IN THE MATTER OF L—-, 2 IN Dec. 789 (BIA 1947)

A-5998219.Board of Immigration Appeals Executive Office for Immigration Review U.S. Department of Justice
Decided by Central Office January 21, 1947. Decided by Board October 17, 1947.

Citizenship — Expatriation — Oath of allegiance by minor — Section 2 of act of March 2, 1907 — Confirmation of oath of allegiance after reaching majority.

A native born citizen of the United States, who in 1916 enlisted in the Canadian Army and took an oath of allegiance to the British Crown when a minor, expatriated himself after reaching the age of 21 by then confirming in peacetime such oath of allegiance through an act evidencing a continued foreign allegiance, to wit: by voting in Canada.

APPLICANT ADMITTED BY BOARD OF SPECIAL INQUIRY AS AN ALIEN.

BEFORE THE CENTRAL OFFICE

BEFORE THE CENTRAL OFFICE

Discussion: On December 30, 1944 the Board of Immigration Appeals considered the case of the subject’s mother under file A-5998218 although the daughter’s case was not formally presented, since it appeared that the daughter had made a claim to United States citizenship. Therefore, the Board of Immigration Appeals directed that additional evidence be introduced into the record at a reopened hearing and that such evidence could be introduced in her absence upon her consent (letter of March 24, 1945, file A-5998218).

The subject D—- L—- L—-, was born in Canada on August 13, 1928 and resided there until she was admitted on November 13, 1944 at Seattle, Washington for permanent residence. Her father testified that he was born in Gilead, Maine on May 31, 1897. In substantiation of this claim a copy of an old family Bible record was introduced in evidence. It will be assumed but not conceded that the subject’s father was born in the United States, thereby acquiring United States citizenship.

The testimony indicates that the subject’s paternal grandfather was stated to be born in Iowa and the subject’s mother testified that as far as she know there was no record of her husband’s naturalization in Canada or of his father’s naturalization in Canada. The record does not disclose whether or not there was any proof of the paternal grandfather’s birth in the United States nor does the record indicate whether or not he was actually naturalized or homesteaded in Canada.

Page 790

It is stated that the father of the subject voluntarily enlisted in the Canadian Army on April 8, 1916 and served therein until January 13, 1919. He testified that he took the oath of allegiance upon his enlistment in the Canadian Army and the record supports this statement. From these statements it appears that the subject’s father was under 21 when he enlisted in the Canadian Army and took the oath of allegiance to a foreign country on April 8, 1916. Upon the basis of this record it would appear that if the subject’s father had not expatriated himself prior to the subject’s birth in Canada on August 13, 1928, the subject would be deemed to have acquired citizenship under the provisions of R.S. 1993.

Although, because of his disability as a minor, the subject’s father’s taking an oath of allegiance in connection with his Canadian Army service, on April 8, 1916, did not have an expatriating effect, per se, it has been held, on the theory of confirming the oath of allegiance, that expatriation could be effected when the person became of age (G.H. Hackworth, Digest of International Law, vol. 3, p. 275; Adjudications Office, File 23/38228.)

It is noted that after the subject’s father was discharged from the Canadian Army in 1919 he was over 21 years of age, but that since the war-time bar to expatration was not removed until July 2, 1921, no discussion will be had as to any overt acts by the subject’s father after 1919 and until July 2, 1921, inasmuch as it is considered that if a person were barred from expatriating himself during war-time, acts affirming an oath of allegiance taken during minority prior to war-time should not be deemed to have sufficient accumulative effect to result in expatriation (Adjudications Office, File 23/97420, Nov. 15, 1943 and File 25/226, Nov. 8, 1943).

The subject’s father testified that he had voted in Canada on many occasions in Federal and Provincial elections during the period between July 2, 1921 and August 13, 1928, the date of the subject’s birth. It is believed that such voting in Canada constituted such overt acts reflecting his participation in the politics of a foreign sovereignty to which he had previously as a minor taken the oath of allegiance, has the effect of confirming the oath of allegiance taken as a minor with the result in loss of nationality in the United States. Since it has been concluded that the subject’s father lost his United States citizenship prior to August 13, 1928, it is further concluded that the subject did not acquire United States citizenship at the time of her birth under the provisions of R.S. 1993. It is therefore concluded that the subject’s admission as an alien at Seattle, Wash., on November 13, 1944 for permanent residence upon presentation of an immigration visa issued under the provisions of section 4 (c) of the Immigration Act of 1924 be not disturbed.

Page 791

Since the subject did not appeal from the decision excluding her as an alien this Service will affirm the finding of the Board of Special Inquiry that the subject was an alien.

However, since the Board of Immigration Appeals has requested an opportunity to further consider the citizenship question involved in this case, the record will be forwarded to the Board of Immigration Appeals for its consideration.

Order: It is ordered that the finding of the Board of Special Inquiry on September 18, 1944 that the subject is an alien be affirmed, and that the record of her admission into the United States for permanent residence on November 13, 1944 at Seattle, Wash. upon presentation of a nonquota visa issued under the provisions of section 4 (c) of the Immigration Act of 1924 be not disturbed.

In accordance with the request of the Board of Immigration Appeals, this case is forwarded for consideration.

BEFORE THE BOARD

(October 17, 1947)

Discussion: Appellant was born in Canada in August 1928. She and her mother applied for admission to the United States in September 1944. The mother requested admission for 2 months, and the daughter wished to live with her grandmother in the United States and attend high school for 2 years. A Board of Special Inquiry found both inadmissible, but subsequently permitted them to enter for 29 days. On December 30, 1944, the Board of Immigration Appeals affirmed the excluding decision regarding the mother. It appeared that the mother was a native-born citizen of the United States, but that she had lost her citizenship by voting in Canada in 1944, under section 401 (e) of the Nationality Act of 1940. With respect to the daughter, this Board ordered that the hearing be reopened for additional evidence regarding her claim of American citizenship. In November 1944 appellant secured a section 4 (c) immigration visa and was admitted to the United States for permanent residence. This does not render moot the question of her citizenship.[1]

Appellant’s father was born in the United States in May 1897. He has resided in Canada since he was a year or two old. If the father was a citizen at the time appellant was born, she acquired United States nationality at birth (Revised Statutes, section 1993).

Page 792

The father enlisted in the Canadian Army in April 1916 and took an oath of allegiance to the British Crown (statement of August 23, 1945). Section 2 of the act of March 2, 1907, provides:

That any American citizen shall be deemed to have expatriated himself * * * when he has taken an oath of allegiance to any foreign state.

When he took the oath, the father was a minor, and the courts have held that a minor cannot expatriate himself under the 1907 act.[2] He completed his military service in January 1919. The Service finds that although the oath of allegiance in itself did not operate to expatriate, because the father was a minor when the oath was taken, he confirmed it by voting in Canada between July 2, 1921, the date when the United States ceased to be at war, and August 13, 1928, the date of appellant’s birth. The Central Office accordingly finds that the father became expatriated and that appellant did not acquire United States citizenship under Revised Statutes 1993. In so holding, the Service applies the so-called confirmatory act doctrine of the State Department. Since 1934 the Department of State has ruled that while a minor could not expatriate himself under the 1907 act by taking an oath of allegiance, he might, after reaching the age of 21, confirm the oath by an affirmative act indicating continued allegiance to the foreign government. Voting is regarded as a confirmatory act.[3]

This Board considered an analogous question in Matter of C—- and Matter of H—-, 56167/750 and 56175/285, decision of the Attorney General October 2, 1946 (Reported in this volume). There the oath of allegiance was inoperative not because of minority, but because it was taken when the United States was at war.[4] Since 1937, with regard to oaths taken in time of war, the State Department has employed a confirmatory act theory identical with its policy, referred to above, respecting oaths of allegiance taken during minority. In the C—- case the members of this Board divided on the confirmatory act doctrine. The Attorney General in his decision in that case did not expressly resolve the differences between the members of this Board. In effect, he ruled that residence abroad after the termination of the war was not in itself sufficient to confirm the oath of allegiance.

The following language appears on page 4 of his opinion:

Page 793

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 view of this language we think that the Attorney General in the C—- and H—- cases adopted the State Department confirmatory act doctrine. The act of appellant’s father in voting in Canada evidenced a continued foreign allegiance, and in accordance with the State Department position, we conclude that the act of voting confirmed the oath of allegiance and resulted in expatriation under the 1907 act.[5]

It follows, therefore, that appellant did not acquire United States citizenship at birth under section 1993 of the Revised Statutes.

Findings of Fact: Upon the basis of all the evidence presented, it is found:

(1) That appellant was born in Canada on August 13, 1928;
(2) That appellant’s father was born in the United States in 1897, and has resided in Canada since he was 2 years old;
(3) That appellant’s father enlisted in the Canadian Army in April 1916 and at that time took an oath of allegiance to the British Crown;
(4) That appellant’s father was discharged from the Canadian Army in January 1919, and between July 2, 1921 and August 13, 1928, he voted in one or more elections in Canada.

Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:

(1) That under the 14th Amendment to the Constitution, appellant’s father acquired United States citizenship by birth in this country;

Page 794

(2) That under section 2 of the act of March 2, 1907, appellant’s father became expatriated because he took an oath of allegiance to the British Crown and subsequently voted in Canada;
(3) That under section 1993 of the Revised Statutes appellant did not acquire United States citizenship at birth.

Order: It is ordered that the finding of the Board of Special Inquiry that appellant never acquired United States citizenship, be affirmed.

Page 795