56175/285
Decided by Board April 28, 1945 Reconsidered and affirmed by Board May 2, 1946 Approved by Attorney General October 2, 1946
Citizenship — Expatriation — Oath of allegiance — While United States was at war — Section 2 of the act of March 2, 1907.
An oath of allegiance to the British Crown taken by a 25-year-old native-born citizen upon entering the Canadian armed forces in May 1917, who served therein until January 1919 while this country was at war, did not result in expatriation under section 2 of the act of March 2, 1927; nor did expatriation thereunder ensue after the United States ceased to be at war on July 2, 1921, merely because of his failure to return to the United States for a long period after July 2, 1921.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1940 — No visa, reentry permit, or border crossing identification card.
Act of 1918, as amended, and
Executive Order No. 8766 — No passport.
BEFORE THE BOARD
(April 28, 1945)
Discussion: The subject, a native of the United States, 53 years of age, applied for admission into this country as a citizen thereof on January 26, 1945, at the port of Baudette, Minn., but, following a hearing before a Board of Special Inquiry on that day and continued on February 27, his claim to citizenship was disallowed and, not being in possession of any documents required of aliens to enter the United States, he was excluded on the above-designated grounds. He was informed that his case was being forwarded "on appeal" and, accordingly, it will be considered as though he had entered an appeal to said excluding decision.
There was admitted in evidence a certified copy of a birth certificate establishing the birth of one "C---- H----" at Waltham, Vt., on March 29, 1892, and the appellant testified that this certificate relates to him notwithstanding the variance in the last names. A transcript of a Board of Special Inquiry hearing accorded the subject on December 8, 1927, was also admitted in evidence and discloses that at that time he presented another certified copy of his birth record issued by a different town clerk of Waltham and that said official had noted thereon, "I cannot change the record to H----" which was added after the appellant questioned the error in surname. The certificate presented will, therefore, be accepted as proof of the appellant's birth in the United States and, since the record fails to establish his subsequent naturalization in Canada, he will retain the nationality acquired at birth unless he has committed some specific act of expatriation under the laws of this country.
The appellant testified that he lived in the United States from the time of his birth until 1913 when he went to Canada and he presented a certificate establishing that from May 28, 1917, until January 23, 1919 he served in the Canadian Army. He also testified that he took an oath of allegiance to the King of England at the time of his enlistment in 1917. Section 2 of the act of March 2, 1907, in effect in 1917, provided, "That any American citizen shall be deemed to have expatriated himself when * * * he has taken an oath of allegiance to any foreign state. * * * And provided also, That no American citizen shall be allowed to expatriate himself when this country is at war." (8 U.S.C. 16 and 17, 1927 Ed.). The United States entered World War I on April 6, 1917, and peace was not declared officially until July 2, 1921. According, the appellant did not expatriate himself on May 28, 1917, but the Board of Special Inquiry concludes that he lost his United States nationality by failing to return to this country within a reasonable time after the termination of World War I. Certainly the appellant's return to the United States for permanent residence before or shortly after July 2, 1921, and continued conduct thereafter inconsistent with any foreign allegiance would conclusively eliminate any contention of expatriation (39 Op. Atty. Gen. 474; In re Bishop, 26 F. (2d) 148 (D.C.W.D. Wash. N.D. 1927)), but the mere fact that the appellant did not return to the United States at the time specified does not necessarily result in a loss of his United States citizenship. In the case of In re Grant (289 F. 814 (D.C.S.D. Calif. 1923)) the facts reported do not disclose when he returned to the United States for permanent residence after serving in the armed forces of Great Britain during the period the United States was at war with Germany, but the United States District Court for the Southern District of California, Southern Division, denied his application for repatriation filed under the act of Congress authorizing the resumption of citizenship by taking an oath of allegiance to the United States by any person "deemed to have lost his citizenship by reason of any oath or obligation taken by him for the purpose of entering such service" on the theory that the applicant could not have expatriated himself while this country was at war. It seems well settled that in those cases of individuals naturalizing in a foreign state during time of war their loss of United States nationality is effective upon the termination of war ( Petition of Prack (D.C.W.D. Pa. 1932), 60 F. (2d) 171), but a distinction has been made between those cases and those of persons taking foreign oaths of allegiance during time of war when the nationality of the foreign state was not thereby acquired. Attorney General Jackson in the opinion referred to above stated —
If the individual did not return to the United States before the war had ended or if anyone of the other factors mentioned is absent I cannot conclude otherwise than that there is doubt. If it be thought that in some such doubtful cases the claim of citizenship might be upheld I feel, nevertheless, that it is hardly possible to deal with any such exceptions in a general opinion or independently of the facts.
This Board is of the opinion that upon consideration of all the facts of record the appellant has not expatriated himself. He testified that he has worked and visited in the United States intermittently since his discharge in 1919 and that he has never voted in Canada, naturalized in that Dominion, nor held any office under the Provincial or Dominion Government of Canada. He also testified that at the time he enlisted in the Canadian Army, which was prior to the initiation of the draft in the United States, he was medically unfit to join the American forces but that he qualified under the lower physical standards existing in the Dominion.
The record establishes that in 1927 the subject was admitted to this country by a Board of Special Inquiry as a United States citizen and that he is now anxious to seek repatriation if that is necessary but, as stated above, this Board is of the opinion that the appellant has never lost his United States nationality acquired at birth.
Findings of Fact: Upon the basis of all the evidence, it is found:
(1) That the appellant was born in Waltham, Vt., on March 29, 1892;
(2) That the appellant seeks admission into the United States as a citizen thereof;
(3) That from May 28, 1917, until January 23, 1919, the appellant served in the Canadian Army;
(4) That the United States was at war with Germany from April 6, 1917, until July 2, 1921;
(5) That the appellant took an oath of allegiance to the King of England upon enlisting in the Canadian Army on May 28, 1917.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under the fourteenth amendment to the Constitution of the United States the appellant was born a citizen of this country;
(2) That under section 2 of the act of March 2, 1907, the appellant could not expatriate himself while the United States was at war;
(3) That under the Nationality Act of 1940 the appellant has not expatriated himself;
(4) That under section 30 of the Alien Registration Act of 1940 the appellant is not inadmissible to the United States as an alien who does not present a visa, a reentry permit or a border crossing identification card;
(5) That under the Passport Act approved May 22, 1918, as amended, the appellant is not inadmissible to the United States as an immigrant not in possession of an unexpired passport.Order: It is ordered that the appeal be sustained and the appellant admitted to the United States as a citizen thereof.
Discussion: On April 28, 1945, we sustained appellant's appeal from an excluding decision of the Board of Special Inquiry and ordered his admission to the United States as a citizen of this country. The Central Office believes that appellant is an expatriate and asks us to reconsider our decision.
We may restate the facts briefly. Appellant was born in the United States in March 1892 and went to Canada late in 1913. In May 1917 he enlisted in the Canadian Army and took an oath of allegiance to the British Crown. His discharge occurred in January 1919. During his residence in Canada appellant has not become naturalized as a Canadian citizen, nor has he voted or held public office. In December 1927 his claim to United States citizenship was allowed by a Board of Special Inquiry.
Under section 2 of the act of March 2, 1907, the oath of allegiance did not work expatriation because it took place while the United States was at war. The General Counsel of the Immigration and Naturalization Service believes that expatriation occurred because appellant did not return to the United States within a reasonable period after the United States ceased to be at war July 2, 1921. As the Service points out, this case presents a question virtually identical with that in Matter of C----, 56167/750. There, at the Service's request, we have also reconsidered our previous decision. For the reasons stated in the C---- case, we are convinced that appellant did not become expatriated by his residence in Canada until December 1927. On another score we believe that appellant has not been expatriated. In 1927 appellant submitted the facts in his case to the American Consul at Winnepeg, Canada, for advice concerning his status and he was advised by that officer:
Matter of C----, V----, 2 IN Dec. 263.
If, therefore, you have not been naturalized in Canada, and have not voted as a foreign subject, you would still be entitled to protection as an American citizen. It is suggested that you obtain your birth certificate in order that you may present it to the United States Immigration Officers at the border with a view to satisfying them as to your American citizenship.
Acting upon that advice, he appeared before a Board of Special Inquiry at International Falls, Minn., on December 8, 1927, and after a full disclosure of the facts was advised "your claim of United States citizenship has been allowed by this Board."
We think that since the Board of Special Inquiry allowed appellant's claim of citizenship, and its decision was not clearly erroneous, we should not overturn that finding. This conclusion is especially applicable here, because appellant has relied on the Board of Special Inquiry's decision for many years.
For the reasons set forth in Matter of C----, and for the further reason stated above, we affirm our previous decision and find again that appellant is a citizen of the United States.
Matter of C----, 56167/750, V----, 2 IN Dec. 263.
(Cases of H---- and C----)
Matter of C----, 56167/750, V----, 2 IN Dec. 263.
The records indicate that both Mr. C---- and Mr. H---- were born in the United States, were living in Canada at the time this country entered the World War, and served periods of enlistment in the Canadian Army. Mr. H---- served from May 28, 1917, until January 23, 1919. Mr. C---- served from March 2, 1915, to March 3, 1919, and again from September 12, 1919, to August 31, 1922. Each took an oath of allegiance to the British Crown. Each remained in Canada for long periods after the date of the congressional resolution declaring the war at an end.
The applicable statute (sec. 2, act of March 2, 1907, 34 Stat. 1228) provides in pertinent part as follows:
That any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws, or when he has taken an oath of allegiance to any foreign state.
When any naturalized citizen shall have resided for two years in the foreign state from which he came, or for five 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: And provided also, That no American citizen shall be allowed to expatriate himself when this country is at war.
Attorney General Jackson in an opinion of August 22, 1940, to the Secretary of State (39 Op. Atty. Gen. 474, 481), held that persons naturalized abroad during the period of the World War lost their citizenship as of July 2, 1921, the date of the congressional resolution declaring the war at an end. The Secretary of State had also requested the Attorney General's opinion regarding persons who took foreign oaths of allegiance during the period of the war. The following paragraph of the opinion dealt with that question:
Concerning persons who took foreign oaths of allegiance, the practice in the Department of State and in the Immigration and Naturalization Service has been uniform to the extent that if such a person prior to the time the United States ceased to be at war had returned to this country for permanent residence and thereafter did nothing that indicated continued allegiance to the foreign state but, on the contrary, acted consistently as a citizen of the United States, he did not lose his citizenship, and this is generally in harmony with the conclusions reached in the adjudicated cases. If the individual did not return to the United States before the war had ended or if any one of the other factors mentioned is absent I cannot conclude otherwise than that there is doubt. If it be thought that in some such doubtful cases the claim of citizenship might be upheld I feel, nevertheless, that it is hardly possible to deal with any such exceptions in a general opinion or independently of the facts.
The Immigration and Naturalization Service thereafter "adopted a policy to the effect that an individual who took an oath of allegiance to a foreign state between April 6, 1917, and July 2, 1921, * * * lost United States citizenship if he did not return to the United States within a reasonable time after July 2, 1921 * * *." Applying this policy, the service has concluded that Messrs. C---- and H---- lost their American citizenship. Prior to the adoption of this policy, a Board of Special Inquiry at a hearing on December 8, 1927, allowed Mr. C----'s claim of citizenship, but another Board of Special Inquiry reached the contrary conclusion at a hearing on January 26, 1945.
The Board of Immigration Appeals has concluded that neither Mr. C---- nor Mr. H---- lost his citizenship, stating in part, in the opinion rendered in the Carson case:
We believe that under the 1907 act a foreign oath of allegiance taken during a period when the United States was at war does not expatriate unless, subsequent to that period, the person involved commits an affirmative, overt act which indicates a continued allegiance to the foreign state. We believe, further, that the overt act, in order to confirm the oath, must have a direct relationship to the purpose for which the oath was taken, thus amounting to a practical reaffirmation of the oath of allegiance.
Two members of the Board, while concurring in the conclusion, have disagreed with the reasoning of the majority.
As to cases in which doubt exists concernnig whether there has been a loss of citizenship the following excerpt from the above-mentioned opinion of August 22, 1940, is pertinent:
As previously indicated, there has been some practice on the part of the Government to move for denial of application for repatriation, in cases falling within the classes herein considered, upon the ground that there had been no loss of citizenship. I regard this as unwise in doubtful cases. It does not appear to me that the repatriation statutes necessarily presuppose in all instances an unerring determination that the applicant has lost his citizenship before he may invoke the statute and take the prescribed oath of allegiance. I note, for example, the act of June 25, 1936, c. 801, 49 Stat. 1917 (U.S.C., title 8, sec. 9a), refers to a "woman * * * who has or is believed to have lost her United States citizenship." Assuming that she has not lost her citizenship (as the question might finally be viewed by the Supreme Court of the United States), no harm is done in permitting her to take the oath and thus remove all doubt. On the other hand, harm may be done if she is denied the right upon the view (later found erroneous) that she had not lost her citizenship. The denial of an application upon the ground that the applicant is already a citizen may amount to an adjudication of her citizenship but that this does not wholly and for all purposes settle the question is indicated by the result in Yamashita v. Hinkle (260 U.A. 199).
Statutory provision exists and has existed since October 5, 1917, whereby persons who lost citizenship in the United States through foreign oaths of allegiance administered as an incident to entering Allied military service during World War I might resume their former status by a simple procedure of naturalization (Public Law 55, 65th Cong.; sec. 1, 12th Subdivision, May 9, 1918, 40 Stat. 542; Sec. 323, Nationality Act of 1940 as amended April 2, 1942, 8 U.S.C. 723). Neither Mr. C---- nor Mr. H---- has proceeded thereunder to remove the question which has arisen concerning their citizenship status. No reason is apparent why Mr. C---- may not so proceed at such time as he might choose, and Mr. H---- might do so when he has the intention to reside permanently in the United States.
The issue presently raised, however, is whether they are now citizens of the United States, and on that question I do not think that it is reasonable to conclude that continued residence abroad after the date of the termination of the war is sufficient alone to warrant a finding of loss of citizenship. Since the record discloses no other pertinent factor in the case of Mr. H---- the conclusion follows that, in my opinion, he has not lost his citizenship. Therefore, the conclusion of the Board of Immigration Appeals in this case is approved.
In the C---- case the period of enlistment and service did not expire until after the termination of the war. As the Board of Immigration Appeals points out.
If we were to accept the dictum in Ex Parte Gilroy, 257 Fed. 110, 121, that an oath of allegiance taken by a minor when serving in the army of a foreign state might be assumed to be "a continuing oath which attached to him when he became 21 years of age," we might conclude that the oath taken by the respondent (Mr. C---- attached to him when the United States ceased to be at war and that he was expatriated as of that date.
The Board did not regard this as "a reasonable conclusion." Inasmuch as Mr. C---- only served out the term of enlistment which he began during the war, I think his case is not distinguishable as a matter of law from the case of Mr. H----. I conclude, therefore, that Mr. C---- has not lost citizenship in the United States.
I therefore approve the decision of the Board of Immigration Appeals holding Mr. C---- and Mr. H---- to be citizens of the United States.
I agree with the result here for the reasons set forth in my concurring opinion in Matter of C----. I also agree with the majority that appellant should be regarded as a citizen because the 1927 Board of Special Inquiry decision was not clearly erroneous.
Matter of C----, 56167/750, V----, 2 IN Dec. 263.
In accordance with title 8, Code of Federal Regulations, section 90.12, this case is certified as involving a question of difficulty, and it is therefore referred by the Board to the Attorney General for review.