A-6458448.
Decided by Central Office, January 8, 1947. Decided by Board, March 19, 1947.
Citizenship — Expatriation — Section 401 (c) of the Nationality Act of 1940 — Dual National — Service Canadian Armed Forces — Authorization by United States Laws.
A native born citizen, who also acquired Canadian nationality at time of birth, expatriated himself under Section 401 (c) of the Nationality Act of 1940 by service in the Royal Canadian Air Force from September 30, 1942 to September 16, 1945, such service not being authorized by laws of the United States, the executive agreement between the United States and Canada of April 8, 1942 having no application to persons who have the nationality of both countries. (See 2 IN Dec. 243.)
ADMITTED BY BOARD OF SPECIAL INQUIRY AS ALIEN VISITOR.
BEFORE THE CENTRAL OFFICE
(January 8, 1947)
Discussion: The subject of this record is a 22-year-old unmarried male, who arrived at Detroit, Mich., on August 5, 1946, claiming United States citizenship. A Board of Special Inquiry disallowed his claim to United States citizenship and admitted the subject as stated above. The case was submitted to the Central Office under O.I. 136.1 I.
The subject submitted an official birth certificate as proof of the fact that he was born on September 22, 1924 at Detroit, Mich. He testified that his mother and father were born in Canada; that his mother lived in the United States for a period of time and became a citizen of the United States; that his father was always a citizen of Canada; that he went to Canada with his parents in 1926; that he has resided in Canada from 1926 to the present date; that he enlisted in the Royal Canadian Air Force on September 30, 1942, and was honorably discharged therefrom on September 16, 1945; that he had not taken an oath of allegiance upon his enlistment in the Royal Canadian Air Force; that he had taken an oath to serve the country and not to disclose any information he may gain; that he had previously tried to enlist in the United States Marine Corps, and had been rejected for poor eyesight; and that he was coming to the United States to register for Selective Service as he had been informed that he was required to so register. He further testified that he had never been naturalized in his own right in Canada; that he had never taken an oath of allegiance to any foreign country; that he had never voted in Canada; and that he had never held a position in Canada for which only Canadian citizens were eligible.
The Board of Special Inquiry concluded that the subject had expatriated himself as a citizen of the United States under section 401 (c) of the Nationality Act of 1940.
Section 401 (c) of the Nationality Act of 1940 provides that:
A person who is a national of the United States, whether by birth or by naturalization, 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 acquires the nationality of such foreign state.
By section 403 (b) of the Nationality Act of 1940, no national of the United States under 18 years of age can expatriate himself under section 401 (c). Under the Fourteenth Amendment to the Constitution of the United States the subject was a citizen of the United States at birth. It also appears that the subject was a national of Canada by virtue of the Canadian Nationals Act of 1921, which provides:
2. The following persons are Canadian Nationals, viz: (c) Any person born out of Canada, whose father was a Canadian National at the time of that person's birth * * *.
Being a national of the United States over the age of 18 years on the date of his enlistment in the Canadian armed forces who possessed Canadian nationality, the subject is comprehended within the expatriating provisions of section 401 (c) unless his service in the military forces of Canada was "expressly authorized by the laws of the United States".
Prior to the executive agreement between the United States and Canada which was effected by an exchange of notes signed March 30 and April 6 and 8, 1942 ( 56 Stat. 1477), there was no provision of law applicable to the service of United States citizens in the armed forces of Canada. This agreement, although not in the form of a treaty, has the effect and force of a law of the United States ( Matter of K---- G----, 56158/676, January 20, 1945, approved by the Attorney General January 29, 1945). The provisions of this agreement, therefore, must be consulted to ascertain whether the subject was affected thereby. The agreement was initiated by the note of March 20, 1942, from the United States Department of State to the Canadian Minister. This note stated in part:
This Government is prepared, therefore, to initiate a procedure which will permit aliens who have registered under the Selective Training and Service Act of 1940, as amended, who are nationals of cobeligerent countries and who have not declared their intention of becoming American citizens to elect to serve in the forces of their respective countries in lieu of service in the armed forces of the United States at any time prior to their induction into the armed forces of this country.
In return the United States State Department requested that the Canadian diplomatic representative give the following assurances:
(a) No threat or compulsion of any nature will be exercised by his government to induce any person in the United States to enlist in the forces of any foreign government;
(b) Reciprocal treatment will be granted to American citizens by this government; that is, prior to induction in the armed forces of his government they will be granted the opportunity of electing to serve in the armed forces of the United States in substantially the same manner as outlined above.
(c) No enlistments will be accepted in the United States by his government of American citizens subject to registration or of aliens of any nationality who have declared their intention of becoming American citizens and are subject to registration.
The Canadian note of April 6, 1942, in response to the American note of March 30, 1942, stated in part as follows:
3. The policy of the Canadian Government and Canadian legislation has been based on the assumption that measures applying compulsory military service to aliens shall be founded upon agreement with the interested Governments. * * *
4. The Canadian Government agrees to stipulation (c) on the understanding that the United States Government is willing, if requested, to make a reciprocal promise. It is understood, of course, that the engagement set out in stipulation (a) is limited to the present case and, furthermore, that it is not intended to prevent the Canadian Government from declaring the legal liability of Canadians everywhere, including the United States, to serve in the Canadian Forces, so long as nothing is said or done by the Canadian Government in the United States by way of threat or compulsion. The reason for this reservation is that Canada may decide in the future to create a general legal liability of Canadians abroad to serve in the Canadian Forces similar to the existing provisions in the United States Selective Training and Service Act, imposing a liability on United States citizens everywhere. If Canada creates such a liability, the Canadian Government would not wish to exclude any part of the globe.
The American note of April 8, 1942 was a complete acquiescence in the views expressed in the Canadian note of April 6, 1942 and concluded the agreement. Since the agreement consists of an exchange of notes, containing not only the bare terms of the agreement, but also the contemporaneous interpretation and understanding given to the agreement by the parties thereto, the problem of giving the agreement its due and intended effect is simplified. The American note of March 30, 1942 by its terms is limited to the extension of certain privileges to "aliens" residing in the United States in return for the extension of similar privileges to American citizens residing in Canada. The Canadian note of April 6, 1942 makes it clear that the Canadian understanding of the American note of March 30, 1942 was that it concerned only "aliens" residing in Canada. In addition the Canadian Government was specific in stating its understanding that the agreement was not to be construed as a limitation on the possible future exercise of its power to require military service of its nationals residing in the United States. The American note of April 8, 1942 was a complete concurrence in the views expressed in the Canadian note of April 6, 1942. The language of the agreement is clear that its effect is limited to citizens of the one country residing in the territory of the other country who are "aliens" in the country of their residence. A person who is a national of Canada and a national of the United States at the same time is not an alien in either country. In view of the plain language of the agreement, and in view of the fact that declarant aliens (who have a much weaker tie to the country of residence than one who is a national of the country of residence) were specifically excepted from the agreement and in view of the fact that the Canadian Government was careful to state its understanding that the agreement did not involve a surrender of its power over Canadian nationals residing in the United States, it would be unwarranted to infer that either country was surrendering its power over its nationals residing in its own territory. The conclusion is inescapable, therefore, that the executive agreement in question has no application to persons residing in either country who possess the nationality of both countries. This Service has been informally advised by the State Department that the State Department does not consider the agreement applicable to dual nationals.
Since the subject is not one of the classes of persons comprehended within the executive agreement between the United States and Canada, his service in the Royal Canadian Air Force was not "expressly authorized by the laws of the United States" under section 401 (c) of the Nationality Act of 1940. The subject was, therefore, expatriated as a citizen of the United States under that section of law. There is no evidence that the subject was expatriated under any other provision of law.
The issue considered above was not passed on by the Board of Immigration Appeals or the Attorney General in Matter of K---- G----, 56158/676, January 20, 1943, approved by the Attorney General, January 29, 1945 which dealt with a similar problem under the executive agreement between the United States and Mexico. In that case the decision turned upon the point as to whether the executive agreement with Mexico was a "law of the United States" within the meaning of section 401 (c), and it was held that the agreement was a law of the United States. This Service does not question that decision, but raises the question as to the applicability of the executive agreement with Canada to a dual national. Because of the importance of the question here involved, the matter is being forwarded to the Board of Immigration Appeals, although the case does not involve an appeal from an excluding decision of the Board of Special Inquiry.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) The subject was born on September 22, 1924 at Detroit, Mich.;
(2) The subject's father was born in Canada and never relinquished his Canadian citizenship;
(3) The subject enlisted in the Royal Canadian Air Force on September 30, 1942, and was honorably discharged therefrom on Septmber 16, 1945;
(4) That the United States entered into an executive agreement with Canada on April 8, 1942, wherein it was agreed that the nationals of one country residing in the territory of the other country who were aliens in the country of their residence might be conscripted 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) Under the Fourteenth Amendment to the Constitution of the United States, the subject was a citizen of the United States at birth;
(2) Under the Canadian Nationals Act of 1921 the subject was a citizen of Canada;
(3) Under section 401 (c) of the Nationality Act of 1940 the subject expatriated himself as a citizen of the United States by service in the Royal Canadian Air Force, from September 30, 1942 to September 16, 1945;
(4) That the subject is an alien subject to the immigration laws of the United States.Order: It is ordered that the finding of the Board of Special Inquiry that the subject is an alien be affirmed.
As this case presents a question of difficulty in policy, it is referred to the Board of Immigration Appeals under title 8, part 90, Code of Federal Regulations.
We agree with the Acting Commissioner that the executive agreement between the United States and Canada with respect to military service does not cover persons who are citizens of both Canada and the United States. Accordingly, we find, as did the Acting Commissioner, that the appellant lost his citizenship under the provisions of section 401 (c) of the Nationality Act of 1940. However, we should like to point out that under section 323 of the Nationality Act of 1940, as amended, the appellant, if he desires to reside permanently in the United States, may be repatriated by taking an oath of allegiance at the nearest American consulate.
Upon consideration of the entire record, the findings of fact and conclusions of law proposed by the Acting Commissioner are hereby adopted.
Order: It is ordered that the finding of the Board of Special Inquiry that the subject is an alien, be, and the same is, hereby affirmed.