IN THE MATTER OF K----, 1 IN Dec. 587 (BIA 1943)
IN THE MATTER OF K----. IN EXCLUSION PROCEEDINGS.
56143/464Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice
Decided by the Board November 4, 1943.
Exclusion — Determination of citizenship claim — Citizenship — Expatriation — Section 2 of the Act of March 2, 1907 — Residence abroad.
1. An applicant for admission to the United States who claims United States citizenship is not entitled to have his claim determined by the courts, but may be denied admission by the immigration authorities.
2. Section 2 of the Act of March 2, 1907, creates a presumption of loss of United States citizenship in the case of a naturalized citizen who resides for 2 years in the foreign state from which he came. Return to the United States does not necessarily overcome the presumption.
3. To overcome the presumption, it must be shown that there has not been an abandonment of intention to remain a United States citizen as evidenced by a continuing intention to return to the United States.
4. When several months after his naturalization, a United States citizen returned to his native land and resided therein from 1913 to 1941, but during such period registered as a citizen of the United States, was considered by the government of his native country to be a United States citizen, and paid an income tax to the United States; held, that he had not abandoned his intention to return to the United States.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Immigrants without immigration visas.
Act of 1940 — No permits to enter.
Executive Order 8766 — No passports.
Mr. Adolph I. King, for the appellants.
Mr. Thomas A. Hughes, Board attorney-examiner.
STATEMENT OF THE CASE: The appellants are natives of Rumania, who applied for admission to the United States on June 10, 1943, at the port of New York as citizens of the United States. They were found to be inadmissible by a board of special inquiry on the ground stated above and have appealed from that decision.
DISCUSSION: The appellants' attorney denies that the board of special inquiry had jurisdiction to determine the citizenship of the appellants or to hold a hearing in their case on the basis that they are citizens of the United States, and claims that the action of the board of special inquiry has deprived the appellants of life, liberty, and property without due process of law. He also contends that the action of the said board was unfair, arbitrary, and predetermined. At the hearing before this Board on September 8, 1943, he denied the jurisdictionPage 588
of this Board to determine whether or not the appellants were citizens of the United States and urged that the appellants were entitled to have the point determined in a court of law.
In the case of United States ex rel. Jew Lee et al. v.Brough, 16 F. 2d 492, it was stated:
It is settled that, when a person attempts to enter this country through the official immigration channels, and claims the right to enter on the ground that he is an American citizen, he is not entitled to have his claim determined in a judicial proceeding, but may be denied admission by the immigration authorities, and the courts have no authority to interfere, provided he has had a fair hearing, and the findings of the immigration officials are supported by the evidence, and no erroneous rule of law has been applied.
This view is amply supported by a long line of cases. In the case of United States v. Ju Toy, 198 U.S. 253, 49 L. Ed. 1040, it was stated that —
If, for the purpose of argument, we assume that the Fifth Amendment applies to him, and that to deny entrance to a citizen is to deprive him of liberty, we nevertheless are of the opinion that with regard to him due process of law does not require judicial trial. That is the result of the cases we have cited, and the almost necessary result of the power of Congress to pass exclusion laws.
We therefore conclude that the board of special inquiry had jurisdiction to inquire into the question of the appellants' nationality, and that we have jurisdiction to review its decision. The appellants were not denied due process of law, and the record does not disclose that they were given an unfair hearing or that the result thereof was predetermined.
The appellants are a husband, wife, and daughter. The appellant wife and daughter claim United States citizenship by virtue of the appellant husband's naturalization in the United States, and the question of whether or not he lost his United States citizenship under the provisions of section 2 of the Act of March 2, 1907, is before this Board for determination.
Section 2 of the Act of March 2, 1907, provides as follows:
When any naturalized citizen shall have resided for 2 years in the foreign state from which he came, or for 5 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 * * *.
On January 21, 1943, after consideration of the different views of the statute, we concluded in the case of H---- H---- G---- (56127/9) [see page 398, this volume]:
That the provisions quoted from the 1907 act may operate to terminate citizenship status, and in order to overcome the presumption it must be made to appear that there has not been an abandonment of intention to remain a citizen.
In the case of United States v. Gay, 264 U.S. 353, the court stated,Page 589
"We are prompted to say it is a presumption easy to preclude and easy to overcome. It is a matter of opinion and intention." InUnited States v. Eliasen, 11 F. 2d 785, the court stated:
In this suit the presumption is precluded and overcome by the circumstances and the defendant's oath that he has not been naturalized abroad. * * * It is obvious that mere residence abroad, however long continued absolves not from allegiance, for that occurs only from new allegiance assumed abroad and failure to register or report to consuls abroad is immaterial.
The appellant husband entered the United States for permanent residence in September or October 1907. He was admitted to citizenship on April 28, 1913, at which time he was 26 years of age. In June 1913 he departed to his native country, Rumania. At the time of his departure he had little money and was not in possession of any property which, if left in this country, might show an intention to return. The record does not disclose the purpose of the appellant husband's journey to Rumania, but it does disclose that he returned to the home of his parents, and his attorney states that his purpose was to bring his parents to the United States.
In 1914 upon his return to the home of his parents his brother assisted him to establish a small dry goods business. Shortly after his marriage to a subject of Rumania on September 6, 1915, he sold his business and moved to another city for the purpose of caring for his wife's aged mother, who was suffering from heart trouble. The appellant husband states that he did not return to the United States at the time of his marriage because his wife did not wish to leave her mother who required her assistance, and that the birth of his daughter, the war, and the injuries suffered by his wife, as well as financial trouble further delayed his departure.
In 1916 he was interned by the German military authorities as a Rumanian subject, whereupon he protested to the American consul, who obtained his release as an American citizen. Upon the entry of the United States into the war in 1917, he was interned as a United States citizen.
The appellant husband states that upon arrival in Rumania he immediately registered at the American legation as a citizen of the United States; that he reregistered in 1918; that he and his wife registered in 1918 or 1919, shortly after his marriage; and that he again registered in 1924. He further states that he visited the legation on various other occasions but the record does not disclose whether or not he registered on those occasions.
Subsequent to the First World War the appellant husband filed a claim with the Mixed Claims Commission for damages and was awarded approximately $4,000 in 1928. In 1934 he remitted to the Collector of Internal Revenue at Baltimore, Md., a sum of moneyPage 590
representing income tax for the year 1928 and penalty for delinquency. On June 12, 1931, the Collector notified him that he still owed accrued interest on the deferred payment. The liability arose from the damages awarded by the Mixed Claims Commission.
It appears that in 1936 the appellant husband was refused the right to conduct a business in Rumania on the ground that he was a "stranger" and not a subject of that country. His daughter was also refused the right to attend college for that reason. There is no evidence tending to show that the appellant husband ever regained the status of a Rumanian subject after his return to that country, and the record indicates that the American and Rumanian authorities in Rumania considered him to be a citizen of the United States and entitled to the protection of this country. He was assisted by the United States consul to leave Rumania in 1941. It was not until June 15, 1943, that he was notified by the Department of State that he had not, in its opinion, overcome the presumption that he had ceased to be an American citizen, and it is noted that the decision was rendered through the American consulate at Jerusalem, Palestine, and that as late as July 18, 1942, in a letter addressed to one Murray M. Friedman, Esquire, Tel-Aviv, Palestine, the consulate at Jerusalem stated, "Mr. M---- J---- K----, is an American citizen, being bearer of passport No. 66 issued at Bucharest on March 17, 1942." The appellants were issued United States passports by the consulate in Palestine to facilitate their journey to the United States.
In the case of H---- G----, supra, there was no evidence whatsoever indicating that G---- intended to retain his United States citizenship. In the instant case we are of the opinion that the appellant husband has substantially overcome the presumption that he has ceased to become an American citizen.
The appellant wife became a citizen of the United States by virtue of her marriage to a citizen of the United States, and the appellant daughter is a citizen by virtue of the fact that her parents were citizens of the United States at the time of her birth.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the appellant husband became a naturalized citizen of the United States on April 28, 1913;
(2) That the appellant husband departed to Rumania, the country of his nativity, in 1913, with the intention of returning to the United States;
(3) That the appellant husband did not apply for admission to the United States as a returning citizen until June 10, 1943;
(4) That the appellant husband married a subject of Rumania on September 6, 1915;Page 591
(5) That the appellant daughter was born at Buzau, Rumania, on July 12, 1916;
(6) That the appellants have been considered by the Rumanian authorities in Rumania to be citizens of the United States;
(7) That the appellant husband registered at the United States legation in Rumania on various occasions as a citizen of the United States and registered his wife as a citizen of the United States;
(8) That during the First World War the appellant was interned as a citizen of Rumania, was released upon the protest of the United States consul that he was a citizen of the United States and was later interned as a citizen of the United States;
(9) That the appellant in 1931 paid income tax for the year 1928 to the Collector of Internal Revenue, Baltimore, Md., upon a sum of money awarded to him for damages by the Mixed Claims Commission.
(10) The appellants were assisted by the United States consul to depart from Rumania in 1941.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That the appellant husband became a citizen of the United States by naturalization on April 28, 1913;
(2) That under section 2 of the Act of March 2, 1907, the appellant husband has overcome the presumption that he has ceased to be an American citizen;
(3) That under Section 1994 of the Revised Statutes (1878) the appellant wife is a citizen of the United States;
(4) That under Section 1993 of the Revised Statutes (1878) the appellant daughter is a citizen of the United States;
(5) That under the Immigration Act of May 26, 1924, the appellants are not inadmissible to the United States on the ground that they are immigrants not in possession of valid immigration visas and not exempted from the presentation thereof by said act or regulations made thereunder;
(6) That under the Passport Act approved May 22, 1918, as amended, and the Act of February 5, 1917, the appellants are not inadmissible to the United States on the ground that they did not present unexpired passports or official documents in the nature of passports issued by the government of the country to which they owe allegiance or other travel documents showing their origin and identity, as required by Executive Order 8766;
(7) That under the Act of June 28, 1940, and the Act of February 5, 1917, the appellants are not inadmissible to the United StatesPage 592
on the ground that they did not present valid visas and not being exempted from so doing as emergency cases as defined by the Secretary of State, reentry permits, or border-crossing identification cards, as required by section 30, title 3, of said act.
OTHER FACTORS: The husband of the appellant daughter is a subject of Rumania and is residing in that country.
ORDER: It is ordered that the appeals be sustained and that the appellants be admitted as citizens of the United States.Page 593