56143/268Board of Immigration Appeals Executive Office for Immigration Review U.S. Department of Justice
Decided by the Board October 19, 1943.
Citizenship — Section 1993, Revised Statutes — Children born abroad of citizen parent — Section 401 (b) and (c), section 403 (a), and section 323, Nationality Act of 1940 — Expatriation and Repatriation.
1. One born in Canada whose grandfather was a native citizen of the United States derives United States citizenship from his Canadian-born father under Section 1993 of the Revised Statutes, the latter having derived citizenship from the grandfather under Section 1993 and having resided in the United States.
2. Under the limitation upon the operation of section 401 (b) of the Nationality Act of 1940 contained in section 403 (a) of that act, one would not lose his United States nationality who took an oath of allegiance to His British Majesty in Boston, Mass., in connection with his induction into the Canadian armed forces and did not thereafter establish residence in Canada.
3. One who has both United States and Canadian nationality loses his United States nationality under section 401 (c) of the Nationality Act of 1940 by service in the Canadian armed forces in Canada.
4. An applicant for admission for permanent residence who lost his United States nationality under section 401 (c) of the Nationality Act of 1940 by service in the Canadian armed forces will be paroled into the United States to permit him to become repatriated under section 323 of that act by taking an oath before a naturalization court.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Immigrant without immigration visa.
Executive Order 8766 — No passport.
Mr. Leon Ulman, Board attorney-examiner.
STATEMENT OF THE CASE: The appellant applied for admission to the United States on May 11, 1943, at Vanceboro, Maine, as a citizen of the United States. A board of special inquiry rejected his claim to citizenship and excluded him on the grounds above specified. Pending our consideration of the case, the respondent was paroled into the United States.
DISCUSSION: The appellant’s grandfather was born in the United States on March 7, 1865. At some time prior to November 7, 1893, the grandfather went to Canada. The appellant’s father was born in Canada on November 7, 1893. The Canadian authorities have reported that there is no record of the grandfather’s naturalization in Canada. Under Section 1993 of the Revised Statutes, appellant’s
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father was born a citizen of the United States. It appears that the father entered the United States for permanent residence in 1898, and apparently he has maintained a domicile in the United States since that time. It has been established by documentary evidence that he registered under the Selective Service Act at Cambridge, Mass., on June 18, 1918. He was married in Canada in 1915, and the appellant was born in Canada on September 6, 1923. No evidence has been developed to indicate that the appellant’s father ever committed an act of expatriation. We find that the appellant’s father was a citizen of the United States at the time of the appellant’s birth, and that he resided in the United States prior thereto. It is therefore concluded that under Section 1993 of the Revised Statutes, the appellant was a citizen of the United States at his birth.
The issue presented by this record is whether the appellant has expatriated himself under the provisions of the Nationality Act of 1940. The appellant came to the United States in 1926 when he was 3 years of age and continued to live in this country until April 1943. On March 18, 1943, he was inducted into the Canadian Army at the Canadian Enlistment Center at Boston, Mass. When he was inducted he took an oath of allegiance to His British Majesty. On April 12 he left the United States for the purpose of joining the Canadian Air Force and arrived in Canada on April 13. He remained in Canada until May 10, 1943, on which date he was discharged from the Canadian Army because he did not meet the physical requirements. On his attempted return to the United States on May 11, he was excluded by the board of special inquiry, which held that he had expatriated himself under section 401 (b) of the Nationality Act of 1940, and that he was inadmissible since he did not have any of the documents required of an alien.
Section 401 of the Nationality Act of 1940 contains provision for the loss of nationality through various recited acts. Those pertinent to this case appear in subsections (b) and (c). Nationality is lost by “taking an oath or making affirmation or other formal declaration of allegiance to a foreign state” (sec. 401 (b)). It is also lost by “entering, or serving in, the armed forces of a foreign state unless expressly authorized by the laws of the United States, if he [the national of the United States] has or acquires the nationality of such foreign state (sec. 401 (c)).
However, section 401 must be considered in connection with section 403 (a) which expressly provides that except in cases of desertion, treason, etc. (specified in subsecs. (g) and (h) of sec. 401) “* * * no national can expatriate himself, or be expatriated, under this section while within the United States or any of its outlying possessions, but expatriation shall result from the performance within the United States or any of its outlying possessions of any of the acts or the fulfillment
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of any of the conditions specified in this section if and when the national thereafter takes up residence abroad.”
In our judgment the appellant did not expatriate himself under the provisions of section 401 (b). It has been established that the appellant took an oath of allegiance to a foreign state at Boston, Mass. He also testified that during his service in Canada he did not take any other oath. Referring to section 403, the report of the joint committee on the proposed Nationality Act of 1940 submitted to Congress, states: “* * * it does not seem desirable that American nationals should be able to cast off their American nationality and allegiance while continuing to reside in this country” (p. 69); nor in our judgment was the appellant’s absence in Canada from April 12, 1943, to May 10, 1943, as a member of the Canadian Army, the taking up a residence abroad within the meaning of section 403 (a). It may be observed that prior to the 1940 act, the Department of State held that a person who took an oath of allegiance in the United States to a foreign state lost his American nationality if thereafter he left the United States and took up a permanent residence abroad. See Hackworth, Digest of International Law (vol. III, pp. 231-232).
However, in our opinion, the appellant did expatriate himself by performance of the acts set forth in section 401 (c), viz: By entering or serving in the armed forces of a foreign state, unless expressly authorized by laws of the United States if he has the nationality of such foreign state. We are aware of no express provision of law that permits a national of the United States to enter, or serve in, the armed forces of Canada. Since the evidence establishes that the appellant actually served in the armed forces of Canada outside of the United States, his case is not within the exceptions set forth in section 403. It further appears that at such time the appellant possessed Canadian nationality. As has been previously stated, he was born in Canada. The Canadian Nationals Act of 1921 (R.S. Canada, 1927, C. 21) provides that any British subject who is a Canadian citizen within the meaning of the Canadian Immigration Act is a Canadian national. The same act further provides that such a person may renounce his Canadian nationality by formal declaration. There is no evidence, nor is there any claim that the appellant has ever renounced Canadian nationality. The Immigration Act (R.S. Canada, 1927, ch. 93) provides that a person born in Canada who has not become an alien is a Canadian citizen, and that the Canadian citizenship of British subjects by naturalization, of British subjects not born in Canada, shall be presumed to be lost by residence outside of Canada for 1 year. There is nothing in the foregoing from which it may be found that the appellant has lost the Canadian nationality that he had at birth.
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The excluding decision is affirmed solely on the basis of the appellant’s loss of nationality under section 401 (c) of the Nationality Act of 1940.
FINDINGS OF FACT: Upon the basis of the evidence, it is found:
(1) That the appellant was born in Canada on September 6, 1923;
(2) That the appellant’s father was born in Canada;
(3) That the appellant’s grandfather was born in the United States and was a citizen of the United States;
(4) That the appellant’s father resided in the United States prior to September 6, 1923;
(5) That the appellant has resided in the United States since 1926;
(6) That on March 18, 1943, the appellant was inducted into the Canadian Army in Boston, Mass.;
(7) That on said date and at said place, the appellant took an oath of allegiance to His British Majesty;
(8) That the appellant departed from the United States on April 12, 1943, as a member of the armed forces of Canada;
(9) That from April 13, 1943, up to May 10, 1943, appellant served in Canada as a member of the armed forces of Canada;
(10) That on May 10, 1943, the appellant was discharged from the Canadian Army;
(11) That on May 11, 1943, the appellant applied for admission to the United States to resume his residence;
(12) That the appellant did not have an immigration visa, passport or other official document in the nature of a passport showing his origin or identity.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under Section 1993 of the Revised Statutes of the United States, the appellant was a citizen of the United States at birth;
(2) That under section 401 (c) of the Nationality Act of 1940, the appellant has expatriated himself;
(3) That under section 13 of the Immigration Act of 1924, the appellant was inadmissible in that he is an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by the said act or regulations made thereunder;
(4) That under Executive Order 8766, the appellant is inadmissible in that he did not present a passport or other official document in the nature of a passport showing his origin or identity.
OTHER FACTORS: Section 323 of the Nationality Act of 1940, as amended by the act approved April 2, 1942, permits former United States citizens who have lost their citizenship by entering the armed
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forces of an allied country during World War II to be repatriated by taking an oath before a naturalization court, if such person intends to reside permanently in the United States. There appears to be no question but that the appellant desires to continue his previously established domicile in the United States. We think that under the circumstances of the case he should be given an opportunity to repatriate himself pursuant to the provisions of section 323. An appropriate order will be entered.
ORDER: It is ordered that the excluding decision be affirmed.
It is further ordered, That the action of the port in paroling the appellant into the United States be and hereby is approved.
It is further ordered, That the appellant’s admission on parole be extended for a period of 90 days to permit him to apply for repatriation pursuant to the provisions of section 323 of the Nationality Act of 1940, as amended.
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