A-8949245
Decided by Board May 7, 1956
Loss of citizenship — Section 350, Immigration and Nationality Act — Affects all dual nationals at birth — Does not occur when benefits sought prior to effective date of act do not continue after that date — Does not occur until lapse of three years after benefits are obtained.
(1) Section 350 of the Immigration and Nationality Act affects all persons who are dual nationals at birth, whether born in the United States of foreign parents or born abroad of United States citizen parents.
(2) Section 350 is to be given a prospective application. Hence, reliance may not be had upon acts performed prior to December 24, 1952, to bring about a loss of citizenship under this statute.
(3) Loss of citizenship under section 350 does not take place unless the individual has sought or claimed the benefits of foreign nationality after December 24, 1952, and thereafter and after his 22d birthday acquires a period of 3 continuous years of residence in the foreign state of his nationality.
(4) A dual national of the United States and Mexico who during 1943-45 owned communal land in Mexico available only to Mexican nationals and who in September 1953 registered for voting in Mexico did not expatriate under section 350. His ownership of the communal land terminated prior to the effective date of the statute; and his registration for voting was not followed by 3 continuous years of residence in Mexico.
EXCLUDABLE:
Act of 1952 — Section 212 (a) (20) — No passport, no visa.
BEFORE THE BOARD
Discussion: This is an appeal from the order of the special inquiry officer excluding the appellant on the ground stated above. The appeal will be sustained.
The facts of the case are simple and are not disputed. Appellant was born in Arizona in 1922. His father was then an unnaturalized native-born citizen of Mexico. Appellant has resided in Mexico continuously since 1929. On September 17, 1953, he voluntarily registered to vote in a Mexican political election. In 1943 he obtained from the Government of Mexico the right to work a parcel of communal land. He worked this until 1945 when he turned it back to the government. His application to enter the United States made on January 4, 1956, is his first since December 24, 1952, the effective date of the Immigration and Nationality Act, which act created the ground on which the special inquiry officer found that appellant had lost United States citizenship. The special inquiry officer found, and it is not disputed, that the appellant was a dual national at birth — that is, at birth both a citizen of the United States and of Mexico; that the right of registration and the right to vote in a Mexican political election is reserved exclusively to Mexican citizens; and the right to work land in a communal project was reserved to persons who are nationals of Mexico at birth. The special inquiry officer concluded that the appellant had lost United States citizenship under the provisions of section 350 of the act. The issue is the applicability of section 350 of the act.
Section 350 is set forth below.
Sec. 350. A person who acquired at birth the nationality of the United States and of a foreign state and who has voluntarily sought or claimed benefits of the nationality of any foreign state shall lose his United States nationality by hereafter having a continuous residence for three years in the foreign state of which he is a national by birth at any time after attaining the age of twenty-two years unless he shall —
(1) prior to the expiration of such three-year period, take an oath of allegiance to the United States before a United States diplomatic or consular officer in a manner prescribed by the Secretary of State; and
(2) have his residence outside of the United States solely for one of the reasons set forth in paragraph (1), (2), (4), (5), (6), (7), or (8) of section 353, or paragraph (1) or (2) of section 354 of this title: Provided, however, That nothing contained in this section shall deprive any person of his United States nationality if his foreign residence shall begin after he shall have attained the age of sixty years and shall have had his residence in the United States for twenty-five years after having attained the age of eighteen years.
Section 350 of the act resulted from a congressional revision of section 402 of the Nationality Act of 1940 (Senate Report No. 1137, 82d Congress, 2d session, p. 49). The revision resulting in section 350 came about when a Senate committee, which investigated the immigration and naturalization laws of the United States, concluded that it was highly desirable that a dual national at birth who is residing abroad in the foreign state of which he is a national should divest himself of foreign nationality if he desired to retain United States citizenship. To accomplish this result, the committee recommended the enactment of a law providing that a dual national at birth should lose United States nationality by residing continuously for 3 years after attaining the age of 22 in the foreign state in which he is a national by birth, unless prior to the 3-year period he divested himself of his foreign nationality and took an oath of allegiance to the United States (Senate Report No. 1515, 81 st Congress, 2d session, p. 768).
Section 402 of the Nationality Act of 1940 created a rebuttable presumption of loss of United States citizenship under certain conditions if a United States citizen at birth resided in a foreign country for 6 months or more. This presumption could easily be overcome ( Kawakita v. United States, 343 U.S. 717, 730 (1952)).
A number of bills were introduced in the House and Senate to enact these recommendations into law (8 U.S.C.A. pp. 2-4). The final form of section 350 was the result of action by a conference committee of the House and Senate which "modified the language [of section 350] so as to remove any doubt that the loss of United States citizenship could occur by any other than affirmative action taken by the dual national." The committee amended the section to provide that loss of nationality would occur in the case of a dual national at birth who resided in the country of his foreign nationality, only if he "has voluntarily sought or claimed the benefits of the nationality of any foreign state." (House Report No. 2096, 82d Congress, 2d session, paragraph 12, p. 129; 1952 U.S. Code Congressional and Administrative News, p. 1753.)
The language of section 350 takes away United States citizenship from a dual national at birth, if after December 24, 1952, he resides continuously in the foreign country of his nationality for 3 years after his 22nd birthday, and if he has sought or accepted the benefits of foreign nationality and is not within one of the excepted classes set forth in section 350. However, section 350 presents several questions which we must consider. Are both dual nationals born in the United States and those born abroad affected? Is a seeking or claiming of benefits which took place and ended before December 24, 1952, sufficient? Must the 3-year period follow the seeking of benefits, or does one who already has the 3-year period of residence lose United States citizenship as soon as he seeks or claims benefits?
The problem as to whether all dual nationals at birth are affected by section 350 arises out of the fact that dual nationality at birth can be acquired in two ways. A person can be a dual national at birth by being born in the United States and acquiring a foreign nationality by virtue of his relationship to a national of a foreign state; or a person can become a dual national at birth, acquiring foreign nationality by birth in a foreign land and at the same time acquiring United States nationality through a United States citizen parent. The question, therefore, arises as to whether section 350 was meant to apply to both the dual national at birth who was born in the United States and the dual national at birth who was born in a foreign country. We believe it does. This is because section 402 of the Nationality Act of 1940, of which section 350 is a modification, applied to both classes of dual nationals at birth and the law does not expressly exempt either class nor is there a legislative history indicating a desire by Congress to differentiate between the two classes of dual nationals at birth. (See Kawakita v. United States, 343 U.S. 717, 730 (1952); Mandoli v. Acheson, 344 U.S. 133, 138 (1952); Senate Report No. 1137, 82d Congress, 2d session, p. 49; Rueff v. Brownell, 116 F. Supp. 298, 304 (U.S.D.C.N.J., 1953)).
The next problem is whether section 350 was intended to cause a dual national to lose United States citizenship if he claimed or sought a benefit before December 24, 1952, the effective date of the act. We do not believe it has this effect. The presumption is that statutes are intended to operate prospectively ( Brewster v. Gage, 280 U.S. 327 (1930)). Especially where loss of citizenship is involved, a retroactive interpretation should be avoided unless the language expressly requires it, for rights of citizenship are not to be destroyed except pursuant to clear statutory mandate. (See Digest of International Law, Hackworth, Vol. III, p. 300; Kawakita v. United States, supra; Mandoli v. Acheson, supra; Perri v. Dulles, 206 F. (2d) 586 (C.A. 3, 1953); Lapides v. Clark, 176 F. (2d) 619 (C.A.D.C., 1949); contra, Savorgnan v. United States, 338 U.S. 491 (1950) , the point is not clearly indicated; and McCampbell v. McCampbell, 13 F. Supp. 847 (D.C.W.D. Ky., 1936), implied from facts since the point is not discussed.)
We refer to a claim or seeking which occurred prior to December 24, 1952, and one whose benefits, if any, were not enjoyed after December 24, 1952.
In fact, when Congress provided for the loss of United States citizenship on the basis of facts occurring before the date of the act, it was expressly directed that reliance should be had upon the existence of past acts. For example, in section 352 of the act, the conditions are set forth under which a naturalized United States citizen shall lose his citizenship because of residence abroad for 5 years. The section provides that loss of citizenship shall occur "whether such residence commenced before or after the effective date of this Act."
Section 352 is a restatement of a similar provision (section 404) contained in the Nationality Act of 1940.
Because legislation is normally given a prospective reading, we would raise no question as to whether section 350 should be read retroactively were it not for the curious position of the word "hereafter" in the fourth line of section 350 as it is set forth hereinbefore.
Section 350 speaks of the seeking or claiming of benefits without qualification in time but regarding the completion of foreign residence introduces the condition by the word "hereafter." By implication then, it would appear that completion of the residence had to be after the date of the act, but that the seeking or claiming of benefits could have been performed before the date of the act.
We do not believe the implication should control. Loss of United States citizenship will not be permitted on the basis of implication ( Mandoli v. Acheson, supra). Moreover, a review of the history of the act is revealing. The first draft of section 350 provided that a dual national would lose United States citizenship by residence abroad if certain conditions had not been met. The word "hereafter" did not appear in the section (section 349, S. 3455, 81st Congress, 2d session). S. 3455 was subjected to extensive study by executive and legislative groups and various changes worked out were incorporated in a new bill (8 U.S.C.A. pp. 2-4). Section 349 (renumbered 350) was enacted substantially as it appeared in S. 3455. The only important change was the insertion of the word "hereafter," so that the section provided that the dual national who came within its confines "shall hereafter lose his United States nationality" (section 350, S. 716; see also H.R. No. 5678, 82d Congress, 2d session, October 9, 1951). Clearly it was the intent of Congress that loss of nationality was to occur only by reason of acts which occurred after the passage of the new law. The word "hereafter" was inserted to make it clear that it was the congressional intention that the section be prospective. This was done after analysis and discussion. It should be given effect unless something to the contrary appears. In the course of the revisions of section 350, including an amendment made in conference, the word "hereafter" reached its present position, but we have found nothing in the legislative history revealing that the present position of the word "hereafter" was the result of a change of congressional intent. There is nothing to show that it was congressional desire to permit reliance upon acts performed prior to December 24, 1952, to bring about loss of United States citizenship under section 350.
An additional fact in favor of a prospective application is that section 350 is not a restatement of an old section in a codification, it is new law. Moreover, in view of the savings clause in the act providing that a status should not be lost unless such an event is expressly provided for in the act, we seriously question whether it is proper to rely upon past acts in the absence of express language permitting such to be done.
The final problem concerns the dual national who sought or claimed benefits after he already had 3 continuous years of residence after December 24, 1952, and after he had reached his 22d birthday. We conclude that such action did not result in loss of United States citizenship at the moment the benefits were sought, but that the dual national must be given a period of 3 years after he has sought benefits within which to return to the United States or otherwise bring himself within one of the exempt classes, before he can be held to have lost United States citizenship under section 350.
This conclusion — that the acceptance of benefits must be followed by a 3-year period of residence — is implied from the fact that section 350 gives the dual national a period of 3 years within which to take an oath of allegiance. If, in the case of a dual national who had already had 3 years of residence after his 22d birthday and after December 24, 1952, it were held that the loss of United States citizenship occurred at the moment of the seeking or claiming the benefit, then that dual national would be deprived of the right to take the oath within the 3-year period mentioned by the section.
In summary, we believe that section 350 of the act provides for the loss of United States citizenship by a dual national at birth who after December 24, 1952, seeks a benefit of foreign nationality and thereafter and after his 22d birthday acquires a period of 3 continuous years of residence in the foreign state of his nationality.
Applying the law to the facts of this case, we find it clear that the appellant has not lost United States citizenship. His claim to the benefits of foreign nationality arising out of the fact that from 1943 to 1945 he owned communal land available only to Mexican nationals by birth was made prior to the date when section 350 became effective and terminated prior to that date. It, therefore, cannot bring the appellant within the confines of section 350. The appellant's registration for voting in September 1953 has not been followed by 3 continuous years of residence, since a 3-year period following his seeking or claiming of benefits will not be reached until September 1956. His application to enter the United States was made on January 4, 1956. He should be admitted as a citizen of the United States. The appeal will be sustained.
In his discussion the special inquiry officer took administrative notice of sections of the Mexican Agrarian Code and Constitution. This was error. To compound the error, the special inquiry officer did not enter these sections in the record or even call the appellant's attention to what he was doing before he made his decision. His decision is, therefore, based on matters not of record. Evidence of the laws of Mexico and their interpretation are readily available to the Service and should be entered into the record in a proper manner. We have not ordered reopening of proceedings because of the need for an interpretation of section 350, and because we have found the appellant has not lost United States citizenship. We, therefore, assume the Mexican law and interpretation of it to be that which, without contradiction, was urged by the special inquiry officer.
Order: It is ordered that the appeal be and the same is hereby sustained.