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(b) Residing continuously for three 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 ***.
The Board of Special Inquiry found that the appellant was formerly a national of Canada (prior to entering the United States in 1919) and, consequently, by returning to Canada in 1946 and residing there continuously for three years he divested himself of United States nationality under the above quoted provision of law.
In determining that the appellant formerly held Canadian nationality, the Board of Special Inquiry relied on the Canadian Immigration Act of 1910, which in pertinent part provides:
2. In this act, and in all orders in council, proclamations and regulations made hereunder, unless the context otherwise requires.
(a) "Alien" means a person who is not a British subject;
(b) "Canadian citizen" means—
(i) A person born in Canada who has not become an alien;
(ii) A British subject who has Canadian domicile; or
(iii) A person naturalized under the laws of Canada who has not subsequently become an alien or lost Canadian domicile:
Under the Canadian Immigration Act of 1910, "domicile" is defined as the place in which a person has his home, or in which he resides, or to which he returns as his place of permanent abode, and does not mean the place where he resides for a mere special or temporary purpose. This Act also provides that Canadian domicile can only be acquired, for the purposes of this statute, by a person having his domicile for at least five years in Canada after having been landed therein within the meaning of this statute.
The Board of Special Inquiry concluded that the appellant, a British subject at birth, acquired Canadian nationality prior to entering the United States in 1919 by having maintained a domicile in Canada for a period of 5 years continuously.
It is important to note that the Canadian Act of 1910 related to immigration matters only. The acquisition and loss of nationality in Canada was provided for in the Naturalization Act of 1914.1 The latter act, however, speaks only of British nationality and does not use the term Canadian citizen or Canadian national. This distinction is important, for it means that under Canadian nationality laws, so long as the 1914 Act was in effect, did not comprehend the independent status of Canadian nationality, which was merged in the broader concept of British nationality.
Prior to the Naturalization Act of 1914, the acts governing nationality and naturalization in Canada were the acts of May 15, 1902, August 13, 1903, August 10, 1904, and July 20, 1905. The naturalization provided for in these acts was purely of a local character. The 1914 legislations repealed the above acts. Nationality Laws, Flournoy and Hudson, p. 73, fn.
The next legislation which should be considered is the Candian Nationals Act of 1921, subtitled, "An act to define Canadian nationals. and to provide for the renunciation of Canadian nationality." Section 2 of the Canadian Nationals Act of 1921 reads:
2. The following persons are Canadian Nationals, viz:
(a) Any British subject who is a Canadian citizen within the meaning of the Immigration Act:
We see now that it was not until 1921 under the Canadian Nationals Act that provision was made for recognition of Canadian nationals as distinguished from British subjects; also, that under this Act British subjects who were Canadian citizens within the meaning of the Immigration Act were accorded the status of Canadian nationals. Since the appellant left Canada in 1919, he cannot be held to have been subject to the Canadian Nationals Act of 1921. We are, therefore, left with the question of determining what effect should be given to the term "Canadian citizen" as used in the Immigration Act of 1910, for it is clear under this act the appellant was within the definition of a Canadian citizen.
In reaching a decision on this question, we are guided by the interpretation given to the Canadian law by Mr. J. E. Duggan, Registrar of Canadian Citizenship, Department of the Secretary of State, Canada, in a communication, dated November 1, 1949, addressed to Mr. Charles B. Follmer, American Consul, American Embassy, Ottawa, Canada, which reads in part as follows:
I would take it that Mr. H—, who was born in England, resided in Canada from 1904 to 1919 but not at any other time. During his residence in Canada he would have had the status of a British subject by birth but he would not have been considered a Canadian citizen, within the meaning of the Canadian Nationals Act as that Act was not passed until 1921. He may possibly have had the status of a Canadian citizen for immigration purposes, within the meaning of the Canadian Immigration Act, but insofar as citizenship is concerned, in terms of nationality, Mr. H― would have had the status of a British subject but not that of a Canadian citizen. You will understand, of course, that for naturalization purposes there was not, up to the 1st January 1947, an official term such as Canadian citizen and that during the years 1904 to 1919 Mr. Hcould not have called himself a Canadian citizen officially.
Taking all of the foregoing into consideration, we are led to believe that the following view should prevail. There was no naturalization or nationality law in Canada after 1914 under which the appellant could have acquired the status of a Canadian citizen. Inasmuch as he left Canada in 1919, he was not affected by the Canadian Nationals Act of 1921. It is true that having been a British subject domiciled in Canada for five years, he could have been termed a "Canadian citizen" under the Immigration Act of 1910. However, such status was for the narrow purposes of immigration only. Under the general
or broader concept of nationality, the appellant remained a British subject during his residence in Canada from 1904 to 1919.
If the appellant was not a national of Canada, then his residence in Canada after January 1946 is not residence in the foreign state of which he was formerly a national and the provisions of section 404 (b) do not apply. It is clear that the applicant's expatriation may be accomplished by residence in a foreign state for a continuous period of 5 years (following his naturalization) pursuant to the provisions of section 404 (c) of the Nationality Act of 1940. However, he has not resided in Canada for the specified 5-year period, hence, section 404 (c) (supra) is not operative.
It is observed that under date of May 16, 1949, the Department of State, Washington, D. C., approved his registration in Canada as an American citizen to be valid to January 7, 1951. Thus the Department of State has taken the same position as has been reached here; namely, that the appellant will not become expatriated by residence in Canada until he has resided in that country continuously for a period of 5 years.
Order: It is ordered that the appeal be sustained and that the appellant be admitted as a United States citizen.
IN THE MATTER OF S. S. FLYING ENTERPRISE
IN FINE Proceedings
Decided by Central Office April 20, 1950
Fine-Bringing alien afflicted with tuberculosis-Section 9, Immigration Act of 1917-Nonimposition of fine though such affliction ascertainable at time of foreign embarkation, if alien admitted temporarily for medical treatment. By reason of long administrative practice, it has been held that if an alien is temporarily admitted under the 9th proviso to section 3 of the Immigration Act of 1917 (for medical treatment in this case) notwithstanding the alien's inadmissibility (as one afflicted with tuberculosis in this case), no fine under section 9 of the above act will be considered to have been incurred even though the ground of inadmissibility could have been ascertained at the time of foreign embarkation, note being taken of the proviso contained in section 9, supra.
BEFORE THE CENTRAL OFFICE
Discussion: This is a fine proceeding instituted under section 9 of the Immigration Act of 1917 against the Master of the S. S. Flying Enterprise for bringing to the United States from foreign the abovenamed alien who was found to be afflicted with tuberculosis.
The subject alien was a passenger aboard the S. S. Flying Enterprise when it arrived at Baltimore, Md., from foreign via Norfolk, Va., on February 27, 1950. He was certified by a surgeon of the United States Public Health Service as afflicted with tuberculosis, right upper lobe, and, consequently, was excluded by a Board of Special Inquiry. The subject applied for temporary admission for medical treatment. By order dated March 6, 1950, it was directed. that the alien be admitted to the United States under the 9th proviso to section 3 of the Immigration Act of 1917, as a temporary visitor for 3 months for medical treatment notwithstanding that he was afflicted with tuberculosis and that his passage was paid for with the funds of another person, conditioned upon the Department of State granting a waiver of the visa requirement, and upon the posting of a treatment, public charge and departure bond in the amount of $1,000 (C. O. File A-7424817). The subject met the conditions of the order and was admitted under section 3 (2) of the Immigration
Act of 1924, for a period of 3 months on March 14, 1950. Protest has not yet been received and the time to do so will not expire until May 1, 1950. On the basis of a proviso contained in section 9 of the Immigration Act of February 5, 1917, as amended, hereinafter discussed, the Acting District Director at Baltimore, Md., recommends that fine. be not imposed. Said proviso provides that nothing contained in section 9 "shall be construed to subject transportation companies to a fine for bringing to ports of the United States aliens who are by any of the provisos or exceptions to section 3 of this act exempted from the excluding provisions of said section." In the instant case, the subject was admitted to the United States under the discretionary authority granted to the Attorney General by the 9th proviso to section 3 of the Immigration Act of 1917. "By reason of long administrative practice, it has been held that where an alien is so admitted, no fine under section 9 of the 1917 Act will be considered to have been incurred even though the ground of inadmissibility could have been ascertained at the time of foreign embarkation." Matter of Plane NC-19903, 56088/246 (October 23, 1942); Matter of S. S. Copiapo, 56118/384 (May 14, 1943); Matter of Plane CF TOT, 56160/617 (January 5, 1946). Accordingly, it is concluded that no penalty should attach herein.
Recommendation: It is recommended that fine be not imposed. The amount involved is $1,000, plus $208 passage money.