56127/518
Decided by the Board June 19, 1943. Reversed by the Attorney General
Citizenship — Expatriation — Dual nationals — Section 401 (a), Nationality Act of 1940.
Under the second proviso to section 401 (a) of the Nationality Act of 1940 one born in the United States who acquired dual nationality during minority through the naturalization of his parent abroad had the privilege of returning to this country as a United States citizen within the specified period if he had not previously elected to give up his American citizenship by a "voluntary act" that connoted something more than mere residence abroad.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Immigrant without immigration visa.
Act of 1940 — No permit to enter.
Executive Order 8766 — No passport.
Mr. Max Wilfand, Board attorney-examiner.
BEFORE THE BOARD
STATEMENT OF THE CASE: The appellant, on December 31, 1942, applied for admission to the United States as a citizen thereof. He was held for a board of special inquiry, which denied his claim to American citizenship, and, as he did not present a passport, visa, reentry permit, border-crossing card, or an immigration visa, he was excluded on the grounds stated above. His appeal is now before us.
DISCUSSION: He was born in Montana on July 8, 1911. His father was a native of Canada, but was naturalized in the United States on April 24, 1903. The appellant resided in the United States until April 1921, when his family, he included, moved to Canada. The father was naturalized in Canada on December 20, 1926, and the appellant's name was endorsed on the father's certificate. Under Canadian law, the appellant thereby became a citizen of Canada.
The Acting General Counsel of the Immigration and Naturalization Service has submitted a 23-page memorandum in which he expresses the opinion that the appellant should be held to be a citizen of the United States. The Central Office, in transmitting the appeal to the Board, recommends that the appeal be sustained, and joins the Acting General Counsel in a request that if a contrary decision be reached, the case be referred to the Attorney General for review.
The Supreme Court determined in Perkins v. Elg, 307 U.S. 325, that citizenship acquired by birth must be deemed to continue unless the person concerned "has been deprived of it through the operation of a treaty or Congressional enactment or by voluntary action in conformity with applicable legal principles * * *." Also that one who derived citizenship in a foreign country through the naturalization therein of his parents "does not thereby lose his citizenship in the United States, provided that on attaining majority he elects to retain that citizenship and to return to the United States to assume its duties."
The court quoted extensively from administrative authorities in support of that statement, as follows:
Upon becoming sui juris (he) has the right to elect his American citizenship, which will be best evidenced by an early return to the United States (p. 332).
Also:
In case a person so circumstanced elects American citizenship he must, unless in extraordinary circumstances, in order to render his election effective manifest an intention in good faith to return with all convenient speed to the United States and assume the duties of citizenship (p. 333) * * *.
The court stated:
By the Act of July 27, 1868 ( 15 Stat. 223), Congress declared "the right of expatriation is a natural and inherent right of all people." Expatriation is the voluntary renunciation or abandonment of nationality and allegiance. It has no application to the removal from this country of a native citizen during minority. In such a case the voluntary action which is of the essence of the right of expatriation is lacking. That right is fittingly recognized where a child born here, who may be, or may become, subject to a dual nationality, elects on attaining majority citizenship in the country to which he has been removed (p. 334).
The court then proceeded to determine whether the "right of election" had been destroyed by treaty or statute, and determined that it had not.
The Nationality Act of 1940 ( 54 Stat. 1137) provides in section 401 (a) ( 8 U.S.C. 801):
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 [January 13, 1941] 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 * * * 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, * * *.
In the case of C---- W---- 56048/958 [ see page 24, this volume], we held that a person who had failed to make a timely election of American citizenship in accordance with the principle of law stated in the Elg decision, is not contemplated by the provision quoted above; that that provision applies only to those who were dual nationals on its effective date, viz, January 13, 1941. W---- was 32 years of age when he applied for admission to the United States, and in Canada he had voted in provincial elections. It was concluded that those circumstances were inconsistent with the theory that he had intended to retain American citizenship, and he was, therefore, to be regarded as an expatriate.
The Board certified its decision to the Attorney General as a case in which a question of difficulty was involved, and on February 7, 1941, the Attorney General approved that decision. Since then, the Board has uniformly applied the principles stated therein in its consideration of other cases involving the Elg problem.
The argument of the Acting General Counsel is that the term "voluntary act" of expatriation contained in the Nationality Act should be limited to an act of expatriation as provided by the statutes of the United States in force at the time the act in question was committed. Otherwise, he points out, the meaning of the term act "must be determined by construction * * *," which means that it must be regarded as an ambiguous term for, unless an ambiguity is first found, there is no room for construction, and the Supreme Court has said that "rights of citizenship are not to be destroyed by an ambiguity." He adds that mere continuance of residence in Canada for nearly 10 years after attaining majority is not an act that constituted expatriation under any statute or treaty. He furthermore expresses the opinion that section 401 (a) is remedial legislation, and, being remedial, it should be construed broadly.
The Central Office, in transmitting the appeal, states it is the administrative view of the Service, notwithstanding the appellant's acquisition of Canadian nationality and long residence in that country even after attaining majority, that he is still a citizen of the United States "because he has not heretofore expatriated himself by his own voluntary act. In other words, mere residence abroad, prior to the effective date of the Nationality Act of 1940, without any affirmative act of election, is believed not to constitute expatriation. The applicant had, therefore, under the terms of section 401 (a) of the Nationality Act of 1940, until January 13, 1943, to return to the United States and take up permanent residence as a citizen of this country."
It appears therefrom that the Central Office maintains an administrative view possibly, though not necessarily, at variance with the decision to which the Attorney General has given his approval; also, that acceptance of the conclusions contained in the memoranda submitted with the appeal would result in overturning the W---- case.
It has been established as a matter of law, as found by the Supreme Court, that as to a person of the Elg class, there is a duty of election which of the two nationalities he will retain. The opinion does not provide a precise test as to what constitutes election other than that the action must be voluntary, and action by an infant cannot be so regarded. The precedents to which the court refers indicate repeatedly that election is best evidenced by an early return to the United States after attaining majority. We believe, however, that failure to so return may not be controlling. As pointed out by counsel, the T---- case [36 Op. Atty. Gen. 535], which was administratively followed from 1932 to 1939, may have operated against such a person's return to the United States; hence, an unsuccessful effort, made within a reasonable period, might afford evidence of election. Also, registration as a citizen at an American consulate may evidence election. As stated by the Attorney General in the S---- case [15 Op. Atty. Gen. 15, 1875] ( Elg, pp. 330, 331), one possessing dual nationality cannot invoke the aid of the one government against the other in whose jurisdiction he resides. It follows, therefore, that to a degree his duties to the one government are subordinate to those of the other. If that condition continues beyond a reasonable period, a conclusion is warranted that there has been a voluntary acceptance of the newly acquired nationality.
We believe that 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. That statute was intended for the benefit of one who on the effective date of that act possessed dual nationality and who then resided abroad; or who might thereafter be placed in such circumstance.
It is our opinion that the W---- case was correctly decided and should be made the administrative view.
We now come to consideration of the facts. Having been born on July 8, 1911, the appellant attained majority on July 8, 1932. He attained majority more than 9 years prior to the effective date of the Nationality Act. Following rendition of the Elg decision, it was administratively deemed that one should have a 2-year period after attaining majority within which to manifest an election of citizenship in the United States.
The appellant testified as follows: That from 1921-26 he attended school in Montana, staying with his sister during the week but maintaining residence with his family in Canada; that other than so attending school he has resided in Canada continuously; that he registered for the draft in Canada and in doing so registered "as a British subject from this side"; that in June 1940 he applied for enlistment in the Calgary Highlanders at Calgary, Alberta, but was found not acceptable pending completion of treatment of his eye; that the application for enlistment was voluntary; that his last visit to the United States was in August 1940, when he came to attend a funeral, but he was apprehended and granted voluntary departure, and he then returned to his home in Canada; that he believes that in Canada he is considered to be a British subject; he owns no property there, has never voted or served in the armed forces of any country, nor has he exercised the rights or privileges of a British subject; that he has always considered himself a citizen of the United States; that ranching and farming with his father have kept him in Canada, and his present purpose in coming to the United States is to be inducted into the armed forces of the United States; also, that this is his first attempt to come to the United States for the purpose of permanent residence.
This affords very slight evidence to support a finding that the appellant has manifested an election of American citizenship. He never demonstrated a purpose to come to the United States prior to January 13, 1941, the effective date of the Nationality Act, but continued to reside in Canada for more than 9 years after attaining majority, being 7 years in excess of the 2-year period that those in the Departments of State and Labor — then charged with the administration of the laws concerned — considered a reasonable time limit.
In our opinion the record sustains a finding that the appellant's voluntary acts amply demonstrate an election of Canadian nationality. In the first place, there is the long period of residence in that country that intervened between his attainment of majority, viz, July 8, 1932, and the effective date of the Nationality Act of 1940, viz, January 13, 1941; and, secondly, his voluntary application for enlistment in Canada and rejection preceded his manifestation of a desire to enter the armed forces of the United States. We conclude, therefore, that he must be held to have accepted citizenship in Canada.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the appellant was born in Montana on July 8, 1911;
(2) That the appellant's father was naturalized a citizen of Canada on December 20, 1926, while the appellant was a minor and residing permanently in Canada;
(3) That the appellant has resided in Canada continuously from the date of his father's naturalization to the date of his present application;
(4) That the appellant has not heretofore attempted to return to the United States for permanent residence;
(5) That the appellant is now 32 years of age;
(6) That the appellant is not in possession of an immigration visa;
(7) That the appellant is not in possession of a visa, reentry permit, or other official document in the nature of a passport showing his origin and nationality.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That the appellant acquired Canadian nationality through the naturalization of his father in Canada;
(2) That the appellant within reasonable time after attaining majority failed to elect to retain American nationality and under the Act of March 2, 1907, became expatriated and is now a citizen of Canada;
(3) That the appellant is inadmissable to the United States under section 13 of the Immigration Act of 1924 for the reason that he is an immigrant not in possession of an unexpired immigration visa;
(4) That the appellant is inadmissible to the United States under section 30 of the Alien Registration Act of 1940 because he is an alien seeking to enter the United States who does not present a visa;
(5) That the appellant is inadmissible to the United States under Executive Order No. 8766 because he is not in possession of a passport or other official document in the nature of a passport showing his origin and nationality.
OTHER FACTORS: Except for documentary requirements, the appellant seems to be admissible to the United States as an alien. There would seem to be no reason why he should not be permitted to obtain immediately the required immigration documents and seek admission to the United States.
ORDER: It is ordered that the excluding decision be affirmed, but that permission be granted the alien to reapply within a year, when in possession of the required immigration documents.
MEMORANDUM FOR THE ATTORNEY GENERAL FROM THE OFFICE OF THE SOLICITOR GENERAL
My opinion is that the applicant is entitled to admission as a citizen under section 401 (a) of the Nationality Act of 1940. I believe further that it is unnecessary to overrule the decision of Attorney General Jackson in the W____ case.
The critical language in section 401 (a) is the following:
Provided, however, That nationality shall not be lost as a result of the naturalization of a parent unless and until the child shall have attained the age of 23 years without acquiring permanent residence in the United States: 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.
In my judgment 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. The view of the Board of Immigration Appeals, on the other hand, stressing the phrase "who at the same time is a citizen of the United States," is that one who had dual nationality and who resided abroad for a considerable time after attaining majority is no longer a citizen of the United States and hence is not entitled to the privilege of the proviso. I think that for several reasons this view is unsound. In the first place, it fails to take account of the phrase "if * * * he has not heretofore expatriated himself as an American citizen by his own voluntary act." If all persons who had lost American citizenship at the time of the enactment of the statute, under views of loss of citizenship theretofore prevailing, were excluded, there would have been no necessity for the clause just quoted. A more natural interpretation is that the phrase "who at the same time is a citizen of the United States" simply defines the case of dual nationality that is being considered; otherwise the proviso might be read literally to apply to any person who acquired foreign nationality through the naturalization of his parent, whether or not he had been an American citizen. It may be answered that the whole section deals with persons who had American citizenship; but the proviso was added to the draft code after the Elg case and was no doubt phrased as a self-contained provision. In the second place, the view of the Board of Immigration Appeals gives a singularly limited scope to the proviso. As appears from the memorandum in the W____ case, the proviso would apply under this view only to those persons who had reached the age of 21 but had not reached the age of 23 when the act became effective. Those under 21 would be protected by the privilege of election after attaining majority; those over 23, who had resided abroad without electing American citizenship, would have lost that citizenship absolutely, under the view of the Board. If the proviso is thus limited to the narrow age group indicated, it represents a curious mode of dealing with that situation. A broader scope for the proviso is indicated by the report of the House Committee on the bill (H. Rep. 2150, 76th Cong., 3d sess., p. 4):
The State Department has also experienced considerable trouble through persons possessing dual nationality — that of the United States and of a foreign country — who continue to reside in the foreign country for many years while insisting upon protection by the Government of the United States. Such persons may have children born abroad who acquire citizenship at birth and also claim the protection of this Government.
The code would give such dual nationals abroad 2 years from the effective date of the code to return to this country and take up permanent residence in order to demonstrate that they have elected to retain American citizenship. Failure to do so would result in the loss of American citizenship.
The memorandum of the Board argues that its view is supported by section 318 (b) of the act, reading as follows:
(b) No former citizen of the United States, expatriated through the expatriation of such person's parent or parents, shall be obliged to comply with the requirements of the immigration laws, if he has not acquired the nationality of another country by any affirmative act other than the expatriation of his parent or parents, and if he has come or shall come to the United States before reaching the age of 25 years.
The foregoing section was part of the original draft and hence did not take account of the Elg decision. In any event, it is consistent with the interpretation of section 401 (a) which I have suggested. Section 318 (b) applies to those who (1) do not avail themselves of the 2-year period after the date of the statute, or (2) already resided in the United States and are thus excluded from the benefits of section 401 (a), which by its terms applies only to those residing abroad.
The W____ decision is not necessarily in conflict with the foregoing opinion. In that case the fact was that the applicant had voted in Canada, and this may well support a finding of voluntary abandonment of American citizenship. This was the factor stressed in the memorandum of Mr. Prichard to the Attorney General and referred to in the memorandum of Mr. Butler. As the Attorney General himself gave no reasons for his ruling, it is permissible to conclude that this factor was regarded as significant. In the present case, on the other hand, I think that the fact that the applicant registered for the draft in Canada is not a voluntary abandonment of American citizenship, as under the view prevailing until the Elg decision our own Government regarded persons in his situation as having lost American citizenship, and he may have acted under the supposed compulsion of Canadian law in registering. His unsuccessful effort to enlist in Canada likewise seems to me not to entail loss of citizenship. If he had in fact joined the armed forces and taken an oath of allegiance a different question would be presented.
It will be observed that while my opinion is in substantial agreement with that of the Acting General Counsel of the Immigration and Naturalization Service, I do not take his view that a voluntary act of expatriation under section 401 (a) must be an act specified in the statutes as an act of expatriation. We are dealing here with dual nationality, and the voluntary act is rather one of election, which in my judgment may be an act other than one that would under the statutes result in the loss of single American citizenship. I believe that voting, which implies political allegiance, may constitute an election. The Elg case did not define acts of election, but speaks of loss of citizenship through operation of a treaty or Congressional enactment or "voluntary action in conformity with applicable legal principles," 307 U.S. at 329. I think that some scope is given by this decision and also by section 401 (a) for election by voluntary act that would not be an act of expatriation on the part of one having solely American citizenship. On this basis I think that the W____ case and the present case may be distinguished on their facts.
It may be noted that voting in a political election in a foreign country constitutes expatriation under Sec. 401 (c) of the act of 1940. Apparently this provision was new. It suggests, however, that such conduct prior to the act of 1940 may reasonably be regarded as an act of election in the case of dual nationality.
PAUL A. FREUND.
I agree with the conclusion reached by Mr. Freund in his memorandum of June 19, namely, that the applicant is entitled to admission as a citizen under section 401 (a) of the Nationality Act of 1940, and that this does not require the overruling of the W____ case. I also agree with the reasoning by which the Freund memorandum reaches this conclusion. My opinion is fortified by an additional factor going to the lack of weight to be attributed to S----'s registration for the draft and effort to enlist in Canada as proof of expatriation "by his own voluntary act." Under the circumstances of the war it may well be that his registration and effort to enlist are to be attributed to a motive to join in a war consistent with the interest of the United States, and not to a motive of election of Canadian citizenship in preference to that of the United States.