0300-358494
Decided by Central Office May 28, 1951
Citizenship — Expatriation — Section 3 of the act of March 2, 1907 — Applicability of statutory bar to expatriation during time of war — Section 2 of act of March 2, 1907.
A native born woman citizen of the United States, who married an alien here in 1918, whose husband became naturalized thereafter in 1918, did not become expatriated under section 3 of the act of March 2, 1907, upon marriage because this country was then at war, nor did she lose citizenship on July 2, 1921 (when state of war was declared terminated), when such marriage subsisted, because her husband was no longer an alien, but was a citizen by then.
BEFORE THE CENTRAL OFFICE
Discussion: Pursuant to the provisions of 8 C.F.R. 379.7 (c), the District Director, New York, N.Y., has forwarded for decision the case of the above-named subject, who alleged in her application for a certificate of citizenship that she acquired United States citizenship through the naturalization of her husband as a United States citizen on June 24, 1918.
The question presented is whether the subject derived citizenship through the naturalization of her husband, as alleged.
Subject was born in the United States at Newark, N.J., on August 25, 1898. Documentary evidence of birth has been submitted. On June 3, 1918, she was married at New York, N.Y., to M---- M----, then an alien and citizen of Russia. He was naturalized as a citizen of the United States on June 24, 1918, in the United States District Court, Camp Devens, Mass. In 1949 the name of the subject, as well as that of her husband, was changed from M---- to M---- by order of court. The subject's marriage and the naturalization of her husband took place while the United States was at war (World War I); that is, between April 6, 1917, and July 2, 1921.
At the time of subject's marriage and the naturalization of her husband, the act of March 2, 1907, was in effect and provided in section 2 thereof that any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws or when he has taken an oath of allegiance to any foreign state. A proviso to this section stated: "That no American citizen shall be allowed to expatriate himself when this country is at war." In section 3 of said act it was provided that any American woman who marries a foreigner shall take nationality of her husband.
In the case of Petition of Peterson ( 33 F. Supp. 615), it was held that the statutory bar to expatriation during time of war, contained in section 2 of the act of March 2, 1907, applied to a woman coming within the purview of section 3 of said act. In that case it was decided that an American woman who married a citizen of Great Britain during war could not claim exemption from the obligation of citizenship during the war but, when the war was ended and she continued to reside abroad with her alien husband, the statutory bar to expatriation was automatically removed, the privilege of citizenship was withdrawn and expatriation was complete.
An opinion of the Attorney General, dated August 22, 1940, to the Secretary of State, 39 Op. Atty. Gen. 474, dealt with the subject of loss of citizenship under the provisions of the act of March 2, 1907, with particular reference to the proviso in section 2, "That no American citizen shall be allowed to expatriate himself when this country is at war." With reference to this proviso, the following was stated:
It has been generally understood that the last-quoted proviso in section 2 prevented loss of citizenship while the United States was at war. The proviso undoubtedly was intended for the protection of the Government, as stated in Petition of Prack (60 F. (2d) 171), * * * and there may be occasions when the citizen is barred from setting up the limitation in his own behalf with the resultant determination of his rights as though the limitation did not exist, but it does not appear that any case requiring such action has reached the courts. The theory was applied in Petition of Prack, but unnecessarily and without affecting the correctness of the conclusion * * *.
The Attorney General's opinion further stated that, assuming that these persons did not lose their citizenship during the war, the question must be considered whether there was loss of citizenship upon the termination of the state of war, it being pointed up that the factual status acquired by such persons might, and in cases of naturalizations and marriages ordinarily did, continue beyond the war, even throughout the lifetime of the affected individual. The following conclusion was drawn:
Both the better reasoning, as it seems to me, and the preponderance of the judicial determination in the several courts which have dealt with the question impel me to the conclusion that American citizens who were naturalized abroad after entry into the war by this country on April 6, 1917, and prior to the congressional resolution of July 2, 1921, declaring the war at an end, lost their citizenship as of the latter date, and that this is also true of American women who married aliens or who were naturalized abroad through the naturalization of their husbands during the same period, provided the marital status had not previously been terminated.
The subject acquired United States citizenship by reason of her birth in this country, as provided for in the 14th amendment to the United States Constitution. Because of the statutory provision against expatriation during time of war, the subject never lost her United States citizenship by reason of marriage. According to the authority cited above, citizenship could have been lost at the termination of the state of war, if the subject were then married to an alien. However, this condition did not exist and there was no loss at any time by the subject of the citizenship, which she acquired by reason of her birth in this country. Consequently, the subject must be deemed to be a native-born citizen of the United States.
Section 339 of the Nationality Act of 1940 states certain conditions under which certificates of citizenship may be issued. No provision has been made therein for the issuance of a certificate of citizenship to a person who acquired citizenship by reason of birth in this country. Since the subject acquired United States citizenship by reason of birth in the United States, there is no provision of law whereby she may be issued a certificate of citizenship.
It is ordered that the application for a certificate of citizenship be denied.