indictment peculiar only to first- and second-degree buglary and found remaining sufficient averments peculiar to the statutory definition of third-degree buglary, viz, that the defendant "did break into and enter a certain building * * * then and there intending to commit some crime therein, to wit, the goods, chattels and personal property of said *** then and there being in the said building *** then and there feloniously and burglariously to steal, take and carry away." The foregoing allegations clearly charge a crime involving moral turpitude. We concluded that Mby his plea of guilty to that portion of the indictment quoted above, was convicted of an offense involving moral turpitude. The two indictments under consideration in the instant case charge the crimes of: (1) Attempted burglary in the third degree, and (2) burglary in the third degree. Both indictments clearly state that the attempted breaking and entering and the breaking and entering were with intent to commit a crime inside the building, to wit: Larceny. In both instances the respondent was convicted of crimes necessarily included in the offense charged, to wit, attempted unlawfully entering a building and unlawfully entering a building, pursuant to section 445, Code of Criminal Procedure, New York. Section 405 of the New York Penal Law at the time of the commission of both offenses required that the entry must be "with intent to commit a felony, or a larceny, or any malicious mischief." Using the statutory definition of the lesser crime (unlawful entry) as the determinant by which the surplus allegations in both indictments are eliminated, we find that in both instances the remaining averments charge the respondent with an attempted entry and entering with intent to commit the crime of larceny, one of the three limiting elements in the statute. Accordingly, under the circumstances of this case and under the laws of New York State the records of conviction with which we are here concerned clearly indicate that the respondent was convicted of crimes involving moral turpitude. The findings of fact and conclusions of law set forth in the Assistant Commissioner's opinion of August 9, 1950, are hereby affirmed. Order: It is directed that the appeal be and the same is hereby dismissed. IN THE MATTER OF P— In EXCLUSION Proceedings A-7849463 Decided by Board January 25, 1951 Decided by Acting Attorney General March 5, 1951 Citizenship-Expatriation by dual national by service in foreign (Canada) armed forces-Section 401 (c) of the Nationality Act of 1940-Repatriation thereafter under section 323 of the Nationality Act of 1940, as amended by the act of August 7, 1946-Applicability of the expatriating provisions of section 404 (b) of the Nationality Act of 1940, as amended, by subsequent residence abroad. (1) A person born in Canada (May 9, 1922), of a native-born citizen father, who was a duel national at birth (a Canadian by birth in Canada, a United States citizen under R. S. 1993), expatriated himself by service in the armed forces of Canada (from 1942 to April 1946) under the provisions of section 401 (c) of the Nationality Act of 1940. (See Matter of S—, 2, I. & N. Dec. 783). (2) An oath of repatriation taken under section 323 of the Nationality Act of 1940, as amended, by the above person on August 7, 1946, which was the effective date of the act of August 7, 1946, amending section 323 of the Nationality Act of 1940, as amended April 2, 1942, resulted in restoring to the subject the same United States citizenship status he had immediately prior to its loss as stated above, i. e., a citizen at birth under R. S. 1933. (3) The expatriative provisions of section 404 (b) of the Nationality Act of 1940, as amended, are not applicable to the above case; the contrary would be true in case the subject took the oath of repatriation under section 323 (supra), prior to its amendment on Augut 7, 1946 (which is not retroactive), for such a repatriation before August 7, 1946, constituted a "naturalization" within the meaning of section 101 (c) of the Nationality Act of 1940. EXCLUDED BY BOARD OF SPECIAL INQUIRY: Act of 1924-No immigration visa. BEFORE THE BOARD (January 25, 1951) Discussion: Appellant applied for admission into the United States as a citizen. The board of special inquiry decided that he had become expatriated, and this decision was affirmed by the Assistant Commissioner. The only issue before us is whether or not appellant is at the present time a citizen of the United States. Appellant was born in Windsor, Ontario, on May 9, 1922. Appellant's father was born in the United States, and the Immigration and Naturalization Service concedes that appellant inherited United States citizenship at birth from his father under section 1993, Revised Statutes of the United States. Appellant has lived in Canada since birth. Since 1946 appellant has been employed in Detroit, Mich., and commutes each day from Windsor, Ontario, to his place of employment. He makes his home in Windsor with his wife and three children. Pending appeal appellant was paroled into the United States in order that he might continue his employment. Appellant is a dual national who served in the armed forces of Canada from July 24, 1942, until April 6, 1946, thus losing his United States citizenship. A dual national having United States and Canadian citizenship, who served in the armed forces of Canada, forfeited his United States citizenship under section 401 (c) of the Nationality Act of 1940, (Matter of S, A-6458448 (March 19, 1947) (2, I. & N. Dec. 783)). On August 7, 1946, he took the oath of renunciation and allegiance prescribed by the Nationality Act of 1940 before the American vice consul in Windsor, Ontario. He was thereby naturalized a citizen of the United States pursuant to section 323 of that act.1 Section 404 (b) of the Nationality Act of 1940 provides that a person who has become a national by naturalization shall lose his nationality by residing continuously for 3 years in the territory of a foreign state of which he was formerly a national or in which the place of his birth is situated, with exceptions not applicable here. The question is, does section 404 (b) apply to appellant? If he is to be considered a national by naturalization, it does. If he is to be considered a national by birth, it does not. A person reacquiring United States citizenship under section 323 of the Nationality Act of 1940 by taking an oath of allegiance is a citizen by naturalization if he took that oath before August 7, 1946 (Matter of D-, A-7211929 (December 30, 1949); Matter of L, A-7225268 (December 30, 1949); Matter of L, (now D-1001 formerly 56254/455), A-7398294 (June 13, 1950)). There is a distinction between those cases and this one, however, in that appellant in the present case took the oath of renunciation and allegiance on August 7, 1946. On that same date there became effective a newly enacted saving clause as part of section 323 of the Nationality Act which provides as follows: Such persons shall have, from and after naturalization under this section, the same citizenship status as that which existed immediately prior to its loss. 1Sec. 101 (c) of the Nationality Act of 1940 provides: "The term 'naturalization' means the conferring of nationality of a state upon a person after birth." In the L― case we pointed out that there was no indication that this statute was intended to have any retroactive effect, and was therefore of no benefit to L-, who had taken his oath on February 23, 1946. The saving clause is a part of the second paragraph added to section 323 by the act of August 7, 1946. It is our opinion that the clause applies to persons who recover their citizenship under the first paragraph of section 323 as well as to persons who recover their citizenship under the second paragraph of section 323. The clause specifically says, "from and after naturalization under this section"; it does not say, "Such persons shall have from and after naturalization under this paragraph ***" Appellant was a citizen of the United States by birth before he lost his citizenship. The citizenship he recovers must be of the same status. Sutherland on Statutory Construction, volume I, section 1935, says: *The act or code as amended should be construed as to future events as if it had been originally enacted in that form. *** The legislature is presumed to know the prior construction of the original act or code * * While the second paragraph of section 323 was enacted at a later date, it is clear that the saving clause in that paragraph will benefit those persons naturalized in accordance with the first paragraph, if the entire section is read together as if it had been originally enacted in its present form. Sutherland says further, volume III, section 7216: It is imperative that legislation providing for national defense and the prosecution of war shall be liberally construed to accomplish its important objectives. * * * Legislation enacted for the purpose of preserving the security and rights of those engaged and participating in defense and war efforts must be given a broad interpretation. Thus, the Soldiers and Sailors Civil Relief Act is given an extended interpretation. A statute of this nature should be liberally construed in favor of the rights of men engaged in military service absorbed by the exacting duties required of him and unable to attend to matters of private business. In addition, legislation undertaking to reward and repay those who have contributed by energy and even their lives in the service should be given unselfish construction. Certainly if we are to apply the above principles of statutory construction to the present case, the result would be a finding that appellant was meant to benefit from the saving clause appended to section 323. Before he expatriated himself by service in the Canadian Army, appellant was a citizen by birth, not a citizen by naturalization. Therefore, when he was repatriated he again became a citizen by birth. As a citizen by birth he is not subject to expatriation under section 404 (b), because that section applies only to citizens by naturalization. Order: It is ordered that the appeal be sustained and the appellant admitted as an American citizen. In accordance with the provisions of section 90.12 (b) of title 8, Code of Federal Regulations, this case is certified to the Attorney General for review of the Board's decision. BEFORE THE ACTING ATTORNEY GENERAL (March 5, 1951) The decision and order of the Board of Immigration Appeals dated January 25, 1951, are hereby approved. |