A-7791053 (56172/642)
Decided by Board August 13, 1945. Approved by Attorney General August 24, 1945.
Citizenship — Expatriation — Foreign military service — Section 401 (c) of the Nationality Act of 1940.
United States citizenship is not forfeited under section 401 (c) of the Nationality Act of 1940 by serving in the Canadian Officers' Training Corps which is not deemed part of the armed forces of a foreign state within the meaning of section 401 (c) supra, inasmuch as members thereof are not liable for active military service except in the case of "levee en masse", and members thereof can be placed on active duty only upon enlistment in the Canadian armed forces or upon induction into such forces under the Canadian Selective Service Act.
BOARD OF SPECIAL INQUIRY:
Admitted him temporarily, as an alien.
BEFORE THE BOARD
Discussion: The subject, a 20-year-old native of the United States, was accorded a hearing before a Board of Special Inquiry at Vancouver, British Columbia, Canada on September 20, 1944, relative to his admissibility to the United States as an American citizen. At the conclusion of the hearing on that day the Board of Special Inquiry rejected his claim to citizenship and excluded him on documentary grounds. The following day the subject reapplied for admission, the hearing was reopened, and upon the presentation of appropriate nonimmigrant documents he was admitted as an alien visitor for a period of 1 year in order to pursue a course of studies at the School of Dentistry, North Pacific College of Oregon. Because the Board of Special Inquiry had rejected his claim to citizenship, the case was forwarded to us on appeal for review. On November 15, 1944, we directed the hearing reopened to adduce further evidence with respect to the subject's citizenship status. The hearing was accordingly reopened at Portland, Oreg., on January 6, 1945, the subject then being in the United States. At the conclusion of the hearing on that day, the majority of the Board of Special Inquiry found him to be an American citizen and, therefore, not subject to the immigration laws. The case is now before us on appeal by the dissenting member.
The subject of these proceedings was born in Portland, Oreg., on April 13, 1925, his father then being a naturalized Canadian citizen temporarily residing in this country. Because of his birth in the United States and his father's Canadian nationality, it is clear that he acquired both American and Canadian citizenship at birth.
Mr. Z---- and his family have been living in Canada since 1928. In 1943, while attending the University of British Columbia and apparently as part of his course of studies, he became a member of the University Contingent of the Canadian Officers' Training Corps, an organization similar to the American Reserve Officers' Training Corps. He joined the contingent when he was over 18 years of age and served in it from September 30, 1943, until September 15, 1944. At no time was he required to or did he take an oath of allegiance to a foreign state.
So far as this record shows, Mr. Z----'s expatriation could only have occurred, if at all, pursuant to the provisions of section 401 (c) of the Nationality Act of 1940 by reason of his entering and serving in the Canadian Officers' Training Corps. The fact that he does not now desire to press his claim to American citizenship and wishes to be considered a national of Canada does not in and of itself result in his expatriation. His withdrawal of his claim to American nationality and his avowal of Canadian nationality cannot be deemed to constitute an election of the latter and a renunciation of the former status, as suggested by the dissenting member of the Board of Special Inquiry, since the doctrine of election does not apply to those who, like the subject, acquired dual nationality at birth. Matter of R----, 56127/95 (January 13, 1943). Nor can it be contended that Mr. Z---- lost his citizenship under the doctrine enounced by Congress that "the right of expatriation is a natural and inherent right of all people" and that "any * * * decision * * * which denies, restricts, impairs, or questions the right of expatriation, is * * * inconsistent with the fundamental principles of the Republic" (act of July 27, 1868; sec. 1999, R.S.; 8 U.S.C. 800). It is well settled that this right, apart from specific statutory authority, cannot be exercised in the United States ( Comitis v. Parkerson, 56 Fed. 558 (C.C. La., 1893); 14 Op. Atty. Gen. 296 (1873)). Therefore, even assuming that the subject, in withdrawing his claim to American citizenship and expressing a wish to be considered a Canadian, was attempting to exercise his inherent right of expatriation, since these acts occurred in this country, he cannot be said to have thereby lost his American citizenship. It is noted that Congress, in section 401 (i) of the Nationality Act, as amended, has provided that Americans may expatriate themselves while in the United States during time of war by making a formal renunciation of nationality and upon the consent of the Attorney General. Mr. Z---- has not sought to take advantage of this provision.
Moreover, even if we were to find that the subject's attempted renunciation of American citizenship occurred in Canada, it is our opinion that he could not have lost his citizenship by that simple oral statement. While it has been said that expatriation may result by the use of methods not comprehended by existing statutory expatriating provisions (39 Op. Atty. Gen. 411 (1940)), a mere passive desire not to be considered an American citizen unaccompanied by affirmative voluntary acts evidencing a renunciation of allegiance to the United States will not result in expatriation. Furthermore, Congress, in section 401 (f) of the Nationality Act of 1940, has expressly provided a simple method by which persons who desire voluntarily to cast off their American citizenship may do so. And this provision was designed especially for the use of those who acquired both American and foreign nationality at birth and who wished to elect the foreign nationality. Under it Mr. Z----, if he so desired, could have made a formal renunciation of his nationality in Canada before a diplomatic or consular officer of the United States, and thus would have lost his American citizenship. He has not done so.
Codification of the Nationality Laws of the United States, 76th Cong., 1st sess., House Committee Print, Pt. 1, p. 68.
Returning now to a consideration of section 401 (c) of the Nationality Act of 1940, which provides for loss of citizenship of one "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," it is clear that the subject was a national of Canada at the time he entered and served in the Canadian Officers' Training Corps. The basic issue in this case is whether the Canadian Officers' Training Corps is part of the armed forces of Canada within the meaning of the Nationality Act of 1940. We have already once held that it was not ( Matter of O----, 56106/718 (Apr. 1, 1942)). For the reasons to follow we still adhere to that view.
From the discussion to follow it will be seen that entering and serving in the Canadian Officers' Training Corps was not authorized under any law of the United States.
A communication from the Office of the Judge Advocate General in Canada, dated January 23, 1942 in part reads:
This communication is contained in a letter from the American Legation at Ottawa, dated January 26, 1942, and numbered 2494. The letter is addressed to the Secretary of State, the subject of the communication being: Status of the Canadian Officers' Training Corps as a branch of the Canadian Armed Forces — Case of L---- S---- K----.
A contingent of the Canadian Officers' Training Corps is a corps of the Active Militia of Canada and, therefore, from the standpoint of Canadian law is a part of the armed forces of Canada. Whether the same interpretation is placed upon its status by the United States law is of course a matter for determination by United States authorities.
The contents of this communication were confirmed by the same office in a letter dated December 4, 1944.
We shall, and indeed we believe that we are under a duty to, accept the interpretation placed upon this aspect of the Canadian law by the Judge Advocate General of the Canadian Armed Forces. We also believe, as the Judge Advocate General has aptly indicated in his letter, that only we or other appropriate American authorities can interpret the meaning of the words "armed forces" as used in the Nationality Act of 1940 and only we or other appropriate American authorities can determine whether the Canadian Officers' Training Corps is part of the "armed forces" of Canada as those words are employed in the Nationality Act.
With respect to such a determination, the Office of the Judge Advocate General in Canada in a letter to the port dated December 23, 1944 advised as follows with respect to the liabilities of members of the Canadian Officers' Training Corps for military service.
The Canadian Officers Training Corps is a Corps of the Active Militia of Canada named as such pursuant to section 20 of the Militia Act, Chapter 132, R.S.C. 1927. Members of the Canadian Officers' Training Corps are therefore members of the Active Militia of Canada and as such are under a legal liability to be placed on active service anywhere in Canada and beyond Canada for the defence thereof by the Governor General in Council pursuant to section 64 of the statute mentioned. Under the regulations relating to the Canadian Officers' Training Corps, that Corps is not included as a corps in the organization for war but this does not limit its liability for service in case of a "levee en masse." In this connection section 8 of the Militia Act makes provision whereby the Governor General of Canada may require all the male inhabitants of Canada capable of bearing arms to serve in the case of a "levee en masse" from which will be noted that said requirement does not extend only to persons who are already members of the military forces of Canada.
While as stated members of the Canadian Officers' Training Corps are under a statutory liability to be placed on active service, the existence of the provision that the corps is not included in the organization for war has the effect of excluding members thereof from a statutory liability to be placed on active service so long as said provision subsists. While of course this provision can, as a matter of law, be rescinded at any time, nevertheless, so long as it remains, the practical effect thereof is that a member of the Canadian Officers' Training Corps would not, as such, be placed on active service but would on his own volition have to offer himself for enlistment and, if accepted, he would be duly enlisted in a component of the Canadian military forces which was in fact placed on active service. [Italics supplied.]
It is thus clear under Canadian law, as that law is applied by the proper Canadian officials, that at the time Mr. Z---- was a member of the Canadian Officers' Training Corps he was not under any legal liability to serve in the active military forces of Canada. It is rather significant to note that Canada was then, and still is, engaged in total war and that, notwithstanding that fact, the Canadian Officers' Training Corps was not then and is not now subject to active military service. The obligations of the members of the Canadian Officers' Training Corps with regard to service were then no different from those of every civilian male inhabitant of Canada capable of bearing arms-namely, to serve in case of a "levee en masse". To say that because of such liability members of the Canadian Officers' Training Corps should be deemed to be serving in the armed forces of Canada within the meaning of section 401 (c) of the Nationality Act would mean that every American male inhabitant of Canada capable of bearing arms has lost his American citizenship. Obviously such an interpretation would be absurd.
Members of the Canadian Officers' Training Corps can only join the active military forces of Canada by voluntarily offering themselves for enlistment or, if subject to the Canadian draft, by being inducted into the Canadian Army. Ordinarily, we have been given to understand, so long as a person serves in the Canadian Officers' Training Corps he is granted a deferment by the appropriate Canadian authorities and is not subject to induction under the Canadian Selective Service Act.
The meaning of the words "armed forces of a foreign state" as used in the Nationality Act is indicated by the report of President's Committee that drafted the act. It was there said:
Codification of the Nationality Laws of the United States, 76th Cong., 1st sess., House Committee Print, Pt. 1, p. 67.
This provision is based upon the theory that an American national who * * * voluntarily enters, or continues to serve in, the army of a foreign state, thus offering his all support of such state, should be deemed to have transferred his allegiance to it.
From this comment it is apparent that section 401 (c) of the Nationality Act of 1940 was aimed at Americans voluntarily serving in the army of a foreign state who thereby offered their all in support of such state. In our judgment, only service in that part of a foreign army which is activated or subject to active military duty will satisfy the requirements of section 401 (c). In no other way can it be said that a person is truly offering his all in support of a foreign state. A University student who, as part of a full course of studies, devoted probably 2 or 3 hours weekly to military training in an organization which did not, and even today does not, subject him to liability for active duty and whose legal liabilities were then, and are now, no different from those of all civilian male inhabitants of Canada, does not satisfy this test. Until the Canadian regulations are changed to subject the corps to the type of military service that we believe was contemplated by section 401 (c), we must find that United States citizens entering or serving therein do not lose their American citizenship.
Under the Executive agreement entered into by the United States and Canada by an exchange of notes dated March 30 and April 6 and 8, 1942, which Executive agreement is a law of the United States within the meaning of section 401 (c) of the Nationality Act of 1940 ( Matter of K---- G----, 56158/676, approved by the Attorney General January 29, 1945), it appears that only those who are subject to full and active duty in the naval, military, or air forces of Canada are comprehended by the terms of that agreement. Thus it would appear that the appellant's service in the Canadian Officers' Training Corps, even if we were to find this corps to be part of the armed forces of Canada within the scope of section 401 (c), would not have been authorized by law.
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 April 13, 1925;
(2) That the appellant's father was then a Canadian citizen and the appellant thereby acquired Canadian nationality at birth,
(3) That the appellant have lived in Canada since 1928;
(4) That the appellant entered and served in the University of British Columbia contingent of the Canadian Officers' Training Corps from September 30, 1943, until September 15, 1944;
(5) That the appellant never took an oath of allegiance to any foreign state;
(6) That the Canadian Officers' Training Corps is, under Canadian law, a part of the armed forces of Canada;
(7) That under Canadian law members of the Canadian Officers' Training Corps are not liable for active military service and are only subject to being called into service in case of a "levee en masse";
(8) That under Canadian law members of the Canadian Officers' Training Corps can be placed on active duty only by voluntarily enlisting in the Canadian military forces or by being inducted into such forces under the Canadian Selective Service Act.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under the fourteenth amendment to the Constitution of the United States and section 1992 of the Revised Statutes, the appellant became an American citizen at birth;
(2) That the Canadian Officers' Training Corps is not part of the armed forces of a foreign state within the meaning of section 401 (c) of the Nationality Act of 1940;
(3) That the appellant has not lost his American citizenship under section 401 (c) of the Nationality Act of 1940 by reason of his entry and serving in the Canadian Officers' Training Corps from September 30, 1943, until September 15, 1944;
(4) That the appellant is an American citizen.
Order: It is ordered that the appeal of the dissenting member of the Board of Special Inquiry be dismissed and the subject be admitted as an American citizen.
As a question of difficulty is involved, pursuant to the provisions of section 90.12, title 8, Code of Federal Regulations, the Board refers its decision and order to the Attorney General for review.
The decision of the Board of Immigration Appeals of August 13, 1945, approved.