56127/27
Decided by the Board March 4, 1943.
Citizenship — Expatriation — Sections 2 and 3, Act of March 2, 1907 — Residence abroad — Married women.
1. The taking of an oath of allegiance to the Austro-Hungarian Empire in 1915 by an American citizen resulted in his expatriation under section 2 of the Act of March 2, 1907.
2. The expatriation of a naturalized citizen prior to September 22, 1922, by taking an oath of allegiance to a foreign state does not operate to expatriate his wife under section 3 of the Act of March 2, 1907, unless the husband thereby acquired foreign nationality.
3. A foreign-born woman who acquires American citizenship by reason of her marriage, prior to September 22, 1922, to an American citizen is a "naturalized citizen" within the meaning of the second paragraph of section 2 of the Act of March 2, 1907, and is subject to the presumption of loss of citizenship contained therein.
4. A native of Czechoslovakia who acquired American citizenship in 1911 by her marriage abroad to a United States citizen has failed to overcome the presumption of loss of citizenship contained in section 2 of the Act of March 2, 1907, when she did not come to the United States until 1943 and the evidence showed that her coming at that time was motivated by the war.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Immigrants without immigration visas.
Mr. Louis E. Spiegler, of the Hebrew Sheltering and Immigrant Aid Society, for the appellants.
Mr. Joseph Minton, for the Immigration and Naturalization Service.
Mr. Max Wilfand, Board attorney-examiner.
STATEMENT OF THE CASE: The appellants are husband and wife, natives of that part of Austria that became Czechoslovakia after the First World War, and are 63 and 62 years of age, respectively. They seek admission to this country for permanent residence. The husband is in possession of a nonimmigrant visa issued under section 3 (2) of the Immigration Act of 1924. The wife claims to be a citizen of the United States, and on the reverse of her identifying document there is a stamp affixed by the American consulate general at Lisbon, Portugal, on June 18, 1942, which reads:
Bearer is about to travel to the United States upon the S.S. Drottningholm and will be admitted upon arrival of exchange vessel in the United States, upon surrender of the passport, signed by American vice consul.
The board of special inquiry denied the female appellant's claim to American citizenship and excluded them on the grounds above stated, and they appealed. Pending our decision in this matter, they have been paroled into the United States.
DISCUSSION: The male appellant was born on April 20, 1879, in Tuschkau, Czechslovakia (formerly Austria). He first came to the United States for permanent residence in August 1902. On September 11, 1908, after residing continuously in this country since his first entry, he was naturalized in New Brunswick, N.J. In the latter part of 1909 he returned to the place of his birth in order to see his sick father. He traveled there on an American passport, and then had every intention of returning to this country. He claims that he registered on one occasion as an American citizen at the American consulate in Vienna, Austria. On July 9, 1911, he married the female appellant in Austria, and as a result a son was born to them on October 14, 1914. Because of the continuing illness of his father, the male appellant finally decided to remain in Austria, and while there was employed in a factory owned by his sister. His wife, the other appellant, has never at any time resided in this country.
In December 1915 the husband claims that he was forced into the Austro-Hungarian Army and served there for 2 years. At that time he apparently took an oath of allegiance to the Austro-Hungarian Empire. In 1939 he submitted his American passport and naturalization certificate to the American consulate in Prague, Czechoslovakia, and was there informed that he had expatriated himself by reason of taking the aforesaid oath of allegiance. At that time the consul retained his American passport and naturalization certificate.
The male appellant now claims that he is a citizen of Czechoslovakia, and that he became such in 1918 by reason of his residence then in that part of Austria that became Czechoslovakia. He does not have any documents showing his claimed Czechoslovakian citizenship but insists that he was considered such by the official authorities of the town where he resided. Since his return to Europe in 1909 he has never traveled on any Czechoslovakian passport and, in fact, has never left the borders of that country.
The female appellant, who has lived in Bohemia, Czechoslovakia (formerly Austria), all of her life, claims that on June 7, 1940, she was issued an American passport by the American consulate at Prague, Czechoslovakia. However, because of her inability to book passage to this country, she was unable to use this passport. She further claims that she never considered herself a citizen of Czechoslovakia after the First World War, and that she always considered herself an American citizen. She admits that she did nothing to preserve her claimed American citizenship, though she testified that she always intended to send her son to this country and then to come here herself. She has never traveled outside of Czechoslovakia, never voted in that country, never has been employed by the Czechoslovakian Government, and has never held any governmental position. After our declaration of war against Germany, she was interned, presumably as an alien enemy, from March 27 until June 6, 1942, and at that time the German authorities retained her American passport.
In determining the citizenship of these two appellants, their testimony as to what they considered it to be is of no particular probative value. Such testimony merely states a conclusion of law, a conclusion that can only be decided upon consideration of all the material facts appearing in the record. There appears to be no doubt, and the fact is not disputed by the male appellant or his attorney, that he lost his citizenship in December 1915, if not prior thereto, pursuant to section 2 of the Act of March 2, 1907, by reason of his taking an oath of allegiance to the Austro-Hungarian Empire on the occasion of his induction into the army. Since he is an immigrant and not in possession of the proper consular document, he is therefore inadmissible.
Mrs. B----'s citizenship presents other difficulties. Two general methods by which she could have lost her American citizenship are by her husband's acquisition of foreign nationality prior to September 22, 1922, and by her own act of expatriation under applicable legal principles. As to the first method, it must be initially determined whether Mr. B---- ever acquired foreign nationality prior to September 22, 1922. If he did, then his wife took his nationality pursuant to section 3 of the Act of March 2, 1907 (repealed by sec. 6, Act of September 22, 1922), which provided in part:
That any American woman who marries a foreigner shall take the nationality of her husband.
This is so even though at the time of their marriage he was still an American citizen, it having been held that it was clearly the intention of Congress to make the marital status, rather than the act of marriage, the ground for expatriation ( Petition of Peterson, 33 F. Supp. 615; In re Varat, 1 F. Supp. 898; United States v. Cohen, 179 F. 834).
Mr. B----, after his naturalization in the United States, ceased to be a citizen of Austria by reason of article I of the Naturalization Convention between the Austro-Hungarian Empire and the United States signed at Vienna on September 20, 1870, and proclaimed on August 1, 1871. His return to Austria in the latter part of 1909, his subsequent decision to reside there, his subsequent residence there, did not of themselves revest him with Austrian citizenship because of article IV of the aforesaid treaty. A search of the Austrian Nationality Laws does not reveal that Mr. B---- reacquired Austrian citizenship or nationality by reason of his induction into the armed forces of the Austro-Hungarian Empire in 1916. Nor does it reveal that he reacquired his original citizenship by reason of his long residence in that country after his return there. Though he did lose his American citizenship in 1916, that loss, on his part, without the acquisition of foreign nationality, did not expatriate his wife. See Citizenship of Mrs. B----, 30 Op. Atty. Gen. 412 (1915), wherein the Attorney General held that a native-born female, married in 1912 to a native-born citizen of the United States, and a resident of Canada since 1912, did not lose her American citizenship by reason of her husband's joining the Canadian expeditionary force and taking an oath of allegiance to Canada prior to our declaration of war. The Attorney General at page 419 of the aforesaid opinion said:
"Citizens of the Austro-Hungarian Monarchy who have resided in the United States uninterruptedly at least 5 years and during such residence have become naturalized citizens of the United States shall be held by the Government of Austria and Hungary to be American citizens and shall be treated as such."
"The emigrant from one state, who, according to art. I, is to be held as a citizen of the other state, shall not, on his return to his original country, be constrained to resume his former citizenship; yet, if he should of his own accord reacquire it and renounce the citizenship obtained by naturalization, such a renunciation shall be allowable, and no fixed period of residence shall be required for the recognition of his recovery of citizenship in his original country."
FLOURNOY AND HUDSON. Nationality Laws, 1929.
* * * whether his act in taking the qualified oath of allegiance to Canada, and in enlisting in the Canadian Army, did or did not work his own expatriation, I am of the opinion that the loss of American citizenship by the husband would not ipso facto forfeit the citizenship of his wife.
There is no other evidence appearing in this record from which we could conclude that Mr. B---- voluntarily reacquired Austrian nationality prior to the treaties that created the Republic of Czechoslovakia. Nor does an examination of the treaties of peace subsequent to the First World War and the nationality laws of Czechoslovakia available to us reveal that either Mr. or Mrs. B---- ever acquired Czechoslovakian nationality prior to September 22, 1922.
The second general method by which Mrs. B---- might have lost her American citizenship brings into consideration the applicable portion of section 2 of the Act of March 2, 1907, which reads as follows:
When any naturalized citizen shall have resided for 2 years in the foreign state from which he came, or for 5 years in any other foreign state, it shall be presumed that he has ceased to be an American citizen, and the place of his general abode shall be deemed his place of residence during said years: Provided, however, That such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, under such rules and regulations as the Department of State may prescribe * * *.
This Board has held in the case of II---- II---- G----, (56127/9, January 21, 1943) [ see page 398, this volume], that the foregoing provision may operate to terminate citizenship status; and in order to overcome the presumption, it must be made to appear that there has not been an abandonment of such citizenship as manifested by an abandonment of an intention to return to this country.
That Mrs. B---- is a naturalized citizen and comes within the terms of the aforesaid presumption is clear from settled judicial decisions. The language of article IV of the Naturalization Treaty between the Austro-Hungarian Empire and this country might appear to be in conflict with the foregoing portion of section 2 of the Act of March 2, 1907, in that the former apparently required a definite acquisition of Austrian nationality before American citizenship can be lost. Though there appears to be no judicial decision directly on this point, Judge Learned Hand in Stein v. Fleischmann Co. et al., 237 F. 679, indicated that they were in conflict and that the treaty provision took precedence. It should be noted, however, that this treaty provision deals apparently with a person who is naturalized in the United States and who then returns to his native country. In this record we are dealing with a person who was living in Austria when she derived American citizenship by reason of her marriage to an American citizen and who has never resided in the United States. Even if we were to assume that the treaty provision takes precedence here and that, therefore, section 2 of the Act of March 2, 1907, does not apply to Mrs. B----, this would hold true only for the duration of the treaty. The First World War terminated the aforesaid treaty, and the female appellant at that time became subject to the applicable portion of section 2 of the Act of March 2, 1907.
Has Mrs. B----, upon the basis of this record, overcome the presumption of loss of her citizenship? Mr. B---- testified that after his decision to remain in Austria, because of his father's illness, his only attempt to return here was in 1914. Because of his wife's pregnancy, and upon advice of her physician, they did not leave Austria. This desire was apparently motivated by the outbreak of the First World War. Mr. B---- further testified that if conditions had continued to be normal in Czechoslovakia, he would never have come to this country. Mrs. B----, however, contends that she always considered herself an American citizen and that she always intended to send her son here and to follow him. Her son did not come to the United States until 1938, and then as an alien, and she herself never registered as an American citizen at any time.
She also testified, directly contrary to her husband, that they both intended to remain in Czechoslovakia only until they acquired such financial resources as would enable them to live in this country as people of means. Notwithstanding this testimony of Mrs. B----, we do not feel, in the light of her continuous residence in Czechoslovakia since birth, and the undoubted fact that her present application is motivated by the present war, that she has overcome the presumption of loss of her American citizenship. Not having the necessary consular documents, she is inadmissible on the ground stated by the board of special inquiry.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the male appellant is a native of Austria, who was naturalized a United States citizen on September 11, 1908, and that the female appellant is a native of Austria;
(2) That in the latter part of 1909 the male appellant returned to Austria to see his sick father and was there married on July 9, 1911, to the female appellant;
(3) That in December 1915 the male appellant took an oath of allegiance to the Austro-Hungarian Empire by reason of his induction into the Army;
(4) That the female appellant has never resided in the United States;
(5) That the female appellant's domicile has always remained in her native country;
(6) That the appellants are not in possession of unexpired immigration visas;
(7) That the female appellant is not in possession of an immigration visa, reentry permit, or border-crossing card.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under Section 1994 of the Revised Statutes the female appellant became a citizen of the United States by reason of her marriage on July 9, 1911, to the male appellant;
(2) That under section 2 of the Act of March 2, 1907, the male appellant lost his American citizenship by reason of taking an oath of allegiance to the Austro-Hungarian Empire in December 1915;
(3) That under the second paragraph of section 2 of the Act of March 2, 1907, the female appellant has ceased to be an American citizen;
(4) That under section 13 (a) of the Immigration Act of 1924, the appellants are inadmissible as immigrants not in possession of an unexpired immigration visa;
(5) That under section 30 of the Alien Registration Act of 1940 the female appellant is inadmissible as not in possession of a visa, reentry permit, or border-crossing card.
OTHER FACTORS: The appellants' son is employed in the United States as a room clerk in the Hotel St. Moritz and earns between $30 and $35 weekly. He has assets of about $600 and has prepared a home in this country for his parents. The port has paroled the aliens into the United States. They cannot return to Europe under present conditions. Therefore, we shall affirm the excluding decision and continue their parole for a period of 1 year.
ORDER: It is ordered that the excluding decision be affirmed.
It is further ordered, That the action of the port in paroling the aliens into the United States be, and the same is hereby, approved, and their parole is further continued for an additional period of 1 year.