A-7091654
Decided by Central Office December 8, 1947 Decided by Board February 20, 1948
Citizenship — Acquired by naturalization (1934) — Expatriative effect of marriage to alien (1934) and voting in foreign plebiscite (1938-39) — Section 3 of the act of September 22, 1922, as amended — Section 2 of the act of March 2, 1907.
(1) An alien, a native and national of Germany, who was naturalized here in June 1934 (about 8 years after she came here), and who married a German national here in October 1934, thereby acquiring German nationality under German law, did not become expatriated in view of the provisions of section 3 of the act of September 22, 1922, as amended, unless she made formal renunciation (see section 3 of the act of May 24, 1934), and her acquisition of German nationality as a result of her marriage was not a "naturalization" under American law (section 2, act of March 2, 1907).
(2) Such a national of the United States did not become expatriated under the provisions of section 2 of the act of March 2, 1907 by participating in a German plebiscite in 1938 or 1939 (she resided in Germany from 1936 to October 1946), for she was not "naturalized" thereby within the meaning of section 2, supra, and participating in a foreign political election was not an act of expatriation under our law at that time.
(3) The combination of the above marriage in 1934 and the participation in the foreign plebiscite in 1938 or 1939 did not result in expatriation on any theory of election, since the subject was under no obligation to elect between American or German nationality.
BEFORE THE CENTRAL OFFICE
Discussion: The above-named person has filed a petition for issuance of an immigration visa to her husband, K---- (K----) W----, a native and citizen of Germany. The question involved is whether the petitioner was expatriated by acquiring German nationality by reason of her marriage to a German national.
The petitioner was born in Germany on April 27, 1909, and was naturalized by the United States District Court, New York, N.Y. on June 4, 1934.
She married the beneficiary in the United States on October 28, 1934, and resided in Germany from February 1936 to October 1946. About the year 1938 or 1939, she voted in a German plebiscite. She last arrived in the United States at the port of New York on October 21, 1946, via the S.S. Marine Marlin, and was admitted for "60 days to adjust status." Later, her status was adjusted under O.I. 801.2 IV, and the record noted to show admission as a United States citizen.
Petitioner testified under oath at the New York office of this Service on July 17, 1947, that, at the time of her departure from the United States about February 1936, it was her intention to return, but she did not register with the American Consulate in Germany, nor with the consul of any neutral country representing the United States during the war; that she did not, by herself, become naturalized in Germany during the war, but that "the German law considers a woman by the nationality of her husband," and that she was, therefore, considered a German by the German authorities; that, as a German, she was compelled to vote in the plebiscite, about 1938 or 1939, which was the purpose of deciding whether Hitler should be leader or not; and that she did not protest against voting.
As previously stated, the petitioner was naturalized in this country on June 4, 1934. By marriage to a German national on October 28, 1934, she became a German national under section 6 of the German "Imperial and State Citizenship Law" proclaimed on July 22, 1913 ( Nationality Laws, Flournoy and Hudson, 1929), which law, according to the Department of State publication entitled, "National Socialism," dated December 1, 1942, had, aside from certain amendments, remained unchanged to that date as the basic German law regarding citizenship.
It has been held that United States citizenship was lost prior to January 13, 1941, by a woman whose husband had been naturalized in Germany in 1923, who thereby acquired German nationality under the laws of Germany, and who indicated by her subsequent conduct her acceptance of German nationality ( Matter of G---- N----, C.O. decision dated May 26, 1944, file 2A-14052). A more recent decision deals with the case of a native-born citizen of the United States who married a Canadian citizen in 1929, and acquired the Canadian nationality of her husband (2739 — P-590, M---- S---- P----). In both instances, it was held that, although dual nationality is often unavoidable, there is no question but that the individual may by his own conduct demonstrate his preference.
Prior to January 13, 1941, a citizen of the United States could only lose his United States citizenship by taking an oath of allegiance to or being naturalized in a foreign country. The acquisition of German nationality, by reason of the petitioner's marriage to a German national, was an involuntary naturalization which this Service only recognizes if the naturalized person accepts some right or benefit as a citizen of the naturalizing country. By voting in the plebiscite and holding herself out and permitting herself to be regarded as a citizen of Germany, Mrs. W---- accepted German nationality and thus she must be regarded as having expatriated herself under the provisions of section 2 of the act of March 2, 1907, by becoming naturalized in a foreign country. It is concluded, therefore, that, since the petitioner is not a United States citizen, she is not eligible under section 9 (b) of the Immigration Act of 1924 to file a petition for the issuance of an immigration visa.
Recommendation: It is recommended that the visa petition be denied.
So ordered.
Discussion: This case is before us on appeal from an order of the Acting Commissioner denying petitioner's application for preference quota status for her husband. The application was denied on the ground that the petitioner was not an American citizen.
Petitioner was born in Germany in 1909. She came to the United States in 1926. On June 4, 1934, she was naturalized an American citizen in the United States District Court for the Southern District of New York. She married the beneficiary in this country on October 28, 1934. The beneficiary was then a German national, and the petitioner acquired German nationality by reason of her marriage.
In February 1936 the petitioner and apparently the beneficiary went to Germany. In about 1938 or 1939 the petitioner voted in one of the German plebiscites. In October 1946 she returned to the United States. She was eventually admitted as an American citizen.
We quote from the Acting Commissioner's decision of December 8, 1947 as to his reasons for finding that petitioner had lost her American citizenship:
The acquisition of German nationality, by reason of the petitioner's marriage to a German national, was an involuntary naturalization which this Service only recognizes if the naturalized person accepts some right or benefit as a citizen of the naturalizing country. By voting in the plebiscite and holding herself out and permitting herself to be regarded as a citizen of Germany, Mrs. W---- accepted German nationality and thus she must be regarded as having expatriated herself under the provisions of section 2 of the act of March 2, 1907, by becoming naturalized in a foreign country.
Petitioner's acquisition of German nationality as a result of her marriage was not a naturalization, either voluntary or involuntary, under American law. Section 3 of the act of September 22, 1922, as amended by the act of March 3, 1931, then provided, "A woman citizen of the United States shall not cease to be a citizen of the United States by reason of her marriage after this section, as amended, takes effect, unless she makes a formal renunciation of her citizenship before a court having jurisdiction over naturalization of aliens."
Again, petitioner, by participating in a German plebiscite in 1938 or 1939 was not thereby "naturalized in (a) foreign state" within the scope of the act of March 2, 1907. Assuming that the plebiscite in which petitioner participated was a political election, that conduct on her part was not, under American law, an act of expatriation in 1938 or 1939. It became such only upon the effective date of the Nationality Act of 1940.
Moreover, we do not think that the combination of her marriage in 1934 and her participation in the plebiscite in 1938 or 1939 resulted in expatriation on any theory of election. Petitioner, after her marriage in 1934, was under no obligation to elect between American or German nationality. Her American citizenship could have been forfeited only by a formal renunciation before an American naturalization court or by the performance of a statutory act of expatriation. See 37 Op. Atty. Gen. 206 (1933); cf. 39 Op. Atty. Gen. 411 (1940).
We conclude that petitioner is an American citizen. Her application for preference quota status on behalf of her husband will be approved.
Order: The Acting Commissioner's order is reversed, and
It is ordered that the application for preference quota status be and the same is hereby approved.