Case Information
*1 MATTER OF S- in EXCLUSION Proceedings A-11537371 Decided by Board December 23, 5518 Citizеnship--Acquisition by child born abroad—Section 301(a)(7), (b) and (c), Immigration Nationality Act—Failure retain under section (g) and (h), Nationality Act of 1940—Savings clause, section 405, Immigration and Nationality Act—Expatriation, conclusive presumption, section 349(b), 1952 act. (1) A person who acquired United States citizenship in 1935 at time of birth abroad its a U.S. citisvo praront pod an alien parent) under section 1993 of the Revised Statutes, as amended, and who failed to take up residence in the United States prior to his sixteenth birthday as required by section *2 201(g) and (h) of the Nationality Act of 1040, retains his United States citizenship weep he ,m,plice nsoh rho provisions of section 301(b) of the Immigration and Nationality Act by сoming to the United States prior to his twenty-third birthday and establishing physical presence in the United States for a continuous period of five years. (Matter of (cid:9) 5 I. & N. Dec. 291 (1953), overruled.) (2) Information furnished such person in 1051 by en American consul that he had lost his United States citizenship under section 201 (g) and (h) of the Nationality Act of 1940 by failing to take up residence in the United States prior to his sixteenth hirtnoay 1V11 ,, Acrorato whorl noon but later became inapplicable by reason of the enactment of section 301(a) (7), (b), (c) of the Immigration and Nationality Act. When such person, in the belief that he had already lost: his United States citizenship, voted in an Italian political election in 1956. his act of voting will not be considered expatriative provided he applies for a United States passport prior to his twenty-third birthday. (3) Where such person makes timely application for a United States passport which, because of delay by the Government, is not issued until after his twenty-third birthday, and he proceeds to the United States immediately lifter its issuance, he is entitled to admission as a United States citizen since his failure to arrive in the United 0.5111to,, prior to hig twenty-third birthday was due to circumstances beyond his control. (4) An act designated expatriative by statute will not operate to expatriate a United States citizen who was unaware that he had United States citizen- ship or of the consequences of the expatriative act, provided (a) he had been mislеd by a change in interpretation in the law; or (I)) he had been misled by the action of a government official whose duty it was to inform him; or (e) he performed the expatriative act after receiving information
226 (which later became inapplicable, though accurate when given) from a Gov- ernment official that he had already lost United States citizenship.
(5) Thе provision in section 340 (b) of the Immigration and Nationality Act that certain acts shall be "conclusively presumed .' to have been performed voluntarily is not applicable to cases where the United States citizen relied on the advice of a United States consul that he had already lost his United States citizenshiр and where he would not have jeopardized his citizenship by voting had he not been so informed. EXCLUDABLE : Act of 1052—Section 2121a) 120) 13 U.S.C. 1182(a) (20)1—Immi- grant, no visa.
BEFORE THE BOARD
Discussion: The applicant is a 23-year-old single male who was burn in Italy oar Mat ch 10, 1035. Its arrived in the United ',Antes on June 30, 1058, and applied for admission as a United States citizen. He was in possession of а United States passport issued to him by the American Consul at Naples, Italy, on June 19, 1958.- The special inquiry officer ordered that applicant be admitted to the United States as a citizen of the United States, and certified the decision to this Board as a case of novel impression. The applicant was never in the United States prior to his appli- cation for entry on June 19, 1958. His father and mother were both born in Italy, and his father became a naturalized citizen of the United States on October 5, 1929. His mother has never been a citizen of the United States. Applicant acquired citizenship of the United States at birth under section 1993 of the Revisеd Statutes of the United States, as amended by the Act of May 24-, 1934. Under section 201(g) 1 of the Nationality Act of 1940 it was neces- sary for applicant to arrive in else United States before he became years of age in order to retain his United States citizenship. By enactment of section 301(a) through (c) of 111e Inunigration and ,(cid:127) SEE. 201. The following shall be nationals and citizens of the United States at birth: a a a (g) A person born outside the United States and its outlying possessions of parents one of whom is a citizen of the United States who, prior to the birth of such person, has had ten years' residence in the United States or one of its outlying possessions, at least fire of whirl' were after attaining the age of sixteen years, the other being an alien: Provided, That in order to retain such citizenship, the child must reside in the United States or its outlying Possessions for a Period or Periods totaling live rears between the ages of thirteen and twenty-one years: Provided fitriser, Thar, if the child has not taken up a residence in the Unitеd States or its outlying pos- sessions by the time he reaches the age of sixteen years, or if he resides abroad for such a time that it heroines impossible for him to complete the five years' residence in the United States or its outlying possessions before reaching the age of twenty-one years, his American citizenship shall thereupon cease. *3 23 at time of documentation, who acquired United States citizen- ship at birth, and who applied for a passport before reaching 23, whose application was disapproved because he had failed to take up residence in the United States before reaching 16, may now be given a United States passport (under conditions enumerated, which are not relevant here because they have been complied with). The memoranda stipulated that the applicant must have been "wrongfully refused documentation" or "misinformed" that he had lost United States citizenship under section 201(g) of the 1940 act for failure to come to the United States before age 16. He must have been prevented from complying with section 301(b) of the Immi- gration and Nationality Act by the erroneous previous interpreta- tion of section 301(b) by the State Department. The instant case differs from similar matters that have reached us, in that this applicant performed an expatriative act in the interval during which he believed he had lost his claim to United States citizenship at his 16th birthday. He voted in municipal elections on May 27, 1956. The memoranda from the Department of State, referred to above, specifically instructed consular and diplomatic рersonnel that "all cases of the foregoing nature involv- ing otherwise expatriative acts must be submitted for the Depart- ment's consideration." The memoranda then set forth three hypo- thetical cases to illustrate the position that performance of an otherwise expatriative act would not neсessarily preclude an appli- cant from obtaining the benefits of section 301 (b) of the Immigra- tion and Nationality Act. The hypothetical situations set forth in State Department memorandum of October 14, 1958 (and we have abbreviated to some extent) are as follows: A. A (cid:9) - wan born a United Staten citizen on February 09, 1935. He applied for a United States passport for the first time on June 1, 1952, at age 17. He was denied a passport because of the provisions of section 201(g) of the 1940 act, and he was correctly informed that he had lost his United States citizenship. He voted in a foreign election in 1956. In January 1958 when he was not yet 23 years of age he learned of section 301(b) of the 1952 act. He applied for a passport immediately. Even though he voted, be- lieving himself an alien, and even though he was correctly informed
by a consular official of his status on June 1, 1952, he would be
documented. Because
he was not yet 23
when he applied in Janu-
ary 1958, it will be considered his act of voting was not expatriative.
B. B (cid:9)
was born a United States citizen on May 31, 1934.
He applied for a passport for the first time on June 1. (age
18). His application was denied because of section 201(g) of the
1940 act, and he was correctly informed that he had lost his United
States citizenship. He voted in a foreign election in 1956 at the
age of 22, believing himself to be an alien. He first learned of
the new interpretation of section 301(b) in January 1958 at
the
age of 23 years
and applied for a passport immediately. (The
facts in B----- are the same as the facts relating to A (cid:9)
above,
seas over age 23
at the time of his application
except that B (cid:9)
for a passport.) In this case, says the State Department, his
failure to comply with the retention provisions of section 301(b) of
the 1952 act cannot "in equity be attributed to the United States
Government." Hence, they hold B lost his citizenship on his
23rd birthday. (He did not lose his United States citizenship by
the act of voting in the foreign election, but simply by the passage
*4
of time.)
C. C-- was born a United States citizen on June 1, 1934. He
applied for a passport the first time on July 1, 1952 (at the age of
18). His application was denied because of the provisions of sec-
tion 201(g) of the 1940 act. He was
"slot fully Wormed,"
because
he was not told that the new law passed June 27, 1952 (effective
December 24, 1952) would restore his citizenship on Decembеr 24,
1952. (He could not be so informed, because of the departmental
View at that time that ,ectiun 301(b) of the 1952 act would not
restore citizenship to those who had lost it.) He voted in a foreign
election in 1956. He learned of section 301(b) in January 1958, at
the age of 23 - and - s - half years, and reapplied for a passport imme-
diately. The memorandum declares that State would not view his
act of voting as an expatriative act, but would consider it due to
the mistake of the United States Government. He was in the
same position as the person who was misinformed after Decem-
ber 24, 1952. His failure to arrive in the United States before age
23 was also the fault of this Government, and hence he will be given
a passport, even though he was over age 23 when he applied for a
passport in January 1958.
Applicant falls within group A above, and his documentation for
travel to the United States was consistent with the directive of
October 14, 1958.
Whether or not the instructions in the memoranda of the De-
partment of State discussed above and the distinctions made there
are sound in all categories, as to this case the directive seems
reasonable enough, and we will not now take a more restrictive view.
However, we have previously taken the view that when the ex-
patriative act occurred, the consequence of expatriation flowed from
the act, even though the claimant did not intend the consequence.
That is, if he voted intentionally in a foreign election, either not
knowing he was a United States citizen, or not knowing that such
voting had expatriative consequences, he nonetheless was expat-
riated. This has been the view taken by most courts who have had
any of several phases of these problems before them. The thesis
has developed as follows: Congress has power to enact legislation
depriving individuals of their United States citizenship as u con-
sequence of conduct engaged in vоluntarily
(Mackenzie v. Hare,
23') patriative by the statute) will'not operate to expatriate where the claimant Was unaware of the consequences, or was unaware that he had United States citizenship, should be limited to the follow- ing situations : (1) where the claimant was misled by a change of interpretation in the law, or (2) where he was misled by the action of the Government officer whose duty it was to inform him, or (3) where the claimant performed the expatriative act believing, be- cause of information given him by a Government, official (informa- tion which, though accurate when given him, later became inap- plieabls), that he had already lost his United States citizenship. If the сlaimant committed the expatriative act under these circum- stances, he will not be found to have forfeited his citizenship. The Service representative calls our attention to section 349(b)T of the Immigration and Nationality Act, which provides a con- clusive presumption that any expatriative act spеcified in section 349(a) was done voluntarily and without duress, if the claimant to citizenship was a national of the state wherein the act was per- formed, who had bee physically present in that state for ten years or more. Certainly the terms of the conclusive presumption apply the facts in the instant case. The claimant here makes no sug gestion that his voting in the foreign election was involuntary or
under duress. However, the circumstances under which the pre- eumption eras intended to operate do not exist here where we must find that the claimant relied on the advice of a United States official, and that he would not havе jeopardized his citizenship had be not been informed that it was already lost to him. The special inquiry officer concluded that applicant's departure from Italy was dependent upon the issuance to him of a United States passport, that he could not lawfully enter the United States until he was documented, that there was no delay in his applying for a passport as soon as he became aware that he might still have a claim to United States citizenship. Therefore, his failure to arrive in the United States prior to his becoming age 23 was due to cir- cumstances beyond his control, and he did enter the United States to take up permanent residence here as soon as he lawfully could do so. The order of the special inquiry officer that the applicant be admitted to the United States as a citizen of the United States was the correct one. Order: It is ordered that the order of the special inquiry officer of August 20, 1958 be and is hereby approved. Sae. 349(b) Any person who commits or performs any act specified in sub- section (a) shall he conclusively presumed to have done so voluntarily and without having been subjected to duress of any kind, if such person at the time of the act was a national of the state in which the act was performed and had been physically present in such state for a period or periods totaling ten years or more immediately prior to such act.