56175/45
Decided by Board February 23, 1945
Citizenship — Expatriation — Army "Deserter" in wartime — Sections 401 (g) and 401 (j) of the Nationality Act of 1940, as amended — Congressional intent.
A native-born citizen of the United States, who is permitted to depart from the United States after induction in the armed forces of the United States, but thereafter remains out of the United States since September 27, 1944, for the purpose of evading United States military service, is not deemed to have expatriated himself under the provisions of section 401 (j) of the Nationality Act of 1940, as amended by the Act of September 27, 1944, in view of congressional intent to affect "draft dodgers" thereunder, and inasmuch as the expatriative provisions of section 401 (g) of the Nationality Act of 1940 deal specifically with "military personnel" convicted by court martial of desertion.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Executive Order No. 8766 — No passport.
Act of 1917, as amended — Departed from or remained out of the United States to evade military service.
BEFORE THE BOARD
Discussion: The appellant, a 20-year-old native of the United States, applied for admission at Douglas, Ariz., on January 9, 1945, for the purposes of rejoining his Army unit. After a hearing before a Board of Special Inquiry, he was found to have expatriated himself under the provisions of section 401 (j) of the Nationality Act of 1940, as amended, and he was excluded on the grounds above stated. Pending our consideration of his appeal, he was paroled to the United States Army Air Forces at Douglas, Ariz., so that the military authorities could take such action against him as they deemed proper.
The record indicates that the appellant was inducted into the United States Army on June 4, 1943. In August of that year he claims that he received an emergency 7-day furlough in order to visit his allegedly sick mother in Mexico. Though this furlough, according to his testimony, began on August 1, he did not depart for Mexico until August 3. He further claims that while in Mexico he obtained a 3- or 4-day extension of his furlough, but that, because of the continuing serious illness of his mother, he did not return or attempt to return to the United States until his present application for admission, more than 17 months after his departure.
The initial issue to be determined in this case is the appellant's nationality status as of the date of his application for admission. If he was then an American citizen, the immigration authorities had no jurisdiction over him and his appeal would have to be sustained. And this is so no matter what action the military authorities may take against him during his parole in the United States, even if such action were to bring the appellant within the expatriating terms of section 401 (g) of the Nationality Act.
The Board of Special Inquiry has found that the appellant lost his American citizenship under section 401 (j) of the Nationality Act of 1940, as amended. This provision, which was added to the Nationality Act by section 1 of the act approved September 27, 1944 ( 58 Stat. 746), subsequent to the appellant's departure to Mexico, reads:
A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by departing from or remaining outside of the jurisdiction of the United States in time of war or during a period declared by the President to be a period of national emergency for the purpose of evading or avoiding training and service in the land or naval forces of the United States.
There is no occasion for us here to decide the retroactive effect, if any, of this provision, or to determine whether the appellant left the United States or remained in Mexico for over 17 months prior to his application for admission in order to evade or avoid training and service in the armed forces, since, in our judgment, section 401 (j) has no application to those American citizens who depart from or remain outside of the jurisdiction of the United States while serving in the armed forces, and that it applies only to so-called draft dodgers.
While section 401 (j) was enacted subsequent to the appellant's departure, it is clear that he did remain in Mexico after its enactment. Accordingly, if this provision were found applicable to the appellant, it would appear that no question of retroactivity could be raised with respect to the appellant's actions during the period that he remained in Mexico after September 27, 1944.
We believe that the record could have been further developed with respect to this question and were it not for our ultimate holding in the case, we would reopen the hearing for further evidence.
The language of section 401 (j) is not entirely free from ambiguity as to who are comprehended within its terms. The use of the conjunctive in the phrase "training and serving" in contradistinction to the employment of the disjunctive in the similar phrase in the companion provision, section 2 of the act, approved September 27, 1944, which amended section 3 of the act of February 5, 1917, lends some support to the view that section 401 (j) was not aimed at Army deserters. Moreover, to apply this section to such deserters would mean that to some extent it would overlap the provisions of section 401 (g) which deal specifically with military personnel convicted by court martial of desertion. To resolve the apparent ambiguity in the provision under consideration resort may be had to the congressional history of the legislation.
While it appears that at one time resort could not be had to congressional history unless the language of a statute was ambiguous ( United States v. Great Northern Railway Co., 287 U.S. 144 (1932); Wright v. Mountain Trust Bank, 300 U.S. 440 (1937)), there is recent authority to the effect that congressional history may be examined even when the language appears clear. Mr. Justice Murphy in speaking for the court in Harrison v. Northern Trust Co., 317 U.S. 476 (1943) said, "* * * words are inexact tools at best and for that reason there is wisely no rule of law forbidding resort to explanatory legislative history no matter how `clear the words may appear on superficial examination' (cases cited)."
After the enactment of the Selective Training and Service Act of 1940 and after our entry into the war, many American citizens were found to be leaving the jurisdiction of the United States for the purpose of evading the draft, expecting to return to this country after the conclusion of the war. For that reason, the Department of Justice thought it wise to recommend to the Congress that legislation be enacted to deprive such persons of their citizenship, and also to exclude those aliens who so left or remained outside of the United States. Accordingly, the Attorney General, on February 16, 1944, wrote to the chairman of the Senate Committee on Immigration enclosing in his communication a draft of a proposed bill, eventually enacted without change on September 27, 1944, section 1 of which bill became section 401 (j) of the Nationality Act of 1940. In this communication the Attorney General said:
Memorandum from the Assistant Solicitor General to the Commissioner, Immigration and Naturalization Service, March 26, 1943.
The files of this Department disclose that at the present time there are many citizens of the United States who have left this country for the purpose of escaping service in the armed forces. While such persons are liable to prosecution for violation of the Selective Training and Service Act of 1940, if and when they return to this country, it would seem proper that in addition they should lose their United States citizenship. Persons who are unwilling to perform their duty to their country and abandon it during its time of need are much less worthy of citizenship than are persons who become expatriated on any of the existing grounds.
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Adequate precedent exists for the suggested legislation in that during the First World War a statute was in force which provided for the expatriation of any person who went beyond the limits of the United States with intent to avoid any draft into the military or naval service ( 37 Stat. 356). This provision was repealed by section 504 of the Nationality Code of 1940 ( 54 Stat. 1172; U.S.C., title 8, sec. 904). [Italics supplied.]
The emphasized portions of the Attorney General's letter clearly show that the bill was aimed only at draft dodgers. Persons in the armed forces cannot be prosecuted under the Selective Training and Service Act for desertion. Only the military authorities have jurisdiction to prosecute such deserters. Those who leave the United States to evade or avoid induction into the armed forces can be punished under the Selective Training and Service Act and it was only at those persons that the proposed bill was aimed.
The House Committee on Immigration and Naturalization, in favorably reporting the bill proposed by the Attorney General, included in its report the Attorney General's communication, and, it is significant to note, further said:
It is, of course, not known how many citizens or aliens have left the United States for the purpose of evading military service. The Department of Justice discovered that in the western district of Texas, in the vicinity of El Paso alone, there were over 800 draft delinquents recorded in the local Federal Bureau of Investigation office, born in this country and, therefore citizens, who had crossed the border into Mexico for the purpose of evading the draft, but with the expectation of returning to the United States to resume residence after the war.
A representative of the Department of Justice appeared and explained the purpose of the bill.
A representative of the State Department appeared and indicated that his Department had no objection to the bill.
It was explained to the committee that under the new subsection (j) to section 401 of the Nationality Act it would be the primary duty of either the United States Consular Service of the Department of State or the Immigration and Naturalization Service to determine the questions of fact as to whether citizenship had been lost under the terms of the amended and, also, as to whether any aliens who had left the United States during the war had left for the purpose of evading the draft. [Italics supplied.]
In addition, the Senate Committee on Immigration, in recommending favorable consideration of the proposed bill stated in its report that the Attorney General's letter referred to and partially quoted from above fully explained the purpose of the bill. If any further evidence is needed that the bill was aimed solely at so-called draft dodgers and not at deserters from the armed forces of the United States, it is supplied from the statements made by the committee chairman, Mr. Dickstein, in charge of the bill during the debate in the House of Representatives. The following pertinent excerpts from that debate are indicative of the intent of Congress:
While ordinarily congressional debates may not be an appropriate guide in determining the intent of Congress, except to show a common agreement upon the general purpose of the bill ( United States v. San Francisco, 310 U.S. 16 (1940); Humphrey v. United States, 295 U.S. 602 (1935)), the statements made by the committee chairman in charge of the bill or by committee members may be resorted to and are persuasive in showing such intent ( United States v. San Francisco, supra; Wright v. Mountain Trust Co., supra; United States v. Great Northern Railway Co., supra)).
Congressional Record of March 29, 1944, p. 3304.
Mr. Dickstein. * * *
I would classify this piece of legislation as a bill to denaturalize and denationalize all draft dodgers who left this country knowing that there was a possibility that they might have to serve in the armed forces, or in the naval forces, or the marines, and in an effort to get out of such service.
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Mr. Rowe. Is it a part of the qualification of the bill that he leave for the sole purpose of evading the draft or the call of an emergency?
Mr. Dickstein. That is right. In the last war we had a similar statute, but it was repealed. When war was declared by this Congress we found that there were hundreds, knowing they would be subject to the draft or subject to the service of their country, who left the country for the purpose of evading service.
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Mr. Dickstein. I appreciate that. In the last world war we had a number of people who were classified under the head of "Yellow draft dodger." They left the country with the idea of evading the call of their country. They simply slipped out of the country and then were not within the jurisdiction of the United States. They waited until the was was over, and then came back to claim the same status they had when they left. It seems to me that persons in that category should not be allowed to call themselves Americans or should not be allowed to be citizens of the United States of America.
It is for those reasons that we find the appellant to have been a citizen of the United States at the time he applied for admission. Being a citizen of the United States, he was not then subject to the immigration laws. His appeal will be sustained.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the appellant was born in the United States in 1924;
(2) That the appellant was inducted into the United States Army on June 4, 1943;
(3) That on August 1, 1943 the appellant was given a 7-day furlough in order to visit his sick mother in Mexico;
(4) That the appellant's furlough was thereafter extended for an additional period of 4 days;
(5) That the appellant remained in Mexico until his application for admission on January 9, 1945.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under the provisions of the fourteenth amendment to the Constitution of the United States and section 1992 of the Revised Statutes, the appellant was born an American citizen
(2) That the appellant is not subject to the expatriating provisions of section 401 (j) of the Nationality Act of 1940, as amended;
(3) That the appellant was a citizen of the United States at the time of his application for admission;
(4) That the appellant was not then subject to the immigration laws.Order: It is ordered that the appeal be sustained and the appellant admitted as a citizen of the United States.