IN THE MATTER OF K

In EXCLUSION Proceedings

A-7136829

Decided by Central Office October 25, 1950

Citizenship-Expatriation-Section 2 and section 3 of the act of March 2, 1907.

A native-born woman citizen of the United States who went to Canada in 1910, married a native-born citizen of the United States in Canada in 1910, returned to the United States to live before he was naturalized in Canada in 1912, and who resided here since, did not expatriate herself under the provisions of section 2 of the act of March 2, 1907, by "naturalization" abroad, nor did she become expatriated under the provisions of section 3 of the above act merely because of the subsistence of such marriage after his naturalization in Canada in 1912.

NOT EXCLUDED BY BOARD OF SPECIAL INQUIRY:

(Admitted as a returning legal resident alien.)

BEFORE THE CENTRAL OFFICE

Discussion: The appellant, 67-year-old female, applied at the port of Blaine, Wash., for admission as a United States citizen. A board of special inquiry on March 11, 1949, found her to be an alien and authorized her admission as a returning legal resident. Upon appeal, the Central Office declined to take jurisdiction in view of the fact that the applicant had been admitted to the United States, and on June 23, 1950, the applicant made application for amendment of her record of entry on March 11, 1949, from that of a legally resident alien to that of a United States citizen. Upon consideration, in view of the importance of the question of citizenship presented herein, we have decided that a denial of a claim to citizenship by a board of special inquiry is appealable, and we will consider the case as an appeal from the adverse decision of the board of special inquiry on March 11, 1949.

The applicant testified that she was born at Webster, S. Dak., on May 29, 1883, and presented a delayed birth certificate. She stated she married in 1902 in the United States a person born in Germany who had been a soldier in the United States but as to whose citizen

ship status at the time of her marriage, she did not have any definite information. Her marriage to this husband was terminated by a divorce procured by her in the United States on January 19, 1910. She presented a divorce decree to establish the termination of such marriage. She stated she continued to reside in the United States after the termination of such marriage until March 22 or 23, 1910.

The appellant stated that she went to Canada about March 22 or 23, 1910, and married a native-born citizen of the United States in Canada on March 23, 1910. A marriage certificate was submitted as to such marriage. The appellant's marriage to her second husband has not been terminated to date. He testified as to his birth in the United States and presented a delayed birth certificate. He was a United States citizen when he married the subject in 1910.

Her birth in the United States, her continuous residence in the United States during her first marriage and after its termination, and her marriage in 1910 to a citizen of the United States indicate that she was a citizen of the United States on March 23, 1910, when she married her present husband.

The appellant stated that she continued to reside in Canada from about March 23, 1910, until November 1912 and that at all other times since her birth she has resided in the United States. Her present husband and she both testified that she was in the United States by November 27, 1912, at which time her father's birthday was being celebrated. Other data was mentioned which enabled them to fix the date as November 1912, at which time the appellant stated that she entered the United States for permanent residence as a citizen of the United States.

The record shows that there was submitted copy of a naturalization record in Canada showing the present husband's naturalization in Canada on December 3, 1912, at which time the appellant had already taken up permanent residence in the United States. He testified that he entered the United States for permanent residence about February 1913 and he presented a naturalization certificate showing his admission to United States citizenship in Montana on April 11, 1923.

The question presented is whether under this set of facts the appellant became expatriated as a result of her husband's naturalization in Canada on December 3, 1912.

Under the provisions of section 2 of the act of March 2, 1907, a citizen of the United States expatriated himself by naturalization in accordance with the laws of a foreign country. Accordingly, the present husband of the appellant became expatriated upon his naturalization in Canada on December 3, 1912. The Service has taken the view that between March 2, 1907, and September 22, 1922, expatriation would occur if a woman national acquired nationality of a foreign country

in which the husband (a united States citizen at time of marriage) was naturalized (after the marriage), through his foreign naturalization and by taking up residence abroad with her husband. Loss of citizenship by such a woman national was considered to have occurred under section 2 of the act of March 2, 1907. In other words, she was considered to have become naturalized in conformance with the law of a foreign state.

In the present case, the appellant was permanently residing in the United States when her citizen husband was naturalized in Canada on December 3, 1912. She had not submitted herself to Canadian jurisdiction at the time of his naturalization there nor has she ever done any affirmative act to show an adoption of or concurrence or acquiescence in any act by her present husband relating to his naturalization in Canada on December 3, 1912, when she was residing in the United States.

It is, therefore, concluded that the appellant did not expatriate herself on December 3, 1912, under the provisions of section 2 of the act of March 2, 1907, by becoming naturalized in conformity with the laws of a foreign country, in view of her continued residence in the United States on and after November 1912.

The question which remains to be considered is whether the appellant expatriated herself under the provisions of section 3 of the act of March 2, 1907, because of the fact that for a time she was married to an alien. It is to be noted that section 3 (supra), specifies "that any American woman who marries a foreigner shall take the nationality of her husband" and how such a woman could resume her citizenship at the termination of such a marital relation. It is clear from the decision of the Supreme Court in Mackenzie v. Hare, 239 U. S. 299, that the statute provided a consequence of the marriage to a foreigner in spite of the woman's contrary intent and understanding as to her American citizenship and the court noted that the marriage was voluntarily entered into with notice of the statutory consequences of such marriage. In such a case, the voluntary nature of the expatriative act of marriage is apparent and meets the condition indicated in Perkins v. Elg, 307 U. S. 325, that expatriation is a result of a voluntary act.

In the present case, the appellant married a citizen of the United States in 1910 and during the subsistence of their marriage he became naturalized in Canada on December 3, 1912, at which time she had taken up permanent residence in the United States. The question narrows down to whether the subsistence of the marriage has a bearing in our case as to expatriation under section 3 (supra). There have been conflicting views on this point in the past because of the theory that there was a merger of nationality during the expatriative period from 1907 to 1922, the American woman's nationality being

submerged in the dominant nationality of her husband during coverture. In pursuing this theory, the view of the Supreme Court as to the voluntary nature of expatriation, as expressed in Perkins v. Elg (supra), was, of course, not considered because that view antedated the Supreme Court's decision in the Elg case. It is the Service's view that under section 3 of the act of March 2, 1907, the expatriative act is the marriage of an American woman to an alien during the expatriatable period.

In the case where a woman marries an American citizen and thereafter he becomes an alien without acquiring foreign nationality as, for instance, where he becomes expatriated for desertion or by taking an oath of allegiance to a foreign country, the fact that he is an alien during coverture and during the expatriatable period (1907 to 1922) is of no expatriative consequence (30 Op. Atty. Gen. 412 (1950)). Even if the husband acquires a foreign nationality, which the woman already had herself (a dual national), upon the citizen husband becoming naturalized abroad after the marriage, she was held not to have become expatriated (Matter of B-, A-5831995, Adjudications Office, November 1, 1946). It appears clear that it is the marriage to an alien which has the expatriative effect under section 3 (supra), and if she marries an alien (1907-22), it is no matter whether or not she may or may not acquire a foreign nationality by such marriage (Mackenzie v. Hare (supra); Techt v. Hughes, 229 N. Y. 222; Matter of T————, A–6792774, C. O., December 4, 1947). If the husband had both United States nationality and foreign nationality when she married him, she did not lose her citizenship by such marriage (Matter of T———, 23/45188, C. O. April 22, 1940).

It has been held (1945) that a minor child while married to an alien during this expatriative period nevertheless derived United States citizenship through the naturalization of her father and by her residence in the United States, under section 5 of the act of March 2, 1907, she being still a minor and still married to the alien during this expatriatable period and before September 22, 1922. Here the theory of merger of nationality of the American wife with that of her alien husband was not indulged (his as the dominant one), and the unreported case of Majefsky, U. S. D. C., So. D. of Calif., 246-P29263, was cited (see Digest of Passport Laws and Precedents, Code 3.4 of September 18, 1940, second paragraph).1

1 Matter of W- B. I. A., August 5, 1941, 56088/710 dealt with a naturalization in Canada of a United States citizen's husband while he was married to a United States citizen residing with him in Canada at the time of his naturalization there. The language there used as to sec. 3 of the act of March 2, 1907, would appear to rest on the fiction as to the merger of the wife's nationality status in the dominant nationality of the husband. This decision could have rested on the facts before it showing that expatriation had resulted under sec. 2 of that

It is concluded that the appellant did not become expatriated under the provisions of section 3 of the act of March 2, 1907, by marriage to an alien, inasmuch as she was married to a citizen in 1910 who later became an alien by naturalization in Canada on December 3, 1912, at which time she was residing permanently in the United States and continued to reside here since November 1912.

There is nothing in the record to indicate that the appellant has expatriated herself in any manner. Accordingly, her appeal will be sustained and her admission as a United States citizen authorized.

Order: It is ordered that the appellant's appeal be sustained and that she be admitted into the United States as a United States citizen.

act by virtue of her naturalization in Canada where she resided. Likewise, in Central Office decisions of Matter of A————, 56099/577, August 20, 1942 and Matter of C—, A-7268496, September 29, 1949.

It is to be noted that the act of marriage to an alien was considered to have the expatriative effect under sec. 3 (supra), in the case of In re Varat, 1 F. Supp. 898, 1932, where the citizen woman had married an alien on January 27, 1920, after the bar to expatriation (because of the war period) terminated on July 2, 1921, the expatriative effect of the marriage to the alien became operative because the continuance of the marital status (with such alien) showed an affirmance of the expatriative act of marriage to the alien. (See 39 Op. Atty. Gen. 474, 481.)