56127/66
Decided by the Board June 3, 1943.
Citizenship — Expatriation — Section 2, Act of March 2, 1907 — Section 409, Nationality Act of 1940.
1. When a naturalized citizen returned to his native land with his alien wife and American-born child, remaining there for 2 years and 10 months, the presumption of loss of United States citizenship contained in section 2 of the Act of March 2, 1907, is overcome by evidence that he regularly revalidated his American passport while there and registered as a citizen at the American Embassy, and that his wife had her reentry permit extended, such evidence showing no abandonment of intention to return to the United States.
2. Under section 409 of the Nationality Act of 1940 the repeal by that act of section 2 of the Act of March 2, 1907, does not for 2 years affect the case of a person who had already subjected himself to the operation of the 1907 act.
Citizenship — Children — Born abroad of citizen parent — Section 1993, Revised Statutes — Act of May 24, 1934.
3. A child born abroad in October 1940 of an American father and an alien mother becomes an American citizen at birth under Section 1993 of the Revised Statutes as amended by the Act of May 24, 1934, subject to being divested of such citizenship if the child does not come to the United States and reside there for at least 5 continuous years immediately prior to his eighteenth birthday, and if within 6 months after the child's twenty-first birthday he does not take an oath of allegiance to the United States.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Immigrants without immigration visas.
Act of 1917 — Afflicted with insanity. Likely to become a public charge.
Mr. Max Wilfand, Board attorney-examiner.
STATEMENT OF THE CASE: The appellants, a husband, wife, and minor child, together with one native-born minor child, arrived at the port of New York on June 30, 1942, ex-S.S. Drottningholm and applied for admission, the husband and children as American citizens and the wife as an alien immigrant. The board of special inquiry admitted the native-born child as a citizen, denied the claims of the father and the other child to American citizenship, and excluded the appellants on the grounds above stated. The mother and child have appealed from the excluding decision. If the father is held to be an alien, no appeal would lie in his case in view of the Public Health Service certification that he is afflicted with insanity. Therefore, the only issue in his case is whether the denial of his claim to citizenship was proper.
DISCUSSION: The father appellant was born in Germany in March 1906. He first entered the United States legally for permanent residence in November 1929, and on September 16, 1936, he became a naturalized American citizen. The mother appellant was legally admitted to the United States for permanent residence on June 13, 1927. In November 1935 they were married, and as a result of this union their native-born child was born in July 1936.
In the latter part of July 1939, Mr. and Mrs. L---- and their native-born son went to Germany. While there another son, Rudi, who is the other appellant in this case, was born on October 5, 1940. They remained in Germany until June 1942, when they began their return journey to this country. Because Germany was the foreign state from which the father came, his residence there for a period of more than 2 years after his naturalization brings into consideration the effect of the second paragraph of section 2 of the Act of March 2, 1907, which provided as follows:
When any naturalized citizen shall have resided for 2 years in the foreign state from which he came, or for 5 years in any other foreign state, it shall be presumed that he has ceased to be an American citizen, and the place of his general abode shall be deemed his place of residence during said years: Provided, however, That such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, under such rules and regulations as the Department of State may prescribe.
The aforesaid provision was repealed by section 504 of the Nationality Act of 1940. Section 409 of said act, however, contains a proviso that operates to continue the effect of this provision as to persons who had already subjected themselves thereto. The repeal, therefore, has no application to this case.
In the case of H---- H---- G---- (56127/9) [ see page 398, this volume], we considered the applicability of the foregoing provision of section 2 of the 1907 act in the light of the different interpretations theretofore given it. We there held that the provision was not limited in its operation while the naturalized citizen was residing abroad and only for the purpose of relieving the Government of the obligation of diplomatic protection, but operated to terminate citizenship status. In order to overcome the presumption stated therein, we held that it must be made to appear that there has not been an abandonment of intention to remain an American citizen. On May 15, 1943, Judge Clancy of the United States District Court for the Southern District of New York denied an application for a writ of habeas corpus in the G---- case on the ground that the latter was not an American citizen. The determination of whether there has not been an abandonment of intention to retain American citizenship depends on proof "that during his stay in Germany he had the intention of retaining his American citizenship, of returning to the United States, and of remaining there permanently" ( Miller v. Sinjen, 289 Fed. 388, 393). See also In re H---- H---- G----, supra.
The issue with which we are here confronted is in essence one of fact; has F---- J---- L---- overcome the presumption of cessation of American citizenship by a fair preponderance of the evidence? — Prior to Mr. L----'s departure from the United States in July 1939, he had been unemployed, had no money, and apparently had been evicted from his home because of inability to pay his rent. He last worked on the Works Progress Administration and was evidently quite anxious to obtain gainful employment in private industry. There was apparently some talk in his neighborhood about people going to Germany to work, and because he was unemployed Mr. L---- went to the Germania Club in Chicago to make inquiries. There he heard a speech by one Mr. Eberling, a German agent, who painted a glowing picture of economic conditions in Germany. Mr. L---- was told that if his family would return to Germany, he would be given a job and also a furnished home would be provided for his family. In addition the German Government would subsidize the family's travel expenses above $35 per person. The father went to the German Consulate in Chicago after talking with Mr. Eberling, and arrangements were there made for his return to Germany. He then applied for an American passport on July 8, 1939, and his wife obtained a German passport. His return to Germany was motivated, he claims, solely by his desire to obtain a job. Mrs. L---- testified that the family returned to Germany primarily because of the economic inducements, and that their intention was always to return here. She did further testify that they might have remained in Germany permanently if conditions in that country had met with their approval. Consistent with this testimony she applied for and received a reentry permit valid until July 13, 1940.
When the family reached Germany Mr. L---- went to work for the Daimler-Bentz Co. as a machine operator making truck parts. He worked there from August until December 1, 1939, when he left because of his separation from his wife, the German Government apparently not having lived up to the promise to supply the family with a home. He was unemployed until March 1940, during which time he lived with his father-in-law who was apparently reimbursed for the costs of maintaining them by the German Labor Front. He finally obtained employment with the Schoth Co. in Berlin where he did automobile repair work until his return to this country.
Mr. L----'s actions while in Germany in seeking to maintain his American citizenship, as shown by the records of the Department of State, support his and his wife's expressed intentions of always intending to return to this country. These records show that on May 4, 1940, Mr. L---- applied through the American Embassy at Berlin for the validation of his passport until November 4, 1940, during which time he apparently intended to seek to obtain financial assistance from friends in this country. On November 4, 1940, he again applied for the revalidation of his passport until May 4, 1941, and then indicated that he had not sooner returned to this country because of the birth of his son and his inability to obtain financial assistance to enable him to buy passage back to this country. On March 15, 1941, he applied for a new passport through the American Embassy at Berlin, Germany, and a passport was issued to him valid until May 4, 1941. On May 5, 1941, he applied for the validation of his passport, and it was validated until July 13, 1941. On July 12 he applied through the same embassy for registration as an American citizen, and his application was approved until October 13, 1941. On October 16 he again applied for registration, and he was registered until October 9, 1942. Before the date last mentioned Mr. L---- was issued a Swiss Schutzpass in Berlin on June 1, 1942, valid for his travel to the United States on the S.S. Drottningholm, which arrived at New York on June 30, 1942. It should also be noted that Mrs. L---- while in Germany applied for and received an extension of her reentry permit until January 13, 1941, an act which is inconsistent with a desire to remain permanently in Germany.
Mr. L----'s persistent and successful efforts to revalidate his passport and register his American citizenship while in Germany are entitled to great weight in determining whether the presumption found in section 2 of the 1907 act has been overcome. His actions were certainly not those of a person not intending to return to this country; nor of one voluntarily surrendering American citizenship. To say that Mr. L----, because he resided in Germany for about 10 months longer than 2 years, had lost his American citizenship in the face of all his voluntary acts to retain such citizenship, would certainly not make the presumption one "easy to preclude and easy to overcome" ( United States v. Gay, 264 U.S. 353). In view of Mr. L----'s conduct in Germany in seeking to maintain his American citizenship, his efforts in having his American passport revalidated, and his wife's success in extending her reentry permit, we feel that he has overcome the presumption found in section 2 of said act and that he is still an American citizen.
Rudi L----, having been born in Germany in October 1940 of a citizen father, became an American citizen at birth by reason of the Act of April 14, 1802, as amended by the Acts of February 10, 1855, and May 24, 1934 (R.S. Sec. 1993). The 1934 amendment provided that where one of the parents is an alien, as is the case here, the right of citizenship does not descend unless the child comes to the United States and resides therein for at least 5 years continuously immediately previous to his 18th birthday, and unless, within 6 months after the child's 21st birthday, he or she shall take an oath of allegiance to the United States of America as prescribed by the Immigration and Naturalization Service. Notwithstanding these conditions, it has been held that such a child acquires American citizenship at birth subject to being divested if such child thereafter fails to comply with the two foregoing conditions, which must be regarded as conditions subsequent and not as conditions precedent (38 Op. Atty. Gen. 10). Hence, we conclude that Rudi is now an American citizen and must be admitted as such.
Mrs. L---- seeks admission to this country as a returning resident. She, however, is not in possession of an immigration visa and was therefore properly found inadmissible by the board of special inquiry. Since she is in possession of a valid passport and a section 3 (2) nonimmigrant visa, the requirements of section 30 of the Alien Registration Act of 1940 and Executive Order No. 8766 of June 3, 1941, are satisfied. In view of our finding that she is a bona-fide returning resident we shall, by reason of long administrative practice and because of the circumstances appearing in this record, waive the visa requirement of the Immigration Act of 1924 and admit her at this time under section 13 (b) of said act as a returning resident.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That F---- J---- L---- was born in Germany in March 1906;
(2) That F---- J---- L---- entered the United States for permanent residence in November 1929 and was naturalized an American citizen on September 16, 1936;
(3) That Rosa L---- was admitted to the United States for permanent residence in June 1927;
(4) That in the latter part of July 1939 F---- and Rosa L----, with their American-born child, returned to Germany;
(5) That F---- J---- L---- was unemployed prior to his departure to Germany, and his return there was motivated solely because of a desire to obtain employment;
(6) That F---- J---- L---- intended at the time of his return to Germany to retain his American citizenship and to return to this country;
(7) That in October 1940, Rudi L----, the other appellant, was born in Germany;
(8) That F---- J---- L---- had his American passport revalidated while in Germany until July 13, 1941;
(9) That on July 12, 1941, he registered as an American citizen, such registration being valid until October 13, 1941, and on October 16, 1941, he again registered as a citizen, such registration being valid until October 9, 1942;
(10) That Rosa L---- obtained an extension of her reentry permit until January 13, 1941;
(11) That the appellants, with the native-born child, returned to the United States on the S.S. Drottningholm in June 1942, and sought admission as returning residents, Mr. L---- and the two children as American citizens and Mrs. L---- as an alien returning resident;
(12) That Rosa L---- is not in possession of an immigration visa;
(13) That Rosa L---- is in possession of a valid passport and a section 3 (2) nonimmigrant visa.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 409 of the Nationality Act of 1940, F---- J---- L---- is subject to the presumption found in paragraph 2 of section 2 of the Act of March 2, 1907;
(2) That under said paragraph 2 of section 2 of the Act of March 2, 1907, F---- J---- L---- is presumed to have ceased to be an American citizen, but such presumption has been overcome by evidence that he intended to retain his American citizenship, to return to the United States and to remain here permanently;
(3) That under section 13 (a) of the Immigration Act of 1924, F---- J---- L---- is not inadmissible as an alien immigrant not in possession of an immigration visa;
(4) That under section 3 of the Immigration Act of 1917, F---- J---- L---- is not inadmissible as afflicted with insanity;
(5) That under section 3 of the Immigration Act of 1917, F---- J---- L---- is not inadmissible as likely to become a public charge;
(6) That under Section 1993 of the Revised Statutes, Rudi L---- is an American citizen by reason of his birth in a foreign country of a citizen father;
(7) That under section 13 (a) of the Immigration Act of 1924, Rudi L---- is not inadmissible as an alien immigrant not in possession of an immigration visa;
(8) That Rosa L---- qualifies for consideration and has been found entitled to admission under section 13 (b) of the Immigration Act of 1924 as a returning resident;
(9) That under section 13 (a) of the Immigration Act of 1924, Rosa L---- is not inadmissible as an alien immigrant not in possession of an immigration visa.
OTHER FACTORS: There are no other factors.
ORDER: It is ordered that the appeals be sustained and that F---- J---- and Rudi L---- be admitted as American citizens and that the alien, Rosa L---- be admitted for permanent residence.