A-7278538, 9 (husband and wife)
Decided by Board January 25, 1950
Citizenship — Expatriation by naturalized persons by residence abroad — Section 404 of the Nationality Act of 1940 — When expatriative period begins to operate — Exceptions under section 406 (c) and (e) of that act.
In the case of a naturalized (1935) person who went to his native country because of ill-health in April 1946, and was ill for a year thereafter, it was held that the 3-year period of residence abroad, which would cause expatriation in his case under section 404 (b) of the Nationality Act of 1940, did not begin to run until his recovery (1947), in view of the exemption stated under section 406 (c) of that act; and as to his naturalized (1940) wife who went with him to Canada in April 1946, she was deemed to have a similar benefit in view of the exemption stated under section 406 (e) of that act.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Executive Order 8766-no passport.
BEFORE THE BOARD
Discussion: These cases are before us on appeal from an order of the Assistant Commissioner affirming a decision of a Board of Special Inquiry excluding the subjects from admission to the United States on the above-stated grounds.
The appellants, a male, about 54 years of age, born in Canada on November 29, 1895, and his wife, about 52 years of age, also born in Canada, entered the United States for permanent residence on March 17, 1923. The husband was naturalized as a United States citizen on February 11, 1935, in the United States District Court, at Detroit, Mich., and his wife was naturalized in the same court on July 1, 1940.
On April 6, 1946, the appellants returned to Canada. They disposed of their home in the United States and purchased a farm in Canada.
The husband left the United States for his health. For the first year he was in Canada he received medical treatment, but he thereafter worked on his farm. On August 21, 1949, the appellants sought admission to the United States as citizens and were excluded as stated above. The Service has reached the conclusion that the appellants lost their United States nationality under section 404 (b) of the Nationality Act of 1940 by residing for 3 years in the territory of a foreign land of which they were formerly nationals and in which their place of birth is situated. The Service also concludes that section 406 (c) and (e) of the Nationality Act of 1940 are not here applicable.
The appellants left the United States on April 6, 1946, and were residing in Canada at the time of their application for admission on August 21, 1949. In March 1949 the male applicant turned over his farm to an agent for sale with the ultimate view of returning to this country for permanent residence.
The record establishes that the male appellant went to Canada on account of ill health. For the first year of his residence, that is until 1947, the record establishes that he was ill. We believe that for the year he was ill, that section 406 (c) applies and that the 3-year period within which he should return to this country begins to run upon recovery. Therefore, the appellant was still within the exemption and is entitled to admission as a United States citizen. Based on the foregoing, section 406 (e) is applicable to the wife and she should be admitted as a citizen.
Order: It is ordered that the appeal be and the same is hereby sustained and that the appellants be admitted as United States citizens.