56143/543
Decided by the Board December 17, 1943.
Citizenship — Expatriation — Dual nationals — Election — Section 401 (a), Nationality Act of 1940.
1. When a native of the United States who had acquired Canadian nationality during minority returned here for permanent residence in 1926 at the age of 27, he elected United States nationality ( Perkins v. Elg, 307 U.S. 325).
2. When such a person later returned to Canada he did not have to return to the United States within the period prescribed by section 401 (a) of the Nationality Act of 1940 to preserve his United States citizenship since he was no longer a dual national ( Matter of G---- (56127/839)).
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Immigrant without immigration visa. Executive Order 8766 — No passport.
Mr. Max Wilfand, Board attorney-examiner.
STATEMENT OF THE CASE: The appellant, a native of the United States, applied for admission to this country as an American citizen on April 24, 1943. A board of special inquiry denied his claim to American citizenship and excluded him on the grounds above stated. His appeal is now before us for consideration.
DISCUSSION: The appellant was born in Lime Springs, Iowa, on June 10, 1899. In 1906, he was taken by his parents to live in Canada where he resided continuously at least until 1926. On June 5, 1920, 5 days before the appellant attained majority, his father was naturalized a Canadian citizen. The appellant's name was included in his father's naturalization certificate, and, accordingly, under Canadian law, he became a citizen of that country. The appellant, however, did not lose his American citizenship by this involuntary acquisition of Canadian nationality ( Perkins v. Elg, 307 U.S. 325; In re S---- (56127/518) [ see page 476, this volume]; In re G---- (56127/839) [ see page 496, this volume]).
Section 401 (a) of the Nationality Act of 1940, which became effective on January 13, 1941, provides, insofar as is pertinent to this discussion, as follows:
A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:
(a) Obtaining naturalization in a foreign state, either upon his own application or through the naturalization of a parent having legal custody of such person: * * * Provided further, That a person who has acquired foreign nationality through the naturalization of his parent or parents, and who at the same time is a citizen of the United States, shall, if abroad and he has not heretofore expatriated himself as an American citizen by his own voluntary act, be permitted within 2 years from the effective date of this act to return to the United States and take up permanent residence therein, and it shall be thereafter deemed that he has elected to be an American citizen. Failure on the part of such person to so return and take up permanent residence in the United States during such period shall be deemed to be a determination on the part of such person to discontinue his status as an American citizen, and such person shall be forever estopped by such failure from thereafter claiming such American citizenship.
If the appellant affirmatively elected to retain his American citizenship prior to the effective date of the Nationality Act of 1940 and thereafter abided by his election, not having theretofore elected to abandon such citizenship by a voluntary act, he would not have been considered a dual national within the meaning of the afore-quoted provision upon the effective date of said act, and his failure to return to the United States for permanent residence prior to January 13, 1943, would not have resulted in his loss of American citizenship under said proviso ( In re G----, supra). There appears to be no doubt on the basis of this record that the appellant did nothing to indicate an abandonment of his American citizenship or an election of Canadian nationality prior or subsequent to the effective date of the Nationality Act of 1940. He never exercised his franchise as a Canadian citizen, nor did he ever register to vote in that country. At no time did he perform any act that would have expatriated him under then existing statutes.
If he had applied for admission prior to January 13, 1943, he would have been entitled to admission as an American citizen under the second proviso of sec. 401 (a) of the Nationality Act of 1940, mere residence in Canada not being in itself a voluntary abandonment of such citizenship ( In re S----, supra).
Not having elected to give up his American citizenship prior to January 13, 1941, did the appellant affirmatively elect to retain it? He testified that in 1926 he came to this country intending to reside here permanently, and that he was then admitted as an American citizen. He was single at that time, and he claims that he packed his trunk and took all of his belongings with him. His future wife, whom he married in October 1927, was then living in Spokane, Wash., and a child, the appellant being the father, was born to her in that city in October 1926. The appellant claims that he lived in Spokane for a period of about 2 months, working there as a truck driver, and that he was then forced to return to Canada to take care of certain business interests that he had in that country. His return, as his brother testified, was occasioned by the fact that the deal for the sale of his one-half interest in a garage in Canada had fallen through. To corroborate his testimony as to coming here for permanent residence in 1926, the appellant submitted affidavits from two residents of Canada. His wife and his brother both appeared at the hearing before the board of special inquiry and also corroborated his testimony. Though an independent investigation conducted by the Immigration and Naturalization Service failed to corroborate the appellant's claim to residence in Spokane during the period in question, this is not surprising in view of his short period of residence there and the ensuing lapse of time.
There are certain inconsistencies in the evidence with respect to the appellant's alleged return to the United States for permanent residence in 1926. They are, however, of a minor nature. The substance of his claim, we feel, has been established, and, accordingly, we find that he did enter the United States for permanent residence in 1926. This action on his part is alone sufficient to constitute an election of American citizenship ( Perkins v. Elg, supra). In addition, his failure to exercise his franchise as a Canadian citizen, the lack of evidence indicating any desire on his part to be considered a national of Canada, and his persistent claims to American citizenship make it abundantly evident that he made an affirmative election to American citizenship prior to January 13, 1941. His return to Canada after his brief residence in the United States in 1926, and his subsequent residence in that country in themselves have no effect upon his election and retention of American citizenship. The law does not now, and did not prior to the Nationality Act of 1940, make residence in the United States compulsory in the case of those native-born citizens who acquire foreign nationality through the naturalization of their parents during their minority and while residing abroad ( In re M---- (56127/855) [ see page 536, this volume]). The appellant abided by his election until the effective date of the Nationality Act of 1940 and was, therefore, not subject to the second proviso of section 401 (a) of said act on January 13, 1941. He has since never expatriated himself under existing law and must now be admitted as an American citizen.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the appellant was born in the United States on June 10, 1899;
(2) That the appellant was taken to Canada to live in 1906 and resided in that country until 1926;
(3) That on June 5, 1920, the appellant acquired Canadian nationality by reason of his father's naturalization in that country on said date;
(4) That the appellant returned to the United States for permanent residence in 1926, lived here for a period of 2 months, and then returned to Canada where he has since made his home;
(5) That the appellant has always been admitted to the United States as an American citizen on his claim to that status;
(6) That the appellant now seeks admission as an American citizen.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under Section 1992 of the Revised Statutes and section 1 of Article XIV of the amendments to the Constitution of the United States, the appellant was a citizen of the United States, at birth;
(2) That the appellant, after attaining his majority, elected to retain his American citizenship and thereafter abided by that election;
(3) That the second proviso of section 401 (a) of the Nationality Act of 1940 has no application to this appellant and he is now an American citizen.
ORDER: It is ordered that the appeal be sustained and the appellant admitted as an American citizen.