A-7130749
Decided by Board November 28, 1952
Repatriation: by former United States citizen who served in armed forces of allied countries during World War II, not affected by outstanding deportation proceedings.
The provisions barring naturalization while a deportation proceeding is pending (sec. 329 of the Nationality Act of 1940, as amended by sec. 27 of the Internal Security Act of 1950) are not applicable to a repatriation proceeding (sec. 323 of the Nationality Act of 1940) by a former United States citizen who lost his United States nationality by service in the armed forces of an allied country during World War II.
CHARGES:
Warrant: Act of 1917 — Admits crime prior to entry — breaking dwelling by day.
Act of 1917 — Convicted of crime prior to entry — breaking dwelling by day.
Lodged: Act of 1924 — No immigration visa.
BEFORE THE BOARD
Discussion: This case is before us on appeal from the decision of the Acting Assistant Commissioner dated December 20, 1951, directing respondent's deportation. Although we previously considered this case, our decision of January 11, 1950, became a nullity as a result of the decision in Sung v. McGrath, 339 U.S. 33 (1950). In accordance with this opinion, a new hearing was held on May 23, 1950. The present appeal is based on this hearing record.
Respondent was born 28 years ago in Canada of United States citizen parents and acquired dual nationality at birth, R.S. 1993; Canadian Nationals Act of 1921. Because respondent served in the Canadian Army from January 12, 1944, to August 23, 1946, the hearing examiner determined that respondent had expatriated himself by virtue of the provisions of section 401(c), Nationality Act of 1940.
Respondent testified that in Canada, when a boy reaches the age of 16 (which was August 12, 1939, in respondent's case), he is required to register with the local authorities. Respondent stated that he does not remember what nationality he claimed at that time. Respondent said that at 17½ years old (or on February 12, 1941), he was considered eligible for the draft, with the forms being made out automatically and sent to his house. Respondent stated that no attempt was made to draft him until early 1944, when he was 20 years old.
Respondent testified that when he learned he was to be drafted, he came to the United States and tried to enlist in our Army. He was refused, apparently because of a misunderstanding of the facts of his status; the personnel of the various draft boards, which he contacted, erroneously informed him that he must be a United States resident for 6 months before he would be eligible for military service. Upon respondent's return to Canada, he was allegedly drafted into the Canadian Army involuntarily, for respondent stated that he felt he had no choice in the matter.
The Immigration Service pointed out that respondent had never applied for registration as a United States citizen prior to his period of military service. In addition, respondent did not apply with the American Consul for relief from Canadian military service. Respondent denied voluntarily entering the Canadian Army, but said he felt refusal was impossible in view of the severe statutory penalties for refusal to serve in Canada.
Respondent's military service was confined to Canada from January 12, 1944, to March 8, 1944. On the latter date, he was assigned to active or overseas duty and continued in this status until his discharge in 1946. Respondent admitted that he signed a request for active duty and thereafter received increased pay benefits, but respondent stated that he was required to sign this paper and felt he had no choice in signing the application for active military duty.
As a dual national, respondent is not protected from expatriation by United States-Canadian executive agreements. Matter of S----, A-6458448, 2 IN Dec. 783 (B.I.A., 1947). For this reason, respondent is subject to expatriation under the provisions of section 401 of the Nationality Act of 1940 ( 8 U.S.C. 801). However, for any of the acts of expatriation, specified in section 401, to be effective, they must be performed voluntarily, Dos Reis ex rel Camara v. Nicolls, 161 F.(2d) 860 (C.C.A. 1, 1947). We feel that the record shows that respondent served voluntarily and was expatriated under section 401(e).
By virtue of the provisions of section 323 of the Nationality Act of 1940, an expatriate, such as respondent, may regain his citizenship in the following manner:
A person who, while a citizen of the United States during the First or Second World War, entered the military or naval service of any country at war with a country with which the United States was or is at war, who has lost citizenship of the United States by reason of * * * entering or serving in such Armed Forces, and who intends to reside permanently in the United States, may be naturalized by taking before any naturalization court specified in subsection (a) of section 301, the oath prescribed by section 335.
According to section 323, an expatriate is not required to file a regular petition for naturalization, although alien applicants must generally do so. The oath of allegiance is the sole requirement specified by the Nationality Act for a former citizen seeking repatriation and results in an automatic restoration of citizenship. There is no implication from the words used in the statute that a "petition," as the term is used throughout the act, is involved in repatriation under section 323.
Section 317(b) particularly parallels the requirements of sec. 323.
For example, secs. 310(a) and (b), 311, 312, 315, 316, 317(a) and (c), 318, 319, 320, 321, and 321(A) and 325.
Set out in sec. 335.
The provisions of section 329 of the Nationality Act, as amended by section 27 of the Internal Security Act of 1950, are also pertinent here:
* * * No person shall be naturalized against whom there is outstanding a final finding of deportability, and no petition for naturalization shall be finally heard by a naturalization court if there is pending against petitioner deportation proceedings pursuant to a warrant of arrest issued under the provisions of this or any other act.
According to the statutory language in section 329, we believe that Congress intended to refer only to normal naturalization proceedings, not to the repatriation procedure set out in section 323. Furthermore, persons eligible to reacquire citizenship through section 323 can in fact be naturalized while abroad by taking the required oath at an American Consulate.
For these reasons, we conclude that the prohibitions found in section 329 were not intended to apply to repatriation through section 323, even though that process is called naturalization. Hence, there is no bar to respondent's recovery of United States citizenship prior to the termination of the present proceeding and respondent should be permitted an opportunity to make such an application.
Order: It is hereby ordered that action be deferred 3 months to afford respondent an opportunity to repatriate himself under section 323 of the Nationality Act of 1940.