55892/523
Decided by the Board July 24, 1943
Citizenship — Expatriation — Dual national — Election — Section 401 (a), Nationality Act of 1940.
1. One who acquired dual nationality during minority but upon attaining majority elected United States citizenship was not a dual national at the time of the enactment of section 401 (a) of the Nationality Act and was not required again to elect United States citizenship by returning here within the prescribed period (Matter of G---- (56127/839) [ see page 496, this volume]).
2. When a native of this country who had acquired Canadian nationality during minority attempted at the age of 19 to return here for permanent residence but was thwarted by governmental action, such attempt will be deemed an election of United States citizenship.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Immigrant without immigration visa.
Executive Order 8766 — No passport.
Miss Arlene Tuck, Board attorney-examiner.
STATEMENT OF THE CASE: The appellant applied for admission at the Detroit and Canada Tunnel on May 3, 1943. He was excluded by a board of special inquiry on the above grounds, and he appeals.
DISCUSSION: The appellant was born on October 12, 1915, in Shadyside, N.J. In 1920 he was taken by his parents to Hungary, their birthplace. The family resided there until 1927 when they went to Canada. On June 14, 1934, appellant's father was naturalized in Canada, and appellant was included on his father's naturalization certificate. Since then appellant has been in the United States only on visits. He now wishes to come to the United States to live.
In September 1935, before he was 20, appellant sought to enter the United States claiming to be an American citizen. He testified that a month before he had gone to the American consulate to register as an American citizen but that they would not accept his registration, so he tried to get a visa. At that time he applied for admission only as a visitor, but he testified that if permitted he would come to the United States to live here permanently. Appellant was then excluded as an immigrant not in possession of an immigration visa, and on appeal the excluding decision was affirmed.
At the present hearing the appellant stated that in February 1943, he again went to the American consulate to apply for an immigration visa but was told that the law had been changed, and it was suggested to him that he appear before a board of special inquiry. Appellant obtained a nonresident alien's border-crossing card because he was told that was the only way he could come to the United States. Appellant claims never to have voted or taken an oath of allegiance to Canada.
The Immigration and Naturalization Service expresses the opinion that since the appellant did not return to the United States for permanent residence before January 13, 1943, under section 401 (a) of the Nationality Act of 1940 he may no longer be deemed an American citizen. That act provides:
SEC. 401. A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:
( a) Obtaining naturalization in a foreign state, either upon his own application or through the naturalization of a parent having legal custody of such person: Provided, however, That nationality shall not be lost as the result of the naturalization of a parent unless and until the child shall have attained the age of 23 years without acquiring permanent residence in the United States: Provided further, That a person who has acquired foreign nationality through the nationality of his parent or parents, and who at the same time is a citizen of the United States, shall, if abroad and he has not heretofore expatriated himself as an American citizen by his own voluntary act, be permitted within 2 years from the effective date of this act to return to the United States and take up permanent residence therein, and it shall be thereafter deemed that he has elected to be an American citizen. Failure on the part of such person to so return and take up permanent residence in the United States during such period shall be deemed to be a determination on the part of such person to discontinue his status as an American citizen, and such person shall be forever estopped by such failure from thereafter claiming such American citizenship;
We believe, however, that under the recent ruling in the case of L---- J---- A---- G---- (56127/839) [ see page 496, this volume] the appellant is now a citizen of the United States. That case concerned a person who, like appellant, had been born in the United States and was taken abroad during minority where he acquired foreign nationality by virtue of his parent's naturalization. His course of conduct after attaining majority indicated an election of American nationality, and it was held that such a person was no longer a dual national and was, therefore, not obliged to return within the 2-year period specified in the second proviso to section 401 (a) of the Nationality Act in order to preserve his American citizenship.
We regard the appellant's attempt to return to the United States for permanent residence when he was 19 years old, which was thwarted by governmental action, as evidence of an election of American citizenship. Consequently, under the doctrine of the G---- case appellant was not required to return before January 13, 1943, in order to preserve his American citizenship.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing, it is found:
(1) That appellant was born in Shadyside, N.J., on October 12, 1915;
(2) That appellant's father was naturalized a Canadian citizen in June 1934 while appellant was a minor and permanently residing in Canada;
(3) That in September 1935 appellant sought to enter the United States for permanent residence as an American citizen but was denied admission;
(4) That appellant is now seeking to enter the United States as an American citizen.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under Section 1992 of the Revised Statutes and section 1 of Article XIV of the amendments to the Constitution of the United States, the appellant was born a citizen of the United States;
(2) That appellant acquired Canadian citizenship during his minority through his father's naturalization in Canada under section 36, chapter 77, Revised Statutes of Canada, 1906;
(3) That prior to the effective date of the Nationality Act of 1940 appellant elected to retain his American citizenship, and was therefore not required under the second proviso to section 401 (a) of that act to return to the United States before January 13, 1943, in order to preserve his American citizenship;
(4) That appellant is now a citizen of the United States.
ORDER: It is ordered that the appeal be sustained and the appellant admitted as a citizen of the United States.