IN THE MATTER OF N----, 6 IN Dec. 792 (BIA 1955)
IN THE MATTER OF N----. In EXCLUSION Proceedings.
A-8873013.Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice
Decided by Board November 23, 1955.
Expatriation — Oath of allegiance in connection with service in Canadian military forces not expatriative when taken subsequent to July 20, 1940.
A native-born United States citizen who was taken to Canada about two months after his birth and who erroneously believed he was a Canadian citizen because of the naturalization of his father in Canada in 1921, did not lose United States citizenship by taking an oath of allegiance to the British Crown on April 1, 1942, in connection with enlistment in the Canadian Army. Under Canadian law (Order-in-Council (Canada) PC-3294, dated July 20, 1940) an oath of allegiance was not required in this case, since by taking such oath the appellant would have forfeited his United States citizenship under section 401 (b) of the Nationality Act of 1940. Because the oath of allegiance was not required and was taken in the mistaken belief that he was a Canadian citizen, it is regarded as superfluous and of no expatriative effect.
EXCLUDED:
Act of 1952 — Section 212 (a) (20) — No immigrant visa, or passport.
BEFORE THE BOARD
BEFORE THE BOARD
Discussion: The case comes forward on appeal from the order of the special inquiry officer entered June 3, 1955, finding the appellant to be an alien and inadmissible on the ground stated above.
The record relates to a 36-year-old married male who was born at Holbrook, Nebraska, on March 18, 1919. He seeks admission to the United States for permanent residence and if found to be a citizen would not be required to present travel documents.
The appellant originally applied for admission at the port of Portal, North Dakota, on November 26, 1954. During the course of that hearing it was developed that the appellant was a citizen by birth in the United States and that about two months after his birth he was taken to Canada with other members of his family. The appellant's father was naturalized on March 21, 1921 at Weyburn, Saskatchewan, and the appellant assumed that he had acquired Canadian citizenship through his father. However, when he endeavored to obtain a Canadian passport on September 10, 1954, he was informed by the Department of External Affairs inPage 793
Ottawa that his name had not been included in his father's naturalization certificate issued in 1921 and that under Canadian law he was not regarded as having acquired Canadian nationality. The appellant was advised by American consular authorities to seek a determination as to his present nationality status. After hearing, the special inquiry officer on December 3, 1954, entered a decision in which he held that the appellant did not expatriate by participating in a Dominion plebiscite in Canada on April 27, 1942, because such voting was not in a political election nor was it participation in an election or plebiscite to determine sovereignty over foreign territory, and further held that he had not expatriated under the provisions of section 401 (c) of the Nationality Act of 1940 by service in the armed forces of Canada. The latter conclusion against expatriation was reached by virtue of the phrasing of section 401 (c) which contains a proviso that the expatriate have or acquire the nationality of the foreign state in which he rendered military service, the appellant here never having possessed Canadian citizenship. It was concluded, however, in the decision on December 3, 1954, that the appellant had expatriated under section 401 (b) of the Nationality Act of 1940 by taking an unqualified oath of allegiance to the British Crown at the time of his enlistment in the Canadian Army on April 1, 1942. No appeal was taken from that decision and after the order became final the appellant was granted permission to reapply within one year after exclusion and deportation.
The hearing was reopened upon the receipt of additional evidence in the form of a communication from the Vice Consul of the United States at Winnipeg, Manitoba, dated January 19, 1955, presented by the appellant. This communication cited Order-in-Council (Canada) PC-3294, dated July 20, 1940, which was in effect when the appellant took his oath of allegiance in connection with enlistment in the Canadian Army on April 1, 1942, and which provided that the oath of allegiance "shall not be required to be taken by a person on appointment to or enlistment in the Active Militia of Canada, who is a citizen of a foreign country if, by so doing, that person would, under the laws of the country in question, forfeit his citizenship therein." The communication further stated that since it appears that the appellant did not possess British nationality when he took the oath of allegiance to the British Crown on April 1, 1942, in connection with his service in the Canadian army, and as such oath was taken after the Order-in-Council PC-3294 was issued providing that aliens would not be required to take an oath of allegiance to the British Crown in connection with service in the armed forces of Canada, if the taking of the oath would result in a forfeiture of citizenship, itPage 794
would appear that he did not lose citizenship of the United States by taking such oath.
The special inquiry officer differed with the conclusion reached by the vice consul and on June 3, 1955, held that the appellant voluntarily took an unqualified oath of allegiance to the British Crown and thereby expatriated under section 401 (b) of the Nationality Act of 1940. This conclusion was reached despite the fact that appellant erroneously thought he had lost United States citizenship and possessed only Canadian nationality and that the oath of allegiance was not required of him under the provisions of Canadian Order-in-Council PC-3294.
There have been prior administrative decisions construing the effect of taking an oath of allegiance by an American citizen when entering the armed forces of Canada, despite or in ignorance of the exemption granted by Order-in-Council PC-3294 (army), Order-in-Council PC-2396 of June 7, 1940 (air force) or Order-in-Council PC-3511 of July 30, 1940 (naval force). Thus an American citizen taking an oath of allegiance to the British Crown on or after June 7, 1940, on the occasion of his enlistment in the Canadian armed forces did not expatriate himself since the oath was not required by Canadian law, was contrary to and in violation of such law and was wholly superfluous.[fn1]
In the instant case it is conceded that at the time of taking the oath of allegiance on April 1, 1942, the appellant, a single national, was not required to do so under Canadian law, inasmuch as under section 401 (b) of the Nationality Act of 1940 he would have forfeited his United States citizenship. Since the oath of allegiance was not required, his act in so doing under the circumstances present in the instant case may be regarded as superfluous and of no expatriative effect. It is concluded that the appellant has never committed any act of expatriation and that he should be admitted as a citizen of the United States. It is believed unnecessary to consider the effect of the subsequent United States-Canadian Executive Agreement of April 8, 1942.
Order: It is ordered that the appeal be sustained and that the appellant be admitted as a citizen of the United States.
[fn1] Unreported Matter of M----, 56197/377 (March 12, 1946); unreported Matter of P----, 56196/586 (March 28, 1946); unreported Matter of M----, 56197/978 (May 2, 1946). Cf.Matter of S----, A-8017222, 5 IN Dec. 678, in which expatriation resulted when oath of allegiance was taken prior
to effective date of Orders-in-Council.Page 795