BEFORE THE CENTRAL OFFICE
Discussion: The subject, a 20-year-old male, native of the United States, was accorded a hearing before a Board of Special Inquiry at Ogdensburg, N.Y., on June 7, 1944, and July 6, 1944, relative to his admissibility as a citizen of the United States. The Board of Special Inquiry disallowed his claim to citizenship and excluded him on documentary grounds. On September 7, 1945, the Board of Immigration Appeals directed that the hearing be reopened for further evidence. The appellant in the interim, however, had been paroled into the United States on November 8, 1944, for the purpose of reporting for preinduction examination by a local board of the Selective Service System. Advice was thereafter furnished by the field office that the subject had been inducted into the United States Armed Forces on November 17, 1944, and is presently serving in Panama. Accordingly, the hearing was reopened, in absentia, on December 7, 1945. The Board of Special Inquiry again rejected the appellant's claim to citizenship, and the record had been forwarded for review and decision.
The subject was born in Detroit, Mich., on June 9, 1925, his father then being a native-born citizen of Canada. In view of his birth in the United States and his father's Canadian nationality, it is clear that the subject acquired both United States and Canadian nationality at birth.
The appellant testified that following his birth, he resided in the United States until 1933 when he was taken to Canada where he has since resided. During September 1943, he enrolled in Queen's University, Kingston, Ontario, Canada, for a 4-year course of study in applied science. In connection with his registration as a student, the subject testified that he was required, under compulsion of not being accepted, to enlist in one of the branches of the armed forces. He enlisted in the University Air Training Corps when he was over 18 years of age, and served therein from the time of his admission to the university until required to withdraw on September 27, 1944, because of low standing. The appellant was unable to advise whether he was required to take an oath of allegiance upon enlistment, but testified that a group of men were assembled on a field and sworn in but he was unable to hear what was said. The record contains a transcript of a letter received from the commanding officer of the University Air Training Corps, Kingston, Ontario, Canada, dated June 7, 1944, which indicates that the appellant did not take an oath of allegiance in connection with his enlistment in this organization.
The sole question presented by this record is whether the appellant's expatriation was effected by operation of section 401 (c) of the Nationality Act of 1940, which provides for loss of citizenship by one "entering or serving in the armed forces of a foreign state, unless expressly authorized by the laws of the United States, if he has or acquires the nationality of such foreign state."
The evidence establishes that the appellant was a national of Canada at the time of his enlistment in the University Air Training Corps. The issue is, therefore, narrowed to the character of the University Air Training and whether it is a part of the armed forces of Canada within the meaning of the Nationality Act of 1940. A communication received from the Chief of the Air Staff, Royal Canadian Air Force, Ottawa, Ontario, Canada, dated November 29, 1945, reads in part as follows:
Under the authority of Order in Council P.C. 2983, dated 13th May 1942, the University Air Training Corps was established as a component of the Royal Canadian Air Force. This corps enlisted and trained university students in aeronautics, etc., during a period of their university course. While on the strength of this corps, the recruits were not deemed to be on active service. They were, however, called upon to sign a declaration of intention whereby they undertook to serve in the Royal Canadian Air Force on the completion of training in the University Air Training Corps or at the conclusion of their university course, provided the Royal Canadian Air Force required their services. No guarantee was given them or implied that they would be appointed eventually to commissioned rank or enlisted in the R.C.A.F. This depended entirely on their qualifications in relation to the needs of the service when they volunteered for active service.
It is to be observed from the foregoing, that the recruits of this organization were not regarded as members of the active service, but their eventual assignment or enlistment to the Royal Canadian Air Force depended upon their qualifications in relation to the needs of the Service at such time as they volunteered for active service. Such tender of service could not be undertaken until the completion of training or at the conclusion of the University course.
There was also introduced into evidence as exhibit 2, a letter received from the squadron leader, Queen's University Air Training Squadron, Royal Canadian Air Force, dated October 18, 1945, reading as follows:
In reply to your letter referenced above, I would inform you that enlistment in the University Air Training Corps did not in itself imply exemption from military service in the active forces. The matter should be viewed from this point of view, viz., that in Canada certain types of students were exempt from active service so long as they were students in good standing; further, that such students while in attendance at University were required to take military training, (i.e., in reserve units, or the R.O.T.C., type (not active service), operated by the University under the Department of National Defense.) A man was exempt by virtue of being a student, not by virtue of being enlisted in a University training unit.
L---- F---- was a student in good standing at this university until September 21, 1944, when he was required to withdraw because of low standing. I should interpret his case that he was, with respect to Canadian regulations, exempt from military service (active) until that date, September 21, 1944.
It is significant that both officials have indicated that members of the University Air Training Corps are not members of the active forces. It would further appear that if the trainee failed to continue his studies at the University, he would thereupon become liable for military service in the same manner as are other civilian male inhabitants of Canada. His exemption from active service continued only during that period that he was a student in good standing.
It is noteworthy that the appellant testified that he did not wear a uniform except when on duty; that of the 8 hours spent in academic pursuits, one and one-half hours were devoted to military training. It is equally significant that the appellant has testified, and his testimony is supported by an official communication received from the Royal Canadian Air Force, dated August 16, 1944, that he was "required by university regulations to participate in a training syllabus under the auspices of the Royal Canadian Air Force."
In the Matter of Z----, 56172/642 [renumbered — A-7791053] (approved by the Attorney General on August 24, 1945), the Board of Immigration Appeals considered the case of a United States national who was a member of the Canadian Officers' Training Corps. The basic point involved a determination of whether that organization was part of the armed forces of Canada within the meaning of the Nationality Act of 1940. The Board cited a comment from the President's Committee that drafted a codification of the nationality laws, which indicated that the provisions of section 401 (c) of the Nationality Act of 1940 applied to a national who "offered their all" in support of a foreign state. The Board indicated that, in their judgment, only service "in that part of foreign army which is activated or subject to active military duty will satisfy the requirements" of the cited section; that in no other way can it be said that a person is truly offering his all in support of a foreign state. Hence (the Board said):
A university student who, as part of a full course of studies, devoted probably 2 or 3 hours weekly to military training in an organization which did not, and even today does not, subject him to liability for active duty and whose legal liabilities were then, and are now, no different from those of all civilian male inhabitants of Canada, does not satisfy this test.
Since the facts presented appear analagous to the Z---- case, supra, it is concluded that service in the University Air Training Corps, as presently constituted, does not effect expatriation under section 401 (c) of the Nationality Act of 1940 by virtue of a United States national entering or serving therein.
Order: It is ordered that the appellant be considered a citizen of the United States.