56127/954
Decided by the Board October 13, 1943.
Citizenship — Expatriation — Act of March 2, 1907 — Section 401 (a), Nationality Act of 1940.
1. To constitute the taking of an oath of allegiance within the meaning of section 2 of the act of 1907, so as to result in expatriation, the oath must in fact be taken, not merely subscribed to.
2. A native-born citizen of the United States who acquired Canadian citizenship during his minority by reason of his father's naturalization in Canada is admissible to the United States as a citizen under section 401 (a) of the Nationality Act of 1940 within 2 years after the effective date of the act, when he had not elected prior thereto to give up his United States citizenship by a voluntary act that connotes something more than mere residence abroad. Matter of S---- (56127/518).
3. Such a person has not evidenced an election of Canadian nationality by having attempted to enlist in the Canadian militia during minority.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1940 — Immigrant without proper documents.
Executive Order 8766 — No passport.
Mr. Max Wilfand, Board attorney-examiner.
STATEMENT OF THE CASE: The appellant applied for admission as an American citizen at the port of Havre, Mont., on December 19, 1942. After hearings on that date and on January 16, March 27, and August 16, 1943, a board of special inquiry denied his claim to American citizenship and excluded him on the grounds above stated. His appeal is now before us for consideration.
DISCUSSION: The appellant was born in Inverness, Mont., on October 4, 1915. When he was 4 weeks old his parents took him to live in Canada, and he has since that time maintained his residence there. On October 26, 1921, when the appellant was a minor and living in Canada, his father, a native of the Union of Soviet Socialist Republics, was naturalized a Canadian citizen. Canadian law then provided that a minor child whose name appeared in the naturalization certificate of his parent acquired Canadian citizenship. Though the record does not indicate whether this appellant's name was so endorsed, the board of special inquiry apparently assumed that it was and for the purposes of this discussion we shall so assume. This acquisition by the appellant of Canadian nationality, however, did not operate to divest him of his American citizenship.
Perkins v. Elg., 307 U.S. 325 (1939).
In June 1939 the appellant applied for enlistment in the nonpermanent active militia of Canada. At that time he executed what is called an attestation card, signing the same on June 29, 1939. Near the bottom of his card appears the following:
OATH TO BE TAKEN
I, A.H. E----, do sincerely promise and swear (or solemnly declare) that I will be faithful and bear true allegiance to His Majesty.
(Sgd) H.R. Robinson, Lieut. 2 (Signed) A---- E---- (Signature of witness) (Signature of man)
Dated this 29th day of June 1939 at Shaunavon, Saskatchewan.
Notwithstanding the fact that his name is signed to the foregoing form of oath, the appellant testified that he did not take an oath of allegiance at that time. This testimony is substantiated by the fact that no signature of the attesting officer appears in the attestation clause on the bottom of the card. The form of the certificate, which was supposed to have been signed by the attesting officer, reads as follows:
CERTIFICATE OF ATTESTING OFFICER
The recruit above-named was cautioned by me that if he made any false answers to any of the above questions he would be liable to be punished by law. The above questions were then read to the recruit in my presence. I have taken care that he understands each question and that his answer to each question has been duly entered and replied to, and the said recruit has made and signed the declaration and taken the oath.
__________________________________ (Signature of magistrate, justice of peace, or attesting officer)
In addition the Canadian Department of National Defence wrote the port on March 3, 1943, "Records further indicate that he (the appellant) was not attested into the 14th Canadian Light Horse at that time. On the attestation card obained from that unit, the certificate of attesting officer had not been completed."
The material portion of section 2 of the Act of March 2, 1907, in effect when the appellant attempted to join this militia, provided, "That any American citizen shall be deemed to have expatriated himself * * * when he has taken an oath of allegiance to any foreign state." The basic provisions dealing with the organization of the Canadian militia are contained in the Militia Act (Revised Statutes Canada, 1927, chapter 132). The form of oath to which the appellant affixed his signature on June 29, 1939, is required by section 21 of said act. This section reads in part:
The following oath shall be taken and subscribed before one of such commissioned officers of the militia as are authorized for that purpose by any general order or by regulation, or before a justice of the peace, by every person upon engaging to serve in the active militia: * * *.
This statute requires that two things be done, that the oath be taken and that it be subscribed to. The appellant did subscribe to the form of this oath, but there is nothing in this record to indicate that he took the oath. To constitute a valid "oath," there must be in the presence of the person authorized to administer it, an unequivocal act whereby the affiant consciously takes upon himself the obligation of an oath. The appellant's testimony that he did not take the oath, the failure of the attesting officer to sign the certificate attesting to the fact that he took the oath, and the letter from the Canadian Department of National Defence referred to above, all bear this out. We feel that the act of the appellant in signing the form of oath is not taking an oath of allegiance within the meaning of section 2 of the Act of March 2, 1907. In this connection it should be noted that the Canadian authorities when requested to state whether the appellant ever was discharged from the militia, refused to answer this question. Though it does appear that he spent 2 weeks after his attempted enlistment in a training camp, the appellant was apparently never called up again and was never considered part of the militia. In view of these facts, we conclude that the appellant did not lose his American citizenship under section 2 of said Act of March 2, 1907.
State v. Privitt, 327 Mo. 1194; Weadock v. State, 118 Tex. Cr. R. 537.
At the time the appellant's application for admission was made, the Nationality Act of 1940 was in effect. Section 401 of said act deals in general with methods by which American citizenship may be lost. The portion of section 401 (a) which is pertinent to our present inquiry reads:
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 further, That a person who has acquired foreign nationality through the naturalization 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.
The effective date of this act was January 13, 1941. The appellant's application for admission was made in December 1942, prior to the expiration of the 2-year period set forth in the foregoing provision. If the appellant meets the requirements set forth therein, he is now entitled to admission as an American citizen, notwithstanding the fact that the 2-year period has now elapsed.
"The second proviso (to sec. 401 (a)) grants the privilege of returning to this country and thus be deemed a citizen in any case where one who has dual nationality by reason of the naturalization of his parent has not elected to give up his American citizenship by a `voluntary act,' which connotes something more than mere residence abroad." The issue now before us is whether the appellant has elected to give up his American citizenship in this fashion. The acts by which such an election may be manifested are not necessarily limited to "those which would under the statutes result in the loss of single American citizenship."fn4 For example, voting in Canada, before the Nationality Act of 1940 made such action an act of expatriation, constituted such an election and caused a loss of American citizenship. However, registering in the Canadian draft as a Canadian national, and an unsuccessful effort to enlist in the Canadian Army during the present war do not indicate an election of Canadian nationality or a voluntary abandonment of American citizenship.fn4
In re J---- B. S----, Jr. (56127/518) [ see page 476, this volume].
In re W---- (56048/958) [ see page 24, this volume].
Has this appellant performed any acts that would indicate an abandonment of his American citizenship? He testified that he has never voted in Canada, has never held public office there, has always considered himself to be an American citizen, and does not believe that he is a national of Canada. Apparently he has been admitted to this country on a few occasions as an American citizen, remaining, however, only for short periods of time. The foregoing acts and omissions to act are clearly indicative of an intention on the part of the appellant to retain his American citizenship. Insofar as his actions in attempting to enlist in the Canadian militia at the end of June 1939 and his apparent 2-weeks' service therein are concerned, we do not feel that they are any more an indication of an abandonment of American citizenship and an election of Canadian nationality than was the action of S---- (56127/518) in registering for the Canadian draft and attempting to enlist in the Canadian Army.
On the basis of this record, we feel that the appellant has not elected to give up his American citizenship by a "voluntary act" and we therefore conclude that he is now a citizen of this country and should be admitted as such.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the appellant was born in Inverness, Mont., on October 4, 1915;
(2) That the appellant, when 4 weeks of age, was taken by his parents to live in Canada where he has since maintained his home;
(3) That the appellant's father was naturalized a Canadian citizen on October 26, 1921;
(4) That the appellant applied for admission as an American citizen on December 19, 1942;
(5) That the appellant has not performed any acts indicating an abandonment of his American citizenship.
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 a citizen of the United States at birth;
(2) That on October 26, 1921, the appellant acquired Canadian nationality by reason of his father's naturalization in that country during the appellant's minority and while he was residing there permanently;
(3) That under the second proviso of section 401 (a) of the Nationality Act of 1940, the appellant has the privilege of returning to this country and thus be deemed an American citizen;
(4) That under section 30 of the Alien Registration Act of 1940, the appellant is not inadmissible as not in possession of a visa, reentry permit or border-crossing card;
(5) That under Executive Order No. 8766 of June 3, 1941, the appellant is not inadmissible as not in possession of a passport.
ORDER: It is ordered that the appeal be sustained and the appellant admitted as an American citizen.