56011/385
Decided by the Board June 26, 1941. Approved by the Attorney General November 22, 1941.
Citizenship — Married women — Act of June 25, 1936.
1. The Act of June 25, 1936, conferred, as of the date of its enactment, the status but not the rights of citizenship upon native-born women who had lost their United States citizenship by reason of marriage to an alien but whose marital status had terminated.
2. A woman who acquired the status of citizenship under the Act of June 25, 1936, was capable of transmitting such citizenship to her son, even though she had not yet taken an oath of allegiance, such transmission not being an exercise of the rights of citizenship.
Citizenship — Children — Section 2172, Revised Statutes — Act of May 24, 1934.
3. One born in Canada of a Canadian father and a mother who was a native of the United States, acquired United States citizenship upon his legal admission to this country for permanent residence in November 1936 at the age of 20, under Section 2172, Revised Statutes, his parents having been previously divorced with custody of the child awarded to the mother, and the mother having reacquired the status of citizenship under the Act of June 25, 1936.
4. The Act of May 24, 1934, constitutes only a partial repeal of Section 2172, Revised Statutes.
CHARGE:
Warrant: Act of 1917 — Conviction or admission of crime prior to entry — grand larceny.
Mr. J.H. Macomber, Jr., of Burlington, Vt., for the respondent.
Mr. J.H. Krug, Board attorney-examiner.
BEFORE THE BOARD
STATEMENT OF THE CASE: The warrant of arrest on the ground above stated was issued September 8, 1939, and a hearing was held thereunder at the Vermont State Prison, Windsor, Vt., on October 16, 1939, and March 13, 1940. At the hearing the respondent waived his right to counsel, but subsequently engaged counsel who has filed a brief on his behalf. The examining inspector recommends deportation to Canada upon release from imprisonment. The district director expresses the view that the respondent may be regarded as a United States citizen.
The matter now comes before this Board for final review and decision.
The respondent is confined in the Vermont State Prison at Windsor, Vt.
DISCUSSION: The respondent testifies that he was born in Paquetteville, Quebec, Canada, on June 10, 1916, and that his father, who is a citizen of Canada, was born in the same place. He testifies that his mother was born in Massachusetts. Attached to the record are certificates of admission showing that the respondent was lawfully admitted to the United States as an alien on June 1, 1926, and on November 9, 1936. He testifies that he resided in the United States for 3 years subsequent to his 1926 entry and that he resided in Canada from 1929 until his entry on November 9, 1936. He testifies that he last entered the United States at Highgate Springs, Vt., on November 15, 1938, following a brief visit to Canada.
The respondent testifies that he stole furniture from four cottages in Vermont during the fall and winter of 1937-38. He was arrested on November 19, 1938, on a charge of grand larceny, pleaded guilty to that offense, and, on December 6, 1938, was sentenced to imprisonment for a term of 6 to 10 years. It will be noted that the offense that he admits having committed occurred prior to his last entry into the United States, although the conviction took place subsequent to his entry. The record shows that the respondent admits the commission, prior to entry, of a felony or other crime involving moral turpitude, namely, grand larceny.
If the respondent is an alien, he is clearly deportable on this ground. The central question is whether he is a citizen of the United States. As explained below, the respondent derived citizenship from his mother if she became a citizen during his minority, that is, prior to June 10, 1937.
The mother is a native of the United States, but lost her citizenship by her marriage, on January 10, 1911, to an alien, the respondent's father (Act of March 2, 1907, sec. 3). On December 8, 1928, the mother was granted a divorce in Maine; by the decree she was awarded custody of the respondent. On August 25, 1939, she executed the oath of allegiance specified in the Act of June 25, 1936, at the United States consulate in Montreal, Canada (photostatic copies of documents attached to counsel's brief).
The Act of June 25, 1936, provides:
That hereafter a woman, being a native-born citizen, who has or is believed to have lost her United States citizenship solely by reason of her marriage prior to September 22, 1922, to an alien, and whose marital status with such alien has or shall have terminated, shall be deemed to be a citizen of the United States to the same extent as though her marriage to said alien had taken place on or after September 22, 1922: Provided, however, That no such woman shall have or claim any rights as a citizen of the United States until she shall have duly taken the oath of allegiance * * *.
Counsel for the respondent urges in his brief that the mother acquired the status of a citizen pursuant to this act on June 25, 1936, the date of its enactment. This contention accords with the construction followed for some time by the legal branch. The Service attorney contends that the date on which the mother resumed her United States citizenship was August 25, 1939, when she took the oath of allegiance.
Before determining the date on which the mother regained her citizenship, we may dispose briefly of certain preliminary matters. The fact that the mother took up permanent residence in Canada after her marriage does not render the 1936 act inapplicable to her. See Circular Letter No. 355, August 4, 1939. Nor is the mother's status affected by the Convention of September 16, 1870, between the United States and Great Britain. Articles I and III might indicate that the United States was precluded from readmitting her to citizenship unless she renewed her residence in this country, which she did not do. But the State Department, we are informed, has never regarded the Convention as a bar to repatriation under the 1936 act, or under a similar provision in section 3 of the Act of March 2, 1907, by a woman who has lost her citizenship by marriage to a Canadian and has continued to reside in Canada. In view of this settled policy, we think that the Convention of 1870 did not affect the resumption of citizenship by Mrs. P----.
We turn to an interpretation of the statute in order to determine on what date Mrs. P---- regained her citizenship. Since the act is clearly remedial in nature, it should be construed liberally. (Crawford, The Construction of Statutes (1940), pages 492, 494.)
The Service attorney contends that the 1936 act in plain terms makes the grant of citizenship effective only upon the taking of the oath of allegiance. This is not apparent, however, from a reading of the statute. The first clause is a sweeping declaration that a woman who falls within the specified class "shall be deemed to be a citizen of the United States." The word "deemed" when used in legislative enactments means "judged" or "considered." See Leonard v. Grant, 5 F. 11 (C.C., Oreg. 1880); Harder v. Irwin, 285 F. 402, 405 (N.D.N.Y. 1923). On the face of the statute, the taking of the oath of allegiance is made a condition precedent, not to the applicability of the first clause, but to the vesting of "rights as a citizen." Had Congress intended to condition the resumption of full citizenship upon the taking of the oath, it could easily have so provided, as it has done in other instances. See, e.g., section 4, subdivision 12, Nationality Act of [June 29] 1906, as amended, 8 U.S.C. section 18; Nationality Act of 1940, sections 317 (b), 323. The language of the 1936 act, therefore, leads to the conclusion that Congress intended to confer the status of citizenship as of June 25, 1936, but to make the possession of rights of citizenship contingent upon the taking of the oath of allegiance.
Although the language of the statute appears to be unambiguous, and to have a well-defined meaning, it may be desirable to consider the antecedent legislation. The Act of March 2, 1907, provided that an American woman who married an alien "shall take the nationality of her husband." This provision was repealed by the Cable Act of September 22, 1922, which established "independent citizenship for married women" (Gettys, The Law of Citizenship in the United States (1934), page 124). The Cable Act provided that an American woman who married an alien would remain an American citizen unless she formally renounced her citizenship. By subsequent amendments to the Cable Act, Congress in each instance liberalized its application or extended its benefits. See Act of July 3, 1930, sections 1, 2; Act of March 3, 1931, section 4. The Cable Act did not restore citizenship lost by marriage under the 1907 act. Moreover, it repealed the liberal provision for repatriation contained in the 1907 act, which stated, with respect to a woman who lost her citizenship by marriage:
* * * At the termination of the marital relation she may resume her American citizenship, if abroad, by registering as an American citizen within 1 year with a consul of the United States, or by returning to reside in the United States, or, if residing in the United States at the termination of the marital relation, by continuing to reside therein. * * *
This was the situation that gave rise to S. 2912, which became the Act of June 25, 1936. The following appears in the report of the Senate Committee on Immigration (Report No. 847, 74th Cong., 1st sess.):
The first Cable Act * * * repealed section 3 of the Act of March 2, 1907; and while it provided that thereafter American women should not lose their United States citizenship solely by reason of marriage to an alien, it made no provision similar to that which it repealed for the repatriation, upon termination of the marital relations, of those already married to aliens. Thus, while a benefit to those women marrying aliens after the act, it works a hardship on those who had married aliens prior to the act. This bill restores to women married to aliens prior to September 22, 1922, some of the procedural facilities for resuming United States citizenship upon the termination of the marital relations with such aliens of which they were deprived by the first Cable Act. * * *
The report by the House Committee on Immigration and Naturalization contained similar language, and also stated:
* * * This bill * * * does not grant citizenship privileges, or the privileges of naturalization, to any new class of persons; nor does it enable to be repatriated anyone who is not now otherwise entitled to that privilege. * * *
The bill simply modified the procedure by which native-born American women, who lost their United States citizenship solely by reason of their marriage prior to September 22, 1922, to an unnaturalized alien, may be repatriated upon the termination of the marital status with such aliens.
(House Report No. 2106, 74th Cong. 2nd sess.)
In the course of debate on the bill Representative Dickstein, Chairman of the House Committee, stated (80 Cong. Rec. 9971):
It allows them to be repatriated. This bill provides a short form of naturalization allowing native-born American women, who have lost their citizenship through marriage to an alien, to take the oath of allegiance to the United States and thereby be repatriated.
See also report on H.R. 4185, which was enacted as an amendment to the 1936 act on July 2, 1940, House Report No. 869, Seventy-sixth Congress, first session.
It is clear that the committees and Mr. Dickstein were making a general exposition of the bill and its purpose, and that they did not consider the question as to the date on which citizenship would be vested. Their remarks bearing on this question cannot be deemed an expression of legislative intent to defer the status of citizenship until the taking of the oath. The committee reports indicate clearly, however, that with respect to the specified class of women the legislative purpose was to eliminate completely the consequences of the 1907 act, and to place these women on a par with those who married aliens subsequent to September 22, 1922.
Prior to the enactment of the 1936 statute, Congress had already provided a simplified method of repatriation for women who had lost their citizenship by marriage. By section 4 (a) of the Cable Act, as amended by the Act of July 3, 1930, a woman in this class could be naturalized simply by proving that she had lost her citizenship solely by marriage. Under the 1936 act, in order to take the oath of allegiance, a woman would be required to prove that she was a native-born citizen, that she had lost her citizenship by marriage to an alien, and that her marital status with the alien had terminated. Thus the procedure contemplated by the 1936 act was not of a more simple nature than the existing procedure. Consequently, if we regard the 1936 act as conferring the status of citizenship only when the oath is taken, it is difficult to perceive why the act was adopted, especially since it specified a more limited class of women than did section 4 (a) of the Cable Act. The fact that the 1936 act permits women residing abroad to resume full citizenship without returning to the United States cannot, of itself, serve as the motivating purpose of the statutes. The natural explanation is that Congress intended to confer the status of citizenship when the act was passed, or thereafter when the marital status terminated, and that it intended the taking of the oath to be a condition to the vesting of the rights of citizenship.
This conclusion, as we have seen, is derived both from the language of the statute and from a review of antecedent legislation. It assumes that a person may have the status of citizenship without possessing, in the words of the act, the "rights of a citizen." Under the Federal Constitution this result, we believe, is entirely possible. In many instances Congress has deprived citizens of all or a part of the ordinary rights of citizenship. Deserters from military service in time of war forfeit their rights of citizenship. (8 U.S.C. secs. 11, 12.) Residents of the Territories and of the District of Columbia may not vote for members of Congress, although other citizens possess this right. ( Ex parte Yarbrough, 110 U.S. 651, 665 (1884).) Prior to the Nineteenth Amendment, women were citizens but did not have the right of suffrage. ( Minor v. Happersett, 88 U.S. 162 (1874).) Citizens who commit certain Federal crimes are barred from holding public office. See, e.g., 18 U.S.C. sections 2, 4, 51, 59, 199, 202, 203, 207, 235, 237, 238; Alien Registration Act of 1940, section 5; A---- F---- (750-C-2412528) December 21, 1934. In many States citizens convicted of infamous crime are forbidden to vote or to hold public office. (Clark and Marshall, Law of Crimes (4th ed. 1940), page 11.)
The importance of bare citizenship can readily be appreciated. A person who has the status of citizenship, without its rights, is clearly not an alien, and hence is not subject to the immigration laws, or to titles II and III of the Alien Registration Act of 1940. Nor, in the event of war, would such a person be regarded as an enemy alien. Moreover, he would not only enjoy these privileges, but would be subject to certain obligations, for citizenship involves duties and liabilities as well as rights. ( See Willis, Constitutional Law (1936), pages 196, 201; Blackmer v. United States, 284 U.S. 421 (1932).) The 1936 act singled out a class of native-born women who had lost their citizenship by marriage, owing to a policy which Congress had subsequently repudiated, and whose marital status had terminated. Thus the influence of the alien husband upon his wife no longer existed. We believe that Congress intended to restore the status of citizenship to these women, but to invite them to take the oath of allegiance as a condition to enjoyment of the rights ordinarily attaching to this status.
The question here presented has been decided by the Court of Appeals for the District of Columbia ( Shelley v. United States, 120 F.2d 734). A woman who had lost her citizenship through marriage attempted to obtain repatriation by the simplified naturalization procedure provided by section 4 (a) of the Cable Act as amended. The woman had always lived in the United States. On April 10, 1940, the district court denied her petition for naturalization because she was unwilling to bear arms and interpreted the oath of allegiance as not implying a promise to bear arms. This decision was affirmed by the court of appeals, which considered, however, a question that had arisen while the appeal was pending. On July 2, 1940, subsequent to the district court's decision, Congress amended the 1936 act by extending it to women who had lived continuously in the United States ( 54 Stat. 715). The court of appeals stated in its opinion:
* * * The Government contends that this statute made appellant a citizen at once. If that is true, her appeal is moot. But the Government concedes that its construction of the statute "is not in harmony with the legislative intention expressed in the committee report and debates on the bill. It is apparent therefrom that it was the intention of the framers of the act to defer repatriation until the oath of allegiance was taken." The Government asks us to ignore what it concedes to be the actual intent of Congress, on the theory that the statute clearly expresses a different intent. We are not prepared to assert that Congress clearly said the opposite of what it meant. It is possible to interpret the statutory proviso as meaning: " Provided, That she shall first take the oath of allegiance." The other interpretation, for which the Government contends, would involve this paradox, that Congress created a class of so-called "citizens" from whom, although they had committed no offense, it withheld all the rights of citizens. Resort to the usual evidence of congressional intent is proper. That evidence makes it clear that an expatriated wife does not become repatriated until she takes the oath of allegiance. This appeal, therefore, is not moot. * * *
It is clear that the court placed reliance upon the Government's concession that the statutory history evidenced a legislative intent to defer repatriation until the oath was taken. As stated above, we are unable to accept this view. The court suggests that the interpretation that we have arrived at would result in a paradox by creating a class of citizens deprived of the rights of citizens. As we have already emphasized, the alternative construction, to which the court adheres, also involves a paradox, for it implies that Congress provided a method of repatriation although an easier procedure already existed. It is important to note, in the Shelley case, that the interpretation adopted by the court was not advanced by the petitioner. In view of all the circumstances, we do not regard the opinion as a controlling interpretation of the 1936 act.
We are of the opinion that Mrs. P---- was capable of transmitting citizenship to her son. This was possible although the mother, prior to taking the oath, held the bare status of citizenship without any of its rights. The acquisition of citizenship by the son would not constitute an exercise by the mother of any of her "rights as a citizen." The statutes providing for derivative citizenship confer rights upon the child, not upon the parent. Acquisition of citizenship status on June 25, 1936, should be regarded as equivalent to naturalization. ( See Circular Letter No. 482, paragraph 2 (c); file No. A-16832, opinion of Legal Branch February 5, 1940.) Since she had obtained a divorce that awarded custody of the child, she should be regarded as the sole parent, under the statutes providing for derivative citizenship. ( See 36 Op. Atty. Gen. 197 (1929); 37 Op. Atty. Gen. 90 (1933); In re Lazarus, 24 F. 2d 243 (N.D. Ga. 1928); United States ex rel. Guest v. Perkins, 17 F. Supp. 177 (D.C., D.C. 1936.) Mrs. P---- resumed her citizenship on June 25, 1936; and the respondent commenced permanent residence in the United States on November 9, 1936, when he was 20 years and 5 months of age.
Section 2172 R.S. provides:
The children of persons who have been duly naturalized under any law of the United States, * * * being under the age of 21 years at the time of the naturalization of their parents, shall, if dwelling in the United States, be considered as citizens thereof; * * *
Section 5 of the Act of March 2, 1907, as amended by the Act of May 24, 1934, provides:
That a child born without the United States of alien parents shall be deemed a citizen of the United States by virtue of the naturalization of or resumption of American citizenship by the father or the mother: Provided, That such naturalization or resumption shall take place during the minority of such child: And provided further, That the citizenship of such minor child shall begin 5 years after the time such minor child begins to reside permanently in the United States.
The administrative interpretation of these statutes appears in General Order No. C-16, issued November 15, 1939. This interpretation is based upon the view that the latter statute constituted only a partial repeal by implication of Section 2172 Revised Statutes. General Order No. C-16 provides that Section 2172 vests citizenship in a foreign-born child if:
(c) One parent was an alien at the time of the child's birth; and
(d) The other parent was either an alien or a citizen at the time of the child's birth; and
(e) The alien parent became naturalized before the child reached his twenty-first birthday or, if both parents were aliens, both became naturalized or but one became naturalized and the other parent died before the child reached his twenty-first birthday; and
(f) The child began to reside permanently in the United States before he reached his twenty-first birthday; and maintained such residence when the final event described in paragraph (e) hereof occurred, namely, the naturalization or death of such parent.
This rule applies where the sole parent is naturalized when the child is abroad, and the child comes to the United States after his sixteenth birthday. ( See Opinion of Solicitor of Labor Re E---- L---- S---- (1525-C-3911916) August 11, 1939; (1500-C-3132883) October 26, 1939). In addition, the administrative interpretation was restated in General Order No. C-21, August 8, 1940. Section 29.2 (h) provides that citizenship is acquired:
(5) by a child, born of alien parents both of whom or the survivor of whom was naturalized before the child reached the age of 21 years, either (a) upon the naturalization of both parents or of the survivor if the child then resided permanently in the United States or (b) upon the admission of the child to the United States for permanent residence before he or she reached the age of 21 years;
We are of the opinion, therefore, that the respondent derived citizenship from his mother when he came to the United States for permanent residence on November 9, 1936.
Moreover, the 1936 act provides that a woman falling within its terms "shall be deemed to be a citizen of the United States to the same extent as though her marriage to said alien had taken place on or after September 22, 1922." Hence, Mrs. P---- must "be regarded as never having lost United States citizenship and as never having held the status of an alien." (Circular Letter No. 299, November 3, 1938.) Since the respondent resided in the United States when his mother obtained the divorce, he may be deemed to have derived citizenship at that time, either by Section 2172 Revised Statutes or by section 5, Act of March 2, 1907.
Counsel for the respondent urges in his brief that the respondent will become a citizen upon completing 5 years' residence in the United States, pursuant to section 5 of the Act of March 2, 1907, as amended by the Act of May 24, 1934. We believe that this contention is erroneous but we need not discuss it, in view of the conclusion arrived at above.
FINDINGS OF FACT: Upon the basis of all the evidence produced at the hearing and upon the entire record in this case, it is found:
(1) That the respondent was born in Canada on June 10, 1916;
(2) That the respondent's father is a native and citizen of Canada;
(3) That the respondent's mother was born in Massachusetts and married the respondent's father in 1911;
(4) That the respondent's mother obtained a decree of divorce on December 8, 1928, in the Superior Court, Cumberland County, Maine, the decree awarding custody of the respondent to his mother;
(5) That the respondent resided lawfully in the United States for 3 years subsequent to June 1, 1926;
(6) That the respondent was lawfully admitted for permanent residence on November 9, 1936, and has resided continuously in this country since that time, with the exception of brief absences in Canada;
(7) That the respondent last entered the United States on November 15, 1938;
(8) That on August 25, 1939, the respondent's mother executed the oath of allegiance to the United States, under the Act of June 25, 1936, at the United States Consulate in Montreal, Canada.
CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
That under the Act of June 25, 1936, and Section 2172 Revised Statutes, the respondent is a citizen of the United States.
ORDER: It is ordered that the warrant of arrest be canceled on the ground that the respondent is a citizen of the United States.
The foregoing decision and order of the Board were certified to and approved by the Attorney General.