56156/670
Decided by the Board March 18, 1944.
Expatriation — Performing duties of an office under a foreign government — Section 401 (d) of the Nationality Act of 1940 — Oath of allegiance to foreign state — Section 2 of act of March 2, 1907.
1. Service as a member of a board of school trustees in a School District in Canada or service on a local ration board in Canada is not restricted to Canadian nationals, and therefore does not result in loss of United States citizenship under section 401 (d) of the Nationality Act of 1940.
2. An oath of allegiance taken by a minor on entering the armed forces of Canada in 1914 did not result in expatriation under section 2 of the act of March 2, 1907, where he was released in 1915 from the Canadian army less than 4 months after his twenty-first birthday, on the basis of his minority at the time of enlistment.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Executive Order No. 8766 — No passport or nonresident alien's border crossing identification card.
BEFORE THE BOARD
Discussion: The appellant, claiming United States citizenship by virtue of his birth at Caribou, Maine, on March 26, 1894, applied for temporary admission to the United States on November 23, 1943, at Madawaska, Maine, for the purpose of visiting in this country. He was not in possession of any documents required of aliens to enter the United States and a Board of Special Inquiry, after disallowing the appellant's claim to United States citizenship on the basis of expatriation under section 401 (d) of the Nationality Act of 1940, excluded him on the ground designated above. He appeals.
The appellant presented a certificate covering the birth of one C---- R---- on the date and at the place set forth above and testified that he is the same person shown in said certificate, irrespective of the difference in the given name. While the appellant gave his name as "E---- R----", he stated he is also known as "C----" and that there were no other children in his family known by that name. The appellant further testified that his father was born in St. Alexandre, Riviere du Loup, P.Q. and that, although he lived in the United States for approximately 45 years, he never, to the appellant's knowledge, became naturalized in this country. The family moved to Canada when the appellant was 13 years old and has resided in the Dominion since that time.
The appellant also testified that on September 14, 1914, at the age of 20 years, he enlisted in the Canadian Army, taking the prescribed oath of allegiance to the King of England, and that he was discharged on July 15, 1915, at the instigation of his father since he, the appellant, was under age at the time of his enlistment and had not secured his parents' permission to join the army. He was later exempted from the Canadian draft because of being employed on a railroad.
Irrespective of whether the appellant was a Canadian citizen at the time of his birth by reason of the fact that his father was a native citizen of that country, there is no question that the subject was born a citizen of the United States ( 14th Amendment, U.S. Const.) and the only issue for determination is whether or not, under the laws of the United States, he has expatriated himself. Section 2 of the act of March 2, 1907, which was in effect until its repeal by the Nationality Act of 1940, provided only two means of expatriation by male citizens, namely:
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 (8 U.S.C. 17, 1927 Ed.).
Inasmuch as there is no question of expatriation on the part of the appellant prior to 1907, since it was apparently in that year that he first departed from the United States, consideration need not be given to any earlier laws on the subject.
It has been consistently held, prior to the Nationality Act, supra, that a native United States citizen who has not attained the age of 21 years cannot expatriate himself ( U.S. ex rel. Baglivo v. Day, 28 F. (2d) 44), but the Attorney General has indicated that, "in the case of an infant reaching his majority while in the service of a foreign state it might `be assumed that the oath would be a continuing oath, which attached to him when he reached 21 years of age'" (39 Op. Atty. Gen. 474, 482). Assuming that such a presumption does attach to continued service in a foreign army, it is not considered of material significance in the subject case in view of the appellant's release from the Canadian Army less than 4 months after his twenty-first birthday, on the basis of his minority at the time of enlistment.
The other pertinent ground for expatriation under the 1907 Act, supra, has no bearing on the subject case, since the appellant testified that he has never been naturalized in Canada. The doctrine of election as pronounced in the case of Perkins et al. v. Elg ( 307 U.S. 325) has no application in instances of dual citizenship at birth ( In re J---- R----, 56127/95, Jan 13, 1943), and accordingly, it must be concluded that the appellant did not expatriate himself under the 1907 act, supra.
The Nationality Act of 1940, which became effective on January 13, 1941, ( 8 U.S.C. 1001), specifically provides that,
The loss of nationality under this act shall result solely from the performance by a national of the acts or fulfillment of the conditions specified in this act (8 U.S.C. 808).
and the "acts" pertinent to the subject case provided by said statute are,
SEC. 401. (b) Taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state; or
(c) Entering, or serving in, the armed forces of a foreign state unless expressly authorized by the laws of the United States, if he has or acquires the nationality of such foreign state; or
(d) Accepting, or performing the duties of, any post, office or employment under the government of a foreign state or political subdivision thereof for which only nationals of such state are eligible; or
(e) Voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory; * * * ( 8 U.S.C. 801).
Knowing that the appellant's father was at one time at least a national of Canada because of birth in that Dominion, it is evident, irrespective of the subject's status under the Canadian citizenship laws, that section 402 of the Nationality Act, supra, is also pertinent in that the appellant is now 49 years of age and has resided in Canada continuously since January 13, 1941. ( 8 C.F.R. 315.3.) This section provides in part that,
A national of the United States who was born in the United States * * * shall be presumed to have expatriated himself under subsection (c) or (d) of Section 401, when he shall remain for six months or longer within any foreign state of which he or either of his parents shall have been a national according to the laws of such foreign state, or within any place under control of such foreign state, and such presumption shall exist until overcome whether or not the individual has returned to the United States * * * (8 U.S.C. 802).
The presumption arising with reference to subsection (c) of section 401, supra, may be summarily disposed of in view of the fact that at no time since January 13, 1941, has the appellant entered or served in the armed forces of a foreign state (8 C.F.R. 315.5). With reference to the remaining presumption, however, the appellant testified that he is proprietor of a wholesale business, dealing in candy, tobacco, medicine, and small wares, but that, in addition thereto, he is at present serving on the school board and on the local rationing board in Edmundston, N.B. and has within the past two years served on a jury in that town. There was presented at the reopened hearing on December 14, 1943, a letter from the Board of School Trustees, District No. 1, Edmunston, dated December 13, 1943, stating that the "Province of New Brunswick school act does not specify or mention therein that a school trustee should obviously be British subject." Chapter 52, section 58 of the Revised Statutes of New Brunswick was incorporated into the record and, in part, reads,
There shall be three trustees for each district, who shall be qualified voters and residents of the school district.
While the statute presented is a correct quotation of the law contained in the Revised Statutes of New Brunswick for 1927, this section was amended by an act of the Legislative Assembly, assented to on April 4, 1935, to read:
There shall be three trustees for each district, who shall be qualified voters, British subjects, and residents of the school district * * * (N.B. Stats. 1935, Ch. XXV.) [Italics supplied.]
It hardly need be stated that not all British subjects are nationals of Canada and inasmuch as this qualification was added by a special act of the Legislative Assembly, it may be assumed that due consideration was given to the term employed. This same assumption may be indulged in when considering section 401 (d) of the Nationality Act quoted above. Congress used the specific phrase, "for which only nationals of such state are eligible" (italics supplied), which term is plain and unambiguous and must, therefore, be applied literally ( Helvering v. New York Trust Company, 292 U.S. 455).
The Canadian Nationals Act of 1921 defines a Canadian National as follows:
(a) — Any British subject who is a Canadian citizen within the meaning of the Immigration Act;
(b) — The wife of any such citizen;
(c) — Any person born out of Canada, whose father was a Canadian National at the time of that person's birth, or with regard to persons born before the third day of May, one thousand nine hundred and twenty-one, any person whose father at the time of such birth, possessed all the qualifications of a Canadian National, as defined in this act.
Since one of the requirements for eligibility to serve as a trustee for a school district in Canada is to be a British subject, it is encumbent on this Board to consider whether said requirement refers to such a British subject as is made a Canadian National under the act of 1921, supra. The Canadian Immigration Act of 1910, as amended by the acts of June 11, 1928 and April 10, 1937, provides that any British subject who has Canadian domicile shall be a Canadian citizen within the meaning of that act but it further provides that, "Canadian domicile can only be acquired, for the purposes of this act, by a person having his domicile for at least five years in Canada after having been landed within the meaning of this act." The word "landed," as applied to passengers or immigrants, is defined in said act to mean, "lawful admission into Canada by an officer under this act, otherwise than for inspection or treatment or other temporary purpose provided for by this act." This evolves into the proposition that any British subject lawfully admitted to Canada and maintaining a domicile in that Dominion for at least 5 years is a Canadian National, but there is nothing in chapter 52, section 58 of the Revised Statutes of New Brunswick, as amended, to indicate a residence requirement of 5 years. The appellant testified that any resident taxpayer is eligible to vote in town and school affairs, and this is confirmed, insofar as school elections are concerned, by the following excerpts from section 52 of chapter 52 of the 1927 Revised Statutes of New Brunswick, as amended:
(1) — No person shall be entitled to vote at any school meeting of any school district on any question whatever unless he is a ratepayer of such district and resident therein, and unless he has paid all district school rates imposed upon him and payable to such school district.
(6) — "Qualified voter" shall include any person qualified to vote at a school meeting under the provisions of this section.
"Ratepayer" is defined in section 2 of chapter 52, supra, as "a person rated in the parish assessments list last on file in respect of real or personal property or poll tax."
It is evident, therefore, that any taxpayer who is a British subject is qualified to serve on the school board of the district in which he resides and that Canadian nationality is not prerequisite thereto.
In this same connection it is likewise concluded that jury duty in New Brunswick is not limited to Canadian nationals since the law of that province provides,
Every male inhabitant between the age of twenty-one years and sixty-five years, being a British subject, and assessed in the county where he resides on real or personal estate or both together, of the value of three hundred dollars, or who was assessed on income to the amount of three hundred dollars in such county in the year 1941, shall be qualified to serve as a grand or petit juror. * * * (Rev. Stats: of N.B., 1927, Ch. 130, Sec. 2, as amended). [Italics supplied.]
The only remaining question involved in the consideration of section 402, supra, is whether the appellant's volunteer service on his local ration board constitutes an office for which only Canadian nationals are eligible thereby bringing him within the class contemplated by section 401 (d) of the Nationality Act of 1940. The legal provisions covering rationing in Canada are embodied in Orders of the Wartime Prices and Trade Board and of the Administrator of Consumer Rationing. Order No. 308 of that Board provides in section 3 thereof:
The Local Ration Board heretofore established by or under authority of the Board shall function for the purposes of the general system for rationing established by this Order with such powers and duties as the Ration Administrator may from time to time direct and he may, with the approval of the Chairman of the Board, establish additional or substitute Local Ration Boards with like powers and duties, and as to all Local Ration Boards fix their composition and control and regulate appointment of their officers and employees (Emergency Laws, Orders and Regulations of Canada, 28-801, 804) [Italics supplied.]
Instructions issued by the Ration Administration — Wartime Prices and Trade Board concerning the procedure to be followed in setting up local ration boards in Canada provide:
Each Local Ration Board shall consist of a Chairman, a Secretary, and at least four (4) other members.
The Chairman of the Wartime Prices and Trade Board shall appoint the Local Ration Board Chairman, who shall in turn appoint the Secretary. Other members of the Local Ration Board shall be appointed by the Chairman of the Wartime Prices and Trade Board on the recommendation of the Local Ration Board Chairman. The Local Ration Board Chairman, Secretary, or any member, once appointed, shall hold office until further notice from the Chairman of the Wartime Prices and Trade Board, or until thirty (30) days after submitting a resignation in writing.
The Chairman of the Local Ration Board is requested to nominate from 4 to 8 citizens of his community for membership on the Local Ration Board. Any resident of the district served by the Board, who is not an employee of the Wartime Prices and Trade Board, is eligible for nomination. It is important that the membership should reflect a fair cross-section of the community and should include at least two women members. * * *
In submitting nominations to the Ration Administration, Montreal, the Local Ration Board Chairman should indicate the name, address, and specific occupation of each person whose name is proposed. The Chairman should bear in mind that all members will be expected to devote their time on a voluntary basis as a contribution to the war effort, and names should be submitted only of persons who will be available for work on this basis. [Italics supplied.]
While the penultimate paragraph quoted above appears ambiguous in that the term "citizens" is used in the first sentence thereof and "resident" in the second, a telegram addressed to the Washington Representative of the Wartime Prices and Trade Board from the Ration Administrator in Montreal dated January 31, 1944, was presented to this Board, which states in part, "Nothing in rules requires local ration board members to be Canadian nationals," and cited the specific instructions set forth above, quoting the sentence underscored in the third paragraph of said instructions. This opinion of the Ration Administrator is accepted as resolving the ambiguity and it is concluded that volunteer service on a Local Ration Board in Canada is not an "office, post, or employment" within the intent of section 401 (d), supra, and that the presumption attaching to said action by virtue of section 402 of the Nationality Act has been adequately overcome.
Consideration will now be given to the question as to whether the appellant has performed any of the specific acts set forth in the Nationality Act, supra, which would result in his expatriation under that act. Subsections (c) and (d) of section 401, quoted above, have already been disposed of in the above discussion and with reference to subsection (b) of that section, the appellant testified that the only oath of allegiance he ever pledged was given when he enlisted in the army in 1914. In substantiation of this claim, the oaths taken by persons elected to the school boards and by persons serving on juries were read into the record and are concluded not to be oaths or affirmations or other formal declarations of allegiance to a foreign state. The army oath taken by the appellant in 1914, aside from having been determined not to constitute an act of expatriation, supra, has no bearing on the appellant's status under the Nationality Act of 1940.
In regard to subsection (e) of said section 401, the appellant testified that since January 1, 1941, he has voted only once and then in the Plebiscite, and that the last Provincial Government election was held on November 20, 1939. This Board has previously held in the case of In re J---- P---- H----, No. 56106/941, et al. [May 28, 1942] that the Canadian Plebiscite of April 27, 1942, was not a "political election" nor was it "an election or plebiscite to determine sovereignty over foreign territory" within the meaning of section 401 (e), supra, and it is assumed that this particular plebiscite is the one referred to by the appellant.
It is accordingly concluded that the appellant has not performed any of the acts, or fulfilled any of the conditions specified in the Nationality Act of 1940, whereby it could be said that he has lost his United States nationality, and that, therefore, he is now a United States citizen and should be admitted as such.
Findings of Fact: Upon the basis of the evidence, it is found:
(1) That the appellant was born in the United States in the year 1894;
(2) That the appellant migrated to Canada with his family at the age of 13 years, and has resided in that Dominion from that time to the present;
(3) That the appellant seeks temporary admission to the United States as a citizen of this country;
(4) That at the age of 20 years the appellant enlisted in the Canadian Army and pledged allegiance to the King of England;
(5) That shortly after attaining his majority, the appellant was released from the Canadian Army by virtue of his having enlisted while under the age of 21 and without the consent of his parents;
(6) That the appellant has not at any time subsequent to his release from the Canadian Army in 1915, entered or served in the armed forces of a foreign state;
(7) That the appellant has never naturalized in Canada;
(8) That subsequent to January 1, 1941, the only time the appellant has voted in Canada was in the plebiscite;
(9) That subsequent to January 13, 1941, the appellant has not accepted or performed the duties of an office, post, or employment in the government of a foreign state or political subdivision thereof for which only nationals of such state are eligible;
(10) That at no time subsequent to attaining the age of 21 years has the appellant taken an oath of allegiance to any foreign state.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under the Civil Rights Act of 1866 and the fourteenth amendment to the Constitution of the United States, the appellant was born a citizen of the United States;
(2) That under section 2 of the Act of March 2, 1907, the appellant has not expatriated himself;
(3) That under sections 401 and 402 of the Nationality Act of 1940, the appellant has not expatriated himself;
(4) That the appellant has retained his United States citizenship with which he was vested at birth;
(5) That under Executive Order 8766, the appellant is not inadmissible to the United States as a person not in possession of a valid Canadian passport or a nonresident alien's border crossing identification card.Other Factors: The appellant testified that he has no intention of returning to the United States for permanent residence but stated that, should anything happen to him, his wife, who is a native citizen of the United States, would return to this country with their daughter. His reason for not desiring to leave Canada permanently is that his business is located there.
He has relatives in the United States consisting of a sister, a brother, aunts and uncles and it is his desire that he be permitted to visit them from time to time.
The appellant also testified that he was recently refused a Canadian passport on the basis that he is not a British subject.
Order: It is ordered that the appeal be sustained, and the appellant admitted as a citizen of the United States.