56107/609
Decided by the Board September 29, 1942.
Citizenship — Expatriation — Section 401 (d), Nationality Act of 1940 — Accepting employment by foreign state.
United States citizenship is not lost under section 401 (d) of the Nationality Act of 1940 when a person accepts employment as a public-school teacher in Quebec, Canada, since other than Canadian nationals are eligible for such employment.
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: The appellant appeared before a board of special inquiry at Montreal, Canada, on August 11, 1942, applying for admission as a citizen of the United States, and was excluded on the above-stated grounds. The hearing was reopened on September 2, 1942, and at its conclusion the board of special inquiry again voted to to exclude the appellant, but on the single ground that she is an alien not in possession of a valid passport and valid passport visa as required by Executive Order 8766. She appeals.
DISCUSSION: The appellant testified she was born on September 20, 1915, at Fort Covington, N.Y.; that her father was born in Dundee, Canada, and that her mother was born in Salem, N.Y. She stated further that a few weeks after her birth she was taken to the home of her parents in Canada.
She testified that she had never become naturalized in Canada and had never taken an oath of allegiance to the British Crown or to the Canadian Government. However, she stated that she has been teaching school in Canada since she was 17 years old in 1933, and that her preparation to teach was in McDonald College. She was asked: "At the time you entered McDonald College were you obliged to prove that you were a British subject through your parents?" She replied: "When I filled out my application form I remember it said something about nationality but not being 21 I understood that I had a choice but did not have to choose until I was 21 so I put down that I had not made my choice as yet." She was then asked: "When you became 21 were you obliged to fill out additional papers regarding your nationality?" and answered: "No; no papers were ever sent to me so I was never obliged to do anything about it." She stated further that the only paper she has "filled out" since she started teaching in 1933 was her contract.
She submitted a letter signed by the secretary-treasurer of the Mansfield district school informing her that her application to teach at the Fort Coulonge school had been approved and that she was engaged for the years 1942 and 1943. She was then informed that the McDonald College Announcement Book for the years 1942 and 1943 contains the following statement: "Candidates for any class must be British subjects or must have begun the necessary proceedings to become such and must furnish the facts of age and of good moral character as required by the Committee." She was then asked, "From this it would appear that anyone accepting the post of school teacher in the Province of Quebec must be a British subject. Is that right?" To this she responded in the affirmative. She was then asked whether she had ever held any civil-service post in Canada and whether she had ever voted in any election or in the "Plebiscite" there, and answered both questions in the negative.
She was then asked whether she had ever applied for a passport or a visa and stated that she had been told by the American consul "last year" that she did not need a visa or a passport. She further stated that on several previous occasions she had been permitted to cross into the United States on presentation of the birth certificate showing she was born at Fort Covington, N.Y., on September 20, 1915. At the conclusion of the hearing on August 11, 1942, the following motion was unanimously carried by the board of special inquiry:
I move to disallow the claim of United States citizenship made by H---- L---- S---- on the ground that she is a person who has lost her nationality under section 401 (d) of the Nationality Act of 1940 by accepting and performing the duties of an office, post, or employment under the government of a foreign state or political subdivision thereof for which only nationals of such state are eligible, to wit: Employment as a school teacher by the Department of Education, Quebec, Canada, and I move to exclude her as an alien not in possession of a valid passport and a valid passport visa as required by Executive Order No. 8766 of June 3, 1941, and section 3 of the Immigration Act of May 26, 1924, as amended.
On August 14, 1942, the district director addressed the following letter to the inspector in charge at Montreal:
The applicant was born in Fort Covington, N.Y., September 20, 1915, of Canadian parents. Except for a few weeks immediately following her birth, she has always resided in Canada. She has been teaching in the Province of Quebec since 1933. The letter in the case of Joseph Wilfred Bergerson and the excerpt from the McDonald College Announcement Book for the years 1942 and 1943 indicate that candidates for admission to the School for Teachers at McDonald College, must be British subjects or must have taken the necessary proceedings to become British subjects. It is not definitely established in the record, however, that only nationals of Canada are eligible for service as school teachers in the Department of Education, Province of Quebec. An attempt should be made to obtain a written statement from an appropriate official of the Department of Education showing whether Miss S---- was a national of Canada at a time subsequent to January 13, 1941, when serving as a school teacher and whether only nationals of Canada are eligible for such service, as required by section 315.6 of the First Supplement to General Order No. C-28. It would be well to ascertain at the same time whether persons accepting positions as school teachers in the Province of Quebec are required to take an oath of allegiance and whether any distinction as to eligibility is made between Canadian citizens and other British subjects.
The board of special inquiry disallowed the applicant's claim to United States citizenship and excluded her "as an alien not in possession of a valid passport and a valid passport visa as required by Executive Order No. 8766 of June 3, 1941, and section 3 of the Immigration Act of May 26, 1924, as amended." The lack of a passport visa is a ground for exclusion under the Executive order, but not under the Immigration Act of 1924. Section 3 of that act defines an immigrant and the various classes of nonimmigrants are listed in the clauses of that section. The authority for exclusion for lack of an immigration visa appears in section 13 (a) of the 1924 act and relates only to immigrants.
In accordance with the instructions contained in the above-quoted letter, the following communication was addressed by the Montreal office to Mr. W.R. Percival, Director of Protestant Education, Department of Education, Quebec, Quebec, Canada, on August 19, 1942:
This Department is desirous of securing information regarding the nationality of school teachers appointed in the Province of Quebec, and has been referred to you as the proper officer from whom to obtain definite rulings. Will you kindly supply a ruling on the following points:
1. Are only nationals of Canada eligible for the position of school teacher in the Province of Quebec, or could a person born in the United States of United States born parents secure such a position in Quebec?
2. Is there any distinction as to eligibility made between Canadian citizens and other British subjects?
3. Are persons accepting positions as school teachers in the Province of Quebec required to take an Oath of Allegiance to the Canadian or British Government?
The case under consideration at this moment is that of Miss H---- L---- S----, born in Fort Covington, N.Y., September 20, 1915, of Canadian parents. We should also appreciate a statement showing whether Miss S---- was a national of Canada at a time subsequent to January 13, 1941, when serving as a school teacher.
This office would appreciate an expression of your opinion on the above questions, and I am sure they will do much to clear up many difficulties in our interpretation of your regulations.
Under date of August 31, 1942, the Director of Protestant Education in the Province of Quebec replied as follows:
I have received your letter of August 19, and shall answer your questions seriatim:
(1) A teacher holding a teaching diploma granted by the educational authority outside of the Province of Quebec, who desires to teach in this province, must produce satisfactory evidence that he is a British subject or has begun the necessary proceedings to become such.
(2) No.
(3) Allegiance to the British Crown is implicit in British citizenship.
According to our records Miss H---- L. S---- was born at Fort Covington, N.Y., on September 20, 1915. Both her parents were Canadian and on that ground she was admitted to the School for Teachers. At the time of her admission her home was in St. Agnes de Dundee, Huntingdon County, Quebec. She graduated in 1933, receiving an elementary diploma. Since graduation she has taught in schools in Pontiac County under the following school boards: Thorne (1933-37), Mansfield South (1937-40), Mansfield dissentient (1940-41).
With this information, it is likely that you will be able to decide whether Miss S---- is entitled to Canadian citizenship.
Thereafter the board of special inquiry again voted to disallow the claim of United States citizenship made by the appellant on the ground that she is a person who has lost her nationality under section 401 (d) of the Nationality Act of 1940. This section reads as follows:
SEC. 401. A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:
* * * * * * *
(d) Accepting, or performing the duties of, any office, post, or employment under the government of a foreign state or political subdivision thereof for which only nationals of such state are eligible; * * *
The answer given by the Director of Protestant Education of the Province of Quebec to the first question addressed to him shows that employment as a teacher under the Government of Quebec, which is a political subdivision of Canada, the foreign state in question, is not an employment for which only nationals of such state are eligible, since others than British subjects, namely those who have "begun the necessary proceedings to become such" are eligible for such employment. Also, the Director's answer to the third question put to him, namely, "Are persons accepting positions as school teachers in the Province of Quebec required to take an oath of allegiance to the Canadian or British Government?" with the words "allegiance to the British Crown is implicit in British citizenship" means, if it means anything, that persons accepting positions as school teachers in the Province of Quebec are not required to take an oath of allegiance to the Canadian or British Government.
It may be added that the appellant is not in possession of either a valid Canadian passport visa, or any sort of a permit to enter.
FINDINGS OF FACT: Upon the basis of all the evidence presented it is found:
(1) That the appellant was born at Fort Covington, N.Y., on September 20, 1915;
(2) That she has been employed as a public school teacher in Quebec, Canada;
(3) That employment as a public school teacher in Quebec, Canada, is not employment for which only nationals of Canada are eligible;
(4) That she is not in possession of any documents required of an alien for admission to the United States.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact it is concluded:
(1) That under the first provision of the fourteenth amendment to the United States Constitution, the appellant was born a citizen of the United States;
(2) That under section 401 (d) of the Nationality Act of 1940, she did not lose her nationality by accepting or performing the duties of any office, post, or employment under the government of a foreign state or political subdivision thereof for which only nationals of such state are eligible;
(3) That as a citizen of the United States she is admissible without being required to be in possession of any travel document.
ORDER: It is ordered that the appeal be sustained and the appellant admitted as a citizen.