Hichiro Uyeno, the plaintiff, was born in Bellevue, King County, State of Washington, on June 12, 1926, of Japanese parentage. When four and one-half years-of age, in December, 1930, he was taken by his parents to Japan. -His parents, after their return to .Japan, engaged in farming. The father died there. The mother is still living in Japan. Of several brothers *513 and sisters who accompanied the family to Japan, a brother and sister returned to the United States. The Government has not challenged their claim to citizenship by reason of birth. Indeed, in 1941, the brother registered for military duty under the Selective Training and Service Act оf 1940, 50 U.S.C.A.Appendix, § 301 et seq.
The plaintiff claims his permanent residence at Seattle, Washington, where he resides with his brother, having gained admission to the United States for the purpose of prosecuting the present action, under a “Certificate of Identity”, granted on the plea of need of the physical presence of the plaintiff at the trial. 8 U.S.C.A. § 903. The issuance of such certificate does not work an estoppel against the Government. United States ex rel. Lapides v. Watkins, 2 Cir., 1948,
I
The Facts Leading to the Controversy
In July, 1948, the plaintiff applied to the United States Consulate in Japan for a passport pursuant to his expressed desire to return to the United States. The application was denied upon the sole ground that the plaintiff was no longer a citizen or national of the United States because he had voted in the Japanese general election of 1947.
It is the plaintiff’s contention that he is a citizen and national of the United States, that his participation in the general election of 1947 was forced and was under mistake and misunderstanding, because he hаd no knowledge that such voting would result in loss of citizenship. He asserts that, at no time, did he intend to do anything which would result in the loss or forfeiture of his United States citizenship and nationality. Upon these grounds, he instituted, on December 6, 1948, the present action against the Secretary of State, under Section 503 of the United States Nationality Code, 8 U.S.C.A. § 903.
The answer of the Government challenges the assertions of the plaintiff, except that it admits his birth in the United States, and departure to Japan, while a child of tender age.
The entire controversy, therefore, centers around the participation by thе plaintiff in the Japanese general election of 1947, at which time, although under age, the plaintiff, under the rules laid down by the Supreme Commander Allied Powers (SCAP), was permitted to vote. See, Miranda v. Clark, 9 Cir., 1950,
And the ultimate question is: Did the plaintiff by this act expatriate himself ?
II
What is a “Foreign State” ?
To achieve expatriation by any of the means provided in 'Section 802, 8 U.S.C.A., the act must be voluntary.
“To ‘expatriate’ oneself clearly implies voluntary action.” Dos Reis ex rel. Ca-mara v. Nicolls, 1947, 1 Cir.,
“Expatriation is the voluntary renunciation or abandonment of nationality and allegiance. It has no application tо the removal from this country of a native citizen during minority. In such a case, the voluntary action which is of the essence of the right of expatriation is lacking.” Perkins v. Elg, 1939,
And see, Attorney General of United States v. Ricketts, 9 Cir., 1947,
We are to determine the meaning and effect of the participation of the plaintiff in the Japanese election of 1947, at which the voters of occupied Japan voted for Members of the House of Representatives, members of prefectural and village assemblies, as well as for local prefectural and village heads, in the light of the provisiоns of Subdivision (e) of Section 801 of Title 8 U.S.C.A., which enumerates as one of the actions from which a presumption of loss of United States nationality will arise: “(e) Voting in a political elec
*514
tion in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory”. Since the termination of hostilities with Japan, many cases of this character have arisen and a rather extensive jurisprudence has developed in the lower courts. The latest published opinion on the subject, — that by Judge McLaughlin in Fujiko Furusho v. Acheson, D. C. Hawaii, 1951,
The aim of the Congress in enacting Section 801, 8 U.S.C.A., was to enumerate certain general means of losing United States nationality. These means range from acts of treason, Section 801(h), and desertion of military forces in time of war, Section 801(g), or departure from the United States in time of war or national emergency for the purpose of evading service in the Armed Forces of the United States, Section 801 (j), to expression of allegiance by participation in elections in the foreign state, Section 801(e). See, Savorgnan v. United States, 1950,
The Supreme Court has called voting one of the “per se acts of expatriation” which lack of intent to abandon American citizenship “could not offset”. Savorgnan v. United States, 1950,
An American national, who undergoes naturalization according to the law of a foreign country, knows that his Government will not question his surrender of American allegiance. This is contrary to the attitude of many countries, which, despite renunciation of allegiance, have asserted certain rights against their former nationals, such as the right to induct them into military service, despite attempted change of nationality, and to punish them for failure to respond to induction, even after naturalization. See, Podea v. Acheson, 2 Cir., 1950,
So doing, it is obvious that the words “foreign state” are not words of art. In using them, the Congress did not have in mind the fine distinctions as to sovereignty of occupied and unoccupied countries which authorities on international law may have formulated. They used the word in the sense of “otherness”. When the Congress speaks of “foreign state”, it means a country which is not the United States or its possession or colony, — an alien country, — other than our own, bearing in mind that the average American, when he speaks of a “foreigner” means an alien, non-American.
And this is the way in which Courts have urged us to interpret congressional terminology. Illustrative is the use of the words “white person”, in legislation dealing with eligibility to naturalization. 8 U.S.C.A. § 703. The courts sustained the popular meaning which makes the word equivalent to “Caucasian” as against the anthropological, scientific meaning which would have made Hindus eligible to citizenship. United States v. Bhagat Singh Thind, 1923,
For these reasons, I am in disagreement with the cases on the subject, including Arikawa v. Acheson, D.C.Cal., 1949,
“It is for the executive and legislative departments to say in what relations any other country stands toward it. Courts of justice cannot make the decision. * * * And, unless the political department of our government has decided otherwise, the judiciary recognizes the condition of things with respect to another country which once existed, and is still subsisting because of no other recognition. * * * the state is perpetual, and survives the form of its government,.” (Emphasis added.)
And see, 1 Hackworth, Digest of International law, 1940, Sec. 25, p. 127; 1 Oppen-heim’s International Law, 7th Ed., 1948, Secs. 80-82, pp. 150-158. If we were dealing with an ancient type of occupation, which resulted in the dissolution of the
*516
defeated power and its complete absorption by the victor, it might well be argued that such occupation effectively destroyed the existence of the conquered country and made it a part of the territory of the conqueror. But neither the United States nor the powers allied with it in occupying Japan did, or intended to, dissolve Japan as a unit, or make it a part of the United States, or of the group of nations which the allied occupation represents. Indeed, the Emperor of Japan was allowed to remain as titular head of the State. Certain changes were made in the structure of its Government by a Constitution which conformed to the desires of the conquerors. But the life of the nation as such went on with its language, customs, mores, family institutions and even local instrumentalities of Government. The latter, of course, modified by the exigencies of the new Constitution. So that, regardless of any abstract theorizing about the effect of military occupancy upon a conquered nation, the fact remains that the allied аuthorities have not, and do not intend to, dissolve Japan as an entity and absorb it into some other yet unnamed entity. Rather, Japan is to be returned to its inhabitants, to whom it belongs, after a temporary trusteeship. See, Neely v. Henkel, 1901,
So that the conclusion is warranted that in 1947, when the plaintiff voted in the Japanese elections, Japan was a “foreign state” within the meaning of Section 801(e). See, Neely v. Henkel, supra, at page 115,
Ill
The Elections of 1947 in Japan Were Political Elections
I am equally convinced, from the study of the entire record, that the 1946 elections had a consultative effect only, and that the conditions under which they were held, and the limitations placed upon choice with right of totally annuling their effect made them no more than “a plebiscite”, which the Occupation Authorities could set aside. The 1946 election may well have been what some of the documents emanating from the Supreme Command called it, — an exercise in democratic voting. However, the 1947 election had all the characteristics of finality, which attaches to any election under the democratic pro
*517
cess. It was a “final choice оf an officer by the duly qualified electors.” Newberry v. United States, 1921,
IV
The Participation of the Plaintiff Was Involuntary
This conclusion calls for a consideration of the final ground on which the refusal of the passport is defended, namely, that the participation of the plaintiff in the election was voluntary. This is purely a question of fact. The plaintiff was before the court and testified at length about the circumstances under which he was coerced into voting.
The Government, as a part of its case, presented certain declarations of his, which, it is insisted, contradict his present contention that his vote was involuntary.
I believe the entire stress of the Government lies in the fact that the plaintiff, while saying in these statements made in Japan, that he was
obliged
to vote, he elsewhere states that he was not
forced.
There is no indication thаt, in the original Japanese, there is any greater distinction between the words than in their English equivalents. The plaintiff, in the explanation he gave, showed clearly that what he was denying was the use of physical force on him. He was not denying duress as recognized in our law. If physical force were necessary to prove the act to be involuntary, the conclusion would be unavoidable that there was none. But our Court of Appeals in Acheson v. Murakami, 9 Cir., 1949,
The dividing line between voluntary action and coercion is not always easy to draw. However, the Court of Appeals for the Third Circuit has indicated how it is to be done: “If by reason of extraordinary circumstances amounting to true duress, an American national is forced into the formalities of citizenship of another country, the
sine qua non
of expatriation is lacking. There is not authentic abandonment of his own nationality. His act, if it can be called his act, is involuntary. He cannot be truly said to be manifesting an intention of renouncing his country. On the other hand it is just as certain that the forsaking of American citizenship, even in а difficult situation, as a matter of expediency, with attempted excuse of such conduct later when crass material con
*518
siderations suggest that course, is not duress.” Doreau v. Marshall, 3 Cir., 1948,
In the present case, the testimony of the plaintiff is that the constant reiteration through newspapers and over the radio, and by friends and advisers of the importance of voting and the need for voting was taken by him as “a command” on the part of General MacArthur and the Occupation Forces to vote, which he could not, with impunity, disobey. Indeed, he testified that, in addition to this, he was led to believe that if he did not vote, he would lоse his food ration card. The essential foods on which the Japanese diet is based, — rice, soy, sugar, and the like, — ■ were on the ration list. It is inconceivable that anyone could have remained alive in occupied Japan if he had been deprived of the means of lawful access to these staples. Singly, and together, these pressures, as envisoned by the plaintiff, are the real sources of his action. Motive does not, necessarily, detract from the nature of a voluntary act. But the facts we are considering go beyond mere motive. They are of a character which shows that the pressures exercised upon the plaintiff were so great that his participation in the election was not his voluntary act. I feel that the Consul, in his finding, and the Department, in endeavoring to sustain it, have, unconsciously perhaps, stressed too much the absence of an act of physical coercion. But, in the realm of human action, modern psychology teaches us that group and individual pressures acting upon the needs of a person may be so overpowering in their nature as to overcome individual will and accomplish what physical viоlence could not.
Difficulties arise when courts are called upon to determine whether an act is or is not voluntary. Mr. Justice Jackson, some years ago, pointed to this difficulty. Speaking for the Court, in Gregg Cartage & Storage Co. v. United States, 1942,
In seeking an answer to each individual problem, courts recognize as duress facts and circumstances which, by strict common law, would not have been considered such. Thus, recognition has been given, in our complex society, to “business” or “economic compulsion”. Such compulsion may
actually
exist despite the
appearance
of freedom of choice. See, The Eliza Lines, 1895,
*519
If apprehended property or business loss from threatened acts of the type enumerated is sufficient to make the transaction which it induced involuntary, how much more overpowering is the compulsion of fear of loss of freedom of action, and the fear of hunger and deprivation consequent upon loss of “good standing” with an occupation establishment having the means of influencing and controlling not only one’s freedom of action, but the very process of obtaining one’s means of subsistence. The will to survive is the strongest instinct of human nature. Courts have justified homicide when committed under circumstances which led a reasonable person to believe that his own life was in danger unless he took the life of another. In re Neagle, 1890,
The philosophy of these cases was summed up by Mr. Justice Holmes in Brown v. United States, supra, in one pithy sentence: “Detached reflection cannot be demanded in the presence of an uplifted knife.”
Because of it, many compulsions which act on the will to live, are given sanction. Behind all these rulings lies the recognition of the fact that a great variety of stresses and compulsions, dissociated from actual physical force and the fear or threat of such may be as threatening as “the uplifted knife”, may make the “detached reflection” of which Mr. Justice Holmes speaks, impossible, and may render involuntary actions which, at first blush, may appear to be the result of freedom of choice. Back of all this is man’s urge for self-preservation of which it has been said: “We know оf no more universal instinct than that of self-preservation, — none that so insistently urges to care against injury. It has its motives to exercise in the fear of pain, maiming, and death.” Baltimore, etc., Ry. Co. v. Landrigan, 1903,
This is especially true in the case before us. We are not confronted with an adult who, given a deliberate choice between acts which express allegiance to the United States or allegiance to a foreign country, makes a free choice, with full knowledge, and who, under the circumstances, should be held to its consequences. On the contrary, we are dealing with an immature young man, — an American-born Japanese, — whose citizenship was conferred on him by the 14th Amendment to the United States Constitution. See, United States v. Wong Kim Ark, 1898,
The Government based its denial of the passport
solely
upon the act of voting. The law does not require the American-born child of alien parents to do anything during his minority. See, Perkins v. Elg, 1939,
It is a fundamental rule of equity jurisprudence that he who prevents the exercise of a right by another cannot insist that the right was lost during the period in whicii its exercise was prevented by him or by order of court. This is also true where the act is prevented by “paramount authority”. Thus, a person who prevents the enforcement of a right through injunctive process or other court action, cannot claim, at the same time, that the statute of limitations has run against the right during the period of restraint, in which, by his action, he prevented enforcement. 54 C.J.S., Limitations of Actions, §§ 252-253; see, Elliott & Horne v. Chambers Land Co., 1923,
Here, the Government, itself, — to use Judge James’ phrase, — is “the paramount authority” which, up to now, has prevented the recognition of American nationality which the plaintiff sought to assert. See, 54 C.J.S., Limitations of Actions, §§ 251, 253.
It is, therefore, not in a position to urge any delay which its own restraining action has induced as a bar to the relief here sought.
Judgment will, therefore, be for the plaintiff.
Notes
. The meaning of phrases like “foreign country” and “foreign state” must be determined by reference to the purpose of the particular statute. In Burnet v. Chicago Portrait Company, 1932,