A-6391576.
Decided by Board January 8, 1947.
Samoan — Native of American Samoa — National (but not citizen) of United States — Loss of such nationality by marriage in 1929.
(1) A native of American Samoa, born in 1911 of parents who were deemed American nationals (but not citizens) is a national (but not a citizen) of the United States, under applicable rules of international law.
(2) Such a national (but not citizen) did not lose such nationality by marriage in 1929 to an alien ineligible to citizenship, there being no judicial authority or legislation to that effect, it being noted that such marriage occurred after the repeal of section 3 of the act of March 2, 1907 (sec. 7 of the act of Sept. 22, 1922), and that the proviso to section 3 of the act of Sept. 22, 1922 (repealed by sec. 4 of the act of Mar. 3, 1931), referred to loss of citizenship of a woman citizen (but not to loss of nationality by a national) upon marriage to an alien ineligible to citizenship.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
BEFORE THE BOARD
Discussion: Appellant applied for admission into the United States at the port of Honolulu, T.H., on April 17, 1946, and was referred to a Board of Special Inquiry which, after hearings conducted on April 18 and August 2, 1946, ordered her excluded on the abovestated grounds. She has appealed from this decision. The Commissioner, in an opinion dated October 22, 1946, affirmed the excluding decision of the Board of Special Inquiry and ordered that the parole action by the port be approved and extended for a period of 6 months from the date of notification of decision.
The appellant testified that she was born at Pago Pago, American Samoa, on September 5, 1911; that she first came to Hawaii in 1925 and remained there until 1929; that she married a British subject in Apia, British Samoa, and lived there for about 9 years, making one trip back to Hawaii in 1937. She again resided in Hawaii from 1939 to January 1946, when she departed to visit in American Samoa. She is returning from this visit. The record indicates that on each of her entries into the United States she was admitted as a citizen. In substantiation of a claim to birth in American Samoa she presented a birth certificate. She also presents a United States passport issued at American Samoa. Appellant alleges that she is a national of the United States.
Appellant testified that she had been married on three occasions, the first to a British Samoan in 1929, from whom she was divorced on March 21, 1939; the second to an American citizen in 1942, from she was divorced in 1943; and a third, to an American citizen on November 5, 1943, to whom she is still married. The appellant testified that her first husband was half Danish and half Samoan and that he was a citizen of British Samoa. During the proceedings the appellant claimed United States citizenship at birth. There is some indication that the appellant's grandfather may have been born in the United States but there is no proof thereof. A half-sister of appellant's father testified that he was born at Apia, British Samoa, about 1869. It is reasonably established that appellant's father was residing in American Samoa on February 16, 1900, the date of the ratification of the treaty by which the United States acquired the islands. However, there is no evidence that the appellant's father had ever resided in the continental limits of the United States or the territories of Hawaii or Alaska prior to the birth of the appellant. The evidence of record does not sustain a finding that the appellant's grandfather was a citizen of the United States by birth or that the appellant's father acquired United States citizenship under the provisions of R.S. 1993, or that the appellant acquired United States citizenship under the provisions of said statute. We are of the opinion that the appellant has failed to sustain the burden of proof regarding her claim to United States citizenship.
It remains to be determined whether the appellant is a national of the United States, as the evidence establishes that she was born in American Samoa. Section 356.7, Nationality Manual, relates that persons born in American Samoa on or after February 16, 1900, and before January 13, 1941, became United States nationals at birth only if born to parents who were at the time of such birth United States nationals of a race indigenous to such island group. The record reasonably establishes that appellant's mother was a full-blooded Samoan. The record is not definite as to the race of her father. There is some evidence that he may have been entirely or in part of the white race. Although the citizenship of appellant's father has not been established by this record, it is reasonable to assume from the evidence available that he became a national of the United States at the time the islands were acquired. As there were no provisions in the convention between the United States and Germany and Great Britain ratified February 16, 1900, or in the joint resolutions of Congress of March 4, 1925, and February 20, 1929, or in any other statute defining the political status of Samoans, inhabitants of the territory have generally been dealt with under the applicable rules of international law to determine their nationality status. Under this general principle of international law, it is well settled that in the case of the acquisition of inhabited territory the acquiring sovereign becomes entitled to the allegiance of the inhabitants who immediately prior to the acquisition owed allegiance to the state from which the territory was acquired unless the treaty of acquisition provides otherwise (Hackworth, Digest of International Law, vol. 3, p. 155). Accordingly, we conclude that appellant was born a national of the United States of parents who were nationals.
See Matter of B----, A-6869289, B.I.A. Sept. 1, 1949, Interim Decision No. 88.
The Commissioner in his opinion dated October 22, 1946, states (p. 2), "If it were assumed but not conceded that the appellant was a United States national but not a citizen of the United States at the time of birth, it appears that she lost such nationality through marriage to her first husband in 1929 inasmuch as he was not predominantly of a race eligible to citizenship." The Commissioner cites as authority for this statement Hackworth, Digest of International Law, volume 3, page 257, and the case of Tashiko Inabe v. Nagle, 36 F. (2d) 481 (C.C.A. 9, 1929). The Inaba case ( supra) does not appear to be in point, as it relates to the marriage of a native-born citizen of the United States to a person of the Japanese race. Under the heading "Nationals and Citizens" Hackworth, at page 257, volume 3, discusses the loss of American citizenship by one Mrs. M---- under the provisions of section 3 of the act of March 2, 1907. He quotes a letter from the Secretary of State (Stimson) to the Secretary of War (Hurley) as follows: "In the opinion of the Department of State the term `American women' as used in the section of law above referred to (section 3, act of March 2, 1907) prior to its repeal by the act of September 22, 1922 [italics supplied], was applicable to any woman having American nationality and not merely to women who had the status of citizens of the United States."
Appellant's marriage to an alien ineligible to citizenship occurred during 1929. Congress in passing the Cable Act of September 22, 1922, expressly dropped the term "American woman" as used in section 3 of the act of March 2, 1907, and substituted therefor the term "woman citizen." Congress expressly repealed section 3 of the act of March 2, 1907 by section 7 of the Cable Act of September 22, 1922. The proviso attached to section 3 of the act of September 22, 1922, reads as follows: " Provided, That any woman citizen who marries an alien ineligible for citizenship shall cease to be a citizen of the United States. If at the termination of the marital status she is a citizen of the United States she shall retain her citizenship regardless of her residence." Congress in no way referred to the term "American woman" as found in section 3 of the 1907 act. The interpretation, therefore, placed upon the 1907 act by the Secretary of State, in our opinion, does not affect the Cable Act. It is interesting to note that the proviso concerning the loss of citizenship by marriage to an alien ineligible to citizenship was eliminated from section 3 of the Cable Act by section 4 of the act of March 3, 1931. Appellant not being "a woman citizen of the United States" at the time of the marriage in question certainly could not lose citizenship which we have previously determined she never had. We can find no legislation by Congress or judicial authority to the effect that a national of the United States who married an alien ineligible to citizenship subsequent to the repeal of section 3 of the act of March 2, 1907 lost her nationality.
Accordingly, we find the appellant entitled to admission without documents as a national of the United States in possession of a duly issued United States passport.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the appellant, a native of American Samoa, was born September 5, 1911;
(2) That the appellant was born of a native Samoan mother;
(3) That the appellant's father was an inhabitant of American Samoa at the time the islands were acquired by the United States;
(4) That the appellant's father was domiciled at American Samoa at the time of appellant's birth;
(5) That the appellant married an alien ineligible to citizenship during the year 1929 and is now the wife of a United States citizen;
(6) That the appellant desires to reside in the Territory of Hawaii and is in possession of a duly issued United States passport;
(7) That the appellant is not in possession of an immigration visa.Conclusions of Law: Upon the basis of the foregoing findings of fact it is concluded:
(1) That the appellant was born a national of the United States of parents who at the time of birth were nationals of the United States;
(2) That under the Cable Act of September 22, 1922, the appellant did not lose United States nationality by marriage to an alien ineligible to citizenship;
(3) That the appellant, a national of the United States in possession of a duly issued United States passport, is entitled to enter the Territory of Hawaii from American Samoa under existing regulations without documents;
(4) That under section 13 (a) (1) of the Immigration Act of May 26, 1924, the appellant is not inadmissible to the United States in that she is an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder.Other Factors: The appellant's two children by her first marriage, both minor, were admitted at Honolulu, T.H., on April 17, 1946, upon presentation of valid British passports, as temporary visitors for 1 year.
Order: It is ordered that the appeal be and the same is hereby sustained, the appellant to be admitted at the port of Honolulu, T.H., as a national of the United States in possession of a United States passport duly issued.