56127/839
Decided by the Board July 3, 1943. Approved by the Attorney General.
Citizenship — Expatriation — Dual national — Election — Section 401 (a), Nationality Act of 1940.
1. A native-born citizen who acquires Canadian citizenship during his minority while residing permanently in Canada by reason of his father's naturalization there and who, upon attaining majority and prior to the effective date of the Nationality Act of 1940, makes a valid election to retain his United States citizenship and thereafter abides by such election does not have dual nationality within the meaning of section 401 (a) of the Nationality Act of 1940. The second proviso of that section does not apply to him, and he did not have to return to the United States within the specified period to preserve his American citizenship.
2. Such a person has made a valid election of American citizenship when, upon reaching his majority and for the following 2 years, he registered as a citizen of the United States with an American consul, entered the United States for permanent residence at the age of 23 (though he remained in the United States for only 2 months), and for the past 20 years — while residing in Canada — entered the United States as a citizen on the average of 5 times a year.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Immigrant without immigration visa. Executive Order 8766 — No passport.
BEFORE THE BOARD
STATEMENT OF THE CASE: The appellant applied for admission for permanent residence at Van Buren, Maine, on March 4, 1943, claiming to be a citizen of the United States. The board of special inquiry denied this claim and, as the appellant was not in possession of an immigration visa or a passport, excluded him on the grounds above set forth. From this decision he appeals.
DISCUSSION: The appellant was born in Somerville, Mass., on March 7, 1898. His father, a native of Canada, was naturalized a United States citizen in 1896 while residing in this country, that is 2 years before the birth of the appellant. In December 1908 the family moved back to Canada. There, in July 1916 the appellant's father regained his Canadian citizenship by naturalization. At that time, being a minor, under the provisions of section 36, chapter 77, Revised Statutes of Canada, 1906 the appellant also became a Canadian citizen.
The Elg decision ( Perkins v. Elg, 307 U.S. 325) holds that naturalization of a United States citizen child through the naturalization of the child's parent in a foreign country does not result in the expatriation of the child unless upon reaching majority he elects the new citizenship conferred upon him through his parent's naturalization. The Supreme Court laid down no hard and fast rule as to what constitutes election, although it did indicate the place of continued residence of such a person after obtaining majority was of major significance.
This Board has held consistently, in reference to the law as it stood prior to the effective date of the Nationality Act of 1940, that the return to the United States upon attaining majority or within a reasonable time thereafter was compelling evidence of election of American nationality by one situated as in the Elg case. Conversely, although failure to return to the United States within a reasonable time after attaining majority was considered as evidence tending to the conclusion that foreign nationality was elected, other evidence was accepted to prove an election of United States citizenship.
In the case before us, short of actual return to the United States, we have convincing evidence of election of United States citizenship in preference to Canadian nationality. The appellant registered with the American Consul in Quebec as a United States citizen in 1919 when he was 21 years of age, and again in 1921. He gives as his reason for doing this his belief that if he did not do so he would lose citizenship in this country. And also of value in this regard, although less significant, is the fact that the appellant has been entering the United States about five times yearly for the past 20 years as a United States citizen. All such entries were for visits except one in 1921 when the appellant claims he intended to reside here, although he went back to Canada after 2 months because he says he could not find suitable employment.
Thus, it is established that the appellant is a citizen of the United States unless the second proviso of section 401 (a) of the Nationality Act of 1940 has application to his case. Section 401 (a) reads as follows:
A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:
( a) Obtaining naturalization in a foreign state, either upon his own application or through the naturalization of a parent having legal custody of such person: Provided, however, That nationality shall not be lost as the result of the naturalization of a parent unless and until the child shall have attained the age of 23 years without acquiring permanent residence in the United States: Provided further, That a person who has acquired foreign nationality through the naturalization of his parent or parents, and who at the same time is a citizen of the United States, shall, if abroad and he has not heretofore expatriated himself as an American citizen by his own voluntary act, be permitted within 2 years from the effective date of this act to return to the United States and take up permanent residence therein, and it shall be thereafter deemed that he has elected to be an American citizen. Failure on the part of such person to so return and take up permanent residence in the United States during such period shall be deemed to be a determination on the part of such person to discontinue his status as an American citizen, and such person shall be forever estopped by such failure from thereafter claiming such American citizenship.
Nothing in the record before us indicates that the appellant heretofore expatriated himself by his own voluntary act. The appellant has not returned to or attempted to return to the United States for permanent residence within 2 years of the effective date of the Nationality Act of 1940. The issue, therefore, is this: Having elected American nationality upon attaining his majority under the applicable law prior to the Nationality Act, is the appellant nevertheless required to return to the United States for permanent residence within the 2-year period specified in the second proviso to section 401 (a) in order to retain United States citizenship?
The Nationality Act of 1940 became effective on January 13, 1941.
Literally, it could be said that appellant is within the terms of the proviso and failure to return within the 2-year period results in expatriation. The appellant acquired foreign nationality through his parents' naturalization.
On the effective date of the Nationality Act of 1940 he was at the same time a citizen of the United States. His election under our law to retain American citizenship had no effect on his Canadian nationality so far as we can ascertain.
Loss of Canadian citizenship did not occur under sec. 7 of the Canadian Naturalization Act of 1914 and sec. 19 of the Dominion Regulations made under this act.
Nevertheless, we think that the proviso has no application to the case before us. "Though sometimes misused to introduce independent pieces of legislation, the office of a proviso is to except something from the operative effect, or to qualify or restrain the generality of the substantive enactment to which it is attached" ( Cox v. Hart, 260 U.S. 427). The main purpose of section 401 (a) is to provide for the expatriation of nationals of the United States through naturalization abroad either on their own application or through a parent. The second proviso carves out exceptions to this basic provision in regard to those who acquire foreign nationality through a parent's naturalization. And in doing this, the statute recognizes the theory of election as announced in the Elg case, although at the same time definitely limiting the manner of evidencing election. Thus, as the manifest purpose of the second proviso is to create an exception from the rule that naturalization acquired through a parent in a foreign country is expartiation, and as such a purpose is in conformity with the correct legislative use of a proviso, we think its operation should be so limited, and it should not be construed as creating an additional class of expatriates. In short, it deals with a class, who, but for the proviso, would be expatriates under the substantive provision of the section.
The continued residence abroad of one so situated as the appellant is not necessarily inconsistent with the basic theory of section 401 (a). One could return to the United States for permanent residence within the time stated in the provisos to section 401 (a) and later establish residence abroad without loss of United States citizenship under this provision of law. The statute does not require continued permanent residence in the United States.
We, conclude therefore, that as the appellant made a valid election of American citizenship under the doctrine of the Elg case prior to the effective date of the Nationality Act of 1940, the second proviso of section 401 (a) has no application to him and he is a citizen of the United States.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing, it is found:
(1) That the appellant was born in Somerville, Mass., on March 7, 1898;
(2) That the appellant's father was naturalized a Canadian citizen in July 1916 while the appellant was a minor and residing permanently in Canada;
(3) That the appellant upon attaining his majority in 1919 registered with the American consul in Quebec as a citizen of the United States, and again registered as a citizen in 1921, and consistently thereafter represented himself to be a citizen of the United States;
(4) That the appellant has resided in Canada from the time he attained his majority until the present with the exception of 2 months in 1921.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under Section 1992 of the Revised Statutes and section 1 of Article XIV of the amendments to the Constitution of the United States, the appellant was born a citizen of the United States;
(2) That the appellant acquired Canadian citizenship during his minority through his father's naturalization in Canada under section 36, chapter 77, Revised Statutes of Canada, 1906;
(3) That the appellant upon attaining his majority elected to retain his American citizenship and is now a citizen of the United States;
(4) That the second proviso of section 401 (a) of the Nationality Act of 1940 has no application to the appellant's case.
The interpretation of this proviso in relation to facts such as those in this record will be occurring from time to time. We deem it highly advisable that a question as vital as citizenship should be definitively settled and, therefore, believe the matter should be referred to the Attorney General for his review of our decision. In addition, because of the dissent of one member of the Board, reference to the Attorney General is necessary.
ORDER: It is ordered that the appeal be sustained and the appellant be admitted as a citizen of the United States.
This case was referred to me for review by the Board of Immigration Appeals.
I find the appellant herein to be a citizen of the United States because prior to the effective date of the Nationality Act of 1940, and pursuant to the applicable laws of the United States, he made a valid election to retain United States citizenship. Thereafter, appellant abided by such election. Upon the effective date of the Nationality Act of 1940 he did not have dual nationality within the meaning of section 401 (a) of that act, and the second proviso of the section is not applicable in this case.
The decision and order of the Board of Immigration Appeals are hereby approved.
The appellant has, in my opinion, fully met the requirements of law as stated in Perkins v. Elg ( 307 U.S. 325), and therefore I agree that he elected American citizenship. However, section 401 (a) of the Nationality Act of 1940 has created a new test. I do not agree with so much of the opinion of the majority as holds that section 401 (a) does not apply to the appellant.
I regard an expatriation provision as having only a prospective effect ( Mackenzie v. Hare et al., 1915, 239 U.S. 299). The portion of section 401 (a) that precedes the first proviso can apply only to one who obtains foreign naturalization subsequent to the effective date of the statute. Likewise, the first proviso is directed toward one who thereafter derived foreign citizenship through naturalization of a parent or who had derived citizenship and was a minor on such date.
The second proviso is drawn in the present perfect tense and applies to one who had theretofore derived foreign nationality through the naturalization of a parent, was a major, was residing abroad, and was of dual nationality. As to such a one, the statute requires that in order to retain American citizenship he must, within 2 years of the effective date of the act, take up permanent residence within the United States. Failure to do so shall be deemed to be an election to discontinue citizenship in the United States. Obviously, Congress wished to require a dual national either to return to the United States for residence or surrender his claim to citizenship, and it fixed a time limit of 2 years in which so to return.
There is nothing in the record to indicate that the appellant has divested himself of Canadian citizenship.4 Unless he has complied with the Canadian expatriation law, the conclusion is warranted that he is still a Canadian citizen, and in that case on the effective date of the Nationality Act of 1940 he was a dual national residing abroad and precisely within the terms of the second proviso of section 401 (a). Consequently in order to preserve his American citizenship it was incumbent upon him, as I believe, to take up permanent residence within the United States at a date not later than 2 years from the time that law became effective, namely, January 13, 1943. He, however, made his application on March 4, 1943. By failure to satisfy the requirement of section 401 (a), I am of the opinion that he should be held to be an alien and the exclusion affirmed.
Regulation 19 (d) provides that declaration of alienage in such case shall be made before a clerk of a court authorized to give decisions in naturalization applications. The record is silent as to whether such a declaration was made.