E-057339.
Decided by Board June 30, 1954.
Status — National but not a citizen of the United States — Native of the Philippine Islands.
While a person born in the United States loses the citizenship acquired thereby only if he commits expatriating acts, this is not true of a United States national who does not possess citizenship but merely owes allegiance to the United States. All citizens of the Philippine Islands who had not acquired United States citizenship lost their United States nationality on July 4, 1946, whether residing in the Philippine Islands or in the United States.
BEFORE THE BOARD
Discussion: This case is before us on counsel's motion for reconsideration dated March 22, 1954. On April 9, 1954, we stayed the respondent's deportation pending consideration of the matter.
The special inquiry officer granted voluntary departure after concluding that the respondent was deportable because, after his admission as a seaman, he failed to comply with the conditions of his status. On January 14, 1954, we dismissed the appeal from the special inquiry officer's decision. The sole point urged on the motion for reconsideration is that the respondent was a United States national and that he did not lose his nationality when independence was granted the Philippine Islands on July 4, 1946. Counsel, in his motion for reconsideration, asserted that the question was pending before the Supreme Court in Barber v. Gonzales. Subsequently, on June 7, 1954, that case was decided without passing on the contention that Gonzales had not lost his United States nationality.
We have carefully considered the argument of counsel and the cases cited in his motion for reconsideration and in the supplemental brief dated March 18, 1954. Those dealing with citizenship or expatriation of United States citizens are not in point since it is clear from the record that the respondent has never been a citizen of the United States. As a matter of fact, until the Act of July 2, 1946 ( 60 Stat. 416) Filipinos were racially ineligible to become naturalized citizens of the United States. Most of the remaining cases cited by counsel do not appear to be particularly analogous or pertinent.
Counsel's principal argument is that the respondent could not be divested of his United States nationality without his consent. As previously indicated, the cases he relies on in this connection deal with loss of United States citizenship. The terms "nationality" and "citizenship" are not synonymous although some courts have referred to nationality and loss of nationality in cases involving persons who claimed United States citizenship. All citizens of the United States are United States nationals but not all nationals are citizens. Both nationals and citizens owe allegiance to the United States but those who are merely nationals and do not possess United States citizenship, cannot exercise any rights of citizenship. A national of the United States may acquire United States citizenship through the naturalization process. The distinction between citizens and nationals is also clearly set forth in section 101 (b) of the Nationality Act of 1940 which provides "The term `national of the United States' means (1) a citizen of the United States, or (2) a person who, though not a citizen of the United States, owes permanent allegiance to the United States. It does not include an alien."
Section 321 of the Nationality Act of 1940; section 325 of the Immigration and Nationality Act of 1952.
A similar definition of this term is contained in section 101 (a) (22) of the Immigration and Nationality Act of 1952.
We should also point out that a person born in the United States and subject to the jurisdiction thereof is a citizen by virtue of the 14th Amendment to the Constitution of the United States but the Philippine Islands have never been part of the United States although they were a possession of this country and under its sovereignty. While a person who thus acquires citizenship loses it only if he commits an expatriating act, this is not true of a United States national who does not possess citizenship but merely owes allegiance to the United States.
Under Presidential Proclamation 2695 of July 4, 1946 ( 11 F.R. 7517) the United States withdrew and surrendered all rights of sovereignty over the territory and people of the Philippines. At that moment, the allegiance, which the citizens of the Philippine Islands owed to the United States, was terminated and the corresponding United States nationality of such persons was likewise terminated.
Although counsel concedes that citizens of the Philippines who had always resided there lost their United States nationality on July 4, 1946, he argues that a different conclusion must be reached with respect to citizens of the Philippine Islands who had taken up residence in the United States. No authority for this proposition has been cited and we can perceive no legal ground for reaching different conclusions solely on the basis of whether a Filipino had or had not taken up residence in the United States. In Cabebe v. Acheson, 183 F. (2d) 795 (C.A. 9, 1950), the court had under consideration a person born in the Philippine Islands in 1910 who lawfully entered Hawaii in 1930 and had resided there ever since. The court held that he lost his United States nationality upon the granting of independence to the Philippine Islands on July 4, 1946. His case presented a stronger factual situation than that of the respondent because the latter first came to the United States in 1944 as a nonimmigrant seaman; for immigration purposes he was considered an alien at that time under section 8 (a) (1) of the Philippine Independence Act of 1934; and between May 1, 1934 and July 2, 1946, he could not have been lawfully admitted to the United States for permanent residence because of his racial ineligibility to citizenship and the provisions of section 13 (c) of the Immigration Act of 1924.
The view that all citizens of the Philippine Islands, who had not acquired United States citizenship, lost their United States nationality on July 4, 1946, whether residing in the Philippine Islands or in the United States, has been consistently followed by the Immigration and Naturalization Service and by this Board since the granting of independence to the Philippines. We find nothing in counsel's argument nor in the cases cited by him which would persuade us that this view is erroneous. On the basis of the consistent administrative practice mentioned and on the authority of Cabebe v. Acheson, ( supra), we conclude that the respondent ceased to be a national of the United States on July 4, 1946; that he is an alien at this time; and that the previous decision concerning his deportability was correct.
We are of the opinion that the respondent's failure to depart voluntarily was predicated on his belief that he was still a national of the United States as asserted in the motion for reconsideration. Under these circumstances, we believe that he should be afforded one last opportunity of departing voluntarily before the entry of an order of deportation. He was married to a United States citizen in 1949 and is now entitled to nonquota status. Accordingly, the following order will be entered.
Order: It is ordered that counsel's motion for reconsideration be denied and that our stay of deportation of April 9, 1954, be terminated.
It is further ordered that the outstanding order and warrant of deportation be withdrawn and the alien be permitted to depart from the United States voluntarily without expense to the Government, to any country of his choice, within such period of time, in any event not less than 60 days, and under such conditions as the officer-in-charge of the district deems appropriate.
It is further ordered that if the alien does not depart from the United States in accordance with the foregoing, the order of deportation be reinstated and executed.