56172/261
Decided by Board January 10, 1945.
Citizenship — Expatriation — Employment by foreign government — Section 401 (d) of the Nationality Act of 1940.
Expatriation, under section 401 (d) of the Nationality Act of 1940 did not result from acceptance of employment as a stenographer for the Canadian Government, because such employment was not restricted to "Canadian" citizens.
Board of Special Inquiry held expatriation had occurred, and admitted subject as an alien.
BEFORE THE BOARD
Discussion: The above named applicant applied for admission for permanent residence at Victoria, B.C., on August 17, 1944, claiming United States citizenship. Her claim to citizenship was denied but she was admitted as an alien in possession of a valid Canadian passport and nonquota immigration visa issued pursuant to section 4 (c) of the Immigration Act of 1924. The case has been referred to this Board for determination of the citizenship issue.
The applicant was born in Portland, Oreg., on September 9, 1924. Her father was then a citizen of England. The applicant resided in the United States until 1936, when she went to Canada with her parents and where she has since resided. From January 1943 to May 1943, when over 18 years of age, the applicant was employed as a civil-service stenographer in the Department of National Defence, Naval Service of Canada.
The sole question presented is whether the applicant lost her United States citizenship by reason of her employment as a civil servant in Canada under section 401 (d) of the Nationality Act of 1940. This section provides that a national of the United States, whether by birth or naturalization, shall lose such 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;
The Department of National Defence wrote as follows regarding the applicant's employment:
Civil servants must be British subjects, natural-born or naturalized, with residence in Canada for 5 years, except, "In cases where, after due publicity, the Commission has been unable to secure an adequately qualified applicant with the necessary 5 years' residence in Canada, persons may be admitted to examination despite the fact that they have not resided in Canada for 5 years, provided they are otherwise qualified under the law and regulations."
The letter adds that oaths of allegiance are not required of civil servants and that the applicant took none.
The applicant testified that when she applied for the position she held herself out to be an American citizen but she was told by her interviewer that she was a British subject through her father. This is supported to some extent by the copy of the application attached to the record which bears the notation "Note: Dual Citizenship, British Subject by father's Birthplace."
The member of the Board of Special Inquiry who made the motion denying the applicant's claim to citizenship very ably discussed the difficulties attendant upon determining who are Canadian nationals, especially in connection with section 401 (d) of our Nationality Act of 1940. He concluded his motion with the following words:
In Canada, to my knowledge, where a question of citizenship is a requirement, no mention is ever made of a Canadian citizen or a Canadian national. The term "British subject" is always used. As for instance, in order to vote in most elections, you must be a British subject; in order to practice law in British Columbia a person must be a British subject; school teachers are required to be British subjects, and in the instant case, civil servants must be British subjects. In view of the fact that the term "national" is used in section 401 (d) of the Nationality Act of 1940, and that the term in Canada is an anomalous one, I believe this case should be forwarded to the Department under Operations Instructions 136.1 for a ruling as to the applicant's citizenship. I therefore move that her claim to United States citizenship be disallowed and that she be admitted for permanent residence with the visa and passport she has presented.
We have already determined that a statute of New Brunswick which required that incumbents of a particular position under that Province be British subjects, did not result in expatriation under section 401 (d) of the Nationality Act of 1940 because British subjects are not necessarily nationals of Canada. Matter of R----, 56156/670 (March 18, 1944). In the instant case, however, the qualifications for holding office as a civil servant require not only that the person be a British subject but also that such British subject shall have 5 years residence in Canada. Under section 2 (b) and (e) of the Canadian Immigration Act of 1910, a British subject having a lawful domicile of at least 5 years in Canada is a Canadian citizen. However, the aforementioned letter from the Department of National Defence points out that after due publicity, persons without the requisite 5 years residence may be employed if otherwise qualified under the law and regulations. Presumably, they must still be British subjects. We construed a similar provision of the Judicial Code of Mexico in Matter of S---- P----, 56156/765 (March 11, 1941), and there held that since Mexican law permitted the employment of non-Mexicans under certain conditions, the position in question was not one for which only nationals of such state were eligible. And this despite that it appeared that the individual involved did enjoy Mexican nationality and was not hired under the special circumstances outlined in the Judicial Code of Mexico. Our conclusion was predicated upon the theory that section 401 (d) operates to terminate citizenship and therefore should be narrowly applied and strictly construed.
Art. 6: "All federal workers shall be of Mexican nationality and may be substituted by foreign workers only in the absence of Mexican technicians necessary to efficiently develop the service in question. The substitution shall be decided by the Secretary or Department of the respective State, consulting beforehand the corresponding syndicate, and, in case of disagreement between the latter and the Secretary, it shall be agreed upon decision of the Arbitration Tribunal."
Upon application of the principle advanced in the Matter of S---- P----, supra, it is evident that the position held by the applicant is not one for which only British subjects who are citizens of Canada are eligible. This fact when considered with the distinction, above indicated, between British subjects and citizens of Canada, impels us to arrive at the one conclusion; that being, of course, that the applicant, by accepting the aforementioned position, did not thereby expatriate herself under section 401 (d) of the Nationality Act of 1940.
There is nothing in the record to indicate that the applicant has otherwise lost her United States citizenship in any manner provided by law. She was, on October 5, 1943, married to a Canadian citizen but she did not thereby lose United States citizenship under the Nationality Act of 1940. We find that the applicant is a citizen of the United States.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the applicant seeks admission to the United States as a citizen thereof;
(2) That the applicant was born in Portland, Oreg., on September 9, 1924;
(3) That the applicant's father was a native of England and was, at the time of the applicant's birth and at all times hereinafter stated, a British subject;
(4) That the applicant has resided in Canada from 1936 to the date of her present application for admission;
(5) That from January to May 1943, inclusive, the applicant was employed as a civil servant by the Department of National Defence of Canada;
(6) That British subjects, other than nationals or citizens of Canada, may be employed as civil servants in Canada under certain circumstances.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 under the fourteenth amendment to the Constitution of the United States, the applicant was a citizen of the United States at birth;
(2) That under section 401 (d) of the Nationality Act of 1940, the applicant did not lose her United States citizenship by reason of 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.Order: It is ordered that the denial of the applicant's claim to United States citizenship by a Board of Special Inquiry be reversed and that the applicant's admission to the United States be recorded as that of a citizen.