56106/865
Decided by the Board June 23, 1942.
Citizenship — Expatriation — Section 401 (c), Nationality Act of 1940 — Entering or serving in the armed forces of a foreign state.
When a native of the United States had had Canadian citizenship, but had lost such citizenship prior to entering the armed forces of Canada, his service in the Canadian armed forces did not result in his expatriation under section 401 (c) of the Nationality Act of 1940 since he did not have or thereby acquire Canadian nationality.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Immigrant without immigration visa.
Executive Order 8766 — No passport.
Mr. Edward J. Ward, Board attorney-examiner.
STATEMENT OF THE CASE: On March 26, 1942, the appellant appeared before a board of special inquiry at Victoria, British Columbia, and applied for admission as a returning native citizen of the United States.
The board of special inquiry found that, although he was born in this country and so was formerly a United States national, the appellant also had Canadian nationality by reason of the fact that, at the time of his birth, his father was a British subject and Canadian national, and that the appellant having entered and served in the armed forces of Canada, the foreign state of which he has the nationality, he thereby lost his United States citizenship under the proscription of the Nationality Act of 1940, which, in Chapter IV — Loss of Nationality, declares:
SEC. 401. A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:
(c) Entering, or serving in, the armed forces of a foreign state * * * if he has * * * the nationality of such foreign state; * * *.
The board of special inquiry, having thus determined that the appellant is an alien, voted to exclude him on the grounds above stated because he was not in possession of the documents an alien applicant is required to present as a condition of admissibility into the United States.
On April 9, 1942, the board of special inquiry reopened the hearing, and, after considering some additional evidence, affirmed its previous decision to exclude the appellant as an alien. From that action he appeals.
DISCUSSION: The appellant's father was born in Canada, at St. Epiphany, Quebec, on February 14, 1900. He was thus, by place of birth, a British subject and Canadian national. In 1919 he migrated into the United States. Here he married a native of this country and on January 30, 1922, their son, the appellant, was born at Haverhill, Mass. On September 23, 1929, when the appellant was 7 years old, his father was naturalized a citizen of the United States.
As declared in the fourteenth amendment of the Constitution, the appellant was a citizen of the United States by birth in this country. Also, in accordance with Canadian law, he was at birth a British subject and Canadian national by reason of the fact that, at the time of his birth in 1922, his father was a British subject and Canadian national.
The appellant did not become by naturalization a United States citizen as a result of his father's naturalization in 1929, for he was already a citizen of the United States by reason of his birth here. There is no question as to that.
The question we have to answer in this decision concerns the effect of his father's naturalization upon the appellant's other nationality. This question is: Did the naturalization of the appellant's father in 1929, which divested the appellant's father of the nationality of a British subject and Canadian national, which he had theretofore had by reason of his birth in Canada, also divest the appellant of the nationality of a British subject and Canadian national he had theretofore had by reason of being born at a time prior to 1929 while his father was still a British subject and Canadian national?
If the appellant was not divested of his British subjecthood and Canadian nationality by his father's naturalization in 1929, then, he is today an alien. If he was so divested, he is a citizen of the United States.
On February 21, 1941, the appellant went to Canada, and on February 28, 1941, he was inducted into the Royal Canadian Air Force. His service therein continued until March 26, 1942, the date of his first appearance before the board of special inquiry.
Presumably with the proscription contained in section 401 (b) of the Nationality Act of 1940 in mind, the chairman of the board of special inquiry asked the appellant: "When you joined the Air Force here did you take the oath of allegiance?" The appellant answered that he did not, and presented, as certification of the truth of his negative answer, a letter signed by the flying officer in command of his squadron, which states: "This airman is an American citizen and has not taken the oath of allegiance to the King."
Thus, the sole statutory authority claimed by the board of special inquiry for refusing to recognize the appellant as a citizen of the United States is contained in the words of section 401 (c) of the Nationality Act of 1940, which we have set out hereinbefore, see page 272.
However, in order to bring into view the somewhat confused background of the action in this case, it may be well to quote the motion, the adoption of which by the board of special inquiry made its wording that of the board's decision excluding this appellant. This motion reads as follows:
Canadian citizenship laws provide that any person born anywhere of a natural-born British-subject parent, i.e., a child born in the United States of a British-subject father, the naturalization of the father in the United States after the birth of the child does not affect the British status of the child. In a similar case (that of N---- G---- R---- (56088/611)) the Canadian Immigration Service advises that any child born in the United States of British-subject parents is deemed to be a British subject even though the parent of such child becomes naturalized in the United States. As the applicant in the instant case is held to be a British subject by virtue of his birth of a British-subject father and the subsequent naturalization of the father in the United States did not divest him of his British nationality, it is my opinion that he may no longer be considered a citizen of the United States in that he is serving in the armed forces of a foreign state; and I, therefore, move that he be excluded from admission to the United States as an immigrant alien who has not in his possession a valid immigration visa and a valid passport.
The case of N---- R----, referred to, was indeed similar to this case. Both boys were born in the United States. The fathers of both were British subjects who migrated from Canada into the United States, R----'s father in 1920, N----'s in 1919. Both boys were born in 1922, while their fathers were still British subjects. R----'s father was naturalized a citizen of the United States in 1927, N----'s in 1929. Both boys went to Canada and enlisted in the Canadian armed forces, R---- in December 1940, N---- in February 1941. Both were exempted because of their United States citizenship from taking the oath of allegiance, which would have had the effect of depriving them of their birthright of United States nationality. Both appeared before a board of special inquiry at Victoria, British Columbia, as applicants for admission to the United States as citizens coming home. And, curiously enough, in both cases, the hearings were reopened by the board of special inquiry before that board finally excluded them as aliens.
The action of the board of special inquiry at the conclusion of the original hearing of R---- on July 2, 1941, however, differed from that board's action at the conclusion of the instant appellant's original hearing on March 26, 1942. The board of special inquiry, being satisfied by the evidence presented at the hearing on July 2, 1941, that R---had not taken the oath of allegiance, voted at the end of that hearing that he be admitted as a United States citizen.
The occasion of reopening the R---- hearing appears on page 6 of the record, file 56088/611, in the "Note" and "Statement" following:
NOTE — Reference is made to circular from the district director at St. Albans, Vt., dated September 23, 1939, with reference to British and Canadian citizenship, and who is a British subject.
Paragraph 2 states that any person born anywhere of natural-born British-subject parents, that is, a child born in the United States of a British-subject father, the naturalization of the father in the United States after birth of the child, does not affect the British status of the child.
Statement by chairman: I called the Canadian Immigration Service regarding this matter and they informed me that this is correct; that any child born in the United States of British parents is deemed by them to be a British subject, even though the parent of such child becomes naturalized in the United States.
Thereafter, the motion was made and carried that R---- be excluded as a person who had lost his United States nationality under section 401 (c) of the Nationality Act of 1940, and was therefore inadmissible "as an immigrant alien who has not in his possession an unexpired immigration visa and a valid passport."
R---- appealed from the excluding decision of the board of special inquiry, and on August 1, 1941, that decision was affirmed. He was subsequently preexamined at Victoria, British Columbia, and he was found admissible on September 2, 1941, at which time he presented a nonquota immigration visa issued at Victoria, British Columbia, on September 2, 1941, under section 4 (c) of the act approved May 26, 1924. He entered the United States at Seattle, Wash., on September 2, 1941, ex-S.S. Princess Alice.
In affirming the excluding decision of the board of special inquiry, our action was predicated upon the following note of record issued by the District Director, United States Immigration and Naturalization Service, St. Albans, Vt., on September 23, 1939, stating:
That any person born anywhere of natural-born British-subject parents remains a British subject even though the parents are later naturalized in their adopted country. This interpretation is in accordance with the provisions of chapter 44 of the Canadian Naturalization Act of 1914.
The foregoing portion of chapter 44 is now known as chapter 138 of the Canadian Naturalization Act of 1914, and in subsequent consideration of that section we arrived at an entirely different conclusion in other cases as hereinafter set forth.
In passing upon the subsequent appeals of W---- F---- A---- and M---- R---- D----, an independent study was made of paragraph 15, part 3, chapter 138, of the Canadian Naturalization Act of 1914, which pertains to this matter, and which reads as follows:
Where a person being a British subject ceases to be a British subject, whether by declaration of alienage or otherwise, every child of that person, being a minor, shall thereupon cease to be a British subject, unless such child, on that person ceasing to be a British subject, does not become by the law of any other country naturalized in that country.
2. Any child who has ceased to be a British subject may within 1 year after attaining his majority make a declaration that he wishes to resume British nationality and he shall thereupon become a British subject.
The result of our study of this text was arrival at the view that its intendment is to assure that a British-subject minor child shall not become stateless by reason of the naturalization of its father, and that where such a child has [acquired], or by the naturalization of its father acquires, the nationality of the state of which its father becomes a citizen through naturalization, the child is divested of its British nationality by its father's naturalization.
We, therefore, concluded that both A---- and D---- had been divested of their British nationality when their fathers, during their minority, were naturalized as citizens of the United States and that, thus, they did not have the nationality of "such foreign state" when they entered and served in the armed forces of Canada.
Consequently, on October 27, 1941, we sustained the appeal of W---- F---- A---- (56096/447) and ordered that he be admitted to the United States as a citizen, and on December 15, 1941, we likewise sustained the appeal of M---- R---- D---- (56106/22) and ordered that he also be admitted as a citizen of the United States.
When, in the instant case, our attention was called to the fact that differing decisions of this problem had heretofore been rendered, it seemed to us very desirable in order to be certain, to seek an authoritative answer to the question whether paragraph 15 of part III, chapter 138, of the Canadian Naturalization Act of 1914 is or is not properly to be construed to mean that a child who was a British subject by birth was divested of his British subjecthood and Canadian nationality when his British-subject father was naturalized as a citizen of the United States, and, with the particulars of the instant case as a factual basis for the query, we addressed under date of May 28, 1942, to the Canadian Envoy Extraordinary and Minister Plenipotentiary, a request that an authoritative answer be given to this question.
Under date of June 9, 1942, the Secretary of the Canadian Legation replied as follows:
I am directed to refer to your letter of May 28 concerning the interpretation to be given to paragraph 15 of the Canadian Naturalization Act, and to state that the Under Secretary of State of Canada, who is the authority on interpretation of the Canadian Naturalization Act takes the view that the child in question, by its father's naturalization in the United States, lost his status as a British subject in Canada. He could, of course, under paragraph 3 of section 15 make a declaration, within 1 year after attaining his majority, that he wishes to resume British nationality and upon making such a declaration he would again become a British subject.
The expatriation effect of section 15 is made to apply to all cases where statelessness does not result therefrom.
In view of this authoritative statement of the Canadian Naturalization Act by the Under Secretary of State of Canada, we conclude that our decisions in the cases of W---- F---- A---- and M---- R---- D---- were correct, and that the appellant, L---- D---- J---- N----, is a citizen of the United States.
The holding in the case of N---- G---- R---- must necessarily be overruled on the basis of the foregoing.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing and upon the entire record in this case it is found:
(1) That appellant's father was born in Canada in 1900;
(2) That the appellant's father migrated to the United States in 1919;
(3) That the appellant was born in the United States in 1922;
(4) That the appellant's father was naturalized a citizen of the United States in 1929;
(5) That the appellant, without taking the oath of allegiance, was inducted into the Royal Canadian Air Force on February 28, 1941;
(6) That the appellant is applying for admission as a citizen of the United States;
(7) That he is not in possession of an immigration visa;
(8) That he is not in possession of a passport.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact it is concluded:
(1) That, under the fourteenth amendment of the Constitution, the appellant was born a citizen of the United States;
(2) That under the Canadian Naturalization Act of 1914, the appellant was divested of his Canadian nationality as a child of a British subject and Canadian national by his father's naturalization as a citizen of the United States;
(3) That under section 401 (c) of the Nationality Act of 1940, the appellant has not lost his United States nationality by entering or serving in the armed forces of Canada;
(4) That under section 13 of the Immigration Act of 1924, the appellant is not inadmissible as an immigrant not in possession of a visa;
(5) That under Executive Order No. 8766, the appellant is not inadmissible as not in possession of a passport.
ORDER: It is ordered that the appeal be sustained.