A-7428823
Decided by Central Office September 17, 1951
Citizenship — Acquisition by birth in United States — Expatriation — Voting in political election in a foreign state (Germany) — Section 401 (e) of the Nationality Act of 1940 — Voluntary nature of Act — Evidence.
The subject, a native born citizen of the United States, resided in Germany from 1939 until 1950 and voted in the election for the Bundestag held at Bremen, Germany (British Zone), on August 14, 1949. She was deemed to have expatriated herself by such voting under the provisions of sec. 401 (e) of the Nationality Act of 1940, since the evidence showed such act was voluntary on her part and was not an act that her situation required her to do.
BEFORE THE CENTRAL OFFICE
Discussion: The subject was born in the United States at Now York, N.Y., on October 15, 1906, and acquired United States citizenship by reason of her birth in this country, as provided for in the 14th amendment to the United States Constitution. The evidence obtained concerning her possible expatriation relates to the period from 1939 until 1950, when the subject resided in Germany. The facts in the case are fully stated in a copy of a memorandum dated February 26, 1951, of the American consulate, Bremen, Germany, which was received from the Department of State. Therein the following was stated:
Mrs. H---- originally applied to Swiss consular officials representing American interests during 1945 in connection with the determination of her American citizenship status acquired as a result of birth at New York on October 15, 1906. Subsequently, upon reopening of American consular offices in Germany during 1946, she applied at Frankfort and later at this office. Her case was eventually submitted to the Department of State. It was disapproved by the Department on the basis of information which indicated that she had performed employment under the German Government which appeared to fall within the expatriatory provisions of section 401 (d) of the Nationality Act of 1940. Although a certificate of the loss of the nationality of the United States was submitted on this basis and loss of American citizenship confirmed by the Department during 1948, Mrs. H---- did not give up her efforts to establish, (1) that the position was not open unequivocally only to German nationals and (2) that she was not required to take an oath of allegiance to the German state. It Is not unlikely that Mrs. H---- after repeated attempts which stretched over a period of almost 3 years, conceded the loss and regarded herself as no longer possessing any claim to American citizenship.
In a final effort to clarify this case beyond any question of reasonable doubt, it was again presented to the Department accompanied by additional evidence obtained through local official German sources. The Department, In reply contained in its instruction dated January 30, 1950 (File No. Y130-H----, E----), informed this office of its final decision in this case, as follows:
"Since it does not appear that the position held by Mrs. H---- In the Economics Office at Bremen, Germany, was such as to bring her cue within the purview of section 401 (d) of the Nationality Act of 1940, since it does not appear that she took an oath of allegiance to Germany in connection with such position, and since evidence has been presented to the Department Indicating that Mrs. H---- accepted the position under circumstances amounting to duress, the Department is of the opinion that she cannot be held to have expatriated herself under the provisions of section 401 (d) of the Nationality Act of 1940, or to have expatriated herself under the provisions of section 401 (b) of that act.
"Mrs. H----'s registration as an American citizen for further residence In Germany is disapproved, but, If you are fully satisfied that she has not expatriated herself in any manner, you are authorized to issue a passport to her to enable her to proceed to the United States, upon her application therefor."
When the foregoing was brought to the attention of Mrs. H----, upon questioning, she admitted that she had voted in the election for the Bundestag, hold at Bremen on August 14, 1949. Although this action on her part may have been partly due to her belief that citizenship was irrevocably lost, this office had no alternative, and citizenship was again reported lost, but under section 401 (e) of the Nationality Act, under date of February 20, 1950.
Mrs. H---- also admitted in a Military Government Fragebogen (question. naire) completed by her on October 30, 1946, that she was a member of the National-Socialist Reichsbund fuer Leibesuebungen (physical exercises), from March 1944 to August 1944, but during such membership held no rank. There is no Information available to this office that would Indicate nominal membership in this organization would have resulted in the loss of American citizenship.
In a letter dated May 9, 1950, the subject stated:
I had voted In the summer 1949 In Germany for the new democratic regime as I thought I was German. By then I didn't know for sure if I would get an affidavit of support and it might have been that I had to stay in Germany. So I felt that I had to give my vote to the Democratic Party as they needed the votes in getting ahead of the Communistic Party.
In a letter dated August 5, 1950, the subject explained the circumstances of her voting in the German election as follows:
After having been expatriated in 1946, I was treated as a German and received a voting card In 1949. Thinking I was a German, I voted for the Christian Democratic Party.
The very essence of expatriation is that it be voluntary ( Doreau v. Marshall, 170 F. (2d) 721, U.S. Court of Appeals, Third Circuit, 1948). In a case, where a person had been erroneously advised by the Department of State that he had lost his United States nationality and the person concerned had thereafter been inducted into the armed forces of a foreign state (Roumania) and had taken an oath of allegiance to the foreign state, it was hold that that person had not voluntarily expatriated himself by the taking of an oath of allegiance to a foreign state or by service in the armed forces of the foreign state ( Podea v. Acheson, 179 F. (2d) 306, U.S. Court of Appeals, Second Circuit, 1950). In that case the court said:
For many years he had vainly sought to obtain a passport from the State Department which was denied him under a mistake of law. If he bad come in as an immigrant on the Rumanian quota, be might have bad to meet the claim that he had conceded Rumanian citizenship and be confronted by a concession of serious if not fatal character. See Schaufus v. Attorney General, D.C., 45 F. Supp. 61, 65. If he had remained in this country under his visa he ran the risk of being deported for either an illegal entry or an illegal overstay. Sleddens v. Shaughnessy, 2 Cir., 177 F. (2d) 363. It seems most technical to hold that the plaintiff did not act under duress. In our opinion be never voluntarily expatriated himself by taking an oath of allegiance to Rumania or by serving in the Rumanian Army. Both steps were required by the situation in which he found himself, were primarily caused by the erroneous advice of the State Department and were farthest from his real purpose.
In the Podea case ( supra), the facts were that he received a ruling from the Department of State in 1934 that he was not a citizen, that, in 1936, he made an application (his second application) for a United States passport which was refused and that later in the same year he was inducted into the Rumanian Army and took an oath of allegiance, apparently without further asserting his claim to American citizenship. He entered the United States in 1939 as a temporary visitor and was again advised by the Department of State that he was not a citizen. He returned to Rumania late in 1939 and was again inducted into the Rumanian Army in June 1941. The situation in Podea's case was that elements of compulsion were present, as pointed out in the court decision. He was inducted into the Rumanian Army and did not enlist. If he had remained in this country following his admission as a visitor, he would have run the risk of being deported. The instant case may be distinguished from the Podea case, in that there is nothing in the record to show that the subject's act of voting was required by the situation in which she found herself. As far as the record shows, she was not required to participate in the political affairs of a foreign state; instead it seems evident from her letters that she voted as a German because she wanted to show her preference for a political party.
While misinformation is an extenuating circumstance, it does not necessarily follow that it will serve forever as an excuse for a person's subsequent acts, especially action that need not be taken. It should also be pointed out that a national of the United States, denied a right or privilege by an administrative agency, has available to him the procedure outlined in section 503 of the Nationality Act of 1940 for procuring a judicial determination of citizenship status.
There is no evidence that the subject was required to vote at Bremen and her statements show that her participation in the election was an act of her own choosing. It is concluded, therefore, that her act of voting on August 14, 1949, was a voluntary act.
The subject's attorney has cited the case of Brehm v. Acheson, 90 F. Supp. 662 (S.D. Texas, 1950), in support of his contention that the subject did not lose her United States citizenship. It was held therein that an election in the American Zone of Germany by permission and under direction of the United States was not a political election in a foreign state, because it was held in territory then ruled and governed by the United States. In the instant case, the subject voted in Bremen in the British Zone of Germany. It is a matter of no importance whether the territory at Bremen is regarded as being ruled by Great Britain or by Germany, since the election was, in any event, held in a foreign state.
It is concluded that the subject expatriated herself on August 14, 1949, under the provisions of section 401 (e) of the Nationality Act of 1940, through her voluntary act of voting in a political election in a foreign state.
It is ordered that from the evidence presented, the subject be deemed not a citizen of the United States. The file in the case should be returned to the field office at Buffalo, N.Y., with instructions to advise the subject accordingly.