A-9541353
Decided by Central Office November 26, 1947
Citizenship — Expatriation by native-born citizen born of parents naturalized here — Father's loss of United States citizenship under treaty between United States and Norway, his native country of which he was formerly a national — Child's (under 18) acquisition of Norwegian nationality through father — As dual national (after birth), election by child of Norwegian nationality — Evidence of election — Expatriation under section 401 (a) or (d) of the Nationality Act of 1940.
(1) A native and national of Norway who was naturalized here in 1914, returned to reside in Norway in 1916-18 (where he still is) and went to work there almost at once, apparently abandoned his intention of returning to the United States, and expatriated himself under the provisions of article III of the treaty between the United States and Sweden and Norway (1872). (See 3 IN Dec. 668.)
(2) Such a person again became a Norwegian subject under the provisions of section 4 of the Norwegian law of August 8, 1924; and his wife and child (under 18), residing in Norway, are deemed Norwegian subjects under section 6 of such law upon the husband/father's becoming a Norwegian subject under section 4 ( supra).
(3) A child of such a person, born in the United States in 1915 (thereby acquiring United States citizenship), who resided thereafter with his parents in Norway and when under 18 years of age, acquired Norwegian nationality after birth, and thus became a dual national, who had an election upon attaining majority as to which nationality he would adopt exclusively, and exercised such election (after 21) in favor of Norwegian nationality, lost U.S. nationality; and in any case forfeited his United States citizenship under the provisions of section 401 (a) of the Nationality Act of 1940 by failing to take up permanent residence in the United States before January 13, 1943, or under section 401 (d) of the Nationality Act of 1940, after Jan. 12, 1941 by employment as second mate on a Norwegian vessel, which position required that he be of Norwegian nationality.
BEFORE THE CENTRAL OFFICE
Discussion: The above-named subject has requested a determination of his citizenship status in view of the fact that the Army Service Forces have requested him to establish his United States citizenship in connection with his future employment as an officer on Government vessels.
The record discloses that subject was born in Seattle, Wash., on January 12, 1915. His father, C---- D---- L----, was naturalized as a citizen of the United States on January 10, 1914, in the United States District Court at Seattle, Wash. (C-448555). When questioned by an officer of this Service on July 11, 1947, subject testified under oath that his parents took him to Norway approximately 3 years after his birth. He stated after the family settled in Norway he "presumed" that his father reacquired Norwegian nationality by reason of his resumption of residence in that country. He further stated that he did not know whether or not his father had done anything to retain United States citizenship although he was sure his father still had his naturalization certificate when he last saw him in 1930. He averred that he began sailing on Norwegian ships on May 1, 1930, and that he first returned to the United States on March 1, 1931, when he was admitted in transit to reship on a Norwegian vessel which was docked at Philadelphia. He further stated that he thereafter sailed on Norwegian ships in and out of the United States continuously until November 29, 1943.
Subject testified that from September 1933 to July 1934, and from September 1936 to July 1937 he attended an officer's school in Norway in order to qualify for mate's and master's license as a seaman. He received his master's license on November 27, 1946. He contended that it was not necessary for him to have Norwegian citizenship in order to attend officer's school in Norway. He admitted that during the whole time he served on Norwegian vessels he traveled on a Norwegian passport stating that he had to have a Norwegian passport in order to get a job on the ships. He stated that prior to 1943 the longest time that he had resided in the United States was 2½ months.
Subject further stated that he did not register for the draft in the United States because he was in the merchant marine and believed that he did not have to register for the draft. He averred that he first began to pay income tax in the United States when he began to work on United States ships in July 1944. Before that time he paid income tax to Norway. He first applied for an American passport in October 1946. He said that the highest rating he had ever held on a Norwegian ship was that of temporary second mate on the S.S. Para from April 8, 1943, to July 5, 1944. He acknowledged that this vessel was operated by the Norwegian Shipping and Trading Mission and was ultimately chartered in July 1944 by the United States War Shipping Administration. During the first 2 years of the war he served as second and third mate on Norwegian boats operated by the Norwegian Government. He denied having ever voted in a Norwegian election, having taken an oath of allegience to Norway or having served in the Norwegian military forces.
In a letter dated August 18, 1947, subject's father stated that he was naturalized as a citizen of the United States at Seattle, Wash., some time during 1912 or 1913. He stated that he left the United States for Norway in 1916 and that he had never applied for citizenship in Norway but became a Norwegian citizen automatically after living there for 2 years. He further stated that 14 days after he arrived in Norway he went to work as a clerk for a brewery and that he continued his employment with said employer for 25 years after which he was pensioned.
In a letter dated August 8, 1944, the Ambassador of Norway in response to an inquiry from the Secretary of State, made the following observation in the case of In re H---- M----, 56141/957:
In regard to the questions which were raised in the last paragraph of the letter which was enclosed with the said note, the Ambassador begs to advise that the S.S. Para from which Mr. M---- was discharged at Philadelphia on April 28, 1942, was owned and operated by the Norwegian Government. An individual who served on a Norwegian vessel as master, chief mate, or second officer must be a citizen of Norway. However, as far as the Ambassador has been able to ascertain, it is not necessary to be a citizen of Norway in order to attend the Norwegian navigation schools or pass examination for an officer's license or a master's license.
Section 4 of the Norwegian law of August 8, 1924 relating to Norwegian nationality provided as follows:
Any person who is a natural born Norwegian subject, and who has ceased to be a Norwegian subject, will again become a Norwegian subject by taking up his regular domicile in Norway. If, however, he ceases to be a Norwegian subject through acquiring a foreign nationality, or if he later acquires a foreign nationality, he will not again be deemed to be a Norwegian subject until he has ceased to be of foreign nationality.
Section 6 of said law provided as follows:
When a person becomes a Norwegian subject in pursuance of section 2 or section 4, his wife, and unmarried child under 18 years of age, born in wedlock, shall also be deemed to be Norwegian subjects, provided they reside in Norway. If they do not reside there, and the wife subsequently, the marriage being in force, or the child, being unmarried and under eighteen years of age, take up her (their) residence in Norway, she (they) shall then be deemed to be Norwegian subjects provided the husband still is a Norwegian subject * * * (Norwegian law taken from Flournoy Hudson, Nationality Laws pp. 454-455).
From the foregoing it appears that the subject became a United States citizen by reason of his birth in the United States. He did not simultaneously acquire Norwegian citizenship because his parents were citizens of the United States at that time. However, it appears that sometime between 1916 and 1918 (more likely the former) subject's parents returned to Norway with him. Subject's father evidently intended to remain permanently in Norway as is evidenced by the fact that he was employed there for many years by one company and even now has made no manifestation of an intention to return to this country. In fact, he has stated in writing that he assumed he reacquired Norwegian nationality by residing in Norway in excess of 2 years. It is clear, therefore, that subject's father lost United States citizenship under the provisions of article III of the treaty between the United States and Sweden and Norway concluded in 1872, since it appears that he abandoned his intention of returning to the United States ( In re R----, A-6929606). Consequently, if he did not reacquire Norwegian nationality prior thereto, he did so under the provisions of section 4 of the Norwegian law of August 8, 1924 quoted above. The subject simultaneously acquired Norwegian nationality under section 6 of said law since he was then under the age of 18 and residing in Norway. Subject, therefore, had an election upon attaining majority as to which of the two nationalities he would adopt exclusively ( Perkins v. Elg, 307 U.S. 325). He attained his majority on January 12, 1936 and for many years thereafter, namely, until July 1944 followed the calling of a seaman serving on Norwegian vessels, always in possession of a Norwegian passport. He denied that he at any time voted, took an oath of allegiance, or served in the military forces of Norway. Furthermore, he did not at any time prior to the effective date of the Nationality Act serve in as high a position as second mate on Norwegian vessels. It, therefore, appears that the only act committed by him during the period prior to January 13, 1941, which could be construed as being inconsistent with United States citizenship is the fact that he traveled continuously upon Norwegian passports. It is believed that such conduct manifested an election of Norwegian nationality as contemplated by the Elg case, supra.
It is not necessary wholly to predicate a determination of subject's citizenship status upon the fact of his having used Norwegian passports. The evidence of record shows that he did not at any time prior to January 13, 1943, take up permanent residence in the United States. Consequently he comes within the second proviso to subsection (a) of section 401 of the Nationality Act of 1940 and is thereby estopped from claiming United States citizenship. Furthermore, it appears that subsequent to the effective date of the Nationality Act of 1940 he was engaged as second mate on a Norwegian vessel. This position required that he have Norwegian nationality (see letter from Ambassador of Norway quoted above). As a consequence thereof subject clearly lost United States citizenship under the provisions of section 401 (d) of the Nationality Act of 1940. It does not appear that subject's failure to register for the draft was wilful or that he deliberately sought to evade military service on behalf of the United States. Consequently, the provisions of section 401 (j) are not applicable.
It is ordered that the subject be deemed not to be a citizen of the United States and that the field office be notified to that effect.