56127/855
Decided by the Board September 4, 1943.
Citizenship — Expatriation — Dual national — Election — Section 401 (a), Nationality Act of 1940.
A person born in the United States was taken to Canada at the age of 3 and several years later acquired Canadian nationality by virtue of his father's naturalization there. At 19 he came to the United States and lived here until he was 22, when he returned to Canada. In 1935 and 1936 he voted there in municipal elections. In 1937 he was admitted to the United States with his family as an alien visitor and remained here until November 1942. In September 1943 he sought admission to the United States as an American citizen. Held:
1. The appellant's return to the United States at the age of 19 and residence here upon attaining majority constituted an election of American nationality.
2. His voting in Canada in 1935 and 1936 is not to be regarded with a view of whether or not it constituted an election of Canadian nationality, since having once elected, thereafter he could only divest himself of American citizenship by performing acts that would under existing law result in expatriation.
3. Prior to the Nationality Act of 1940 voting in a foreign election was not an act of expatriation.
4. The second proviso to section 401 (a) of the Nationality Act of 1940 applies only to persons residing abroad at the time of its enactment.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Immigrant without immigration visa.
Executive Order 8766 — No passport.
Mr. Max Wilfand, Board attorney-examiner.
STATEMENT OF THE CASE: The appellant applied for admission at Eastport, Idaho, on February 28, 1943, as an American citizen. 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 the State of Washington on October 1, 1903. In 1906 he was taken by his parents to live in Canada. While residing there his father was naturalized a Canadian citizen on August 27, 1909. Under Canadian law the appellant also became a Canadian citizen by reason of the aforesaid naturalization. The appellant, however, did not thereby lose his American citizenship. He could, in accordance with the doctrine set forth in the Elg case, retain his American citizenship by making election thereof upon attaining his majority. The election in the Elg case was manifested by a return to the United States for permanent residence, though that case has not been considered by us as limiting an election in that fashion.
Perkins v. Elg, 307 U.S. 325 (1939).
In re L---- J---- A---- G---- (56127/839) [ see page 496, this volume], approved by the Attorney General July 3, 1943.
The appellant lived in Canada until the spring of 1922, when he returned to this country to join his parents in Glen, Calif., they having preceded him there by about 6 months. Apparently, though no record exists of his admission at that time, he was admitted as an American citizen. There is a record showing the admission of his parents in November of 1921. The appellant lived in this country until May or June 1925, when he went back to Canada in order to operate the farm which his father had previously owned and which he had at that time reacquired. He then intended to establish his home in Canada and apparently was admitted to that country as a Canadian citizen. Except for a short visit of 2 months to the United States in 1931, when he claims he was admitted as an American citizen, he did not leave Canada until 1937. He testified that he did not seek any of the rights of a British subject while in Canada during that time, though he does concede that he was considered a Canadian citizen by the authorities. On two occasions, in about 1935 or 1936, he voted in municipal elections. Apparently there was no requirement that voters be British subjects, though he does admit that he did register to vote as a subject of Great Britain. He denies ever having voted in Provincial or Dominion elections at any time.
In September 1937 the appellant, together with his wife and children, applied for admission to this country. At the hearing before the board of special inquiry the appellant was asked, "Of what country are you now a citizen?" He replied, "Well, he told me I was a Canadian. I guess on account of my father homesteading in Alberta before I came of age." The appellant's apparent reluctance in this reply to concede his Canadian citizenship should be noted. He and his family were admitted by the board of special inquiry as alien visitors for a period of 6 months in order to visit his mother in California. At that time, of course, the Attorney General's ruling in the T---- case was in effect. The appellant was necessarily considered an alien and could only have then been admitted as such. In fact the record shows that the Board of Review in considering his status in February 1938 so held. The appellant remained in the United States until November 2, 1942, when he returned to Canada, where he has remained until his present application.
36 Op. Atty. Gen. 535 (1932), holding that a citizen child who acquired foreign nationality by reason of his parent's naturalization was expatriated under sec. 2 of the Act of March 2, 1907. This ruling was, however, overruled by the Elg case.
On the day that this appellant attained his majority, he was a legal permanent resident of this country and had been such for a period of approximately 2½ years. Under the doctrine of the Elg case, if he had then been residing abroad, he could have elected to retain his American citizenship by returning here for permanent residence. It can hardly be contended that one who returns here for permanent residence prior to and is residing here at the time of attaining majority is in worse position than one who returns after attaining majority. Accordingly, we feel that this appellant affirmatively manifested an election to retain his American citizenship upon attaining majority in accordance with the doctrine of the Elg case and was then a citizen of this country. Having exercised his right of election, his status was determined. Hence, the appellant's subsequent action in returning to Canada when he was about 21½ years of age in order to establish his home there has no effect upon his citizenship status. His voting in municipal elections on two occasions around 1935 or 1936, eligibility for which was not dependent upon Canadian nationality, was not an act of expatriation under then existing law. The appellant now maintains that he always considered himself an American citizen, and this allegation is corroborated by the fact that in 1938, apparently upon application, his status was considered by the Board of Review. His equivocating reply to the question of his citizenship at the time of the 1937 hearing before the board of special inquiry is also evidence of a corroboratory nature.
Upon the effective date of the Nationality Act of 1940, January 13, 1941, the appellant was living in the United States. The second proviso of section 401 (a) of said act 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. Failure on the part of such person to so return and take up permanent residence in the United States during such period shall be deemed to be a determination on the part of such person to discontinue his status as an American citizen, and such person shall be forever estopped by such failure from thereafter claiming such American citizenship;
The proviso applies to only those persons who are abroad upon the effective date of said act. Since this appellant's home was then in the United States, the second proviso would not, we feel, apply to him.
Under the Attorney General's opinion in the G---- case, supra, note 2, this appellant was not a dual national within the meaning of the second proviso and, hence, not subject thereto so as to be required to return here for permanent residence within 2 years, he having already affirmatively elected to retain American citizenship.
The appellant has not expatriated himself under existing law since his return to Canada in November 1942. Hence, we must now conclude that he is an American citizen 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 the United States on October 1, 1903;
(2) That the appellant was taken to Canada to live in 1906 and lived there until the spring of 1922;
(3) That on August 27, 1909, the appellant's father was naturalized a Canadian citizen;
(4) That the appellant returned to the United States in the spring of 1922 and maintained his home here until May or June 1925 when he returned to Canada where he lived until he returned to the United States in September 1937;
(5) That the appellant made his home in the United States from September 1937 until November 1942.
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 August 27, 1909, the appellant acquired Canadian nationality by reason of his father's naturalization in that country during his minority and while he was residing there permanently;
(3) That upon attaining his majority, the appellant elected to retain his American nationality and abided by this election thereafter;
(4) That the second proviso of section 401 (a) of the Nationality Act of 1940 has no application to this appellant's case and he is now an American citizen.
ORDER: It is ordered that the appeal be sustained and the appellant admitted as an American citizen.