56158/416
Decided by Board April 28, 1945 Approved by Attorney General June 6, 1945
Citizenship — Expatriation — Section 401 (c) of the Nationality Act of 1940 — Foreign army service begun before January 13, 1941, but continued after that date.
Where a dual national of the United States and Mexico entered the Mexican Army in 1939 when he was over 21, without taking an oath of allegiance to the Mexican Government, and where such person continued to serve in the Mexican Army pursuant to such enlistment until he was discharged on November 21, 1943, it was held that his continuance of service in the Mexican armed forces after January 13, 1941, was not the result of a distinctly voluntary act and therefore the subject did not become expatriated under the provisions of section 401 (c) of the Nationality Act of 1940.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Executive Order 8766 — No passport.
BEFORE THE BOARD
Discussion: On September 9, 1944, this Board found that the appellant was a native and citizen of the United States and his appeal was sustained. The case is now before this Board for reconsideration upon a request made by the Acting Commissioner of the Immigration and Naturalization Service. It is stated that the question presented in this case is an important one, and in view of the conflicting opinions within the Immigration and Naturalization Service, as well as the disagreement of the Acting Assistant Commissioner with the opinion of this Board, it is requested that the case be certified to the Attorney General.
The appellant was born in San Antonio, Tex., on June 29, 1915, of parents who were natives and citizens of Mexico. He states that his parents took him to Mexico when he was 2 years of age and that he returned to the United States when he was 15 years of age and resided in this country for a period of 3 years before he again returned to Mexico.
On November 6, 1939, when he was 24 years of age he entered the Mexican Army but did not take any oath of allegiance to the Mexican Government. In our previous decision in this case, dated September 9, 1944, we discussed the effect of the obligation taken by the subject upon his induction into the Mexican Army. It was decided that it was merely an agreement to perform his military duties and did not constitute an oath of allegiance within the meaning of section 2 of the act of March 2, 1907 ( 34 Stat. 1228; 8 U.S.C. 17). No issue is taken with respect to this conclusion.
Following the unreported decision of Judge Masse in Matter of Yamamoto, (D.C. Hawaii, March 16, 1929) 55579/857 which was approved by the Department of Labor in a letter of Assistant Secretary Robe Carl White to the Attorney General, dated July 15, 1929.
Decision of the Board, dated September 9, 1944.
The subject continued to serve in Mexican Army pursuant to his enlistment on November 6, 1939, until he was discharged on November 21, 1943. The subject enlisted only once and he was compelled to serve for 1 year beyond the period of his enlistment. The subject testified that at the time of the expiration of his enlistment he was unable to secure a discharge because Mexico was then at war, and that in November of 1943, a circular was issued permitting those who had served the full period of 3 years to request a discharge. Accordingly, he requested separation from the service and received his discharge on November 21, 1943. The appellant acknowledges that under the laws of Mexico he derived Mexican nationality through the citizenship of his father. He was, therefore, a dual national at birth and at the time of his entry into the Mexican Army.
Prior to the expiration of his enlistment, on May 22, 1942, Mexico declared war against Germany, Italy, and Japan.
Mexican Law of May 28, 1886, ch. 1, art. 1. (3)., Flournoy and Hudson, Nationality Laws (1929), p. 427.
American citizenship was acquired by birth in the United States under section 1 of the fourteenth amendment to the Constitution of the United States. United States v. Wong Kim Ark. 169 U.S. 649 (1898).
Section 401 of the Nationality Act of 1940 ( 54 Stat. 1168; 8 U.S.C.A. 801, effective January 13, 1941) provides as follows:
A person who is a national of the United States, whether by birth or 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;
The differences of opinion which have arisen pertain to the question of the application of the aforementioned section to the instant case. We previously determined that the subject enlisted prior to the effective date of the Nationality Act, and that since he was forced to serve for the term of his enlistment and until his discharge, his case was not within the purview of the Nationality Act.
The Acting Assistant Commissioner of the Immigration and Naturalization Service is of the opinion that the appellant lost American Nationality under section 401 (c). He states, "It is believed by this office that the provisions of 401 (c) of the Nationality Act are clear and unequivocal and that `entering, or serving in, the armed forces of a foreign state * * *' are words which must be given their usual meaning. This individual was serving in the armed forces of Mexico on the effective date of the Nationality Act and was a citizen of Mexico at that time. It is believed that he was thereby expatriated."
The Acting General Counsel is of a contrary opinion and supports the decision of this Board. He states that in view of the decisions of the Supreme Court in Mackenzie v. Hare, 239 U.S. 299 (1915), and Perkins v. Elg, 307 U.S. 325 (1939) indicating that expatriation must be voluntary and with notice of the consequences provided by the expatriation statute, the service of this subject should not be held to result in expatriation. His memorandum states that, "In the instant case, when this man entered into the condition of a soldier in the Mexican Army, although voluntarily, he had no notice of the consequences of that act so far as concerns expatriation, for at that time, November 6, 1939, the above-named provision of section 401 (c) of the Nationality Act had not been enacted. His service so far as it continued in the army after the effective date of the Nationality Act cannot be said to be voluntary in face of the common knowledge that a soldier cannot at will terminate his service."
As we understand it, the position taken by the Acting Assistant Commissioner is that service in a foreign army after the effective date of the Nationality Act, whether such service be voluntary or involuntary, whether pursuant to an enlistment prior to January 13, 1941, or subsequent thereto, results in expatriation. We cannot agree with such interpretation.
Expatriation has been expressly recognized by congressional enactment since 1868 as a natural and inherent right of all people. It has been consistently defined judicially and administratively as the voluntary renunciation or abandonment of nationality.
R.S. 1999 (8 U.S.C. 15).
Expatriation is the voluntary loss or abandonment, or more properly speaking, renunciation of citizenship." Ex Parte Griffin, 237 Fed. 445, 450 (D.C.N.Y. 1916).
"The very foundation of the whole doctrine of expatriation, however, is that there shall be an intent on the part of the person to renounce citizenship, or the performance of some act which shows presumptive intent." Citizenship of Mrs. Berryman, 30 Op. A.G., 412, 421. To the same effect see: 39 Op. A.G. 411, 412.
In Perkins v. Elg, supra, it was stated, "Expatriation is the voluntary renunciation or abandonment of nationality and allegiance." In Mackenzie v. Hare, supra, at p. 311, the court declared, "It may be conceded that a change of citizenship can not be arbitrarily imposed, that is, imposed without the concurrence of the citizen. The law in controversy does not have that feature. It deals with a condition (marriage) voluntarily entered into, with notice of the consequences * * *. It is as voluntary and distinctive an expatriation and its consequences must be considered as elected."
"As stressed in the Elg decision, expatriation is a matter of intent on the part of the person concerned, which must be shown by some express act." Schaufus v. Attorney General, 45 F. Supp. 61, 66 (D.C. Md. 1942). In conformity with the accepted definition of expatriation, it has been held that citizenship is not divested unless as the result of a distinctly voluntary act. It has been recognized that voting in a foreign election under duress, that an oath of foreign allegiance taken involuntarily, and the performance of involuntary foreign military service would not result in expatriation. Involuntary entry into a foreign army would not effectuate expatriation and no reason can exist why an involuntary continuance of foreign military service should not likewise be ineffetive as an act of expatriation.
"The Department of State declared in the course of an instruction of March 16, 1934, to the Consul General at Bucharest: The Department's position consistently followed over a period of many years is that an American citizen should not be considered as having been expatriated under the provisions of section 2 of the act of March 2, 1907, by being naturalized in a foreign state in conformity with its laws, unless the naturalization is the result of a distinctly voluntary act, or if the naturalization is acquired as a result of an involuntary act, he has performed some overt act indicating the acceptance of the foreign nationality involuntarily conferred upon him." [Italics supplied.] 3 Hackworth, Digest of International Law (1942) 209.
Matter of S---- P----, 56158/358 (Nov. 29, 1944). H.R. 434, 79th Cong. 1st sess. would incorporate this principle into express statutory law.
See, supra, note. 9.
"It is the claim of the petitioner that his father was forced into the Italian Army and that his service was not voluntary. Assuming such to be the fact, such involuntary service would not expatriate him as a citizen of this country." U.S. ex rel. Fracassi v. Karnuth, 19 Fed. Supp. 581, 583 (W.D.N.Y. 1937). See also: 3 Hackworth, supra, at 374, 375.
Ibid.
Prior to the Nationality Act of 1940, mere enlistment in a foreign military force, without the administration of an oath of allegiance, did not constitute a renunciation of American citizenship. Expatriation because of foreign military service was introduced into our law by section 401 (c) of the Nationality Act of 1940. The basic purpose of section 401 (c) was to provide for expatriation of American citizens of dual nationality who had indicated their choice of a foreign allegiance by entry or service in a foreign army. The explanatory comments contained in the committee report accompanying the President's Message of June 13, 1938, transmitting the proposed revision of the Nationality laws state with reference to 401 (c) that, "This provision is based upon the theory that an American national who, after reaching the age of majority (See proviso 2 of this section, infra) voluntarily enters, or continues to serve in, the army of the foreign state, thus offering his all in support of such state should be deemed to have transferred his allegiance to it. The words `serving in' would apply to the case of one who had entered the army of a foreign state before attaining the age of majority but who, after reaching such age, had continued to serve in it."
39 Op. A.G. 337; 3 Moore's Digest of International Law, 730 (1906); Van Dyne, Citizenship of the United States, 277 (1904).
See 86 Con. Rec. part 11, p. 13246, 76th Cong. 3d sess.
Composed of the Secretary of State, the Attorney General, and the Secretary of Labor.
Section 401 (c) does not employ any language modifying the words "entering" or "serving." The explanatory comment of the report recommending the legislation refers to a citizen who "voluntarily enters, or continues to serve" in a foreign army. Although the word "voluntarily" is not repeated before the word "continues" it is clear that it applies to it as well, that the legislature was concerned with a voluntary continuance of service and that an involuntary continuance of service was not to be considered within the purview of the statute. In view of the wording of the comment we believe it may be fairly concluded that the word "voluntary" applies to one who "enters" as well as one who "continues" to serve in a foreign army. In view of the wording of the statute, which merely employs the words "entering or serving in" without using the term "voluntarily" at all, we would not be warranted in concluding that involuntary entry into a foreign army would not result in expatriation but that an involuntary continuance of service would. The statute treats "entering" and "serving" alike. If voluntary entry is required, voluntary continuance of service is likewise essential. The clear and unambiguous meaning of the statute cannot be altered by reason of a committee comment possibly shrouded in ambiguity. An interpretation that only voluntary entry into a foreign army would result in expatriation but that a continuance in such service after the Nationality Act, although involuntary, nevertheless accomplishes expatriation would, for the first time in our history, ground expatriation, the voluntary renunciation of allegiance, upon an act contrary to free choice and regardless of intent, presumptive or express. We believe that Congress did not indicate or intend such purpose. We believe that whatever be the effect of the committee comment, the statute does not require or lead to such conclusion.
The most that can be said is that the committee comment is ambiguous as to whether it declares by implication that involuntary continuance of foreign military service after the Nationality Act effects expatriation. If so radical a departure were intended in the doctrine of expatriation, traditionally considered to be rooted in voluntary action, Congress could have stated such revolutionary change in express language. It did not. The "rights of citizenship are not to be destroyed by ambiguity." Perkins v. Elg., supra; no less by the ambiguity of a committee report. But we do not even concede that the comment is ambiguous. It confirms the requirement of voluntary foreign military service which represents the usual meaning given to the language of an expatriation statute.
We are dealing with a case of dual citizenship where the act of foreign military service is considered indicative of a choice of foreign allegiance. Without the concurrence of the individual, without the exercise of a free choice by the individual to continue foreign service after the Nationality Act became operative, no indication of a preference for foreign allegiance may be assumed or presumed. The very purpose of the expatriation provision of 401 (c) of the Nationality Act, therefore, vanishes if involuntary conduct is brought within its purview.
It is contended that if the construction approved by this Board be affirmed that the word "serve" in section 401 (c) would be meaningless or superfluous. We do not agree with such contention. A citizen who entered the armed forces of a foreign state prior to the Nationality Act but who voluntarily continued to serve after the expiration of his term of enlistment and subsequent to the effective date of the act would be expatriated. So too of those who continued to serve after being offered a choice of discharge or continued service after the effective date of the act. During the last war neutral aliens in our armed service were given such choice of discharge or an opportunity to continue their service (Second Report of the Provost Marshal General, January 1918 at p. 99).
Our construction that only voluntary conduct is comprehended by section 401 (c) is further fortified by the well recognized principle of statutory construction that an expatriation law is penal in nature, that it effects a forfeiture of citizenship and therefore must be strictly construed. We, therefore, conclude that the broad construction advocated by the Acting Assistant Commissioner should not be adopted.
In Matter of Yamamoto, ( supra, note 1) the District Court discussed the expatriation statute of March 2, 1907, as follows:
"The statute, section 2, supra, being penal in its nature, the act which, in law, is deemed to take away the citizenship of birth, must strictly conform to the statute. Citizenship by birth is presumed to continue until expatriation is clearly established. Hauenstein v. Lynham, 100 U.S. 483, 25 L. Ed. 628".
Generally speaking, statutes are construed strictly against forfeiture. U.S. v. Batre, 69 F. (2d) 673, 674 (C.C.A. 9th, 1934); 3 Sutherland, Statutory Construction (1943) pp. 47, 49.
In addition, it should be observed that such construction would result in effectuating a loss of this appellant's birthright by reason of an act performed by him prior to the Nationality Act at a time when he had no notice of the consequences of his act. In the language of the court in Mackenzie v. Hare a change of citizenship so imposed without the concurrence of the citizen would be "arbitrarily imposed." Neither section 401 (c) nor any other part of the Nationality Act contains an indication of a retroactive effect. Section 504 ( 8 U.S.C. 904) sets forth a list of nationality acts repealed with the proviso that, "The repeal herein provided shall not terminate nationality heretofore lawfully acquired * * *." This provision would seem to clearly indicate that the expatriation features of the Nationality Act were to be prospective in operation. Were the expatriation sections retroactive, they could not interfere with or disturb the vested right of citizenship and at the same time be valid under our Constitution.
Ordinarily statutes establish rules for the future and they will not be applied retroactively unless that purpose plainly appears. Brewster v. Gage, 280 U.S. 327, 337 (1929).
Administratively and judicially the Nationality Act has been considered prospective. (See Schaufus v. Attorney General, 45 F. Supp. 61 (D.C. Md. 1942); In re Skoglund, 46 F. Supp. 434 (D.C. Minn. 1942); U.S. ex rel Aberasturi v. Cain, 55 F. Supp. 536, 537 (E.D.N.Y. 1944) reversed 147 F. (2d) 449; Matter of G----, 56158/781 (Feb. 24, 1945); Matter of B----, 56175/74 (April 2, 1945).)
See 2 Sutherland, Statutory Construction (1943) 227. The expatriation statute of March 2, 1907, was confined to a prospective operation. 3 Hackworth, Digest of International Law (1942) 218.
The subject of this proceeding had no choice to withdraw or continue in his foreign army service after the effective date of the Nationality Act. He was not only compelled to serve out the term of his enlistment, but he was forced to serve for an additional period of approximately 1 year. He did not reenlist. He did not continue to serve as a result of a distinctly voluntary act, nor did he perform any overt act indicating an acceptance of the foreign army service which he was compelled to continue. If an adjudication of expatriation be made upon the present record, the subject would be losing his birthright because of an act performed in 1939, at a time when such conduct had no effect upon American nationality.
Our decisions in Matter of C---- 56079/22 (decided, February 24, 1942) and in Matter of H---- 56107/467 (decided, August 2, 1942) are in conflict with the view which we have taken in the instant case. We disapprove the principles enunciated in those cases and they are hereby overruled. We reaffirm our previous determination in the present case that the subject is a citizen of the United States. We base such determination upon the fact that section 401 (c) of the Nationality Act is not retroactive, that entry or service in a foreign army is only within the purview of the statute when of a voluntary nature, and that compulsory service after January 13, 1941, pursuant to a prior enlistment is not within the contemplation of the aforementioned expatriation section.
In accordance with title 8, section 90.12, Code of Federal Regulations, the Board refers this case to the Attorney General for review of its decision.
The decision and order of the Board of Immigration Appeals are approved.