56008/872
Decided by the Board July 14, 1942.
Citizenship — Married women — Act of June 25, 1936 as amended — Nationality Act of 1940 — Retroactive effect.
1. The amendment of July 2, 1940, to the Act of June 25, 1936, conferred as of the date of its enactment the status but not the rights of citizenship on a native-born woman who had lost her citizenship by marriage to an alien but who had resided in the United States continuously since such marriage, although she had not taken an oath of allegiance ( Matter of P---- (56011/385)).
2. The Nationality Act of 1940 does not purport to deprive a person of the status of citizenship acquired under the Act of June 25, 1936, as amended.
CHARGE:
Warrant: Act of February 18, 1931 — Convicted and sentenced for violation of statute of the United States prohibiting the sale of opium derivative.
Mr. J.H. Krug, Board attorney-examiner.
STATEMENT OF THE CASE: Warrant of arrest was issued on June 5, 1939, on the charge stated above. A hearing was accorded the respondent thereunder on July 22, 1939, and October 18, 1939, at the Federal Industrial Institution for Women, Alderson, W. Va. At the hearing the respondent was not represented by counsel. By decision dated January 4, 1940, it was ordered that the respondent be deported on the charge stated in the warrant of arrest. By decision dated January 29, 1941, the matter was again considered, and it was directed that no change be made in the outstanding order of deportation. A warrant of deportation was issued January 4, 1940.
At the time of the hearing, respondent was confined at the Federal Industrial Institution for Women, Alderson, W. Va. She was released on her own recognizance on November 23, 1940 (letter dated November 26, 1940).
The matter is before this Board for further consideration.
DISCUSSION: The respondent was born on May 29, 1897, at St. Louis, Mo. She testifies that she has never departed from the United States. On March 1, 1917, she married J---- B---- at St. Louis. Her husband is a native and citizen of Italy and is also the subject of deportation proceedings.
In the fall of 1936, the respondent was indicted in the Eastern Judicial District of Missouri on 15 counts for violation of 26 U.S.C.A., sections 1387- 1388 and 1044, and on one count for conspiracy to violate these statutes under 18 U.S.C.A., section 88. She was convicted on all counts and on October 4, 1937, she was sentenced to serve 3 years on each of counts 1 to 15, inclusive, and to serve 3 years on count 16, all sentences to run concurrently.
The respondent is subject to deportation on the charge stated in the warrant of arrest unless she is a citizen of the United States. By her marriage to an alien in 1917, she lost her United States citizenship (Act of March 2, 1907, sec. 3). The respondent claims that her citizenship was restored by a statute enacted in 1940. She evidently refers to the Act of July 2, 1940, which amends the Act of June 25, 1936. The 1936 act, as amended, reads as follows:
That hereafter a woman, being a native-born citizen, who has or is believed to have lost her United States citizenship solely by reason of her marriage prior to September 22, 1922, to an alien, and whose marital status with such alien has or shall have terminated or who has resided continuously in the United States since the date of such marriage, shall be deemed to be a citizen of the United States to the same extent as though her marriage to said alien had taken place on or after September 22, 1922: Provided, however, That no such woman shall have or claim any rights as a citizen of the United States until she shall have duly taken the oath of allegiance * * *.
There is no evidence that the respondent has taken the oath of allegiance. By decision dated June 26, 1941, in the case of G---- A---- P---- (56011/385) [ see page 127, this volume] we considered the interpretation to be placed upon the Act of June 25, 1936, prior to its amendment. We concluded that the 1936 act conferred the status of citizenship as of June 25, 1936, upon the specified class of women. On November 22, 1941, the Attorney General approved our decision. Our conclusion is unaffected by the Committee Report on H.R. 4185, which became the amendment of July 2, 1940 (H. Rept. No. 869, 76th Cong., 1st sess.) The amendment of July 2, 1940, enlarged the class of women affected by the provisions of the 1936 act. We are of the opinion that the amendment of July 2, 1940, should also be regarded as conferring citizenship as of the date of its enactment upon women who met the specified terms. Since the respondent was a nativeborn woman who lost her citizenship by marriage prior to September 22, 1922, and since she has resided continuously in the United States, we conclude that she acquired the status of citizenship as of July 2, 1940. This conclusion is in accordance with the view adopted by the Legal Branch.
We are of the opinion that the status of the respondent has not been affected by the enactment of the Nationality Act of 1940. This statute repealed the Act of June 25, 1936. It provided, however, "The repeal herein provided shall not terminate nationality heretofore lawfully acquired, nor restore nationality heretofore lost under any law of the United States or any treaty to which the United States may have been a party" (sec. 504). The Nationality Act also provided "Nothing contained in either chapter III or in chapter V of this act, unless otherwise provided therein, shall be construed * * * to affect * * * any act, thing, or matter, civil or criminal, done or existing, at the time this act shall take effect; but as to all such * * * acts, things, or matters, the statutes or parts of statutes repealed by this act, are hereby continued in force and effect" (sec. 347 (a)).
The acquisition of citizenship by the respondent as of July 2, 1940, should be regarded as naturalization (Nationality Act of 1940, sec. 101). We think it clear that the Nationality Act of 1940 does not purport to deprive a person of the status of citizenship acquired under the 1936 act, as amended. In all probability, Congress would have no power to deprive a person of citizenship in the absence of an act of expatriation ( Mackenzie v. Hare, 239 U.S. 299, 311 (1915)).
The Legal Branch has adopted the view that a person upon whom the status of citizenship was conferred by the 1936 act, as amended, may take the oath subsequent to the effective date of the Nationality Act of 1940.
Instructions have been issued that such women may be permitted to take the oath of allegiance (Federal Register, January 11, 1941, Regulation 330.2). Respondent should be advised of her right to take the oath.
But we have found that she now has the status of citizenship, although she does not possess the "rights as a citizen." Under the immigration laws, we have no jurisdiction over the respondent since she is clearly not an alien.
FINDINGS OF FACT: Upon the basis of all the evidence produced at the hearing and upon the entire record in this case, it is found:
(1) That the respondent was born at St. Louis, Mo., on May 29, 1897, and has resided continuously in the United States;
(2) That the respondent was married to an alien on March 1, 1917.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under the Act of June 25, 1936, as amended by the Act of July 2, 1940, the respondent acquired the status of citizenship on the latter date;
(2) That this status has not been affected by the Nationality Act of 1940;
(3) That under the Act of February 18, 1931, the Immigration and Naturalization Service has no jurisdiction over the respondent.
ORDER: It is directed that the order of January 4, 1940, in this case be rescinded.
It is further directed, That the warrants of arrest and deportation be canceled on the ground that the respondent is a citizen of the United States.
It is further directed, That the respondent be advised of her right to take the oath of allegiance specified in section 335 of the Nationality Act of 1940.