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IN THE MATTER OF L——

In EXCLUSION Proceedings

A-8001153

Decided by Board December 5, 1952

Election, on or after January 13, 1941-Dual national at birth.

(1) The doctrine of election has no applicability to a person who was vested with dual nationality at birth, United States citizenship having been acquired under section 1993 Revised Statutes. Cf. Matter of R—————, 1, I. & N. Dec. 389. (2) Such person does not divest himself of United States citizenship by claiming or electing his foreign nationality, unless it can be shown that his conduct conformed to a specific statutory standard causing expatriation.

BEFORE THE BOARD

Discussion: This case is before us on appeal from the decision of the Acting Assistant Commissioner dated May 26, 1952, denying counsel's motion to reconsider the prior decision by the Assistant Commissioner on June 4, 1951, in which appellant was held to be a United States citizen.

The case concerns a native of Canada, born on December 25, 1929, who applied at Montreal, Canada, on March 16, 1951, for a temporary visit in the United States. His father is a citizen of the United States, thus establishing that the appellant became a citizen under section 1993 Revised Statutes. The board of special inquiry concluded that the appellant is an expatriate under section 401 (j) of the Nationality Act of 1940 (8 U. S. C. 801 (j)) by reason of having remained abroad for the purpose of evading or avoiding training and service in the Armed Forces of the United States, and denied his admission as one who had departed from the United States to evade such service (8) U. S. C. 136). The Assistant Commissioner, on June 4, 1951, held that the finding of expatriation was unwarranted and ordered the appellant's admission to the United States as a citizen. Counsel has filed a motion seeking reconsideration of the Commissioner's decision. He states therein that on March 31, 1951, the Canadian Government issued to the appellant a certificate of citizenship; also, that on February 4, 1952, he made a formal renunciation of his citizenship in the United States before the American consul. It is clear that from at least the latter date the appellant has not been and is not now a citizen; but

counsel urges us to find that the American citizenship was terminated on an earlier date by operation of an election of Canadian citizenship to the exclusion of citizenship in the United States. The situation is unusual in that cases presented to us normally involve a claim of citizenship in the United States, rather than that citizenship here is terminated.

The record shows that the appellant has at all times maintained his residence in Canada, but he has been in the United States from time to time and that he attended Syracuse University from 1947 to August 1950. He obtained entry in 1947 by presentation of a United States identity and registration card issued to him on September 14, 1949, which was valid to September 14, 1951. On the occasion of his present application (March 16, 1951), he claimed to be a Canadian national, evidently intending to abandon all claim to American citizenship.

Section 1999 Revised Statutes declares that "the right of expatriation is a natural and inherent right of all people"; but "the Government, for the purpose of preventing abuse and securing public welfare, may regulate the mode of expatriation," (Alsberry v. Hawkins, 3 Dana 177, 178 (1839)) ((9 Dana) 39 Ky. 177, 178).

The Attorney General has said (39 Op. A. G. 411, 412):

Expatriation, or the voluntary renunciation or abandonment of nationality and allegiance, is a "natural and inherent right of all people" (Perkins v. Elg, 307 U. S. 325, 334; R. S., sec. 1999). This right may be exercised by any citizen. There must be, however, an intent on the part of the person to renounce citizenship, or the performance of some act which shows presumptive intent (30 Op. A. G. 412, 421). The statutes provide several different ways in which expatriation may be effected, but it does not necessarily follow that the methods thus prescribed are exclusive (United States v. Marshall, 34 F. (2d) 219), although the contrary view is expressed in Leong Kwai Yin v. United States, 31 F. (2d) 738.1

The comment "it does not necessarily follow that the methods thus prescribed are exclusive" was merely an observation and was not decisive of the issue determined.

Counsel contends that the appellant's retention or termination of American citizenship is a matter of his election and that the termination of such citizenship dates from the time he chose to retain his Canadian nationality to the exclusion of citizenship in the United States. He concedes lack of any statute expressly on the point but cites as supporting his contention the decision of the district court in the case of In re Reid, 1934, 6 F. Supp. 800. That decision, however, was reversed on appeal, 1934, 73 F. (2d) 153, and cert. den., 299 U. S. 544. The rule of law established in the Reid case has since been superseded by the decision of the Supreme Court in Perkins v. Elg, 1939, 307 U. S. 325.

1 See also U. 8. ex rel. Scimeca v. Husband, 6 F. (2d) 957 (C. C. A. 2, 1925).

Both the Reid and Elg cases concerned the question of whether the foreign naturalization of a parent, under circumstances that involved the conferring of derivative citizenship in a foreign country on a child, a native born citizen of the United States, operated automatically to terminate the child's American citizenship. The final determination in the Reid case and the contention of the Government in the Elg case was that operation of the 1907 statute, which provided that when a citizen of the United States is naturalized in a foreign country he shall be deemed an expatriate, required the conclusion that such acquisition of foreign nationality resulted in termination of the United States citizenship of the child. The Supreme Court, however, said in the Elg case:

To cause a loss of that citizenship in the absence of treaty or statute having that effect, there must be voluntary action and such action cannot be attributed to an infant whose removal to another country is beyond his control and who during minority is incapable of a binding choice (p. 334). *** We think that the statute was aimed at a voluntary expatriation and we find no evidence in its terms that it was intended to destroy the right of a native citizen, removed from this country during minority, to elect to retain the citizenship acquired by birth and to return here for that purpose (p. 343).

The case Matter of R, 1, I. & N. Dec. 389, 1943, presented an issue somewhat similar to the one before us. It concerned a woman who was born in Germany of a father who was born in the United States. She sought admission to the United States some 45 years after the date of her birth. Meanwhile she had obtained and used both German and American passports. It was contended by the Government that she was required to make an election of citizenship after attaining majority. In deciding that case, we said:

It has not been recognized by the Immigration and Naturalization Service or by this Board that a native-born child having dual citizenship must elect between two citizenships upon attaining his majority; it has not been recognized by the courts; and the statements of authorities to this effect are subject to question insofar as they are based upon State Department rulings, which are determinative of the right of protection and not of citizenship, as such. Mrs. R's entire history prior to 1938 shows that she has considered herself a German citizen, but as she had dual citizenship her various acts as a German citizen are in recognition of one of the two citizenships with which she was vested at birth and are not in derogation or denial of her American citizenship. To say that her acts in exercise of German citizenship are “a living contradiction" of United States citizenship begs the question by assuming a duty to elect. In Mrs. R's case there was no duty to elect."

The foregoing leaves for consideration the question of the right or power of such a dual national to make an effective election of foreign nationality to the exclusion of American citizenship. We note that in Savorgnan v. U. S. (1949, 338 U. S. 491, 499-500), the Supreme Court

* See also Mandoli v. Acheson, 344 U. S. 133 (November 1952).

considered the case of a woman who, in preparation for marriage to an Italian national, took certain action which operated to make her a national of that country. In response to a contention that she did not intend to give up her American citizenship, the court said:

However, the acts upon which the statutes expressly condition the consent of our Government to the expatriation of its citizens are stated objectively. There is no suggestion in the statutory language that the effect of the specified overt acts, when voluntarily done, is conditioned upon the undisclosed intent of the person doing them.

Congress has assumed to specify the means whereby a citizen may terminate his nationality in the United States. The grounds specified by Congress are numerous and liberal. We question, therefore, our prerogative to give recognition to a means not declared by Congress as a "condition" constituting "the consent of our Government" as an action of expatriation. We apprehend that to do so would constitute an assumption of legislative authority. Accordingly, the finding of the Commissioner, made on June 4, 1951, that the appellant was then a citizen of the United States will not be disturbed; but we disapprove the order of May 26, 1952, denying the motion which sought reconsideration of that order. Denial of the motion constituted an affirmance of the prior order authorizing the appellant's admission to the United States, whereas the motion and supporting affidavit disclose that on February 4, 1952, the appellant had made a formal renunciation of American citizenship in conformity with 8 U. S. C. 801 (f). As such renunciation is pertinent to a consideration of the appellant's present admissibility to the United States, and as we are limited in our consideration of this appeal to "the evidence adduced before the board of special inquiry" (8 U. S. C. 153), we will remand the case to the board of special inquiry for the reception of new evidence and such disposition, not inconsistent with the foregoing, as it may find appropriate.

Order: It is ordered that the appeal from the decision of the Commissioner dated May 26, 1952, be sustained and that the case be remanded to the Board of Special Inquiry for the reception of new and pertinent evidence with respect to the appellant's present status as a citizen of the United States and his present right to enter the United States.

IN THE MATTER OF BR

In DEPORTATION Proceedings

A-4690755

Decided by Board December 9, 1952

Evidence-admissibility of testimony by Service officers as to oral statements made by alien.

(1) The testimony of Service officers as to oral statements made voluntarily by the alien to them is admissible in a deportation hearing, even though the oral statements were not given under oath and the alien had not been advised as to his privilege of self-incrimination nor warned that his statements might be used against him in any other proceeding.

(2) Such oral statements are not deemed to be recorded statements within the contemplation of 8 C. F. R. 150.1 (c) (effective March 10, 1950.)

CHARGES:

Warrant: Act of 1918-After entry was member of Communist Party of United States.

BEFORE THE BOARD

Discussion: This case has been certified to this Board in accordance with 8 C. F. R. 90.3 (b).

The hearing officer and the Acting Assistant Commissioner have found the alien deportable on the charge stated above.

The alien is a 47-year-old married male, now separated from his wife. He is a native and citizen of Mexico who has furnished the information that he entered the United States in 1913 and has not departed therefrom. The finding of deportability made by the hearing officer and concurred in by the Acting Assistant Commissioner is based upon the testimony of two officers of the Service who testified at the hearing that during an interview on November 14, 1951, the alien admitted to them that he had been a member of the Communist Party of the United States in 1936 and 1937; that he had attended meetings; that he had been issued a membership book; and that he had paid dues to that organization. At the hearing, the alien refused to testify claiming the privilege against self-incrimination.

It is not contended that the interview of November 14, 1951, did not take place or that the testimony of the Service officers was not a true

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