VP-385381
Decided by Board August 3, 1949
Citizenship — Acquisition by birth in the United States — Acquisition after birth of foreign nationality (Lithuania) — Expatriation — Oath of allegiance to Lithuania in connection with Lithuanian Army Service in 1934-35 — Section 2 of act of March 2, 1907 — Expatriative effect if such oath "involuntary" — Evidence of such "involuntary" conduct.
1. A person, born in the United States of Lithuanian parents on June 4, 1913, who returned to Lithuania with his parents in 1914 and remained there until 1944, acquired United States citizenship at birth and subsequently acquired Lithuanian citizenship under Lithuanian law.
2. Pursuant to a draft law in effect in Lithuania in 1934, military service was compulsory and universal in character, so that where the above person, deemed to be a Lithuanian citizen and liable to military service by the Lithuanian Government, was conscripted into the Lithuanian Army and thereafter (when over 21) took the required oath of allegiance to Lithuania (served 1934-35), he is not held to have bevome expatriated under the provisions of section 2 of the act of March 2, 1907 where the evidence indicated this oath of allegiance was not taken voluntarily. (See 3 IN Dec. 586.)
BEFORE THE BOARD
This case is before us on appeal from a decision of the Acting Assistant Commissioner dated November 4, 1948, denying the visa petition on the ground that petitioner had expatriated himself by taking an oath of allegiance to Lithuania in 1934, in connection with his performance of military service in that country. The applicant, claiming to be a citizen of the United States, filed petition on August 7, 1947, in behalf of his parents with a view to their being accorded a preference quota status pursuant to section 6 (a) (1) of the Immigration Act of 1924 (8 U.S.C. 206). American citizenship of the applicant is essential to a grant of such application.
Petitioner was born in Waterbury, Conn., on June 4, 1913, of Lithuanian parents; at that time, his father had lived in the United States for about 9 years, while his mother had been here approximately 2 years. In 1914 petitioner returned to Lithuania with his parents, where he remained until 1944. On November 23, 1944, he entered Sweden, having escaped from Lithuania in a refugee fishing boat. On March 28, 1946, petitioner executed an application for registration as an American citizen at Stockholm, Sweden in which he stated that he had entered the Lithuanian Army on May 1, 1934 (when he was still 20 years old) and served until November 1, 1935; at that time, the State Department determined that petitioner, being a minor at the time he took the oath of allegiance, had not expatriated himself, and authorized the issuance of a passport on February 21, 1947. Petitioner arrived at New York on March 24, 1947, and was admitted as a United States citizen. During a hearing on the instant petition held December 28, 1947, petitioner had difficulty recalling the events which took place in 1934, but he stated that he thought he was inducted upon reaching the age of 21 (the exact month was in doubt). He further stated that he was forced to serve in the Lithuanian Army.
According to the draft law in effect in Lithuania in 1934, military service was compulsory and universal in character. Upon reaching the age of 21½ years, young men, who were considered Lithuanian subjects, were liable for 18 months of active service in the army; the enrollment of conscripts took place twice a year, on May 1 and November 1. Since petitioner was the son of Lithuanian citizen parents and returned with them to live in Lithuania, he was considered a citizen of Lithuania. The power to determine who were Lithuanian citizens and liable for military service rested with the Lithuanian Government. In 1934 there was no treaty between Lithuania and the United States which touched on this dual citizenship problem.
P. 454 ff., World Armaments Year — Book-1934, League of Nations; League of Nations Publications, IX, 3, Disarmament.
Provisional Law of January 9, 1919, as translated in Flournoy and Hudson, Nationality Laws, 1929 edition, p. 417.
In view of the above feature of the Lithuanian draft law in effect in 1934, it must be assumed that petitioner was inducted either on May 1, or November 1, of 1934; on May 1, he would have been 20 years old, for his birthday was June 4. However, regardless of the date of petitioner's induction, the crucial question is when did petitioner take the oath of allegiance (for he has admitted that he did take such an oath sometime after induction). The Lithuanian Minister has advised us that the oath of allegiance is taken by conscripts 3 to 6 months after their induction and that the oath is ordinarily administered to the group as a whole while assembled on the parade ground. Regardless of which date petitioner was inducted into the Lithuanian Army (May 1 or November 1), petitioner was over 21 when he took the oath of allegiance.
According to the provisions of section 2 of the act of March 2, 1907, a native-born citizen is expatriated upon taking an oath of allegiance to a foreign state. The Supreme Court has said "that the statute was aimed at a voluntary expatriation" ( Perkins et al. v. Elg, 307 U.S. 325, 343, 1939). It has been held in several instances that force was employed to induct conscripts into European armies, although the conscripts were admittedly dual nationals at the time of induction or administering the oath of allegiance. In re Gogal, 75 F. Supp. 268 (D.C., W.D. Pa., 1947); Dos Reis ex rel. Camara v. Nicolls, 161 F. (2d) 860 (C.C.A. 1, 1947); Savorgnan v. United States, 171 F. (2d) 155 (C.C.A. 7, 1949); Doreau v. Marshall, 170 F. (2d) 721 (C.C.A. 3, 1948). See also U.S. ex rel. Fracassi v. Karnuth, 19 F. Supp. 581 (D.C., W.D.N.Y., 1937); Bauer v. Clark, 161 F. (2d) 397 (C.C.A. 7, 1947).
Relying upon the requirement in Lithuania to serve in the armed forces, and the applicant's assertion that he did not serve willingly, but did not protest because of his conviction that protest would be futile, which assertion is not contradicted, we conclude that a finding of expatriation is not warranted. This leads to a conclusion that his original status of a citizen of the United States still continues ( Ceruti v. Marshall (D.C., S.D.N.Y., January 5, 1949)).
Order: It is hereby ordered that the appeal be sustained and that the immigration visa petition filed by J---- S---- S---- in behalf of his parents, S---- and M---- S----, be issued.