56158/676
Decided by Board January 20, 1945. Approved by Attorney General January 29, 1945.
Citizenship — Expatriation — Foreign military service — When authorized by laws of United States — Section 401 (c) of Nationality Act of 1940.
A United States citizen did not become expatriated under section 401 (c) of the Nationality Act of 1940 as a result of entering or serving in Mexican military forces, in view of the Executive agreement previously concluded between this country and Mexico, authorizing the drafting of our nationals resident in Mexico for military service there.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Executive Order No. 8766 — No passport.
BEFORE THE BOARD
Discussion: The appellant applied for admission at Nogales, Ariz., on May 19, 1944. He was excluded on the above grounds and on the further ground that he was inadmissible under the Alien Registration Act, 1940, for lack of a permit to enter. He appealed. We considered the case on June 23, 1944, and directed that it be reopened to obtain further evidence. A reopened hearing was conducted before the Board of Special Inquiry on August 30, 1944. The appellant was then excluded on the above grounds, and he again appealed.
The appellant was born on July 4, 1924, in Mexico. At the reopened hearing he presented his birth certificate, upon which it appears that he is a legitimate son of a Mexican mother and native United States citizen father. His father, E---- E. K----, presented a certificate of identity and registration issued to him and his wife as American citizens, showing that he was born in Eau Claire, Wis. The appellant has resided in Mexico since his birth. He does not have a passport or any permit to enter. He wishes to come to the United States to be with his father, to remain here permanently.
Having been born abroad of a citizen father in 1924, the appellant acquired United States citizenship at birth under section 1993 of the Revised Statutes. The Board of Special Inquiry excluded him, however, on the theory that he lost his American nationality under section 401 (c) of the Nationality Act of 1940 by having served in the Mexican armed forces for a month, he also having Mexican nationality under article 2 of the transitory provisions of the Mexican Law of Nationality and Naturalization of 1934. The appellant was drafted in Mexico on February 11, 1943. He was given a physical discharge a month later.
Section 401 of the Nationality Act of 1940 ( 54 Stat. 1168-1169; 8 U.S.C. 801) provides that a national of the United States shall lose his nationality by —
(c) Entering or serving in the armed forces of a foreign state unless expressly authorized by the laws of the United States, if he has or acquired the nationality of such foreign state; * * *
Section 403 (b) of the Nationality Act of 1940 ( 54 Stat. 1170; 8 U.S.C. 803) provides:
No national under 18 years of age can expatriate himself under subsections (b) to (g), inclusive, of section 401.
The appellant was 18½ years of age when he was inducted into the Mexican armed forces. Under section 401 (c), therefore, he would become expatriated by his service in Mexico unless such service was expressly authorized by the laws of the United States.
The record contains a copy of an agreement between the United States and Mexico dated January 22, 1943, wherein each of the parties agrees to the drafting of its nationals resident in the territory of the other (State Department, Executive Agreement Series, No. 323). The principal provision of this agreement is as follows:
1. The nationals of either country resident within the territory of the other may be registered and inducted into the armed forces of the country of their residence on the same conditions as nationals thereof unless otherwise provided herein.
It will be observed that the appellant was drafted after this agreement was made. The question is whether in these circumstances the appellant comes within the exception contained in section 401 (c), i.e., whether this agreement makes his service in the armed forces of Mexico authorized by law. In the report of the President's Committee which drafted the Nationality Act of 1940, which was transmitted to Congress, it is stated concerning section 401 (c):
The words "unless expressly authorized by the laws of the United States" would relate not only to statutes of the United States providing for the service of American nationals in foreign armies, but also to conventions such as those concluded during the World War between the United States on the one part and France, Great Britain, Canada, Greece, and Italy on the other, under which either party was allowed to draft, under certain conditions, persons having the nationality of the other (3 Malloy, Treaties, Conventions, etc., pp. 2592, 2650, 2654, 2663, 2708).
Examination of the conventions referred to and cited in this comment shows that each was in the nature of a treaty, submitted to and ratified by the Senate.
The agreement here involved was effected by an exchange of notes between the American Charge d'Affaires ad interim, at the American Embassy in Mexico and the Mexican Minister of Foreign Relations. Inquiry of the State Department reveals that relative to the military service of our nationals abroad and the service of foreign nationals resident in this country in World War II, we have 19 executive agreements with foreign countries. To date such agreements have been entered into with Australia, Belgium, Brazil, Canada, China, Colombia, Cuba, Czechoslovakia, El Salvador, Greece, India, Mexico, New Zealand, the Netherlands, Norway, Poland, Union of South Africa, the United Kingdom, and Yugoslavia. All of these agreements were effected by exchange of notes between the State Department and appropriate diplomatic officials rather than by formal treaty ratified by the Senate (see Executive Agreement Series, Nos. 249, 303-310, 319-323, 325, 327, 341, and 407). Thus the Mexican agreement involved is not an isolated instance. In several of the agreements the following language quoted from the agreement with the United Kingdom, effective April 30, 1942 (Executive Agreement Series, No. 307) appears:
It will be recalled that during the World War this Government signed conventions with said associated powers on this subject. The United States Government believes, however, that under existing circumstances the same ends may now be accomplished through administrative action, thus obviating the delays incident to the signing and ratification of conventions.
This shows that the use of the executive agreement rather than the more formal treaty or convention for reciprocal military service agreements during World War II is part of a considered policy of the Department of State.
The language in the President's Committee Report, supra, relative to section 401 (c) makes it clear that had the Mexican agreement here involved been a treaty or convention ratified by the Senate, military service which the agreement contemplates would be "expressly authorized by the laws of the United States" within the meaning of the statute. Does the form of the agreement, the fact that it is an executive agreement rather than a treaty or convention, make any difference in this connection? In other words, should this executive agreement be regarded as having the force of law?
Concerning the legality of executive agreements, the following is an extract from the statement of the Legal Adviser of the Department of State, February 1, 1940, before the House Ways and Means Committee (76th Cong., 3d sess., hearings on H.J. Res. 407, regarding the extensions of Reciprocal Trade Agreements Act, vol. 3, pp. 2491, et seq.):
While article II, section 2, of the Constitution authorizes the President by and with the advice and consent of the Senate to make treaties with foreign nations, it does not say that no other form of international agreement shall be concluded by the President. The fact is that the President has, from the beginning of the Government, entered into various forms of agreements with foreign countries which, while they fall short of treaties in that they do not follow the prescribed constitutional methods for the conclusion of treaties, are nevertheless valid and binding. * * *
Agreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are no less common in our scheme of Government than are the more formal instruments — treaties and conventions. They sometimes take the form of exchanges of notes and at other times that of more formal documents denominated "agreements" or "protocols".
In United States v. Curtiss-Wright Export Corp. et al., 299 U.S. 304, 318 (1936), the court stated concerning the powers of the executive branch of the Government in foreign relations:
As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise the United States is not completely sovereign. The power to acquire territory by discovery or occupation * * *, the power to expel undesirable aliens * * *, the power to make such international agreements as do not constitute treaties in the constitutional sense * * *, none of which is expressly affirmed by the Constitution nevetheless exist as inherently inseparable from the concept of nationality * * *. [Italics supplied.]
It appears clear therefore that the Executive is empowered to make agreements with foreign countries which need not be ratified by the Senate. The remaining question is as to the internal effect of these agreements. There are apparently two kinds of Executive agreements — those made by the Executive solely on his own authority and those undertaken under statutory authorization. An example of the latter type would be an executive agreement made under the Trade Agreements Act ( 49 Stat. 943 (1934); 19 U.S.C. sec. 1341 (1941)) which authorizes the President in certain circumstances to enter into agreements with foreign countries concerning tariff rates. The Supreme Court has placed such an agreement on a par with a treaty from a procedural point of view ( B. Altman and Company v. United States, 224 U.S. 583 (1912)).
We are here concerned, however, with the type of executive agreement made by the Executive without express statutory authorization. The agreement with Mexico and the other agreements concerning military service during the present war cited, supra, refer to no specific authorization from Congress. They do refer to the Selective Training and Service Act whereunder, with certain exceptions, every male citizen of the United States and every other male person residing here between the ages of 18 and 65 are obliged to register and, with certain exceptions, registrants within specified age limits are liable for military service in our armed forces ( 54 Stat. 885; 50 USC App., sec. 301-318, Supp. II, sec. 302-305, 308-310, 312-315). It may readily be understood that the administering of that part of the statute which makes foreign nationals resident in this country liable for military service in our armed forces would have international repercussions and would necessitate agreements with foreign countries. The reciprocal aspect of some of these agreements, such as the one with Mexico, in which we agree to the drafting of our nationals resident in the other country would be a matter of expediency. While executive agreements like the one here involved may therefore be considered as having been necessitated by certain provisions of the Selective Training and Service Act, they were not made pursuant to specific statutory authorization.
Such an agreement, i.e., one made without statutory authorization, has been held, however, to be the "law of the land" within article VI of the Constitution. United States v. Belmont ( 301 U.S. 324 (1937)) and United States v. Pink ( 315 U.S. 203 (1942)), both involved the so-called Litvinov Assignment, an executive agreement made in 1933 when the United States recognized the Soviet Union. Under that agreement the Soviet Government assigned to the United States Government assets in this country which by a decree of 1918 it had confiscated from private interests. The United States was to use such assets to satisfy claims of Americans against the Soviet Union. In both cases the United States sued private interests to obtain assets in this country assigned to it under this agreement, and in each instance the Supreme Court upheld the Government's right to the property, thereby giving the executive agreement the force of law. It was stated in the Pink case at page 230:
All constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature, * * *. A treaty is a "law of the land" under the supremacy clause, article VI, cl. 2, of the Constitution. Such international compacts and agreements as the Litvinov Assignment have a similar dignity * * *.
In view of these authorities we believe that in this case our executive agreement with Mexico should be regarded as having the force of law, and since it expressly authorizes the drafting of our nationals, the appellant's military service in Mexico is to be regarded as "expressly authorized by the laws of the United States." It therefore would not under section 401 (c) of the Nationality Act of 1940 result in his expatriation.
This result is not only legally sound but would be demanded by equitable principles since after consenting to the drafting of its nationals in Mexico, this Government should be estopped from holding that one so drafted was expatriated. From an equitable point of view, whether the Government consented to the drafting in a treaty or in an executive agreement would be a difference in form not in substance.
That military service in the circumstances under which the appellant served was not the type contemplated to result in expatriation is further shown by additional comment on section 401 (c) contained in the report of the President's Committee. It is stated:
This provision is based upon the theory that an American national who, after reaching the age of majority (see proviso 2 to this section, infra) voluntarily enters, or continues to serve in, the army of a foreign state, thus offering his all in support of such state, should be deemed to have transferred his allegiance to it.
It will be recalled that the appellant did not voluntarily enter or serve in the Mexican Army; he was drafted. A copy of the Mexican Presidential Decree, putting into effect the Military Service Law, contained in the record shows that under article 5 thereof the appellant was liable for military service upon obtaining the age of 18.
We consider it clear that the appellant has not expatriated himself under section 401 (c) of the Nationality Act of 1940, and there is no evidence in the record establishing that he has expatriated himself under any other provision of law. He may therefore be admitted as a United States citizen without the documents required of an alien.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the appellant was born in Mexico on July 4, 1924, the legitimate son of a native United States citizen father;
(2) That the appellant was drafted into the Mexican armed forces on February 11, 1943;
(3) That he was given a physical discharge one month thereafter;
(4) That the United States entered into an agreement with Mexico on January 22, 1943, wherein it was agreed that the nationals of one country resident in the other might be drafted for military service in the country of their residence.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 1993 of the Revised Statutes, the appellant was born a citizen of the United States;
(2) That the appellant's service in the armed forces of Mexico has not resulted in his expatriation under section 401 (c) of the Nationality Act of 1940, such service having been expressly authorized by the laws of the United States;
(3) That under section 13 (a) of the Immigration Act of 1924, the appellant is not inadmissible as an immigrant not in possession of an immigration visa;
(4) That under Executive Order 8766, the appellant is not inadmissible on the ground that he does not present a passport or other document in the nature of a passport.Order: The appeal is sustained. It is directed that the appellant be admitted as a United States citizen.
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.
The decision and order of the Board of Immigration Appeals are approved.