IN THE MATTER OF C----, 2 IN Dec. 263 (BIA 1945)
IN THE MATTER OF C----. In DEPORTATION Proceedings.
56167/750Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice
Decided by Board February 8, 1945Reconsidered and previous decision affirmed by Board May 2, 1946Approved by Attorney General October 2, 1946
Citizenship — Expatriation — Oath of Allegiance — While United States at war — Section 2 of the Act of March 2, 1907.
A native-born citizen of the United States, who, on enlistment in the Canadian Army, took an oath of allegiance to the British Crown, while a minor in 1915 (serving until March 1919, when he was over 21), and again in September 1919 (when he was over 21), did not become expatriated thereby under section 2 of the Act of March 2, 1907; nor did expatriation thereunder ensue after the United States ceased to be at war (July 2, 1921), because of failure to return to the United States for a long period after July 2, 1921, and/or because his second enlistment in the Canadian Army did not terminate until 1922.
CHARGES:
Warrant: Act of 1924 — Remained longer than permitted.
Lodged: Act of 1924 — Immigrant without immigration visa.
BEFORE THE BOARD
(February 8, 1945)
BEFORE THE BOARD
(February 8, 1945)
Discussion: The presiding inspector, after hearing under the warrant of arrest, finds that the respondent is subject to deportation.
This record relates to a native of Philadelphia, of Irish race, aged 47, male, married, who entered at Niagara Falls November 11, 1936, for permanent residence. He was not in possession of an immigration visa at the time. He testified that he lived in the United States until the age of 6, about 1903, and then lived in Canada, to which country the family removed, until 1926, since which year he has considered the United States his home.
The respondent served in the Canadian Army from March 2, 1915, to March 3, 1919, and again from September 12, 1919, to August 31, 1922. He took an oath of allegiance on the date of his joining the army on each of these two occasions. Upon the first occasion, he was a minor. He had attained his majority prior to September 12, 1919, when he took the oath of allegiance at the time of enlistment in the Canadian Army the second time.
The respondent states that he lived in the United States 7 months in 1926 and from September 1, 1927, to June 29, 1934. No recordPage 264
of admission on either occasion can be found, and it appears that he was not admitted for permanent residence, but was probably allowed to pass on his claim of American citizenship, for he believed himself to be a citizen of the United States.
Prior to the time of the respondent's last entry, November 11, 1936, he had been excluded by a Board of Special Inquiry in 1934 and thereafter attempted to obtain an immigration visa, having learned that it was required of him. He, however, could not secure a birth certificate or any record showing his citizenship and was unable, therefore, to obtain an immigration visa, since documents of this nature are required to support an application.
Although the alien had attained his majority at the time of taking the oath of allegiance to the British Crown September 12, 1919, the United States was at war at the time. Inasmuch as section 2 of the Act of March 2, 1907, provides "that no American citizen shall be allowed to expatriate himself when this country is at war," it is apparent that he was not expatriated by taking an oath of allegiance on either occasion, in the first instance because he was then a minor and in the second instance because the United States was then at war.
It follows that the respondent is still a citizen of the United States unless the oath which he took September 12, 1919, can be said to have resulted in his expatriation when this country ceased to be at war. We find no authoritative ruling upon this question. In an opinion of August 22, 1940, the Attorney General considered the question whether expatriation occurred at the conclusion of the war in the cases of citizens of the United States who became naturalized in a foreign country when this country was at war, through the usual naturalization procedure or in the case of women through marriage to citizens of a foreign country before September 22, 1922, or who took an oath of allegiance to a foreign country when this country was at war (39 Op. Atty. Gen. 474, 481, 482).
In the cases of naturalization in a foreign country, the Attorney General held that the parties lost their citizenship at the termination of the war. This opinion was based upon what he considered the better reasoning and the preponderance of the adjudicated cases. The reasoning appears to rest upon the fact that in these cases the individual obtained a continuing status which operated the same at the conclusion of the war as at the time it was first attained, which status was voluntarily obtained and voluntarily continued.
In the case of a person who took an oath of allegiance to a foreign state while this country was at war, the Attorney General held that, if such person returned to this country before the United States ceased to be at war, and thereafter did nothing that indicated continued allegiance to the foreign state, but on the contrary acted consistentlyPage 265
as a citizen of the United States, he did not lose his citizenship. As to other cases, such as the one with which we are now concerned, he felt that there is doubt, and that no general rule could be laid down covering such cases.
The record indicates the respondent has always believed himself to be a citizen of the United States, since he never took any steps to obtain naturalization in another country. We have found no similar case that has been passed upon by the courts. If we were to accept the dictum in Ex parte Gilroy, 257 Fed. 110, 121, that an oath of allegiance taken by a minor when serving in the army of a foreign state might be assumed to be "a continuing oath which attached to him when he became 21 years of age," we might conclude that the oath taken by the respondent attached to him when the United States ceased to be at war and that he was expatriated as of that date. This, as intimated, was pure dictum in the case. It does not appear to us to be a reasonable conclusion, for it is apparent that there was no intention to become expatriated at that time, that no action was then taken by the respondent, and that the individual in any such case could not possibly release himself from the oath during the period of his service in the army, if he so desired. It was not within his power to do anything about it until his release.
In the light of all the facts, we do not believe that alienage has been established, and hold that the respondent is a citizen of the United States. If he has difficulty in establishing, to the satisfaction of any agency, that he is a citizen of the United States, he may have recourse to the court, either by petition for a declaratory judgment or by application for repatriation under section 323 of the 1940 Nationality Act.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is a native of the United States;
(2) That the respondent took the oath of allegiance to the British Crown when joining the Canadian Army on two occasions:
(3) That on the first occasion mentioned he was a minor and on the second occasion this country was at war;
(4) That about 4 years after his release from the Canadian Army he came to the United States and has resided in this country most of the time during the last 18 years.
Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That the respondent has not lost his American citizenship and is not subject to the immigration laws.
Other Factors: The alien was married March 7, 1923, in Canada, to a native of England. They have two American-born children.Page 266
Alien's wife and children are dependent upon him for support. The alien earns $250 a month, as stated by his employer in an interview in the investigation. The alien reports assets of $3,250. It is evident that his deportation would result in serious economic detriment to his two minor American citizen children. (For "alien", read "respondent."
Order: It is ordered that the warrant of arrest be canceled and this proceeding closed.
BEFORE THE BOARD
(May 2, 1946)
Discussion: On February 8, 1945, we decided that respondent was a citizen of the United States. The Central Office believes that respondent has become expatriated. It has requested that we reconsider our decision. Respondent was born in Philadelphia in February 1897. When he was 6 years old, his parents took him to Canada. In September 1919 he enlisted in the Canadian Army and took an oath of allegiance to the British Crown. The term of enlistment lasted until August 31, 1922. Respondent remained in Canada until February 1926, when he first came to the United States.
The general counsel of the Immigration and Naturalization Service urges that although respondent was not expatriated when he took the oath of allegiance, because the United States was then at war, his expatriation occurred because he did not return to the United States within a reasonable time after his military service ended. This Board takes the position that respondent's residence in Canada for approximately 3 years and 6 months after August 31, 1922, did not operate to expatriate him under the Act of March 2, 1907. We believe that under the 1907 Act a foreign oath of allegiance taken during a period when the United States was at war does not expatriate unless, subsequent to that period, the person involved commits an affirmative, overt act which indicates a continued allegiance to the foreign state. We believe, further, that the overt act, in order to confirm the oath, must have a direct relationship to the purpose for which the oath was taken, thus amounting to a practical reaffirmation of the oath of allegiance.
Section 2 of the Act of March 2, 1907, under which respondent's case falls, reads as follows:
SEC. 2. That any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws, or when he has taken an oath of allegiance to any foreign state. * * * And provided also, that no American citizen shall be allowed to expatriate himself when this country is at war.
The Attorney General has given his opinion on three questions presented by the Secretary of State concerning expatriation in time ofPage 267
war (39 Op.Atty.Gen.474 (1940)). The first two cases were: (1) An American citizen who obtained naturalization in a foreign state while the United States was at war, that is, between April 6, 1917, and July 2, 1921; and (2) an American woman who acquired naturalization in a foreign state during the same period through marriage to an alien or through the naturalization of her husband. In both cases, the Attorney General concluded, the citizen became expatriated as of July 2, 1921. The opinion stresses the fact that in each instance a status is acquired which continues after the war ends. The third question involved the case of an American citizen who took a foreign oath of allegiance, and on this the Attorney General stated:
Concerning persons who took foreign oaths of allegiance, the practice in the Department of State and in the Immigration and Naturalization Service has been uniform to the extent that if such a person prior to the time the United States ceased to be at war had returned to this country for permanent residence and thereafter did nothing that indicated continued allegiance to the foreign state but, on the contrary, acted consistently as a citizen of the United States, he did not lose his citizenship, and this is generally in harmony with the conclusions reached in the adjudicated cases. If the individual did not return to the United States before the war had ended or if any one of the other factors mentioned is absent I cannot conclude otherwise than that there is doubt. If it be thought that in some such doubtful cases the claim of citizenship might be upheld I feel, nevertheless, that it is hardly possible to deal with any such exceptions in a general opinion or independently of the facts.[fn1]
There are two cases holding that persons who took foreign oaths of allegiance during the period of United States participation in the First World War did not lose their American nationality (Inre Grant, 289 Fed. 814 (S.D. Cal. 1923); In re Bishop,26 F. (2d) 148).[fn2] In both instances an application for repatriation was denied. In the Bishop case the applicant had returned to the United States in 1919, within 3 days after his discharge from the Canadian Expeditionary Forces.[fn3] In theGrant case the opinion does not show when the applicant returned to the United States and the court does not discuss this question.
In 1923 the State Department ruled that foreign oaths of allegiance taken between April 6, 1917, and July 2, 1921, "did not work expatriation either at the time when such oaths were taken or afterwards," except insofar as the oath was one of a series of acts constituting naturalizationPage 268
in the foreign country.[fn4] In 1937 this position was modified: Such an oath could be affirmed by acts performed after the war "indicating a continued allegiance to the state to which the oath had been taken."[fn5] Residence alone was not a confirmatory act.[fn6]
The State Department's view with regard to oaths of allegiance taken between April 6, 1917, and July 2, 1921, appears to be analogous to its position on oaths of allegiance taken by minors. After a rather unsettled policy, the State Department adopted court rulings that a minor could not expatriate himself.[fn7]
Since 1934 it has taken the position that a minor was not expatriated unless he confirmed the oath after reaching 21 by some act showing that he rejected his allegiance to the United States and adopted the allegiance of the foreign country. Residence was not regarded as sufficient to confirm.[fn8]
With respect to oaths of allegiance taken during minority, the Immigration and Naturalization Service has followed a policy identical with that of the Department of State. It has ruled that such an oath does not expatriate unless confirmed by an overt act committed after reaching majority, evidencing the adoption of foreign allegiance. Residence abroad in itself has not been considered a confirmatory act. See Immigration and Naturalization Service, Nationality Manual (1944), section 1465.13, and cases there cited. But the Service has adopted a different rule where the oath of allegiance was taken in time of war. Here expatriation is said to have occurred unless the person has returned to the United States within a reasonable timePage 269
after the end of the war. Foreign residence alone, in other words, operates as a confirmatory act (Nationality Manual,supra, sec. 1467.37).
We see no basis for this distinction. We agree with the State Department's view that foreign residence should not be regarded, in itself, as confirming an oath of allegiance. We think that residence abroad does not constitute the "voluntary action" required by Perkins v. Elg to effect expatriation under the 1907 act. The court there said of the 1907 act (307 U.S. 325
(1939)):
We think that the statute was aimed at a voluntary expatriation * * * (p. 343).
* * * Having regard to the plain purpose of section 2 of the act of 1907 to deal with voluntary expatriation, we are of the opinion that its provisions do not affect the right of election, which would otherwise exist, by reason of a wholly involuntary and merely derivative naturalization in another country during minority (p. 347).
The Attorney General has ruled, in a situation similar to that of the Elg case, that mere residence in a foreign country after the age of 21 does not result in expatriation under the 1907 act.Matter of S----, 56127/518, opinion of Board May 8, 1943, overruled by Acting Attorney General June 19, 1943. S---- applied for admission to the United States in December 1942. He was born in this country in 1911, and during his minority he became a Canadian citizen through the naturalization of his father. The case involved an interpretation of the second proviso to section 401 (a) of the Nationality Act of 1940, which reads:
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 two 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.
The Acting Attorney General held, on the basis of a memorandum by Mr. Freund, that the term "voluntary act" means something more than mere residence abroad. Since the proviso set forth above seems clearly to have been designed to state the principle laid down in Perkins v. Elg, the S---- case in effect holds that residence abroad does not in itself constitute the voluntary action necessary for expatriation.[fn9] And if residence does not work expatriation in an ElgPage 270
situation, it should not operate to expatriate where an oath of allegiance was taken in wartime.
We are of the opinion that expatriation did not occur under the 1907 act where a person took an oath of allegiance in time of war unless, after the termination of the war, he confirmed the oath by some affirmative, overt act, bearing a direct relationship to the purpose for which the oath was taken, which indicates a continued allegiance to the foreign state.[fn10] It is well to observe, here, that the statute provides simply that expatriation shall not take place in wartime; the rule that an oath of allegiance may be confirmed after the war and thereby work expatriation is a product of administrative construction. That rule rests on the theory that the confirmatory act evidences a voluntary renunciation of United States nationality. The rule should not be extended by administrative construction to make foreign residence operate in this fashion.
The oath of allegiance does not result in the acquisition of foreign nationality. While in some cases the individual concerned may be a dual national, in others he has only American citizenship, and consequently a finding of expatriation leaves him stateless. This is the ground for distinction between those who acquire foreign nationality during wartime and those who take an oath of allegiance.[fn11] Where the result would be to leave a person without nationality, we should refrain from extending by administrative construction a policy which rests on administrative construction.
We have reconsidered our previous decision. We affirm it, and find again that respondent has not lost his American citizenship and is not subject to the immigration laws.
[fn1] The legal adviser of the State Department, in a memorandum attached to the Secretary of State's request for an opinion, had urged that a person in this category became expatriated unless he returned to the United States within a reasonable period after July 2, 1921, and it is significant that the Attorney General declined to accept this view. Memorandum dated June 18, 1940.
[fn2] W.D. Wash., 1927.
[fn3] Hackworth, Digest of International Law (1942) 269 (vol. 3).
[fn4] Compilation of Certain Departmental Circulars Relating to Citizenship, etc. (Dept. of State, 1925), p. 118 (Gen. Instruction, Consular, No. 919, dated Nov. 24, 1923, signed by Charles E. Hughes).
[fn5] Hackworth, Digest of International Law (1942) 268. Here the man involved had taken an oath of allegiance to Poland in 1920, had continued to reside there, and had voted in national and local elections (vol. 3, of op. cited).
[fn6] See note 4, supra. Hackworth at page 269 cites three cases in which the problem arose. An examination of the State Department files in two of these cases (the third file was unavailable) shows that in both instances there was conduct, in addition to residence, which could be regarded as confirming the oath of allegiance.
[fn7] Hackworth, supra, 274; U.S. ex rel. Baglivo v. Day,
28 F. (2d) 44 (S.D.N.Y. 1928); and In re Giacomo Zanetti,
unreported. See also the dicta in Ex parte Gilroy,
257 Fed. 110, 119 (S.D.N.Y. 1919); McCampbell v. McCampbell,13 F. Supp. 847, 849 (W.D. Ky. 1936).
[fn8] Hackworth, supra, 274, 275, sets forth several cases where the State Department has ruled on whether or not specified conduct has confirmed an oath. An examination of the State Department file in one of these cases, that of Antonio Madonna, reveals the following: Madonna was born in the United States in August 1914; in 1920 his parents took him to Italy; he served in the Italian Army from April 1935 to August 1936 and in July 1935 he took the oath of allegiance; in March 1937 he applied for an American passport. On these facts the State Department ruled that he had not lost his American nationality.
[fn9] Following the S---- case, this Board has held that protracted residence abroad, in an Elg type case, does not result in expatriation. In Matter of B----, 56038/817 (July 22, 1943), we held that appellant had made an election of United States citizenship at the age of 27. In Matter of V----,
56140/966, (Nov. 20, 1943), we ruled that respondent's father retained his citizenship at the age of 43, when he returned to the United States.
[fn10] There must be, however, an intent on the part of the person to renounce citizenship, or the performance of some act which shows presumptive intent. 39 Op. Atty. Gen. 411, 412 (1940).
[fn11] See 39 Op. Atty. Gen., supra, 482. Cf. 30 Op. Atty. Gen. (1915) 412, 421, 422. The courts have pointed out that where an American woman acquired foreign nationality by marriage during the First World War, the marital status continued to exist after the war. In re Varat, 1 F. Supp. 898 (E.D.N.Y. 1932); Petitionof Peterson, 33 F. Supp. 615 (E.D. Wash. 1940).
Jack Wasserman, Member, concurring:
I concur in the result reached by the majority, but I cannot agree with all its reasoning. The majority assumes the correctness of the position adopted by the State Department. It proceeds on the premise that under the act of 1907 a person who took a foreign oath of allegiance while the United States was at war can subsequently confirm that oath, and thus expatriate himself, by some overt act evidencing a renunciation of allegiance to this country.Page 271
As the majority opinion states, this position is a product of administrative construction. The statute clearly provides that "no American citizen shall be allowed to expatriate himself when this country is at war." The foreign oath, therefore, did not expatriate. And the rule that an overt act may confirm the otherwise inoperative oath necessarily assumes that the overt act, in itself, was also insufficient to expatriate. To hold that the "overt act" taken together with the oath operated to expatriate, when neither of them taken singly had this effect, seems to me to be administrative legislation. The result is to repeal the proviso in section 2 of the 1907 act on an administrative finding that a "confirmatory act" indicates an abandonment of allegiance. Congress has given no statutory authority for this result, and the "confirmatory act" theory is unsupported by judicial rulings.[fn12] The loss of the precious right of citizenship should not turn on administrative fiat. The theory seems to have been adopted by analogy to the case of a foreign oath of allegiance taken by a minor. The position that such an oath might be confirmed after reaching the age of 21 seems in turn to derive by way of analogy from the familiar common-law rule that contracts by minors are voidable, capable of being affirmed or disaffirmed on reaching majority.[fn13] It is sufficient to say, in this connection, that the latter analogy is a strained one. It should not be stretched further to cover an oath during time of war. There is nothing "voidable" about such an oath; the statute provides simply that in time of war "no American citizen shall be allowed to expatriate himself."[fn14]
The Elg case, it is true, rules that a dual national may lose his citizenship under the Act of 1907 by acts showing an election of foreignPage 272
nationality. But the holding is a limitation on the provision of section 2 that a person is expatriated by foreign naturalization; the right of election after reaching 21 is a right which the Court read into the statute. The Elg case is no authority for the view that the proviso in section 2 can be interpreted out of existence by the aid of an "overt act" which in itself does not expatriate.
I would affirm our previous decision for the reasons expressed herein.
[fn12] While "the practical construction given to an act of Congress fairly susceptible of different constructions, by those charged with the duty of executing it, is entitled to great respect," McLaren v. Fleischer, 256 U.S. 477, 481 (1921), this rule does not apply where "the construction was neither uniform, general, or long continued" and the statute is unambiguous (Iselin v. United States, 270 U.S. 245, 251
(1926)). Here the statute, in my opinion, has no ambiguity; furthermore, the State Department adopted its present position only in 1937. Prior to 1937 the State Department ruled that a wartime oath of allegiance did not work expatriation unless the oath was "one of a series of acts constituting naturalization" in the foreign country (3 Hackworth, note 2 supra, 269).
[fn13] See the memorandum by the legal adviser to the Secretary of State, cited in the majority opinion, note 1, supra, pp. 24 et seq.
[fn14] Historically we started with the English doctrine that no one could expatriate himself at any time. The doctrine was relaxed to permit expatriation during peacetime. The 1907 Act embodied this relaxation. In H. Doc. No. 326, 59th Cong., 2d sess. (1906), which preceded the enactment of the 1907 Act, it was recognized that "the right of voluntary expatriation exists only in time of peace" (p. 28). This relaxation of the doctrine of perpetual allegiance is a far step from the doctrine that a nonstatutory "confirmatory act" can validate a noneffective attempt at expatriation during wartime.
Leigh L. Nettleton, Member, concurring:
The majority would narrow the rule to limit expatriation, where the oath of allegiance to a foreign state was taken during the existence of a state of war, to cases where the oath was confirmed by an overt act having "direct relationship to the purpose for which the oath was taken, thus amounting to a practical reaffirmation of the oath of allegiance."
It would seem that an oath may be confirmed by acts not having direct relationship to the purpose for which the oath was taken, and that the test should be, as stated by the Department of State (3 Hackworth's Digest of International Law, 268) whether the acts evidenced a continued foreign allegiance. If they do, it would appear to be immaterial that the element of "direct relationship" is lacking. To this extent I disagree with the majority memorandum; but failing to find that there has been any confirmation of the oath, I agree with the conclusion that the respondent has not lost his citizenship in the United States.
* * * * * * *
The Board certifies that the decision in this case involves a question of difficulty, and, in accordance with section 90.12, title 8, Code of Federal Regulations, refers the case to the Attorney General for review of its decision.
BEFORE THE ATTORNEY GENERAL
(October 2, 1946) (Cases of C---- and H----)[fn15]
[fn15] Case of H----, 56175/285, vol. 2 IN Dec. 296.
The records indicate that both Mr. C---- and Mr. H---- were born in the United States, were living in Canada at the time this country entered the World War, and served periods of enlistment in the Canadian Army. Mr. H---- served from May 28, 1917, until January 23, 1919. Mr. C---- served from March 2, 1915, to March 3, 1919, and again from September 12, 1919, to August 31, 1922. Each took anPage 273
oath of allegiance to the British Crown. Each remained in Canada for long periods after the date of the congressional resolution declaring the war at an end.
The applicable statute (sec. 2, Act of March 2, 1907,34 Stat. 1228) provides in pertinent part as follows:
That any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws, or when he has taken an oath of allegiance to any foreign state.
When any naturalized citizen shall have resided for two years in the foreign state from which he came, or for five years in any other foreign state, it shall be presumed that he has ceased to be an American citizen, and the place of his general abode shall be deemed his place of residence during said years: Provided, however, That such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, under such rules and regulations as the Department of State may prescribe: And provided also, That no American citizen shall be allowed to expatriate himself when this country is at war.
Attorney General Jackson in an opinion of August 22, 1940, to the Secretary of State (39 Op. 474, 481), held that persons naturalized abroad during the period of the World War lost their citizenship as of July 2, 1921, the date of the congressional resolution declaring the war at an end. The Secretary of State had also requested the Attorney General's opinion regarding persons who took foreign oaths of allegiance during the period of the war. The following paragraph of the opinion dealt with that question.
Concerning persons who took foreign oaths of allegiance, the practice in the Department of State and in the Immigration and Naturalization Service has been uniform to the extent that if such a person prior to the time the United States ceased to be at war had returned to this country for permanent residence and thereafter did nothing that indicated continued allegiance to the foreign state but, on the contrary, acted consistently as a citizen of the United States, he did not lose his citizenship, and this is generally in harmony with the conclusions reached in the adjudicated cases. If the individual did not return to the United States before the war had ended or if any one of the other factors mentioned is absent I cannot conclude otherwise than that there is doubt. If it be thought that in some such doubtful cases the claim of citizenship might be upheld I feel, nevertheless, that it is hardly possible to deal with any such exceptions in a general opinion or independently of the facts.
The immigration and Naturalization Service thereafter "adopted a policy to the effect that an individual who took an oath of allegiance to a foreign state between April 6, 1917, and July 2, 1921, * * * lost United States citizenship if he did not return to the United States within a reasonable time after July 2, 1921 * * *." Applying this policy, the service has concluded that Messrs. C---- and H---- lost their American citizenship. Prior to the adoption of this policy, a Board of Special Inquiry at a hearing on December 8, 1927, allowed Mr. C----'s claim of citizenship, but another Board of Special InquiryPage 274
reached the contrary conclusion at a hearing on January 26, 1945.
The Board of Immigration Appeals has concluded that neither Mr. C---- nor Mr. H---- lost his citizenship, stating in part, in the opinion rendered in the C---- case:
We believe that under the 1907 Act a foreign oath of allegiance taken during a period when the United States was at war does not expatriate unless, subsequent to that period, the person involved commits an affirmative, overt act which indicates a continued allegiance to the foreign state. We believe, further, that the overt act, in order to confirm the oath, must have a direct relationship to the purpose for which the oath was taken, thus amounting to a practical reaffirmation of the oath of allegiance.
Two members of the Board, while concurring in the conclusion, have disagreed with the reasoning of the majority.
As to cases in which doubt exists concerning whether there has been a loss of citizenship the following excerpt from the above-mentioned opinion of August 22, 1940, is pertinent:
As previously indicated, there has been some practice on the part of the Government to move for denial of applications for repatriation, in cases falling within the classes herein considered, upon the ground that there had been no loss of citizenship. I regard this as unwise in doubtful cases. It does not appear to me that the repatriation statutes necessarily presuppose in all instances an unerring determination that the applicant has lost his citizenship before he may invoke the statute and take the prescribed oath of allegiance. I note, for example, the act of June 25, 1936, ch. 801, 49 Stat. 1917 (U.S.C., title 8, sec. 9a), refers to a "woman * * * who has or is believed to have lost her United States citizenship." Assuming that she has not lost her citizenship (as the question might finally be viewed by the Supreme Court of the United States), no harm is done in permitting her to take the oath and thus remove all doubt. On the other hand, harm may be done if she is denied the right upon the view (later found erroneous) that she had not lost her citizenship. The denial of an application upon the ground that the applicant is already a citizen may amount to an adjudication of her citizenship but that this does not wholly and for all purposes settle the question is indicated by the result in Yamashita v. Hinkle, 260 U.A. 199.
Statutory provision exists and has existed since October 5, 1917, whereby persons who lost citizenship in the United States through foreign oaths of allegiance administered as an incident to entering Allied military service during World War I might resume their former status by a simple procedure of naturalization (Public Law 55, 65th Cong.; sec. 1, 12th subdiv., May 9, 1918, 40 Stat. 542; sec. 323, Nationality Act of 1940 as amended Apr. 2, 1942, 8 U.S.C. 723). Neither Mr. C---- nor Mr. H---- has proceeded thereunder to remove the question which has arisen concerning their citizenship status. No reason is apparent why Mr. C---- may not so proceed at such time as he might choose, and Mr. H---- might do so when he has the intention to reside permanently in the United States.Page 275
The issue presently raised, however, is whether they are now citizens of the United States, and on that question I do not think that it is reasonable to conclude that continued residence abroad after the date of the termination of the war is sufficient alone to warrant a finding of loss of citizenship. Since the record discloses no other pertinent factor in the case of Mr. H---- the conclusion follows that, in my opinion, he has not lost his citizenship. Therefore, the conclusion of the Board of Immigration Appeals in this case is approved.
In the C---- case the period of enlistment and service did not expire until after the termination of the war. As the Board of Immigration Appeals points out, "if we were to accept the dictum in Ex parte Gilroy, 257 Fed. 110, 121, that an oath of allegiance taken by a minor when serving in the army of a foreign state might be assumed to be `a continuing oath which attached to him when he became 21 years of age,' we might conclude that the oath taken by the respondent (Mr. C----) attached to him when the United States ceased to be at war and that he was expatriated as of that date." The Board did not regard this as "a reasonable conclusion." Inasmuch as Mr. C---- only served out the term of enlistment which he began during the war, I think his case is not distinguishable as a matter of law from the case of Mr. H----. I conclude, therefore, that Mr. C---- has not lost citizenship in the United States.
I therefore approve the decision of the Board of Immigration Appeals holding Mr. C---- and Mr. H---- to be citizens of the United States.Page 276