the United States was his “principal place of dwelling.” Any other conclusion would require applying purely intent or domicile-based

definitions of “residence” that the Supreme Court expressly rejected in- Sa-vorgnan. Our view is consistent with those taken in other cases that have emphasized the importance of physical presence in determining “residence.” See, e.g., Garlasco v. Dulles, 243 F.2d 679, 681-82 (2d Cir.1957) (despite having lived in Italy for the previous two years and despite his application for an extension of his passport to return abroad, plaintiffs physical presence with his wife at a New York hotel for 2 months was sufficient to establish residence under § 504 in the United States for that period); Matter of V.V., 7- I. & N.

Dec. 122, 123 (BIA 1956) (finding that a 13-year-old student’s nine-month stay at boarding, school in United States in 1949 satisfied the residency requirement); Matter of M, 7 I & N Dec. 643, 645 (BIA 1958) (finding that a student’s four year attendance at Yale University satisfied the residency requirement). Moreover, the government concedes that continuous physical presence is not required to establish residence and that temporary absences do not operate to interrupt the period of the residence under § 504.

See Acheson n Gee, 184 F.2d 382, 383-84 (9th Cir.1950) (petitioner’s father determined to be .a resident of the United States for almost a 12-year span despite two visits, each for about two years, to China to be with his family). Accordingly, Petitioner is entitled to residency credit for the entire time period from 1943 to 1952. IV. CONCLUSION For the foregoing reasons, we reverse the BIA’s determination that Petitioner’s father did not meet the residency requirement under 8 U.S.C. § 601(g) (1940) that he had acquired 10 years residence in the United States.

We remand to the BIA for a determination as to whether Petitioner has fulfilled the separate residency requirement under 8 U.S.C. § 601(

g) requiring that the child reside in the United States for 5 years between ages 13 and 21. Petition for review* GRANTED and case REMANDED. . The second residency requirement pertaining to Petitioner himself is not before this Panel. Neither the BIA nor the Immigration Judge addressed this issue. . The Supreme Court's

interpretation has been codified in the current version of the statute: "The term 'residence' means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.” 8 U.S.C. § 1101(a)(33).