56143/648
Decided by the Board January 15, 1944.
Citizenship — Child born abroad — Section 201 (c) of the Nationality Act of 1940 — Expatriation — Dual National — Second proviso to section 401 (a) of above act — Effective date of loss of citizenship.
A child born abroad of United States citizen parents acquired United States citizenship under section 201 (c) of the Nationality Act of 1940 at birth on May 31, 1941. Thereafter, the mother, a dual national, lost United States citizenship under the second proviso to section 401 (a) of the above act. Such loss of citizenship by mother did not become effective until January 13, 1943, i.e., upon the expiration of 2 years from the effective date of said act, which was January 13, 1941.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Executive Order No. 8766 — No passport.
Act of 1940 — No visa, reentry permit, or border crossing identification card.
BEFORE THE BOARD
Discussion: The applicant is a native and citizen of Canada who applied for admission to the United States on July 14, 1943, at Havre, Mont., as a citizen of the United States for permanent residence. She was found to be inadmissible by a majority of the Board of Special Inquiry on the grounds stated above. The case is now before this Board on appeal entered by the dissenting member of the Board of Special Inquiry.
The applicant was born at Shaunavon, Saskatchewan, Canada, on May 31, 1941. She is accompanied by her mother, who was excluded on identical grounds as those stated above, having been found to have acquired Canadian citizenship through the naturalization of her father and failed to make an election to retain her United States citizenship and having applied for admission more than 2 years subsequent to the effective date of section 401 (a) of the Nationality Act of 1940.
The applicant's father is a citizen of the United States who was born on July 13, 1905, at Oakes, N. Dak., and who departed to Canada about December 19, 1924. He has not resided in the United States for 5 years after attaining the age of 16 years, and under title 1, chapter 2, section 201 (g) of the Nationality Act of 1940 the applicant could not therefore acquire citizenship solely by virtue of her father's citizenship.
Chapter 2, section 201 (c) of the Nationality Act of 1940 provides that the following shall be nationals and citizens of the United States at birth: A person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has resided in the United States, or one of its outlying possessions, prior to the birth of such person.
The applicant's parents both resided in the United States prior to the birth of the applicant, the mother of the applicant having resided in the United States for approximately 3 years subsequent to birth in this country and father having resided in the United States for approximately 19 years subsequent to birth in this country.
The question of whether or not the applicant is a citizen of the United States therefore depends upon whether or not both of the applicant's parents were citizens of the United States at the time of the applicant's birth. The answer as to the question of the father's United States citizenship has been determined in the affirmative. The question of the citizenship of the applicant's mother at the time of the applicant's birth is therefore the crux of this case.
The mother was born in the United States on March 10, 1911, at Leonard, Minn., and was taken to Canada for residence in 1913. It has heretofore been determined that she acquired Canadian citizenship in 1917 by virtue of the naturalization of her father in that country. She attained the age of 21 years on March 10, 1932, and did not at any time subsequent to attaining her majority make an election to retain either United States or Canadian citizenship. She applied on July 14, 1943, for admission to the United States as a citizen of this country, and, upon appeal from an excluding decision of the Board of Special Inquiry, we found on August 19, 1943, that, as she had never made an election to retain United States citizenship and had applied for admission to the United States more than 2 years subsequent to the effective date of section 401 (a) of the Nationality Act of 1940, she had forfeited her United States citizenship and is now a citizen of Canada.
The question now arises as to when the mother actually forfeited or lost her United States citizenship. If the loss occurred prior to the birth of the applicant, then the applicant did not acquire United States citizenship; if after the applicant's birth, then the applicant is a citizen of the United States.
In the case of Perkins v. Elg ( 307 U.S. 325), decided May 29, 1939, Miss Elg was a native citizen of the United States whose parents had been naturalized in the United States prior to her birth and who removed her to the land of their nativity during her minority. Her parents resumed their original nationality whereby she acquired dual nationality. Shortly after attaining the age of 21 years she returned to the United States as a citizen of this country for the purpose of taking up permanent residence. The Supreme Court stated:
It thus appears that as late as 1925, when the Department (of State) issued its "Compilation" including the circular instruction of November 24, 1923, it was the view of the Department of State that the act of March 2, 1907, had not taken away the right of a native citizen on attaining majority to retain his American citizenship, where he was born in the United States of foreign parents. We do not think that it would be a proper construction of the act to hold that while it leaves untouched the right of election on part of a child born in the United States, in case his parents were foreign nationals at the time of his birth, still the statute should be treated as destroying that right of election if his parents became foreign nationals through naturalization. That would not seem to be a sensible distinction. Having regard to the plain purpose of section 2 of the act of 1907, to deal with voluntary expatriation, we are of the opinion that its provisions do not affect the right of election, which would otherwise exist, by reason of a wholly involuntary and merely derivative naturalization in another country during minority.
On January 15, 1942, in the case of W---- A---- R---- (File No. 56068/695) who applied for admission as a citizen of the United States on February 12, 1941, the doctrine that a minor citizen of the United States who acquires foreign nationality through the naturalization of his parents must elect to retain his United States citizenship within a reasonable time after reaching majority by returning to the United States for permanent residence was applied and R---- man was held to have lost his United States citizenship.
The case of D---- M---- (File No. 56068/912), decided on June 2, 1941, followed the R---- case closely in point of time. In this case M---- having attained his majority in 1931, failed to elect to retain his United States citizenship by returning to the United States for permanent residence within a reasonable time after attaining his majority although he had evidenced that he considered himself to be a citizen of the United States and had not performed any voluntary act of expatriation. It was found that as he had not voluntarily performed any act of expatriation he was a person of dual nationality, having both Canadian and United States citizenship on January 13, 1941, the effective date of the Nationality Act of 1940, notwithstanding his failure to make an election of United States citizenship prior thereto. It was held that the second proviso of section 401 (a) of said act was applicable and that M---- had until January 13, 1943, to return to the United States as a citizen for permanent residence.
On June 19, 1943, in the case of J---- B---- S---- (File No. 56127/518), we stated that the enactment of section 401 (a) did not create a new right whereby one who had lost citizenship under application of the Elg principle might thereafter reinvest himself with that status by compliance with the statute. We were of the opinion that one who had failed to elect under the Elg doctrine was not a person of dual nationality and that the said section was not applicable to such a case. The Acting Attorney General, however, ruled that "the second proviso 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," and pointed out that if all persons who had lost American citizenship at the time of the enactment of the statute under the views of loss of citizenship theretofore prevailing were excluded, there would have been no necessity for the clause "if * * * he has not heretofore expatriated himself as an American citizen by his own voluntary act."
The second proviso was added to the draft code after the rendition of the Elg decision. The report of the House committee discloses that it was the intention of Congress to give dual nationals residing abroad the right to return to the United States for permanent residence within 2 years from the effective date of the act and thereby demonstrate that they have elected to retain American citizenship and that failure to do so would result in loss of American citizenship.
The second proviso of section 401 (a) provides for a definite method of election and a definite period of time within which the election must be made. A person entitled to elect American citizenship under this section must do so within 2 years from the effective date of the act. It is expressly provided that "Failure on the part of such person to so return and take up permanent residence 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." Thus it is seen that the estoppel to claim American citizenship does not become operative until the expiration of 2 years from the effective date of the act and the status of a valid American citizenship is recognized for the duration of that period.
The applicant's mother, under section 401 (a), did not discontinue her United States citizenship and was not estopped from claiming such citizenship or from making an election to retain it until January 13, 1943. She did not make such an election and it may be argued that her failure to elect under section 401 (a) relates back to her failure to elect under the Elg doctrine on the theory that her failure to elect under the statute is evidence that at no time after attaining her majority did she intend to elect United States citizenship. If such a view were taken, it would naturally be found that since her failure to elect under the statute related back to her failure to elect within a reasonable time after attaining majority she therefore was not a citizen of the United States possessing dual nationality at the time of the effective date of the act. Such a view would be inconsistent with the views of the M---- and S---- cases and with the words of the statute itself. It is clear that under the statute and the cases above referred to the applicant's mother had a valid, subsisting status as a citizen of the United States, both at the time of the effective date of the act and at the time of the applicant's birth on May 31, 1941, and that such status continued until January 13, 1943. The said status was vested, subject to divestiture; it was not an inchoate right depending upon the happening of a future event to make it effective.
We must therefore find that the applicant's parents were both citizens of the United States at the time of her birth and that the applicant derived United States citizenship under section 201 (c) of the Nationality Act of 1940 and is of dual nationality by virtue of her birth in Canada. The subsequent loss of United States citizenship by the mother by reason of her failure to elect under section 401 (a) of said act cannot affect the citizenship of the applicant which she acquired at birth.
Findings of Fact: Upon the basis of all the evidence adduced at the hearing, it is found:
(1) That the applicant was born on May 31, 1941, at Shaunavon, Canada;
(2) That the applicant's father was born on July 13, 1905, at Oakes, N.D.;
(3) That the applicant's father has not become naturalized in any foreign country;
(4) That the applicant's mother was born on March 10, 1911, at Leonard, Minn.;
(5) That the father of the applicant's mother became a naturalized citizen of Canada in 1917 while the said mother was a minor residing permanently in Canada;
(6) That the applicant's mother did not attempt to return to the United States for permanent residence until July 14, 1943;
(7) That the applicant has applied for admission to the United States as a citizen of this country.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 1992, Revised Statutes, and section 1 of the fourteenth amendment to the Constitution, the applicant's father is a citizen of the United States by birth;
(2) That under section 1992, Revised Statutes, and section 1 of the fourteenth amendment to the Constitution, the applicant's mother was a citizen of the United States by birth;
(3) That the applicant's mother acquired Canadian nationality through the naturalization of her father in Canada under the Revised Statutes of Canada, 1906, chapter 77;
(4) That under section 401 (a) of the Nationality Act of 1940, the applicant's mother failed to return to the United States within 2 years after the effective date of said act and is now estopped from claiming American citizenship;
(5) That under section 401 (a) of the Nationality Act of 1940, the applicant's mother was a citizen of the United States of dual nationality at the time of the applicant's birth;
(6) That under section 201 (c) of the Nationality Act of 1940 the applicant is a citizen of the United States.Other Factors: The applicant's father resides in the United States.
Order: It is ordered that the appeal be sustained.