56175/617
Decided by Board May 23, 1945.
Citizenship — Female — Dual national at birth — Expatriative effect of marriage to alien in 1901.
A native-born woman who was of dual nationality at time of birth (United States and Canadian) did not expatriate herself by marriage to a British subject, native of Canada, in 1901, notwithstanding the existence of a "naturalization" treaty with Great Britain, her emigration to Canada, and the existence of Canadian law conferring Canadian allegiance of husband upon an alien wife, inasmuch as such marriage conferred no new nationality status upon her, it being noted that prior to March 2, 1907, there was no statutory provision here regarding loss of citizenship by such marriage.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Executive Order No. 8766 — No passport.
Executive Order No. 8766 — No passport visa or other nonimmigrant visa.
Act of 1917 — Physically defective.
Act of 1917 — Likely to become public charge.
BEFORE THE BOARD
Discussion: The appellant is a native of the United States, who applied on April 28, 1945, at Thousand Islands Bridge, N.Y., for admission to the United States as a temporary visitor. She was found to be inadmissible by a Board of Special Inquiry on the grounds stated above and has appealed from that decision.
The appellant was born on December 18, 1875, at Clinton, Iowa. Her father was a native and citizen of Canada at the time of her birth and it appears that she acquired dual American and Canadian nationality at birth. She was taken to Canada by her parents when she was 5 or 6 years of age and has since resided continuously in that country. On January 23, 1901, she married a native and citizen of Canada.
The appellant now wishes to visit her sister and niece in Rochester, N.Y., for an indefinite period and to undergo an operation for cataracts which affect both of her eyes. She is 69 years of age and has been certified by the United States Public Health Service "to be afflicted with well-developed cataract, both eyes. Applicant virtually blind. Possible to restore vision by operation. However this is not an emergency. Class B." The appellant possesses $150 and has no income. Her relatives in the United States state that they will be able to care for her for only a limited period of time and her friends in Canada, with whom she makes her home, state that they will be unable to care for her if she becomes an invalid.
Prior to the act approved March 2, 1907, there was no statutory provision whereby a citizen of the United States lost her American nationality by virtue of her marriage to an alien. The decisions of the courts are in conflict on the subject and it has been considered administratively that such a marriage generally does not result in the loss of United States citizenship. In the case, however, of marriages of citizen women to aliens who are nationals of a country with which the United States had a naturalization treaty containing reciprocal provisions that each country party to the treaty would recognize a person, originally one of its citizens or subjects, to be a citizen or subject of the other upon being duly naturalized therein in accordance with its laws; and in which cases the wife emigrated to the jurisdiction of the husband's nationality and the law of that country then provided that the marriage of an alien woman to one of its citizens or subjects conferred allegiance of the husband upon the wife, the said wife is considered to have been naturalized in that country in accordance with its laws and to have thereby lost her American nationality. In the instant case such a treaty existed between the United States and Great Britain at the time of the appellant's marriage in Canada to a British subject who was a native of Canada, the country of which she was also a resident. The appellant, however, possessed Canadian as well as American nationality at the time of her marriage and we are of the opinion that her marriage did not affect her status as a dual national since it could not confer upon her a nationality which she already possessed. The appellant being a dual national at birth was not under the necessity of making an election to retain her American nationality and as there is no evidence that she has performed any act of expatriation we must conclude that she is a citizen of the United States.
In the Matter of R----, 56127/95 (Jan. 13. 1943).
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the appellant was born on December 18, 1875, at Clinton, Iowa;
(2) That at the time of the appellant's birth her father was a native and citizen of Canada and she thereby acquired Canadian nationality;
(3) That the appellant has resided in Canada since approximately 1880;
(4) That the appellant married a native and citizen of Canada on January 23, 1901;
(5) That the appellant has applied for admission to the United States as a temporary visitor for an indefinite period to visit relatives and to undergo an operation.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under the Fourteenth amendment to the Constitution and section 1992 of the Revised Statutes the appellant was a citizen of the United States at birth;
(2) That the appellant did not lose her American nationality by virtue of her marriage to a native and citizen of Canada on January 23, 1901;
(3) That under Part 1 of Executive Order 8766 the appellant is not inadmissible to the United States on the ground that she is not in possession of an unexpired passport and passport or other nonimmigrant visa;
(4) That under section 3 of the act of February 5, 1917, the appellant is not inadmissible to the United States on the ground that she is physically defective, such physical defect being of a nature which may affect her ability to earn a living;
(5) That under section 3 of the act of February 5, 1917, the appellant is not inadmissible to the United States on the ground that she is a person likely to become a public charge.Order: It is ordered that the appeal be sustained and that the appellant be admitted as a citizen of the United States.