56096/426
Decided by the Board November 1, 1942.
Citizenship — Expatriation — Minors — Failure by dual nationals to elect at majority.
1. A minor did not expatriate himself under section 2 of the Act of March 2, 1907, by becoming naturalized in his own right in a foreign state during minority.
2. A citizen of the United States acquiring foreign nationality during minority in order to retain American citizenship must elect to do so after attaining majority.
3. When a citizen of the United States acquired Canadian nationality during minority and while a minor acquired a homestead in Canada, accepted title thereto, and then sold the property, his failure to disaffirm the homestead or sale upon attaining majority constituted an election to retain Canadian nationality.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Alien Registration Act of 1940 — No passport visas.
Executive Order 8766 — No passports.
Mr. Richard P. Lott, Board attorney-examiner.
STATEMENT OF THE CASE: The appellants applied at the port of Blaine, Wash., on September 13, 1941, for admission as United States citizens. A board of special inquiry excluded them on the grounds above stated, and they appealed. We have made interim orders permitting the parole of the male alien pending decision herein.
DISCUSSION: The appellants are husband and wife, both 54 years of age. The husband was born in North Dakota on November 5, 1886. He moved to Canada in 1904 and was naturalized in his own right on March 11, 1907, when he was 20 years and 4 months of age. A communication from the Counsellor of the Canadian Legation, which is attached to the file herein, advises us that it is the opinion of the Department of Justice of the Dominion of Canada, concurred in by the Department of the Secretary of State of Canada, that this alien became naturalized when the certificate of naturalization was issued to him on March 11, 1907, notwithstanding that he was a minor at that time, and that the certificate of naturalization granted to him was neither void or voidable by reason of the fact that he was a minor. The fact of this naturalization has been verified from Canadian official records.
The wife is a native of Iceland whose father naturalized in Canada during her minority and prior to her marriage. The marriage occurred on April 26, 1907, when the male appellant was 20 years and 5 months of age.
The wife's claim to citizenship must depend upon Section 1994 of the Revised Statutes. Her citizenship will depend upon our determination of the citizenship of the husband.
At common law the principle is well established that a minor lacks capacity to expatriate himself but has the right of election upon coming of age to make his choice of nationalities that are available to him. This was recognized in Peck v. Young, 26 Wend. 625, N.Y. 1841. Ludlam v. Ludlam, 26 N.Y. 356, 84 Am. Dec. 193, at page 208 (1865), presents a study of common law precedents and leads to the conclusion that a minor is "totally incapable of making any election in regard to his citizenship." State ex rel. Phelps v. Jackson, 79 Vt. 504 (1907), is another judicial recognition of the disability of an infant to expatriate himself. In the Federal courts we have the comparatively recent case of United States ex rel. Baglivo v. Day, 28 F. 2d 44, holding that a minor's oath of allegiance does not expatriate, a decision that is based upon the minor's lack of capacity to expatriate himself.
Petition of Fortunato, 8 F. 2d 508, holds the converse ---- that in the absence of statute a minor lacks capacity to naturalize.
The decision of the Supreme Court in Perkins v. Elg, 307 U.S. 325, is based on the premise that Miss Elg acquired Swedish citizenship through the resumption of Swedish nationality by her parents. The opinion puts repeated emphasis upon the "involuntary" nature of her Swedish naturalization. It is our opinion that the instant case is governed by the principle of the Elg case. As a proposition of law a minor lacks capacity to perform the voluntary act that might expatriate him although he may in fact have performed that act in his own right. It is an elementary proposition that an unemancipated minor cannot acquire a new domicile by his own act, although the same act performed by one of age would result in a new domicile. There are many parallels in other branches of the law, for example, a minor's contract for nonnecessities, and other examples that readily come to mind.
General Instruction Circular No. 919 of the Department of State, dated November 24, 1923, which is quoted extensively in the opinion of Chief Justice Hughes in Perkins v. Elg, 307 U.S. 325, contains a discussion with direct reference to section 2 of the Act of March 2, 1907. It is stated at page 2 thereof as follows:
It is considered that an American national who took an oath of allegiance to a foreign country during minority — that is, under the age of 21 years — and when the United States was at peace committed conduct of a voidable character — that is, conduct not deemed by itself as serving definitely to expatriate him as an American — in case, within a reasonable period after release from service into which he may have been inducted, and after his becoming of age, he took the appropriate steps to assert his claim to American nationality.
This instruction has no section dealing directly with the question here before us — that is, whether the foreign naturalization of a minor in his own right is an act of expatriation. The foregoing quotation, however, indicates that the then opinion of the State Department would make no distinction between an oath of allegiance or foreign naturalization. The paragraphs of the instruction dealing with dual nationalities emphasize the right of a child to elect allegiance and nationality upon attaining majority. It seems implicit that whether the child naturalized in the foreign state derivatively or in his own right would make no difference.
The Nationality Act of 1940 contains a new provision of law in section 403 (b):
No national under 18 years of age can expatriate himself under subsections (b) to (g), inclusive, of section 401.
This is a legislative declaration that theretofore a minor could not expatriate himself. The explanatory comment of the Interdepartmental Committee, which submitted the nationality law to Congress, stated as follows:
It will be observed that in this subsection the age below which a person cannot expatriate himself is set at 18 years instead of 21 years.
We observed that the ground for expatriation — that is, foreign naturalization, is not among those found in subsecs. (b) through (g) of sec. 401. The first proviso of subsec. 401 (a), the foreign naturalization ground of expatriation, saves a minor from loss of nationality through a parent's foreign naturalization until the child attains the age of 23. Thus the Nationality Act leaves without specific answer the question whether a minor over 18 can expatriate himself by foreign naturalization in his own right. This question, of course, is not before us in this case since sec. 401 of the Nationality Act is prospective in operation.
We conclude, therefore, that in the light of judicial decision, in the light of administrative interpretation, and in the light of legislative recognition, a minor's act of expatriation is only a voidable act, and there is available to the child the right of election upon attaining his majority. We conclude likewise that under the Act of March 2, 1907, there is no distinction in whether the act of expatriation is an oath of allegiance or foreign naturalization, either derivatively or directly. It follows that these acts or conditions create a voidable status of expatriation and that the child upon attaining majority must elect either to affirm or deny this status.
The husband explains that he took out Canadian citizenship as a step in proving up a homestead. The record does not give the date as to when he completed the homesteading and received title thereto. We do have the husband's statement that he sold the homestead and returned to the United States early in 1908. For reason hereinafter discussed we deem it immaterial whether he received title to the homestead during his minority or after attaining his majority, or whether he sold it before or after coming of age. The fact that is controlling is that he apparently enjoyed the full fruits of his series of acts which resulted in a title to a homestead which he sold. There is no suggestion that he disaffirmed his sale of the homestead or in any other manner abandoned the benefits that he derived from it. He was, of course, free to do so upon coming of age. His failure to disaffirm the homestead or the sale of it upon coming of age is an election upon his part to affirm the various acts that he performed during his minority. His Canadian naturalization was a required step in the process of gaining a marketable title to the homestead. When he failed to disaffirm the entire benefits that he received as a consequence of homesteading, he likewise failed to disaffirm his acquisition of Canadian nationality with its attendant loss of United States nationality. The record thus establishes that he elected Canadian citizenship.
We note, of course, that these appellants came to the United States and were here for a period of 3 years shortly after the husband attained the age of 21. This, however, was not an election to retain United States citizenship because the husband had already made his election when he chose to retain the benefits of homesteading granted him by the Canadian Government. Furthermore, the record does not establish that the return in 1908 and presence here until 1911 were with the intention of establishing domicile here or an assertion of United States citizenship. The subsequent residence in Canada since 1911 permits the inference that the presence of the appellants in this country from the years 1908 to 1911 was intended to be of a temporary nature. Thus, even if the alien (male) had not already made his election when he returned to the United States, it is doubtful that this return, which in the light of subsequent history is demonstrated to have been a return for a temporary period, was sufficient to establish an election to retain United States citizenship.
The husband was thus expatriated by his Canadian naturalization, and the wife did not acquire United States nationality through the marriage.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing, it is found:
(1) That the husband-appellant was born in the United States in November 1886;
(2) That the husband-appellant moved to Canada in 1904 and naturalized in his own right in 1907 when he was 20 years and 4 months of age;
(3) That the wife-appellant was born in Iceland;
(4) That the appellants were married in April 1907;
(5) That the husband-appellant's Canadian naturalization was done for the purpose of qualifying him to prove up a homestead in Canada;
(6) That the husband-appellant did prove up a homestead in Canada and sold it on or about the time he attained his majority;
(7) That thereafter the husband-appellant did not disaffirm his proving up a homestead or his subsequent sale thereof, but retained all the benefits of his acts;
(8) That the appellants were present in the United States from 1908 to 1911 and have resided in Canada since 1911;
(9) That the appellants seek admission as United States citizens;
(10) That the appellants are not in possession of immigration documents.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under the Act of March 2, 1907, the Canadian naturalization of the husband-appellant while a minor expatriated him, subject to his election upon attaining majority to disaffirm his act of expatriation;
(2) That the retention by the husband-appellant of the benefits of homesteading in Canada was an election to affirm his Canadian naturalization and expatriation as a citizen of the United States;
(3) That the wife-appellant under Section 1994 of the Revised Statutes did not acquire United States citizenship by her marriage to the husband-appellant;
(4) That under Executive Order 8766 of June 3, 1941, and section 30 of the Alien Registration Act of 1940 the appellants are inadmissible to the United States as not in possession of passports and passport visas.
OTHER FACTORS: The appellants are people of substance and appear eligible for admission when in possession of appropriate documents.
ORDER: It is ordered that the application be denied and the excluding decision affirmed.
It is further ordered, That the appellants may reapply for admission within 1 year when in possession of appropriate documents.