56127/95
Decided by the Board January 13, 1943.
Citizenship — Expatriation — Failure of dual national to elect.
The doctrine of election set forth in Perkins v. Elg, 307 U.S. 325, has no application to a person who was vested with dual nationality at birth.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Immigrants without immigration visas.
Mr. Louis E. Spiegler, Hebrew Sheltering and Immigrant Aid Society, for the appellants.
Mr. Richard P. Lott, Board attorney-examiner.
APPLICATION: J---- R----, seeks admission as a citizen; A---- R----, seeks admission for permanent residence.
STATEMENT OF THE CASE: These appellants arrived at the port of New York on June 30, 1942, on the exchange vessel S.S. Drottningholm. They made applications for admission as aforesaid. A board of special inquiry denied the claim of J---- R---- to citizenship and excluded her on the ground stated above. Because A---- R---- applied for permanent admission, but was in possession only of a visitor's visa, she was excluded by the board of special inquiry as an immigrant alien not in possession of an immigration visa. Both applicants appeal.
DISCUSSION: A---- R---- is the daughter of J---- R----. She was born in Berlin in 1896 and has never been in this country before. She makes no claim to citizenship.
J---- R---- was born in New York State in 1873. Her parents were German citizens. There is no evidence that either was ever naturalized in this country. In 1876, the parents returned to Germany, taking J---- with them, and she has never been in this country since that time. J---- R---- states that she was married in 1891. There is some confusion as to this date, since she testifies that she was then 22 years of age, whereas, if her birth was in 1873 and her marriage in 1891, she was married at the age of 18. Her husband was a German citizen. He died in 1915, and J---- has never remarried. If this marriage had any effect on the citizenship of J---- R----, that effect was lost under the Act of June 25, 1936.
At the outbreak of the First World War, Mrs. R---- was in Austria and was permitted to return to Germany even though she had no passport. Apparently she was not interned or otherwise restricted during the First World War. In 1930 and 1936, Mrs. R---- traveled on the continent, using a German passport. In 1938, she attempted to return to the United States. She applied for and was issued a United States passport which enabled her to proceed to Norway. The record does not establish that Mrs. R---- has ever committed any acts that would result in her expatriation.
The Adjudications Branch contends that Mrs. R---- is expatriated. A brief submitted by that Branch concedes that under the Civil Rights Act of 1866 and the Fourteenth Amendment to the Constitution, Mrs. R---- was born a United States citizen. It is argued that she also acquired Germany citizenship: If her parents were not naturalized as United States citizens, then by birth under the German law as the child of a German father; or if her parents were naturalized here, then she acquired German citizenship by her parents' repatriation on their return to Germany under the applicable treaty. Thus, in either case, and before Mrs. R---- came of age, she was a dual citizen. It is argued that as a dual citizen she was required to make an election of citizenship after attaining her majority. The brief contains the following statement:
Under a principle long recognized and accepted by this Service, by the courts, and by authorities in the field of nationality law, the citizenship of a child born in the United States and taken during minority to the country of its parents' nativity may not be affected by such removal from the United States, but when that child attains his majority he must elect which of the two citizenships he will embrace ( Perkins et al. v. Elg, 307 U.S. 325, and other cases cited therein).
It is then contended that Mrs. R----'s use of German passports in 1930 and 1936, as well as her entire history of residence in Germany, represent an election of German citizenship and a denial of United States citizenship, and that, therefore, she is expatriated.
We can concede that Mrs. R---- was a German citizen by reason of her birth in this country of a German citizen father. But, as we have pointed out, there is no evidence or inference whatsoever that her father was ever naturalized in this country. Thus, unlike Miss Elg, Mrs. R---- did not acquire German citizenship subsequent to her birth, but was born with dual citizenship.
The Elg case contains strong language which might be read as a pronouncement that the doctrine of election not only will permit a dual citizen, upon attaining majority, to elect retention of United States citizenship, but requires him to make an election or otherwise suffer loss of United States citizenship. The various rulings of the State Department referred to in the opinion of the Elg case at times seem to announce that there is not only a right of election but also a duty to elect. Richard W. Flournoy, Jr., then Assistant Solicitor of the Department of State, wrote in 1921, in an article appearing in volume 30 of the Yale Law Journal, a comprehensive discussion of dual citizenship. He discussed in detail many of the instructions and pronouncements of the Department of State with reference to dual citizenship and election. He states his conclusion at page 563 (op. cit.): "The decisions of the Department of State in cases involving election seem to relate generally to the right of protection rather than to nationality as a matter of strict law." The State Department itself, in 1925, apparently accepted Mr. Flournoy's analysis that its decisions related to the right of protection rather than to United States citizenship, as such. The State Department in that year issued a compilation of consular instructions, including one issued in 1923, and which is quoted at length in the opinion in Perkins v. Elg at pages 345 and 346. That instruction states, with respect to a child born of foreign parents in the United States, as follows:
The child born of foreign parents in the United States who spends his minority in the foreign country of his parents' nationality is not expressly required by any statute of the United States to make the same election as he approaches or attains his majority. It is, nevertheless, believed that his retention of a right to demand the protection of the United States should, despite the absence of statute, be dependent upon his convincing the Department within a reasonable period after the attaining of his majority of an election to return to the United States, there to assume the duties of citizenship. In the absence of a definite statutory requirement, it is impossible to prescribe a limited period within which such election should be made. On the other hand, it may be asserted negatively that one who has long manifested no indication of a will to make such an election should not receive the protection of the United States save under the express approval of the Department.
We conclude from the foregoing that as late as 1923 and 1925 the Department of State was unwilling to insist that native-born citizens, such as Mrs. R----, would lose their United States citizenship by failure to make an election after attaining majority. We further conclude that the State Department's pronouncements, in total, upon the doctrine of election, at least as applied to a native-born citizen, refer only to the right of the subject to diplomatic protection.
The courts have made statements on the doctrine of election, yet there is no case that holds that United States citizenship has been lost by the operation of the doctrine of election. Ludlam v. Ludlam, 26 N.Y. 356, State ex rel. Phelps v. Jackson, 79 Vt. 504, and indeed, Perkins v. Elg, supra, either say or hold that United States citizenship is retained as a consequence of the exercise of the right of election.
Prior to the opinion of the Attorney General in the case of I---- T----, 36 Ops. Atty. Gen. 535, it had been the administrative view that a native citizen could lose citizenship only in the method provided by the first paragraph of section 2 of the Act of March 2, 1907. The T---- opinion extended that doctrine to what might be called "derivative" expatriation of a minor when the minor derived foreign naturalization after birth, through a parent. Perkins v. Elg modified the T---- rule and established that a native-born citizen who derivatively acquired, during minority, a foreign citizenship, had the right of election to retain United States citizenship after reaching majority. It is our opinion that the decision of the Elg case is stated in the following paragraph found at page 343:
Petitioners contend that respondent's acquisition of derivative Swedish citizenship makes her a person who has been "naturalized under Swedish law," and that therefore "she has lost her American citizenship" through the operation of this statute [the Act of March 2, 1907]. We are unable to accept that view. We think that the statute was aimed at a voluntary expatriation and we find no evidence in its terms that it was intended to destroy the right of a native citizen, removed from this country during minority, to elect to retain the citizenship acquired by birth and to return here for that purpose. If by virtue of derivation from the citizenship of one's parents a child in the situation can be deemed to have been naturalized under the foreign law, still we think in the absence of any provision to the contrary that such naturalization would not destroy the right of election.
We have quoted ( see page 390) a statement from the brief of the Adjudications Branch. That statement we do not accept. It has not been recognized by the Immigration and Naturalization Service or by this Board that a native-born child having dual citizenship must elect between two citizenships upon attaining his majority; it has not been recognized by the courts; and the statements of authorities to this effect are subject to question insofar as they are based upon State Department rulings, which are determinative of the right of protection and not of citizenship, as such. Mrs. R----'s entire history prior to 1938 shows that she has considered herself a German citizen, but as she had dual citizenship her various acts as a German citizen are in recognition of one of the two citizenships with which she was vested at birth and are not in derogation or denial of her American citizenship. To say that her acts in exercise of German citizenship are "a living contradiction" of United States citizenship begs the question by assuming a duty to elect. In Mrs. R----'s case there was no duty to elect. Therefore, since she was vested with United States citizenship at her birth in this country, she could lose it only in a method provided by the Act of March 2, 1907. There is no evidence that she has committed any such act, and she is, therefore, still a citizen of the United States and entitled to admission as such.
As before stated, Mrs. R---- applied for and received a United States passport in 1938. This is evidence only of a recognition by the Department of State of Mrs. R----'s United States citizenship and is not binding ( Miller v. Sinjen, 289 F. 388). We agree, however, with the Department of State that Mrs. R---- was in 1938 and still is a citizen of the United States.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That J---- R---- was born in the United States in 1873;
(2) That J---- R---- was taken to Germany by her parents in 1876, and has resided there since;
(3) That there is no evidence that the parents of J---- R---- were ever naturalized in the United States;
(4) That J---- R---- had German citizenship at birth;
(5) That J---- R---- has never naturalized in any foreign state or taken an oath of allegiance to any foreign state;
(6) That J---- R----, since January 13, 1941, has never performed any act of expatriation;
(7) That J---- R---- seeks admission as a United States citizen;
(8) That A---- R---- was born in Germany in 1896 and is an alien and citizen of Germany;
(9) That A---- R---- seeks admission for permanent residence;
(10) That A---- R---- presents a section 3 (2) visitor's visa.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under the Civil Rights Act of 1866 and the Fourteenth Amendment of the Constitution of the United States, J---- R---- was born a citizen of the United States;
(2) That under section 2 of the Act of March 2, 1907, J---- R---- has not expatriated herself;
(3) That J---- R---- has retained her citizenship with which she was vested at birth;
(4) That J---- R---- is not inadmissible under section 13 (a) of the Act of 1924 as an immigrant alien not in possession of an immigration visa;
(5) That under section 13 (a) of the act of 1924, A---- R---- is inadmissible as an immigrant alien not in possession of an immigration visa;
OTHER FACTOR: A---- R---- may be afforded an opportunity to adjust her status.
ORDER: It is ordered that the appeal of J---- R---- be sustained and that she be admitted as a citizen of the United States.
It is further ordered, That the excluding decision as to A---- R---- be affirmed without prejudice to a reapplication for admission within 1 year.
It is further ordered, That the action of the port in paroling A---- R---- be approved, and that her parole continue for a period of 6 months to afford her an opportunity to take steps to adjust her immigration status.