A-5553101 (56158/623)
Approved by the Board July 8, 1944
Citizenship — Expatriation — Dual Nationality — Election — Section 401 (a) of the Nationality Act of 1940 — Evidence.
1. A native-born American citizen does not expatriate by virtue of his acquisition of Canadian nationality after birth and during minority through the naturalization of his father and residence in Canada; upon attaining his majority, he may elect to retain his American citizenship under the doctrine in Perkins v. Elg ( 307 U.S. 325).
2. Such an election to retain American citizenship does not necessarily require a formal prescribed procedure but is possible of determination from the circumstances of a person's conduct and behavior. The election must indicate a "definitive" choice of citizenship.
3. Evidence supports conclusion such an election was made by subject on July 27, 1940, by then making his claim of American citizenship at the time of his temporary admission to the United States, where the record shows the subject had claimed American citizenship during his minority upon presenting his birth certificate to our immigration authorities and after reaching majority had maintained a course of conduct consistent only with that of American citizenship.
4. Because of such election on July 27, 1940, the subject was not a dual national within the meaning of section 401 (a) of the Nationality Act of 1940 when it became effective on January 13, 1941; accordingly, the requirement of section 401 (a), supra, as to dual nationals, about taking up permanent residence here before January 13, 1943, is not applicable.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Executive Order No. 8766 — No documents.
BEFORE THE BOARD
Discussion: The appellant applied for admission to the United States as a citizen at Montreal, P.Q., Canada on May 18, 1944. He presented no documents. A Board of Special Inquiry rejecting his claim to citizenship has excluded him on the ground above specified and he has appealed.
The record discloses that the appellant was born in New York, N.Y., on July 7, 1899. His father was then a citizen of Russia. Some years thereafter the father took up residence in Canada, the appellant and his mother remaining in the United States. On December 23, 1910, his father was naturalized in Canada, and in 1913 or 1914, the appellant and his mother joined the father in Canada, where he has lived ever since. Under Canadian law the appellant acquired Canadian citizenship having, during infancy, become resident with his father in Canada (c. 77, R.S. of Canada 1906, sec. 26).
The appellant, however, did not lose his American citizenship by virtue of his acquisition of Canadian citizenship. In accordance with the doctrine set forth in Perkins v. Elg, 307 U.S. 325, he could retain his American citizenship by making an election thereof upon attaining his majority. Although in the Elg case the election was manifested by a return to the United States for permanent residence after majority, we have not considered that case as limiting an election to that method. Matter of G----, 56127/839 (July 1943). There we accepted as sufficient evidence of an election the registration by the appellant with an American consulate as a United States citizen upon attaining majority.
The appellant testified that he has always considered himself as a citizen of the United States and that he has never exercised any of the rights of Canadian citizenship. He points to the fact that he has been admitted for temporary periods to the United States as a citizen on June 3, 1918, upon presentation of a birth certificate. At that time he was 18 years of age and he entered the United States for a period of about 2 years. His subsequent admission was on July 27, 1940, prior to the effective date of the Nationality Act of 1940. By his mere residence abroad the appellant did not lose American citizenship ( Matter of S----, 56127/518 (June 19, 1943)). We have heretofore held that an individual who sought permanent admission as a citizen, and was so admitted, thereby manifested an election of American citizenship ( Matter of M----, 56127/855 (September 4, 1943)).
In the instant case, we are confronted with the appellant's admission for temporary residence on July 27, 1940, upon a claim of citizenship. An election does not necessarily require a formal prescribed procedure, but it is possible of determination from the circumstances of a person's conduct and behavior. (See Matter of K----, 56158/275 (June 1, 1944).) It must, however, indicate a definite choice of citizenship. The subject of this case claimed American citizenship during his minority upon presentation of a birth certificate to the immigration authorities, and subsequently, after reaching his majority, he maintained a course of conduct consistent only with that of American citizenship. Under all the circumstances of the case, we are of the opinion that he elected American citizenship on July 27, 1940, by his claim of American citizenship at the time of his temporary admission to the United States.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the appellant was born in New York, N.Y., on July 7, 1899;
(2) That at the time of the appellant's birth his father was a citizen of Russia;
(3) That on December 23, 1910, the appellant's father was naturalized in Canada;
(4) That the appellant then resided in the United States;
(5) That the appellant during minority took up residence with his father in Canada in 1913 or 1914;
(6) That since such time the appellant has resided in Canada; except for visits to the United States;
(7) That after attaining majority in 1920, the appellant returned to the United States as a visitor under the claim of United States citizenship on July 27, 1940;
(8) That the appellant has applied for admission to the United States as a citizen thereof;
(9) That the appellant has not presented any passport.Conclusions of Law: Upon the basis of the foregoing findings of fact it is concluded:
(1) That the appellant was born a citizen of the United States;
(2) That during minority the appellant acquired Canadian citizenship through his father's naturalization in Canada;
(3) That after attaining majority the appellant elected to retain American citizenship;
(4) That the second proviso of section 401 (a) of the Nationality Act of 1940 is not applicable to the case of the appellant;
(5) That the appellant is a citizen of the United States.Order: It is ordered that the appeal be affirmed, and the appellant be admitted to the United States as a citizen.