MATFER OF H—
In EXCLUSION Proceedings
A-11679631
Decided by Board August 28, 1961
Expatriation—Dual national—Section 401, Nationality Act of 19411.—Effect of
action to retain Canadian nationality—Section 350, Immigration and Nationality Act—Benefits of foreign nationality—Canadian passport—Readmission to Canada as Canadian citizen.
(1) Dual national (at birth) of United Stales aua Canada who acted to preserve Canadian nationality upon reaching his majority did not suffer loss or
United States citizenship under section 401 of the Nationality Act of 1940
by renouncing United States citizenship before Canadian notary public, executing declaration of retention of Canadian nationality, and applying for
Canadian certificate of citizenship. Performance of these acts was not the
equivalent of a foreign naturalization, nor the equivalent of an oath of allegiance to Canada.
(2) Subject did not expatriate under doctrine that he elected Canadian nationality upon attaining his majority. Doctrine of election is inapplicable
to person who is a dual national at birth.
(3) Benefit sought or claimed by subject in obtaining Canadian passport in
1959 did not cause expatriation under section 350 of the Immigration and
Nationality Act when not followed by continuous three years' residence in
Canada.
(4) Where subject would have been entitled to readmission to Canada as a
long - term resident, even if he did not possess the citizenship of that country, benefits of Canadian nationality which he may have claimed upon his
return to Canada after temporary visits to the United States were not sufficiently substantial to cause expatriation under section 350 of the Act.
EXCLUDABLE • Act of 1952—Section 212(a) (20) [8 U.S.C. 1182 (a) (20)7—No
immigrant visa.
BEFORE THE BOARD
DISCUSSION: On January 15, 1960, a special inquiry officer ordered the applicant admitted as a citizen of the United States. At
the request of the Service, we reopened the proceeding on Septem
ber 23, 1960. On January 10, 1961, a special inquiry officer again
ordereci that the applicant be admitted to the United States at
which time the case was certified to this Board for final action. In
our decision dated March 14, 1961, we approved the special inquiry
411
officer's order. The case is now before us pursuant to the motion
for reconsideration filed by the Service on April 7, 1961.
The applicant is a 30-year-old married male who was born at
Detroit, Michigan, on March 23, 1931. At the age of about six
months, his parents took him to Canada and he resided there until
October 26, 1959, at which time he applied for admission to this country as a United States citizen, indicating his desire to take up permanent residence here. The applicant's parents were born in Canada
and never became citizens of the United States. At birth, this
applicant was a dual citizen of the United States and Canada. On
August 1, 1952, a certificate of Canadian citizenship was issued to
him.
We have carefully reviewed the entire record. The sole issue
ii.volved is whether the applicant is an alien who requires an immigrant visa or whether he is still a citizen of the United States. The
question resolves itself into whether he became expatriated: (1) under section 401 of the Nationality Act of 1940 [8 U.S.C. 801, 1946
ed.], or (2) under section 350 of the Immigration and Nationality
Act of 1952 [8 U.S.C. 1482].
We will first consider whether the applicant became expatriated
under section 401 of the Nationality Act of 1940. Prior to the repeal of that statutory provision on December 24, 1952, the only
possible expatriating acts performed by the applicant were those
occurring in July 1952 in connection with his efforts to retain his
Canadian nationality. Exhibit. R-3 shows that under section 6(1)
of the Canadian Citizenship Act, effective July 20, 1950, a person
who was a Canadian citizen by•virtue of having been born abroad
to a natural-born Canadian citizen father ceased to be a Canadian
citizen upon the expiration of one year after reaching the age of
21, unless he made a declaration of retention of Canadian citizenship. If he was a citizen of a country other than Canada, he was
required to file a declaration renouncing the nationality of that
country. Exhibits 2 and R-3 contain letters of the Canadian Citizenship Registration Branch dated November 24, 1959, and July 8,
1960, showing that this applicant was not required under Canadian
law to take an oath of allegiance to Canada. Exhibit R-1 estabhellos that the applicant executed a renunciation of his United States
citizenship before a Canadian notary public and commissioner on
July 23, 1952; that on the following day he executed a declaration
of retention of C,anadian citizenship; and that. on A ugnst 1, 1952,
a certificate of Canadian citizenship was issued to him.
Section 401 of the Nationality Act of 1940, as amended, sets
forth in paragraphs (a) through (j) certain acts which resulted
in the loss of United States nationality. Only paragraphs (a), (b)
and (f) have any pertinence to the applicant's case. The appli-
412
cant's renunciation of United States citizenship in July 1952 did
not cause his expatriation under section 401(f) of the Nationality
Act of 1940 because that statutory provision required the making
of a formal renunciation "before a diplomatic or consular officer of
the United States in a foreign state." The record before us contains no evidence that the applicant obtained naturalization in a
foreign state, nor that he took an oath of allegiance to Canada, nor
that he made a formal declaration of allegiance to Canada, which
acts would have caused expatriation under section 401(a) or (b) of
the Nationality Act of 1940. Section 408 of that Act provided that
the loss of nationality under the Act "shall result solely from the
performance by a national of the acts or fulfillment of the conditions
specified in this Act." In view of what we have said, it would seem
that the applicant, did not become expatriated under section 401
of the Nationality Act of, 1940. However, the Service contends that
the applicant did become expatriated under section 401(a) or (b).
Tt, relies on certain language which appears in Kawakita, v. United
Slates, 343 U.S. '717 (1952), and states that we misconstrued that
decision although we had not even mentioned the case in our previous orders concerning the applicant.
We have carefully examined the Kawakita decision in the light
of the argument of the Service. The Service asserted (motion, p. 2)
that Kawakita "holds that a dual national, by affirming or reaffirming his foreign nationality by acts inconsistent, with United States
citizenship constitute a renunciation of United States citizenship
and result in expatriation under section 401(a) and/or (b)." This
assertion is not supported by the language (principally dictum)
which the Service quoted from the Kawakita decision, nor was this
the Court's ruling. What the Court actually held with respect to
the issue of citizenship, was that the evidence was sufficient to support the finding of the jury that Kawakita had not renounced or
lost his United States citizenship at the time he committed the acts
referred to in the indictment (p. 727). At page 731 of the decision,
the Court said: "… the major factual problem on the issue of
expatriation revolved around the entry of petitioner's name in the
Koseki." (The Koseki was a family census register.) Hence, the
facts in Kawakita differ from those in this applicant's case. In
any event, the ruling to the effect that Kawakita retained his
United States citizenship does not appear to be of assistance to the
view of the Service that this applicant did not.
In quoting from the Ka•ctiviat decision, the Service consistently
underscored the words "renounced" and "renunciation" and aparently attributes some unusual significance to the Supreme Court's
use of those words. Kawakita did not, claim that ha had renounced
his United States citizenship under section 401(f) of the Nationality
413
Act, and the Supreme Court obviously used the word "renunciation"
in its usual meaning of giving up or surrendering. In other
words, a citizen could have renounced or surrendered his United
States citizenship under section 401(a) of the Nationality Act by obtaining naturalization in a foreign state, or he could have done so
under section 401(b) by taking an oath of allegiance to a foreign
state.
Apparently the Service believes that the Eawakita decision enlarged section 401(a) and (b) of the Nationality Act to encompass
some cases which were not actually included within its purview.
The language of section 401(a) and (b) is clear and unambiguous,
and the Supreme Court has referred to the recognized rule that
when the words of a statute are free from doubt they are not to be
added to or subtracted from by considerations drawn from any
extraneous source. Camisetti v. United States, 242 U.S. 470, 490
(1917). This would be particularly true in a case such as that of
this applicant where the attempted enlargement of the statute would
extinguish the applicant's United States citizenship. The Supreme
Court has said: "Rights of citizenship are not to be destroyed by
an ambiguity." Nishikawa v. Dulles,
356 U.S. 129 (1958) ; Kawakita
v. United
States, supra., at page 728; and Perkins v. Elg,
307 U.S.
325, 337 (1939).
When the Supreme Court's discussion of whether Kawakita had
become expatriated is considered in its entirety, we believe that the
most that can be said for the theory of the Service is that, under
other circumstances, Kawakita's signing of the Koseki might conceivably be the equivalent of -naturalization within the meaning of
section 401(a), or a declaration of allegiance to Japan within section
401(b). The Supreme Court did not suggest what circumstances
would warrant a conclusion differing from the Kawakita decision,
and we do not consider the Kawakita case to be of value in reaching a determination concerning the applicant. In connection with
the statements in the motion as to what the Service believes was
the ruling of the Supreme Court in the Kawakita case, we find no
support in that decision for these statements of the Service.
In its motion, the Service raicad two questions. The first is
whether the acts performed, by the applicant in July 1952 were
the equivalent of a foreign naturalization or oath of allegiance, and
the second is whether the applicant made an election between Canadian and United States citizenship.
With respect to the first matter, Ja,lbuena v. Dulles,
254 F.2d
379 (C.A. 3, 1958), has relevance although the Service says (motion,
pp. 6-8) that it is lacking in precedent value because it fails to recite
all facts and circumstances and does not distinguish Savorgnan v.
United States,
338 U.S. 491 (1950). If the Savorgnan case had
414
had any applie.ahility, it, undoubtedly would "have been discussed
by the court. In connection with the question of whether the facts
were stated in the Jalbuena case, that decision shows that he was
born in the United States: that his parents took him to the Philippines as an infant; that he became a citizen of the Philippines by
operation of law when that country became independent in 1946;
and that in 1952 he made a declaration under oath that he would
support and defend the Constitution of the Philippine Islands and
bear true faith and allegiance to the same, this being part of his
application for a Philippine passport. The Court of Appeals held
that Jalbuena had done nothing which could be viewed as a renunciation of the United States citizenship which he enjoyed simultaneously with his Philippine citizenship, and that section 401(b)
of the Nationality Act of 1940 could not properly be read as applying to his conduct. The Court of Appeals had considered the
Kawakita decision and, assuming the correctness of the Service view
as to the holding in Kawakita, it would seem that the Court of
Appeals ern whirled that. Jalhnena's ant was also not the equivalent, of
-
a foreign oath of allegiance.
We will now consider whether the acts performed by the applicant in July 1952 were the equivalent of a foreign naturalization
or oath of allegiance. The word "equivalent" has been defined as
alike in significance or import, equal in value, and virtually, or in
effect, identical. If the acts performed by the applicant were actually the equivalent of a naturalization in Canada or an oath of
allegiance to Canada, it would seem that, in contemplation of law,
expatriation would have occurred under section 401(a) or (b) of the
Nationality Act by reason of the performance of the specific acts
mentioned in these statutory provisions. With the exception, however, of a general statement that these acts of the applicant were
the equivalent of a foreign naturalization or oath of allegiance,
there is little in the motion of the Service to substantiate this
assertion.
Insofar as concerns the question of whether the acts performed
by the applicant in July 1952 were the equivalent of a foreign
naturalization, this applicant has at all times been a citizen of
Canada, and we do not believe it can be successfully urged that he
could have obtained naturalization in a country of which he was
already a citizen. With respect to the question of whether the acts
were the equivalent of a foreign oath of allegiance, we have carefully examined the three pertinent documents contained in exhibit
R-1. Obviously, the renunciation of United States citizenship
dated July 23, 1952, and the petition for a certificate showing his
Canadian citizenship cannot be considered the equivalent of an
oath of allegiance to Canada. The third document merely sets forth
415
the applicant's desire to retain Canadian citizenship. It is clear
from the record that there was a specific provision of Canadian
law requiring a person who acquired Canadian citizenship by naturalization to take an oath of allegiance. On the other hand, the
above-mentioned letters from the Canadian Citizenship Registration
Branch dated November 24, 1959, and July 8, 1960, show that the
applicant was not required to take an oath of allegiance to Canada.
We conclude that the acts performed by the applicant in July 1952
were not the equivalent of a foreign naturalization nor the equivalent of an oath or other formal declaration of allegiance to Canada.
As we have indicated above, the second question raised by the
Service was whether the applicant made an election between Canadian and United States citizenship. The important consideration
in this connection is that this applicant, having acquired dual nationality at birth, was under no obligation to make an election
between United States and Canadian nationality. This has been
the settled administrative view since Matte?, of R , 1-389 (1943),
—
which involved a woman who was born in the United States but
who also acquired German citizenship at birth through her parents.
She had lived in Germany for 66 years. We held that she had not
become expatriated although we said, at page 392 of that decision,
that her entire history prior to 1938 showed that she had considered herself a German citizen and had acted as one. Nevertheless,
we said that there was no duty upon her to elected between United
States and German citizenship and that she could have lost her United
States nationality only in a method provided by the Act of March 2,
1907. In Matter of Z—, 2 —346, 347 (approved by Atty. Gen. 1945),
we stated that the doctrine of election does not apply to one who
acquired dual nationality at birth and we held that the applicant
was a citizen of the United States even though, during the exclusion
proceeding, he withdrew his claim to United States citizenship and
said that he wished to be considered a national of Canada.
Mandoli v. Acheson, 344 U.S. 133 (1952), also involved a person
who was a dual citizen at birth and the lower court had held that
he elected between his dual citizenships in favor of Italy. The
Supreme Court concluded that Mandoli had not lost his United
States citizenship and said that such citizenship, conferred by the
Constitution upon persons born in this country, "… is not to be
withdrawn or extinguished by the courts except pursuant to a clear
statutory mandate." That case was governed by the expatriation
Act of March 2, 1907, but the Court stated that the Nationality
Ant of 1940, although not controlling, showed that. Congress therein
"refused to require a citizen by nativity to elect between dual
citizenships upon reaching a majority."
41t
A case analogous Eu (hat of (lie applicant is Matter of L--, 4 - 756
(1952), which was governed by the provisions of the _Nationality
Act of 1940 and related to a person who lied become at birth a dual
citizen of the United States and Canada. He applied for admission
to the United States on March 16, 1951, at which time he claimed
to be a Canadian national and evidently intended to abandon all
claim to United States citizenship. He became 21 years of age on
December 25, 1950, and the Canadian Cioverninent issued a certificate
of citizenship to him on March 31, 1951. On June 4, 1951, the Service
held that this man was a citizen of the United States. On February 4,
1952, he nit«le a formal renunciation of his citizenship before an
American consular officer and was, therefore, no longer a citizen of
the United States when the case came before us on December 5, 1952.
There, counsel urged that we find that United States citizenship had
been terminated on a date earlier than February 4, 1952, by an election
of Canadian citizenship. Our decision was to the effect that the doctrine of election had no applicability to a person who became a dual
national at birth and that such a person could not divest himself of
United States citizenship by electing a foreign nationality unless he
performed one of the expatriating acts mentioned in the statute. We
approved the finding of the Service dated June 4, 1951, that on that
date this person was still a citizen of the United States. At pages
6 and 8 of its motion, the Service • referred to this decision and
stated that it rejected the case as authority to the extent that it is
or may he inconsistent with Kawakita v. United States, supra.
However, Matter of L— does not conflict with the Kawakita decision.
In view of the foregoing, we conclude that this applicant did not
become expatriated under section 401 of the Nationality Act of
1940, and we will next consider whether expatriation occurred under
section 350 of the Immigration and Nationality Act [8 U.S.C. 1482].
A preliminary- Observation is appropriate. In its discussion of possible expatriation under section 350, several statements were imputed to this Board which were actually the statements of the
special inquiry officer. For example, the Service stated (motion,
p. 12) that Jalbuena v. Dulles, supra., was cited by the Board but
did not involve section 350. The special inquiry officer mentioned
that case but it was not referred to in our previous orders. Our
order of March 14, 1961, in this applicant's case approved the special inquiry officer's order of January 10, 1961, directing the applicant's admission to the United States as a citizen, but this does
not mean that we, approved each and every statement appearing in
the decision of January 10, 1961.
The Service stated (motion, p. 10) that the three elements required by sectiun 350 are; (1) dual nationality, (2) a benefit sought
417
6543T7-63----28
or claimed from a foreign state, and (3) "Residence in the foreign
state of which he is a national after the age of 21 and after December 24, 1952, for a continuous period of three years." It was
then stated that the only element which is limited to prospective
effect is residence. However, the Service is in error with respect
to these statements. We have specifically held that expatriation does
not take place under section 350 unless the benefits of the foreign
nationality were sought or claimed after the effective date of the
Immigration and Nationality Act (December 24, 1952) and unless,
following such claim of benefits and subsequent to the individual's
22nd birthday, he resided in the foreign country for three years.
Matter of G—Q--, 7-195 (1956) ; Matter of J—, 8-112 (1958).
Apparently the Service claims that the declaration of retention
of Canadian citizenship was a claim of benefits of Canadian nationality within the purview of section 350 of the Immigration and
Nationality Act. However, since this document was executed on
July 24, 1952, prior to the effective date of section 350, it is not
within the scope of that statutory provision for the reasons stated
in Matter of G—Q— and Matter of J—, supra.
The Service stated that after the applicant's declaration of retention of Canadian citizenship July 1952 he considered himself
to be solely a Canadian citizen. That appears to be correct.. As a
matter of fact, when the applicant first appeared before the special
inquiry officer on October 26, 1959, and was asked regarding the
country of which he was a citizen, he answered, "As far as I know,
Canada." We believe it is clear from the record that the applicant
thought he had given up his United States citizenship in July
1952; that about October 1959, when he desired to enter the United
States for permanent residence, he communicated with an American
consular officer who informed him as to the documents required;
that he applied for a Canadian passport at that time because this
was one of the documents specified by the American consul; and
that subsequently the American consular officer reached the conclusion that the applicant was still a citizen of the United States
and referred him to the United States immigration office at the port
of entry.
It was stated by the Service that each of five items set forth in
its motion was a benefit sought or claimed which would cause
expatriation under section 350, and that WP had ennsidered these
to be trivial. Actually, we had not passed, nor do we now pass,
upon whether these matters were or were not trivial.
Among: the items to which the Service referred were the application for an immigrant visa and the application for Canadian passport. It is difficult to perceive how the application for a United
418
States immigrant visa can be considered seeking the benefit of
Canadian nationality. There was, of course, no formal application
for the immigrant visa. The applicant specifically stated that he
never applied for a Canadian passport prior to the fall of 1959,
and it appears that the application for passport and the application
for the United States immigrant visa were both made about October 1959. Apparently the applicant has lived in the United States
since at least February 11, 1960, and it seems probable that his
residence in Canada (for the purposes of section 350) terminated in
October 1959. In any event, he did not complete three years' residence in Canada subsequent to applying for the United States immigrant visa and the Canadian passport and these acts, therefore, did
not cause expatriation under section 350 in accordance with our
decisions in Matter of 0 — Q — and Matter of J — , supra.
Two other items mentioned by the Service were that the applicant
claimed exemption from registration under the Selective Service
Act and claimed exemption from filing United States inpome tax
returns. Of course, the applicant did not actually make any claim
of exemption. As we indicated above, he had assumed since July
1952 that he was no longer a citizen of the United States and he
registered under the Selective Service Act about August 1960. He
also stated at the hearing on November 23, 1960, that he had always
filed Canadian income tax returns but had not filed a United States
return yet because he had only been here about one year. Even if
we assume that the applicant willfully violated the laws of the
I7nited States by reason of his failure to register at an earlier date
under the Selective Service Act and his failure to file United States
income tax returns, we do not understand how it can conceivably
be argued that such violations of the laws of this country constituted seeking or claiming the benefits of Canadian nationality.
The remaining item mentioned by the Service was, "He has
entered the United States as a Canadian visitor." The Service did
not state when the entries occurred, but the record shows that subsequent to December 24, 1952, the applicant entered the United
States about three times yearly. We conclude that the applicant
was a citizen of the United States on the occasion of each of these
entries and would have been entitled to enter the United States as
a citizen, and that the entries into this country cannot be held to
constitute the seeking or claiming of the benefits of Canadian
nationality.
Insofar as concerns the question of whether the applicant sought
or claimed the benefits of Canadian nationality in connection with
his returns to Canada following these temporary visits to the United
States, he stated that he thinks that, on some occasions he showed
his drivers license to the Canadian immigration officer and appar-
419
ently on other occasions he exhibited his Canadian citizenship certificate. He had lived in Canada since he was 6 or 8 months old,
and following these temporary visits to the United States he reentered Canada for the purpose of returning to his home there.
Presumably, he would have been entitled to do so as a resident of
Canada even if he had not possessed Canadian citizenship. Under
the circumstances and in view of the decision in Matter of R--S—,
7-71S (1958), we do not consider that the benefits of Canadian
nationality which may have been claimed upon his returns to that
country were sufficiently substantial to cause expatriation under
section 350.
Since the applicant has shown that he acquired United States
citizenship at birth, the Government must establi s h expatriation by
cizar, convincing and unequivocal evidence. Gonzales v. Landon,
350 U.S. 920 (1955) ; Niskikawa v. Dulles, supra. In the Niskikawa
decision, the court specifically stated that, in expatriation cases, as
well as those involving denaturalization, "… the facts and the
law should be construed as far as is reasonably possible in favor
of the citizen." For the reasons stated above, we conclude that it
has not been established that thiS applicant became expatriated
either under section 401 of the Nationality Act of 1940 or under
section 350 of the Immigration and Nationality Act. Accordingly,
the motion of the Service will bo denied.
ORDER: It is ordered that the motion of the Service for reconconsideration, except as reconsidered herein, be and the same is
hereby denied.
420
