C-1407152.(A-6998579)
Decided by Central Office, July 14, 1949
Citizenship — Naturalization as World War I veteran, in 1921 — Expatriative effect of absence in native country of Norway, where formerly a national, from December 7, 1938, to October 25, 1948, if there was intention to return to reside in the United States — Section 404 (a) of the Nationality Act of 1940.
1. A native and national of Norway who was naturalized here in 1921, as a World War I veteran, did not become expatriated under section 404 (a) of the Nationality Act of 1940 by virtue of his absence from this country and residence in Norway from December 7, 1938, to October 25, 1948, since he intended to return to reside in the United States.
2. In view of the provisions of section 406 (h) of the Nationality Act of 1940, section 404 (b) and (c) do not apply to a veteran of World War I.
3. Under Norwegian law, the subject was not deemed to be a Norwegian subject again until he had ceased to be of "foreign" (foreign to Norway) nationality (section 4 of the Norwegian law of August 8, 1924).
4. Under provisions of treaty between the United States and Norway (and Sweden) renunciation of United States citizenship (by naturalization) is not held to have occurred unless residence there was taken up without the intent to return here (article III of Protocol of the Treaty between Norway and Sweden and the United States of 1869).
BEFORE THE CENTRAL OFFICE
Discussion: In letter dated November 24, 1948, Edward H. Foley, Jr., Under Secretary of the Treasury, requested a determination of the citizenship status of the above-named subject, who last entered the United States on October 25, 1948, at New York, N.Y., as a quota immigrant of Norwegian nationality, in possession of a Norwegian passport, and was admitted under section 6 (a) (3) of the Immigration Act of 1924.
Subject was born in Norway on December 8, 1892. He was naturalized as a citizen of the United States on March 11, 1921, in the United States District Court, Brooklyn. N.Y., and received certificate of naturalization no. 1407152. The subject has the certificate of naturalization in his possession. His naturalization was accomplished under the provisions of the act of Congress approved July 1919, which extended certain naturalization privileges to World War I veterans of the Armed Forces of the United States.
From the investigation made in this case, it appears that the subject was absent from the United States from December 7, 1938, to October 25, 1948. During the period of his absence, he lived in Norway. It further appears that he always intended to return to the United States. When World War II started, he attempted to leave Norway but could not obtain transportation. After the termination of hostilities, he delayed his return to the United States, not because of inability to obtain transportation facilities, but because of his reluctance to leave his aged parents. When he applied to an American consul for a United States passport in 1948, he was informed that he had lost his United States nationality and was advised to apply for an immigration visa. He made such application and was issued an immigration visa by the American Foreign Service, Oslo, Norway, on October 26, 1948. Other than the fact of the subject's residence in Norway, there is no basis for a finding of expatriation.
Concerning the issuance of the immigration visa to the subject, the Department of State advised this Service as follows:
There is quoted below for your information the body of an airgram, dated January 18, 1949, from the American Embassy at Oslo, Norway:
"Investigation of case of E----, E---- has revealed that he was issued immigration visa in error. He should have been invited to make application for a passport. However, it appears that since he returned to Norway in 1938 and failed to communicate with this Embassy or return to the United States before October 14, 1946, he may be considered to have lost his American citizenship under section 404 (b) of the Nationality Act of 1940 as amended.
"A certificate of loss of nationality has been prepared and is being forwarded to the Department.
"A certificate of loss of nationality in the case of Mr. E----, based on the provisions of section 404 (b) of the Nationality Act of 1940, has been received in the Department, and has been disapproved, since the case appears to come within the scope of section 406 (h) of the Nationality Act of 1940."
Section 404 of the Nationality Act of 1940 contains three subsections relating to loss of United States nationality by a naturalized national through residence abroad. Section 406 (h) provides that the last two subsections (b) and (c) shall have no application to a person who is a veteran of the Spanish — American War or of the World War, his wife, minor children, or dependent parents. Since the instant subject was a veteran of the World War, the only issue involved in this case is whether the subject became expatriated under the provisions of the first subsection (a) of section 404, which states that a naturalized United States national shall lose his nationality by:
(a) Residing for at least 2 years in the territory of a foreign state of which he was formerly a national or in which the place of his birth is situated, if he acquires through such residence the nationality of such foreign state by operation of the law thereof.
In reply to an inquiry whether subsection (a) of section 404 was deemed applicable to this case, the Department of State informed this Service as follows:
Since it appears that Mr. E----, went to Norway in 1938 and returned to the United States within a reasonable period of time following the cessation of hostilities, there would seem to be little basis for considering that he renewed his residence in Norway without the intent to return to the United States, and that he renounced his naturalization under article III of the Protocol to the Treaty between the United States and Norway and Sweden of 1869.
While the Department appreciates that there may be a difference of opinion as to whether section 404 (a) of the Nationality Act of 1940 applies in cases such as Mr. E.----'s, it has in previous similar cases taken the position that any possible reacquisition of Norwegian nationality under Norwegian law in such cases is brought about by the concurrent operation of the aforementioned article of the Protocol to the Treaty and to the permanency of the residence in Norway rather than to the duration thereof and that in such circumstances section 404 (b) and not 404 (a) of the Nationality Act of 1940 should be applicable. In this connection you are advised that section 4 of the Norwegian law of August 8, 1924 in translation provides in part that a natural born Norwegian subject who has ceased to be a Norwegian subject through acquiring a foreign nationality will not again be deemed to be a Norwegian subject until he has ceased to be of foreign nationality. Article III of the Protocol of the Treaty between Norway and Sweden and the United States of 1869 provides in part:
"It is further agreed that if a Swede or Norwegian, who has become a naturalized citizen of the United States, renews his residence in Sweden or Norway without the intent to return to America, he shall be held by the Government of the United States to have renounced his American citizenship."
From the information furnished by the Department of State, it appears that, under Norwegian law, the subject could not have reacquired Norwegian nationality until he had lost his United States nationality. Under the terms of article III of the Protocol of the Treaty between Norway and Sweden and the United States of 1869, the subject could not be held by the Government of the United States to have renounced his United States citizenship unless he had formed the intention not to return to the United States. It is clear from the evidence in the case that the subject's stay in Norway was of a temporary nature and that he always had the intention of returning to the United States. During the greater part of the period of his absence, transportation facilities were not available. Consequently the subject did not fulfill the conditions necessary to reacquire Norwegian citizenship. It follows that subsection (a) of section 404 of the Nationality Act of 1940 cannot be deemed applicable to his case.
Although the subject was compelled by force of circumstances to obtain a quota immigration visa and a Norwegian passport for his return to the United States, these acts were not acts of expatriation; the subject should be deemed a citizen of the United States.
It is ordered: That, from the evidence presented, the subject be deemed a citizen of the United States. He should be so informed. The Under Secretary of the Treasury should be informed that both the Department of State and this Service have concluded that the subject has not lost his United States nationality.