Citizenship — Derivative acquisition by child born abroad upon father's naturalization — section 5 of the act of March 2, 1907, as amended by section 2, act of May 24, 1934 — Expatriation-sections 401 (a), 401 (b), 401 (c), and 401 (b) of the Nationality Act of 1940 — Age limitations as to expatriation under sections 401 (b) and 401 (c) supra — Section 403 (b) of Nationality Act of 1940 — Effect of return here before 23d birthday as to section 401 (a) supra — Age limitation as to expatriation provisions under section 404 (b) supra.
1. A child born in Germany of alien parents on January 22, 1926, who was lawfully admitted to the United States for permanent residence on November 13, 1929, acquired United States citizenship (by "naturalization") upon his father's naturalization here on January 25, 1935, under the provisions of section 5 of the act of March 2, 1907, as amended by section 2 of the act of May 24, 1934.
2. Where such child was taken to Germany by his parents in August 1937 where he remained until he returned to the United States on April 17, 1948, when he was not yet 23 years old, he was not deemed to have expatriated himself under the provisions of section 401 (a) of the Nationality Act of 1940, even if he acquired German nationality through his father's naturalization in Germany after their return in 1937.
3. Where such child was drafted and inducted into the German Army on December 10, 1943, and had to take an oath of allegiance on January 18, 1944, he did not thereby expatriate himself either under section 401 (c) or section 401 (b) of the Nationality Act of 1940, because he was still under 18 (see provisions of section 403 (b) of the same act); nor did the fact that he continued in such military service until his discharge in April 1945 (he became 18 on January 22, 1944) alter this conclusion where it does not appear he could have obtained a discharge before he was discharged and failed to do what he reasonably could to obtain it, or it does not appear his foreign army service or the foreign oath of allegiance was voluntary.
4. This person did not expatriate himself, as a naturalized person residing abroad, under section 404 (b) of the Nationality Act of 1940, because the prescribed expatriation period specified therein did not begin to run until he had reached his majority and he returned to the United States within 3 years of his majority.
BEFORE THE CENTRAL OFFICE
Discussion: The evidence of record establishes that the subject's parents were married on June 15, 1917; that the subject was born at Essen, Germany, on January 22, 1926; that he was admitted to the United States for permanent residence on December 13, 1929; that his father became a naturalized citizen of the United States on January 25, 1935; that in August 1937 the subject was taken by his parents to Germany where he remained continuously until his return to the United States on April 17, 1948; that he was drafted into the German Army on December 10, 1943, and served until discharged in April 1945; that in connection with such military service he took an oath of allegiance to Germany on or about January 18, 1944; and that United States passport No. 1319 was issued to him on January 13, 1948, at the American Consulate at Stuttgart, Germany.
The question presented is whether the applicant expatriated himself (1) under section 404 (b) of the Nationality Act of 1940 by having resided continuously for 3 years in Germany, the country in which he was born, not coming within any exemption specified in section 406 of that act and not having terminated his residence in Germany before October 14, 1946, as contemplated by section 409 of that act, as amended; or (2) under subdivisions (b) and/or (c) of section 401 of the Nationality Act by taking an oath of allegiance to Germany and serving in the armed forces of that country.
The subject derived American citizenship on January 25, 1935, through the naturalization of his father on that date, the subject being then a minor and having resided permanently in the United States since December 13, 1929, at which time he had not reached his sixteenth birthday (sec. 5, act of March 2, 1907, as amended by sec. 2, act of May 24, 1934). Examining, first, the question of loss of nationality under the Nationality Act of 1940, by reason of having served in the German Army from December 1943 to April 1945, consideration must be given to section 403 (b) which states: "No national under 18 years of age can expatriate himself under subsections (b) to (g), inclusive of section 401." Having been born on January 22, 1926, the applicant did not attain the age of 18 years until January 22, 1944, and, accordingly, he did not lose his American citizenship under section 401 (c) upon his induction into the German Army on December 10, 1943. Although he was not discharged until April 1945, it is the settled view of the Service that nationality is not lost by virtue of continuance in the armed forces of a foreign state after reaching the age of 18 years unless such continuance is voluntary; e.g., where "it was reasonably possible for the individual concerned to obtain a discharge and he, knowing that he could obtain a discharge, failed to do so within a reasonable time after attaining 18 years" (500/2, sec. 401, Attorney General's communication dated October 16, 1947, to the Secretary of State; also, General Counsel's opinion of April 22, 1947). In the instant case, there is no evidence that the applicant could have obtained a discharge from the German Army or that his continued service therein after reaching 18 years of age was otherwise voluntary.
The Department of State, in a communication dated December 9, 1948, reported that the applicant stated that "he took the oath of allegiance to Germany in connection with his military service on or about January 18, 1944, but submitted no documentary evidence showing that such was the date he took the oath." If such oath was actually taken by the subject prior to January 22, 1944, his 18th birthday, then clearly no expatriation would result under section 401 (b) in view of the age limitation prescribed by section 403 (b), supra. However, expatriation being the voluntary abandonment of nationality, even if the oath herein was taken after reaching 18 years, there would be no resultant loss of American nationality inasmuch as, under the circumstances involved, the subject, while involuntarily serving in the German Army, had no alternative but to take the oath required by the German Government.
There is left for determination, therefore, only the question as to whether the applicant expatriated himself under section 404 (b) by residing continuously for 3 years in Germany without having terminated his foreign residence before October 14, 1946. The subject departed from this country for Germany, the country in which he was born, in August 1937, at the age of 11 years and resided there continuously until April 1948, when he was 22 years of age. Notwithstanding such foreign residence for almost 11 years, the applicability of section 404 (b) to the instant case is dependent upon whether a United States national who is less than 21 years of age can expatriate himself under said section. The applicant became 21 on January 22, 1947, and as he returned to the United States on April 17, 1948, he only resided in Germany for less than 15 months after attaining majority.
Prior to the enactment of the Nationality Act of 1940, the statutes contained no express age restriction for expatriation. The courts, however, applied the common-law rule that a person under 21 years of age was incapable of making binding decisions which might be prejudicial to his interests and, therefore, lacked the legal capacity to expatriate himself (see Baglivo v. Day, 28 F. (2d) 44; Ex parte Gilroy, 257 Fed. 110; McCampbell v. McCampbell, 13 F. Supp. 847; Attorney General v. Ricketts, 165 F. (2d) 193; Perkins v. Elg, 307 U.S. 325).
The afore-mentioned common-law rule, of course, was subject to modification by statute. This was accomplished in the Nationality Act of 1940 by section 403 (b), supra, which reduced the age at which a national could expatriate himself to 18 years. However, by its express terms, section 403 (b) was limited to situations involving expatriation under subsection (b) to (g) inclusive, of section 401 The Department of State and the Department of Justice recently considered section 401 (a) of the Nationality Act with respect to whether any minimum age is required for expatriation thereunder. Both Departments are now in agreement that a national under 21 years of age cannot expatriate himself under section 401 (a). In a communication dated January 7, 1948 (56240/376), the Deputy Legal Adviser of the Department of State informed the Attorney General as follows:
Since subsection (b) of section 403 of the act of 1940, quoted above, referred expressly to subsections (b) to (g) of section 401, it is clear that it has no application to subsection (a) of section 401. It does not follow, however, that a citizen of the United States can expatriate himself under subsection (a) of section 401 regardless of his age. Therefore, as indicated above, the Department holds that the common-law rule applied by the courts in the cases mentioned continued to be applicable to case arising under section 401 (a).
The General Counsel of this Service, in an opinion dated June 3, 1948, and approved by the Commissioner on August 16, 1948, stated:
Section 403 (b) of the Nationality Act expressly was made applicable to all subsections then in section 401 of the Nationality Act, with exception of subsection (a) which relates to expatriation by foreign naturalization. Does the omission to mention section 401 (a) mean that Congress desired to discard the established limitations forbidding expatriation by minors through naturalization in a foreign country? * * *
* * * The sounder assumption, in my opinion, is that the omission in section 403 (b) of the Nationality Act, to mention section 401 (a) may be ascribed to a desire to retain the traditional 21-year age limitation for expatriation through foreign naturalization (56240/376, 56243/128).
As in the case of section 401 (a), section 404 (which is involved in the instant proceeding) was also part of the Nationality Act of 1940 when it was originally enacted. But, again like section 401 (a), none of the subsections of section 404 was included in section 403 (b) which lowered the minimum age for expatriation to 18 years only in certain specific situations, i.e., those contemplated by "subsections (b) to (g), inclusive, of section 401." Had Congress intended to modify the common-law rule in relation to section 404, it could readily have done so by making express provision therefore in section 403 (b) or in another section. Inasmuch as Congress did not do so and as the report of the administrative committee which drafted the Nationality Code (Codification of the Nationality Laws, House Committee Print, 76th Cong., 1st sess.) does not indicate that any change in the commonlaw rule of legal age was intended in connection with section 404, it is concluded that, similar to the decision reached with respect to section 401 (a) and for the reasons equally applicable herein, no national of the United States can expatriate himself under section 404 until he has reached 21 years of age.
Having determined that a person who has not reached 21 years of age cannot expatriate himself under section 404, it is also necessary to decide whether only foreign residence accumulated after attaining majority may be considered or whether residence in a foreign state during minority may be counted. In this regard, it is believed self-evident that to hold that foreign residence during minority may be considered in determining whether expatriation resulted under section 404, would be inconsistent with, and would nullify, the accepted premise that acts performed by a national who has not attained 21 years of age have no legal effect. The situation is somewhat analogous to that which existed prior to the enactment of the Nationality Act of 1940. Under section 2 of the act of March 2, 1907, a citizen of the United States lost his nationality if he was naturalized in, or took an oath of allegiance to, a foreign state. However, it is well settled that if either of the acts referred to was performed by a citizen during minority, it was insufficient, in and of itself, to result in expatriation before or after the individual concerned reached his majority. It is, therefore, concluded (1) that a national of the United States cannot expatriate himself under section 404 until he has reached the age of 21 years, and (2) that to result in loss of nationality under section 404, the periods of foreign residence prescribed by the subsections, thereof, must be accumulated after attaining 21 years of age.
The preceding conclusions are in accord with the view followed by the Department of State which advised this Service on December 9, 1948:
The Department did not give consideration as to whether the provisions of section 407 of the Nationality Act of 1940 might be applicable to this case, since it considered that the period of 3 years referred to in section 404 (b) of the Nationality Act could not be regarded as beginning to run against Mr. R---- until his attainment of the age of 21 years, that is, until January 22, 1947. Accordingly, the Department was of the opinion that the provisions of section 404 (b) of the Nationality Act of 1940 could not be regarded as becoming applicable to the case until January 22, 1950.
As was previously mentioned, the subject became 21 years of age on January 22, 1947, and as he returned to the United States on April 17, 1948, he did not reside continuously in Germany for 3 years after reaching majority. Accordingly, it follows that he did not lose his nationality of the United States under section 404 (b). Having derived United States citizenship on January 25, 1935, and not having expatriated himself thereafter under any law, the subject is entitled to receive a certificate of citizenship.
One further point requires mention herein. In concluding its aforementioned communication of December 9, 1948, the Department of State reported:
It may be added that the Department has no record of the receipt of any report of expatriation or report of fraudulent naturalization in the case of W---- R----, the father of W---- S---- R----, although the American consular officer at Stuttgart has indicated that such reports are in contemplation.
It is believed that the reports referred to above would have no bearing on the applicant's citizenship. There is no indication that the father's naturalization was procured through actual fraud. It appears that the father returned to Germany within 5 years after his naturalization and that the contemplated report, if cancellation of his naturalization is found to be warranted, would involve only the question of presumptive fraud. This would not affect the prior acquisition of United States citizenship by the subject ( Matter of Bolter, 66 F. Supp. 566, D.C. Calif., 1946; also see O.I. 801.1 II). However, even if the report contemplated by the American consular officer pertains to expatriation by the father through some action on his part which also resulted in the acquisition of German nationality by the applicant herein, the latter would not have lost his American citizenship under section 401 (a) of the Nationality Act of 1940, inasmuch as he took up permanent residence in the United States on April 17, 1948, prior to his 23d birthday.
It is ordered, That the application be granted. Citizenship was derived on January 25, 1935.