C-1630002
Decided by Central Office August 2, 1949
Citizenship — Acquisition by birth in the United States — Acquisition subsequent to birth of foreign nationality through naturalization abroad of father during child's minority — Expatriation — Failure to return to United States before twenty-third birthday on February 6, 1945 — Section 401 (a) of the Nationality Act of 1940 — Effect where timely effort is made to return here but such return is prevented by circumstances beyond person's control and the return is delayed until a reasonable opportunity permits it — Analogy to administrative action taken in cases coming under section 404 of the Nationality Act of 1940
1. A person born here on February 6, 1922, of a father naturalized here on May 19, 1921 (such citizenship canceled March 20, 1925), acquired United States citizenship at birth; such person acquired Lithuanian citizenship on December 5, 1924, through the father's naturalization in Lithuania, where the family had gone to live in 1922.
2. Where such person had not expatriated herself before by her own voluntary act, and was a dual national on January 13, 1941, when section 401 (a) of the Nationality Act of 1940 became effective, and such person did not return to the United States until May 27, 1946, which was after she reached her twenty-third birthday, she is deemed to have expatriated herself on her twenty-third birthday (February 6, 1945) under the provisions of section 401 (a) of the above act, there being no evidence the person made any effort or showed any intention to return to the United States after reaching her majority on February 6, 1943 either before she was taken into custody by German authorities a year and 5 months later (July 1944), or at any time up to her twenty-third birthday.
3. This situation is distinguishable from one where the person makes a timely effort to return here but such return is prevented by circumstances beyond her control, and such person thereafter returns here at the first opportunity; in which cases the administrative action taken in cases under section 404 of the Nationality Act of 1940 has been applied by analogy.
BEFORE THE CENTRAL OFFICE
Discussion: On May 14, 1947, the Department of State submitted to this Service a report in the case of the subject named above showing that on April 27, 1946, the American Legation at Copenhagen, Denmark, issued an American passport to the subject in which the name of her, E---- W---- Z----, born out of wedlock in Denmark on July 6, 1945, was included. It was requested that a determination be made whether the applicant and her son are considered to be American citizens, and if they are found not to be citizens, that the passport be taken up and transmitted to the Department of State. This report contained the following statement:
Since it is apparent that the subject had not established a permanent residence in the United States on February 6, 1945, when she became 23 years of age, the Department is of the opinion that she lost at that time under the provisions of section 401 (a) of the Nationality Act of 1940, any claim which she may have had to American citizenship and as her son was born subsequent to this date he does not appear to have a valid claim to American citizenship.
The subject was born in Cleveland, Ohio, on February 6, 1922. Her father, a native of Russia, had been naturalized as a citizen of the United States on May 19, 1921, in the Common Pleas Court, Cleveland, Ohio, certificate number 1630002. In 1922 the family went to Lithuania where the father was admitted to Lithuanian citizenship on December 5, 1924. On March 20, 1925, the naturalization of the subject's father as a United States citizen was canceled by the United States District Court, Cleveland, Ohio.
The subject stated that she had been told by her mother that she was less than 1 year old when her parents returned to Lithuania, and that she had lived in that country from 1922 to 1944. She said that her child E---- W---- Z---- was born in Denmark on July 6, 1945. She stated that the father of her child, to whom she was never married, was W---- H----, a German who had been a guard in a war plant where she was forced to work in Germany during the war and that he and other guards at the plant had raped her and other girls working there. She stated that as a result of this experience her child was born. The subject stated that she was 23 years old when her baby was born; that she had been forced to go to Germany in 1944 by the Germans; and that she had never made any attempt to come to the United States until she secured her passport in 1946. She said that she believed her father had been naturalized in Lithuania.
The subject and her son entered the United States at New York, N.Y., on May 27, 1946, and were admitted as United States citizens.
The record includes an affidavit executed by the subject on December 14, 1945, before an American consul, at Copenhagen, Denmark, to explain her protracted foreign residence. Therein the subject alleged that she had lived in Lithuania from 1922 to 1944; that her older brother returned to the United States in 1929; that her younger brother returned to the United States in 1930; that the older brother revisited Lithuania for a short period in 1937; that during the war, up until 1944, nothing much happened to her or her mother; that in July 1944, she had been forced to work in Germany under guard for the Germans until the cessation of hostilities in 1945. At the time this affidavit was executed, the subject was living in a camp in Denmark and expressed the desire to come to the United States. A notation on this affidavit stated that the interpreter employed in the case, who was vouched for by the British — American — Danish intelligence and security officers, expressed the opinion that the subject had told the truth about her story as set forth in the affidavit.
This case was previously considered by this Service on January 2, 1948, at which time it was recommended that further information be obtained from the Department of State concerning the question as to whether the subject's father had been actually naturalized in Lithuania or whether he had been merely recognized as a Lithuanian citizen by the government of that country. On June 13, 1949, the Department of State informed this Service:
The records of this Department disclose that the subject's father was naturalized in Lithuania upon his own petition. This Department is of the opinion that cancellation of the father's naturalization as an American citizen would have no bearing on his acquisition of Lithuanian nationality in 1924 since it appears that the father had not previously possessed Lithuanian nationality. The father left Europe in about 1907 which was prior to the date that Lithuania was established as a foreign state.
The record before us establishes, therefore, that the subject acquired United States nationality at birth in the United States and acquired Lithuanian nationality subsequent to her birth through the naturalization of her father during her minority. The applicable statute covering the facts disclosed in the instant case provides:
SEC. 401. A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:
(a) Obtaining naturalization in a foreign state, either upon his own application or through naturalization of a parent having legal custody of such person; Provided, however, That nationality shall not be lost as the result of the naturalization of a parent unless and until the child shall have attained the age of 23 years without acquiring permanent residence in the United States: Provided further, That a person who has acquired foreign nationality through the naturalization of his parent or parents, and who at the same time is a citizen of the United States, shall, if abroad and he has not heretofore expatriated himself as an American citizen by his own voluntary act, be permitted within 2 years from the effective date of this act to return to the United States and take up permanent residence therein, and it shall be thereafter deemed that he has elected to be an American citizen. Failure on the part of such person to so return and take up permanent residence in the United States during such period shall be deemed to be determination on the part of such person to discontinue his status as an American citizen, and such person shall be forever estopped by such failure from thereafter claiming such American citizenship. [Italic supplied.]
According to the terms of the statute above set forth, the subject was required to return to the United States and acquire permanent residence therein prior to her twenty-third birthday which in this case was reached on February 6, 1945. Accordingly, under a literal reading of the statute, the subject would have lost her United States nationality since she did not return to the United States until May 27, 1946. However, this Service and the Department of State by administrative decisions have modified the effect of section 401 which would ordinarily have resulted from a literal and strict interpretation of that section of the Nationality Act of 1940. In Matter of S----, 56173/526 (State Department file Y130 — S---- S----) the record indicates that S---- S---- was born at Baltimore, Md., on December 5, 1908; that she acquired Polish nationality as a minor through the acquisition of such nationality by her father on October 23, 1922; that she applied for an American passport at Warsaw, Poland, on October 29, 1930; that she did not make use of the passport which was authorized for her return to the United States at that time, apparently because she married a Polish national and continued to reside with her husband in Poland; that she applied for a passport at Warsaw, Poland, on January 26, 1940, for travel to the United States with her minor son, stating that she would return to the United States as soon as she obtained a passport and a steamship ticket; that a passport was issued to her on May 27, 1941, by the American Consul General at Berlin, Germany, since evidence was presented that her passage to the United States was booked upon the S.S. Excanbion sailing from Lisbon, Portugal, on June 27, 1941; that Mrs S---- was subsequently interned in Germany; and that she again applied for documentation as an American citizen on March 3, 1943 and on October 10, 1945. In a communication dated January 19, 1948, addressed to this Service, the Department of State stated that:
The Department has reviewed her case in the light of the opinion of the Attorney General to the effect that naturalized American citizens who made arrangements to return to the United States on or before October 14, 1946, but were prevented by transportation difficulties or other delays incidental to travel and over which they had no control should not be held to be expatriated under the provisions of section 404 of the Nationality Act of 1940. By analogy, the Department considers that a person who acquired foreign nationality through the naturalization of a parent and who did everything within his power to return to the United States before January 13, 1943, or before his twenty-third birthday, whichever is later in time and who was prevented from doing so by circumstances beyond his control, may be held not to have lost American citizenship under section 401 (a) of the Nationality Act until after he shall have had reasonable opportunity to return to the United States.
In view of the foregoing, the Department is authorizing the documents of Mrs. S---- for travel to the United States as an American citizen, and requests that the certificates of the loss of the nationality of the United States previously transmitted in her case be disregarded.
A similar decision was reached by this Service in Matter of G----, A-175622, in which the subject was held not to have expatriated under section 401 despite the fact that she attained the age of 23 years without acquiring permanent residence in the United States where the evidence of record indicated that efforts were made to return to the United States prior to the outbreak of World War II but where return to this country could not be accomplished because of subject's inability to secure passage on account of then existing travel conditions.
In Matter of O----, A-6921085 (State Department file Y130 — O----, J----, the Department of State informed this Service in a communication dated June 6, 1949, that in the opinion of that Department, Mr. O---- expatriated by reason of section 401 (a) of the Nationality Act and was not entitled to the protection of the theory advanced in Matter of S---- for the reason that in the O---- case it appears that Mr. O---- had proceeded to Norway in 1931 and that he took no steps to establish a claim to American citizenship or to obtain a passport for travel to the United States prior to his execution of a passport application at Oslo, Norway, on February 15, 1946, he having reached his twenty-third birthday in 1938. The State Department held that since Mr. O---- failed to show that he made any effort whatever to proceed to the United States prior to January 13, 1943, the later of the two dates set forth in section 401 (a), the Department was of the opinion that O---- must be considered to have lost nationality of the United States under section 401 (a) of the Nationality Act. A certificate of loss of nationality dated May 14, 1948, was approved by the Department of State.
The administrative theory advanced in the three cited cases establish the principle that a dual national will not suffer loss of United States nationality under section 401 (a) of the Nationality act of 1940, where such person did everything within his power to return to the United States before January 13, 1943, or before his twenty-third birthday, whichever is later in time, and who was prevented from doing so by circumstances beyond his control, where return to the United States was made after having had reasonable opportunity to do so. As stated in the Department of State's communication dated January 19, 1948, in Matter of S----, this principle was established by drawing an analogy between cases arising under section 401 (a) and those under the provisions of section 404 of the Nationality Act. A clearer understanding of that principle can be obtained if we note the action taken by this Service, the State Department, and the Attorney General in those cases arising under section 404.
In Matter of V----, A-6501663, the subject, a naturalized United States citizen, received a United States passport in September 1946, in Greece, but was unable to return to the United States by October 14, 1946, due to transportation difficulties. The Board of Immigration Appeals in its decision of February 28, 1947, held that expatriation would not result under section 404 and 409 of the Nationality Act of 1940, where a person on or before October 14, 1946, completed all arrangements to return to the United States but whose return was delayed because of transportation difficulties or other delays incident to travel and over which they had no control, irrespective of such persons location or place of residence on or before that date. In approving this decision, the Attorney General on May 15, 1947, concluded that:
The conclusion is inescapable * * * that naturalized persons embraced within section 404 who, prior to October 14, 1946, presented to a representative of the State Department satisfactory evidence that they had made definite arrangements to return immediately to the United States to reside permanently, have preserved their American nationality.
The principle above enunciated was thereafter applied in Matter of C----, A-6576113 (C.O. 1947). The enunciation of the principle with reference to section 404 cases finds support in the several actions of Congress in connection with section 409 wherein on four separate occasions section 409 was amended so as to extend the time within which persons falling within section 404 could return to the United States to avoid expatriation. Congress thus manifested its intention of protecting naturalized United States citizens who without such protection would have lost their United States nationality under section 404 of the Nationality Act of 1940, by extending the time within which they were required to return to the United States, thus recognizing the fact that due to war conditions their return under the date originally set by section 409 could not be accomplished. It was in furtherance of this congressional manifestation that the above-stated principle was enunciated first in Matter of V----, supra, and later in Matter of C----, supra. This was the principle referred by the Department of State in its letter of January 19, 1948 in Matter of S----, and it was this principle which was extended by analogy to those cases covered by section 401 (a) of the Nationality Act of 1940. In this regard, it is important to note at this time that the analogy was drawn despite the fact that Congress was at all times fully aware of the situation in which 401 (a) persons found themselves as a result of war conditions and though Congress saw fit to make provisions for persons falling within section 404, it made no similar provisions by congressional enactment to cover persons whose expatriation was to be determined by section 401 (a). This, despite the fact that the attention of Congress was specifically directed to the classes of persons embraced within section 401 (a) at the very time Congress was legislating with regard to persons embraced within section 404. Thus, the rationale which furnishes support for the principle insofar as it relates to section 404 cases is nonexistent insofar as section 401 (a) cases are concerned. Since the principle has been extended to section 401 (a) cases by analogy, it is obvious that the principle should not be further extended for the analogous cases than it has been for cases for which the principle was originally enunciated. It is necessary, therefore, to determine whether the facts of record in the instant case bring the subject within the benefit of the enunciated principle so as to preserve her United States citizenship from the expatriatory act of section 401 (a).
Act of Oct. 16, 1941 ( 55 Stat. 743; 8 U.S.C. 809); act of Oct. 9, 1942 ( 56 Stat. 779; 8 U.S.C. 809); act of Sept. 27, 1944 ( 58 Stat. 747; 8 U.S.C. 809); act of Oct. 11, 1945 ( 59 Stat. 544; 8 U.S.C. 809).
Concerning the subject's actions with reference to her returning to the United States, the subject testified as follows:
Q. Did you try to come to the United States before 1946?
A. No.
Q. When did you start to come back to the United States?
A. 1945 before Christmas, I went to the American consul in Copenhagen.
Q. Did you apply there for an American passport?
A. I brought my birth certificate from St. George's Church on about sixtyseventh and Superior in Cleveland to the American Consul, Mrs. C----, and asked if I can get passport.
Q. Why didn't you try to come back to the United States before?
A. I don't know. Everybody from our family was there (meaning Europe).
It is noted that the American passport was issued to the subject April 27, 1946.
The subject's testimony warrants the conclusion that prior to December 14, 1945, when she for the first time appeared before an American consular officer, she made no effort nor performed any act with reference to her return to the United States. It is believed that the evidence of record also warrants the conclusion that prior to December 14, 1945, the subject never intended to return to the United States. This finds support in the alien's statement that she did not try to come back to the United States before because everybody from her family was then in Europe.
Since her brothers had returned to the United States in 1929 and 1930, respectively, it is apparent that she did not include her brothers in the term "family." Inasmuch as subject's brothers returned to the United States, the subject was fully aware of the fact that such return could be accomplished. That she did not return to the United States and made no effort to do so prior to December 14, 1945, indicated that she had neither the intention nor the inclination to return. Except for the fact that the subject was in custody of German authorities from July 1944, the facts in her case are almost identical with those in Matter of O----, supra, where the conclusion was reached that expatriation under section 401 (a) resulted for the reasons previously set forth in this decision. It remains to be determined therefore, whether the subject's detention by German authorities from July 1944, entitles her to the benefits of the principle enunciated in Matter of S----. To be entitled to those benefits it is necessary for the subject to establish that prior to reaching her twenty-third birthday she did everything within her power to return to the United States and was prevented from doing so by circumstances beyond her control. The subject reached her majority on February 6, 1943. She was not taken into custody by the German authorities until 1 year and 5 months later. The record not only fails to establish any act or intent on the subject's part to return to the United States during any period of her life up to July 1944, but does contain positive testimony of the subject that no such act was made. In view of such lack of action and lack of intention to return which existed for at least until July 1944, there is no reason to assume that the subject would have done everything within her power to return to the United States between July 1944, when she was first taken into German custody and February 6, 1945, a period of 7 months, at which date she reached her twenty-third birthday. To extend to this subject the benefits of the principle enunciated in Matter of S----, it would be necessary to substitute for the phrase "who did everything within her power to return to the United States before her twenty-third birthday" the fact that for a period of 7 months prior to her twenty-third birthday she was in no position to take any action in that regard whatsoever because of her being in custody of German authorities. While such substitution and the resultant extension of the principle might be warranted in a situation where the evidence of record established that during the period of custody the subject made some slight effort or indicated some desire on her part to return, such substitution and resultant extension of the principle should not be indulged in where the record evidence as in this case is barren of such evidence. It is concluded, therefore, that on the basis of the evidence of record, the subject lost her United States nationality on February 6, 1945, under the provisions of section 401 (a) of the Nationality Act of 1940. It is ordered, That, from the evidence presented, the subject be deemed to have lost her United States nationality on February 6, 1945, under the provisions of section 401 (a) of the Nationality Act of 1940. The subject and the Department of State should be so advised.
It is further ordered, That, from the evidence presented, the subject's son be deemed not a citizen of the United States. The subject and the Department of State should be so advised.