A-7078465 and A-7078466
Decided by Central Office March 29, 1951 Decided by Board June 8, 1951
Citizenship — Expairiation, by residence abroad after naturalization here — Treaty between United States and Lithuania (1938) — Sections 404 and 409 of the Nationality Act of 1940, as amended.
(1) Loss of citizenship was held not to have occurred under the provisions of the treaty between the United States and Lithuania, in the case of a native Lithuanian who was naturalized here, then went to Lithuania in 1914, where he remained until about September 1944 (when he was forced into labor in Germany, where he remained until embarkation for the United States in December 1948), returning to the United States in December 1948; the subject was held to have overcome the presumption of loss of United States nationality under the provisions of said treaty by his testimony (to the effect he intended at all times to return to the United States) and by his actual return.
(2) The above subject returned to the United States in December 1948 with a United States passport, the application for which was submitted in January 1948, in Germany; he (as well as his wife whom he married in 1920 in Lithuania who accompanied him to Germany in 1944) lost United States citizenship on October 15, 1946, under the provisions of section 404 (b) of the Nationality Act of 1940 and section 409 of that act, as amended, it being noted ( a) that he had lived in his native country at least from January 13, 1941 (the effective date of the Nationality Act of 1940), to September 1944, a period of over 3 years (and so it was unnecessary to consider the effect of residence before January 13, 1941, in computing the 3-year period), and ( b) that he had failed to return or to have been "en route" to the United States, on or before October 14, 1946. (For "en route" interpretation, see 2 IN Decs., 816 and 889). The fact that he was in Germany (for less than 5 years) immediately before returning to the United States does not affect this conclusion.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No visas.
BEFORE THE CENTRAL OFFICE
(March 29, 1951)
Discussion: This record relates to two appellants, natives of Lithuania, husband and wife, ages 65 and 49 years, respectively, who arrived at the port of New York on December 26, 1948, as passengers on the S.S. Ernie Pyle accompanied by their two children, ages 18 and 10 years, respectively. These appellants were found inadmissible by a board of special inquiry on the ground stated above and have appealed. The two minor children were found to be American citizens and admitted as United States citizens. The appellants have been paroled into the United States pending decision on appeal.
The appellants have presented United States passports issued on November 2, 1948, to expire March 2, 1949, at the office of the consulate of the United States at Bremen, Germany. They are not in possession of immigration visas or other immigration documents.
The female appellant was born in Lithuania and has never lived in the United States. She married the male appellant in Lithuania on July 12, 1920.
The male appellant was born in Lithuania on July 20, 1885, and entered the United States about 1907. He was naturalized an American citizen in Brockton, Mass., on May 6, 1913. He acquired American citizenship through such naturalization. His wife, the female appellant, became an American citizen on or about July 12, 1920, by marriage to the male appellant at which time he was an American citizen (act of March 2, 1907; 34 Stat. 1229).
The question to be resolved in this case is whether the appellants are American citizens.
As stated above the male appellant was admitted to American citizenship on May 6, 1913. The year following, 1914, he left the United States and went to Lithuania, where he lived continuously to September or October 1944, when he left Lithuania and went to Germany alleging that he was forced to go there as a slave laborer and remained in Germany until about December 14, 1948, when he departed to come to the United States arriving December 26, 1948. His wife, the female appellant, also lived in Lithuania from birth up to September or October 1944, when she left Lithuania and came to Germany with her husband, the male appellant, and remained in the country last named up to about December 14, 1948, when she embarked in Germany for the United States arriving on December 26, 1948, with her husband.
The question arises relative to whether the male appellant expatriated pursuant to the treaty between the United States of America and Lithuania which was ratified at Washington on July 20, 1938 (53 Stat., p. 1569). In this connection it is noted that under the provisions of that Treaty a national of either country who has been or shall become naturalized in the territory of the other country, and who shall renew his residence in his country of origin without the intent to return to the country in which he was naturalized, shall be held to have renounced his naturalization. It is further noted that the intent not to return may be held to exist when a person naturalized in one country shall have resided more than two years in the other country (but this presumption may be overcome by evidence to the contrary).
The male appellant has testified that he returned to Lithuania in 1914 to see his parents and possibly get married. After his arrival there his children were born, his mother died, he had to sell a large farm, the Communists came, and the two wars made it difficult for him to leave that country. He stated positively that at the time he returned to Lithuania in 1914 and at all other times subsequently thereto, he intended to return to the United States.
Although the male appellant did return to his native country Lithuania in 1914 and remained there to 1944, he has overcome the presumption of loss of United States nationality which arises under the provisions of the above-mentioned treaty by his testimony to the effect that he at all times intended to return to the United States, and did not intend to remain in Lithuania permanently at any time; and the fact that he has actually returned to the United States. Consequently, it is found that he has not lost United States nationality under the provisions of the treaty between the United States and Lithuania ratified on July 20, 1938 (53 Stat., p. 1569).
The next question considered is whether the appellants have expatriated pursuant to section 404 (b) of the Nationality Act of 1940 effective January 13, 1941, as found by the board of special inquiry. Both appellants acquired American nationality by naturalization. They admit that they were living in Lithuania from at least January 13, 1941, to on or about September 1944, a period of more than 3 years. Section 404 (b) of the Nationality Act of 1940 reads:
A person who has become a national by naturalization shall lose his nationality by ( 54 Stat. 1170; 8 U.S.C. 804):
* * * Residing continuously for 3 years in the territory of a foreign state of which he was formerly a national or in which the place of his birth is situated, except as provided in section 406 hereof ( 53 Stat. 1170; 8 U.S.C. 804).
For the purposes of section 404 of the Nationality Act of 1940, section 104 of such act provides that: "The place of general abode shall be deemed the place of residence" (8 U.S.C. 504). These appellants admit that they lived in Lithuania for a period of at least 3 years. An examination of the eight subdivisions of section 406 of the Nationality Act of 1940 reveals that these appellants do not come within the exceptions enumerated therein.
The next question considered is whether these appellants have lost United States nationality, in view of the facts and findings above, by failing to return to the United States on or before October 14, 1946, as provided in section 409 of the Nationality Act of 1940 (as amended) which reads:
Nationality shall not be lost under the provisions of section 404 or 407 of this act until the expiration of 6 years following the date of the approval of this act: Provided, however, That a naturalized person who shall have become subject to the presumption that he has ceased to be an American citizen as provided for in the second paragraph of section 2 of the act of March 2, 1907 ( 34 Stat. 1228), and who shall not have overcome it under the rules in effect immediately preceding the date of the approval of this act, shall continue to be subject to such presumption for the period of 6 years following the date of the approval of this act unless it is overcome during such period.
As stated above these appellants, who were American citizens by naturalization, resided in their native country for a period of at least 3 years following January 13, 1941. However, they left their native country Lithuania before the expiration of 6 years following January 13, 1941, and moved to Germany where they resided from 1944 to a date in 1948. They returned to the United States arriving December 26, 1948.
Section 409 of the Nationality Act of 1940 (as amended), quoted above, clearly states that nationality shall not be lost under the provisions of section 404 of such act until the expiration of 6 years following the date of the approval. It is obvious therefore that the appellants had not lost American nationality at the time they left the country of their nativity in 1944 and removed to Germany. If United States nationality has been lost by these appellants such loss occurred on October 15, 1946, by reason of their residence in Lithuania for a period in excess of 3 years immediately preceding 1944 upon their failure to return to the United States unless they satisfactorily establish that prior to October 15, 1946, they completed arrangements to come to the United States or set in motion appropriate machinery to effect their return prior to that date, but were precluded from reaching the United States before that date because of delay due to conditions incident to travel which were beyond their control.
A decision involving comparable facts to the instant case is not at hand. However, reference is made to an opinion of the general counsel under date of December 18, 1946 (File 500/2), concerning sections 404 and 409 of the Nationality Act of 1940 (as amended). In that opinion a situation similar to the situation in the instant case was considered as follows:
There is an alternative interpretation which is not included in the memoranda accompanying the Attorney General's decision, at least not clearly so, but which occurred to me in the original consideration of this question. I did not choose to adopt it because I was constrained to conclude that the law and the facts precluded its adoption. The alternative interpretation is: That any person having had, prior to October 15, 1946, the requisite residence prescribed by any provision of section 404 of the Nationality Act of 1940 who had departed from the foreign state of such residence prior to that date has not lost his nationality under the provisions of section 404 and will not hereafter lose such nationality unless he shall again abide in a foreign state for the requisite period prescribed in that section. For the reasons given, I have been unable to adopt this interpretation, and I am unable to perceive that it is implicit in the interpretations of either the officers of the Department of State or of the Department of Justice.
This question was also considered by Theron L. Caudle, Assistant Attorney General, Criminal Division, when in a memorandum dated November 26, 1946, addressed to the Assistant Solicitor General he stated:
The assistant to the legal adviser of the State Department makes the observation that sections 404 and 409 as amended by the act of October 11, 1945, contain no express provision to the effect that naturalized citizens who had resided in a foreign country during the periods prescribed in section 404 could preserve their citizenship by returning to the United States to reside, although, he points out, this appears to have been assumed by the officials of the Department of Justice as well as the chairman of the committee on Immigration and Naturalization of the House, and would seem to be the obvious intent of the law. However, after considering the legislative history of the statutes it seems clear that under the language of the statutes United States citizenship has been preserved when the naturalized citizen has terminated foreign residence prior to October 14, 1946, with the undisputed intent of immediately reestablishing residence in the United States when such change of abode becomes physically possible despite the fact that he had not succeeded in reaching the United States prior to the date named.
In his conclusion Mr. Caudle states:
Based on the foregoing we believe that proof prior to October 14, 1946, of abandonment of the place of abode in the territory of a foreign state, with the intent of returning immediately to the United States to reside permanently, should be the test to determine whether United States citizenship has been preserved by the persons who had resided in foreign territory for the periods set forth in section 404, rather than the actual touching of the shores of the United States prior to the date named.
The views of Assistant Attorney General Caudle were approved by the Attorney General on December 9, 1946.
It thus follows that the fact that the appellants no longer resided in Lithuania subsequent to 1944 does not affect their expatriation under section 404 (b) of the Nationality Act of 1940 under the facts here presented, having acquired more than 3 years residence in that country prior to their departure therefrom.
Although these appellants in 1944 had left the country in which they had been living for a period of more than 3 years and went to Germany, they were not at that time en route to the United States, the facts disclosing that the reason they then left Lithuania was because the German Army forced them into Germany. While the testimony shows that an application was made for a United States passport in October 1946, the Department of State informed this Service that an application was submitted on January 21, 1948, upon which a passport was issued on November 2, 1948.
This record fails to establish that the appellants were prevented from leaving Lithuania prior to 1944 to return to the United States, nor does the record establish that they had completed all arrangements to return to this country at any time on or prior to October 14, 1946, or that they were en route to this country on October 14, 1946. The case is therefore distinguishable from the facts in Matter of V----, A-6501663 (Attorney General, May 14, 1947, 2 IN Dec. 816); and Matter of C----, A-6576113 (C.O., June 6, 1947, 2 IN Dec. 889). In the decisions last named it was held that it was not necessary that a naturalized citizen must have left the country in which he had been residing on or prior to October 14, 1946, but that it was sufficient if he had completed all arrangements to return to the United States on or before that date, but his return was delayed because of transportation difficulties or other delays incident to travel, over which he had no control.
It is concluded that these appellants who resided in the country of their nativity for a period of 3 years following the effective date of the Nationality Act of 1940 (January 13, 1941), and who did not return to the United States on or before October 14, 1946, have lost American nationality pursuant to section 404 (b) of the Nationality Act of 1940. The appellants must qualify as aliens. They are not in possession of unexpired immigration visas.
The findings of fact and conclusions of law proposed by the board of special inquiry and read into the record on December 28, 1948, are hereby adopted except that new finding of fact (11) is added as follows:
F.F. (11) That the evidence of record fails to establish that O---- O---- or J---- O---- on or prior to October 14, 1946, completed arrangements to come to the United States or had set in motion appropriate machinery to effect their return to the United States prior to that date but were precluded from reaching the United States before that date because of delay due to conditions incident to travel which were beyond their control.
The excluding decision will be affirmed. The parole of the aliens into the United States will be terminated.
Order: It is ordered that the excluding decision be affirmed.
It is further ordered that the parole of the aliens into the United States by the Field Office be terminated.
Upon consideration of the entire record: It is ordered that the appeal from the decision of the Commissioner be and the same is hereby dismissed.