C-192976 (A-6576113).
Decided by Central Office June 6, 1947.
Citizenship — Expatriation — Sections 404 and 409 of the Nationality Act of 1940 as amended — Return to United States after October 14, 1946 — Meaning of "en route."
A person naturalized in 1911, who did not otherwise expatriate himself subsequently, is not deemed to have expatriated himself under the provisions of sections 404 and 409 of the Nationality Act of 1940, as amended, though he arrived in the United States after October 14, 1946 after having resided in his native country since 1922, since the evidence establishes that he was "en route" to the United States in that he had set in motion appropriate machinery to effect his return to the United States but was precluded from doing so because of delay due to conditions beyond his control. (See 2 IN Dec. 816.)
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
BEFORE THE CENTRAL OFFICE
Discussion: This case was considered by this Service on March 20, 1947. It is now reconsidered in the light of the Attorney General's interpretation of May 14, 1947, when he approved the decision of the Board of Immigration Appeals in the Matter of V---- (A-6501663, February 28, 1947).
The issue in question involves the expatriating effect under section 404 of the Nationality Act of 1940, of a continuance of maintenance of place of general abode in a foreign state after October 14, 1946, where a naturalized person on October 14, 1946, has already resided in a foreign state of which he was formerly a national or in which the place of his birth is situated or in any foreign country for the periods of 2, 3 or 5 years respectively, as mentioned in subdivisions (a), (b), and (c) of section 404 ( supra).
It has been held heretofore that mere failure to reach the United States prior to October 14, 1946, when the provisions of section 404 ( supra) went into effect, did not result in expatriation under that section, if by October 14, 1946, such person was "en route to the United States." The phrase "en route to the United States" had been interpreted to include a person who, by October 14, 1946, (1) was upon the high seas en route to the United States, (2) or who had embarked to come to the United States, (3) or who had crossed the border of that foreign country where the residence mentioned in section 404 had been maintained, and was in another foreign country awaiting transportation or experiencing other delays incident to travel to the United States (Informal ruling of the Attorney General of Dec. 9, 1946, 500/2, sec. 409, and Jan. 3, 1947 (39-106); O.I. 801.2, IV, Jan. 8, 1947).
RESIDENCE ABROAD
1. A naturalized citizen of the United States who satisfactorily establishes that prior to October 14, 1946, he had completed arrangements to come to the United States or had set in motion appropriate machinery to effect his return to the United States prior to that date, but was precluded from reaching the United States before that date because of delay due to conditions incident to travel which were beyond his control may be deemed to have retained his United States citizenship insofar as the provisions of section 404 of the Nationality Act of 1940 are concerned, irrespective of his place of abode prior to his actual embarkation or his actual departure from a foreign country to return to the United States.
The issue presented in the V---- case was whether a naturalized person who had resided in his native country Greece from 1931 to December 8, 1946, became expatriated under the provisions of section 404 (b) supra. It was found that Mr. V---- had completed all arrangements to return to the United States before October 14, 1946, but was precluded from doing so because of transportation difficulties. It was decided that Mr. V---- had not expatriated himself under the provisions of section 404 (b) supra, notwithstanding his physical presence in his native Greece, after October 14, 1946, since it was deemed that his remaining there after October 14, 1946, was not voluntary, inasmuch as he had done all that could be expected of him under the circumstances to effect his return to the United States prior to October 14, 1946.
From the foregoing and from the views expressed by the Attorney General's Office in connection with the interpretation of the phrase "en route to the United States" as discussed above, it may be concluded that a naturalized person who satisfactorily establishes that he had completed arrangements to come to the United States or had set in motion appropriate machinery to effect his return to the United States prior to October 14, 1946, but was precluded from doing so because of delay due to conditions incident to travel, which were beyond his control, may be deemed to have retained his United States citizenship insofar as the provisions of section 404 ( supra) are concerned, irrespective of his place of abode prior to his actual embarkation or his actual departure from a foreign country to return to the United States.
The question to be resolved is whether the appellant in this case comes within the class of beneficiaries contemplated by the interpretation of the Attorney General as stated above, and if his case is comprehended within the purview of such interpretation, he will be deemed to have retained his United States citizenship. The appellant is a 66-year-old native of Greece, who was naturalized here in 1911 and last went to Greece in 1922 to bring his family back; his wife did not want to return and he remained in Greece later because he did not have sufficient funds to return. The evidence of record establishes that after World War II hostilities had ceased in Europe, the appellant had applied for a United States passport in Greece, on September 6, 1945. He presented a letter from the State Department dated May 10, 1946, addressed to his son in the United States, indicating that the State Department's representatives in Greece were being authorized by cable to issue him a United States passport for travel to the United States. A United States passport was issued to the appellant on January 7, 1947, and the appellant explains that the delay in issuing him a United States passport was because the United States Consul in Greece was making an investigation regarding his possible loss of United States citizenship. He states that he periodically inquired of his Consul regarding his United States passport after having made application for such passport in 1945; and that he telegraphed the United States Consul about 20 days before October 14, 1946, regarding such a passport and his travel to the United States.
The State Department's letter of May 10, 1946, mentioned above, may be taken to indicate that satisfactory evidence had been presented to the State Department to the effect that he had made definite arrangements to return immediately to the United States, to reside here permanently. It is clear from the evidence of record that the appellant had been delayed by circumstances beyond his control in completing all arrangements to return to the United States before October 14, 1946, and it is evident that he was precluded from doing so because of the delay in the issuance of a United States passport and because of transportation difficulties. It is, therefore, concluded that he has satisfactorily established that he set in motion appropriate machinery to effect his return to the United States prior to October 14, 1946, but was precluded from doing so because of delay due to conditions beyond his control. It is, therefore, concluded that he did not expatriate himself under the provisions of section 404 (b) of the Nationality Act of 1940. Since it does not appear from the record that he did expatriate himself in any other manner his appeal will be sustained and his admission to the United States for permanent residence as a United States citizen will be authorized, and the order entered on March 27, 1947, will be withdrawn.
Order: It is ordered that the appellant's appeal be sustained and that he be admitted to the United States, as a United States citizen.