Dos Reis v. Nicolls, 4230.

Citation161 F.2d 860
Decision Date22 May 1947
Docket NumberNo. 4230.,4230.
PartiesDOS REIS ex rel. CAMARA v. NICOLLS, Dist. Director of Immigration & Naturalization.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

David Silverstein, of Fall River, Mass., for petitioner.

Gerald J. McCarthy, Asst. U.S. Atty., of Boston, Mass. (William T. McCarthy, U. S. Atty., of Boston, Mass., on the brief), for respondent.

Before MAGRUDER, MAHONEY and WOODBURY, Circuit Judges.

MAGRUDER, Circuit Judge.

Section 401 of the Nationality Act of 1940, 54 Stat. 1168, 8 U.S.C.A. § 801, contains the following provision: "A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: * * * (c) 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 question now before us is whether under this provision loss of nationality results where such a person was over his protest drafted into the foreign military service, or whether § 401(c), properly construed, is to be limited to cases where the induction into the foreign military service may be said to have been voluntary. We have concluded that the latter is the correct view.

Joao Camara was born in Fall River, Massachusetts, on December 31, 1921. His father was a native and citizen of Portugal who, so far as appears, was never naturalized in the United States. His mother was a native of Brazil. Camara continued to reside in Massachusetts until he was twelve years old, when he was taken by his parents to San Miguel in the Azores.

On or about October 27, 1943, at which time Camara was twenty-one years of age, he received a draft notice for service in the Portuguese army. He made inquiries at the American consulate and was told by someone there that if he wanted to join the American army and avoid service in the Portuguese army, he could return to America. This was cold comfort for Camara, who was without funds to pay the cost of his passage. (It might be doubted, further, whether the Portuguese Government would have permitted him to leave under the circumstances.) On reporting to the Portuguese military authorities, Camara told them that he was an American citizen and that he did not wish to serve in the Portuguese army. Having been informed that, under the law of Portugal, he was a Portuguese citizen and that the only alternative to service in the army was a concentration camp, Camara submitted to induction into the Portuguese army, in which he served until discharged about October 26, 1945. He did not swear allegiance to Portugal at any time.

Upon his release from the Portuguese army Camara obtained a job as sales clerk in the post exchange at an American Army Air Transport Command base at Santa Maria, Azores. He there secreted himself in the baggage compartment of an Air Transport Command plane on August 8, 1946, and arrived at Westover Field, Chicopee, Massachusetts, the next day. He was taken in custody by the immigration authorities and given a hearing before a Board of Special Inquiry of the Immigration and Naturalization Service. The board determined, on the facts as above summarized, that Camara was an alien, a citizen of Portugal, having lost his American nationality by the operation of § 401 (c) of the Nationality Act of 1940; that as an alien arriving as a stowaway and not in possession of a valid Portuguese passport or of an unexpired quota immigration visa, he was excludable from the United States. The decision of the board was affirmed by the Commissioner of Immigration and Naturalization and, upon further review, by the Board of Immigration Appeals.

Thereafter, a petition for a writ of habeas corpus was filed in the court below on Camara's behalf. The district court ordered that the writ be issued, and the case came on for hearing upon respondent's return to the writ. On November 15, 1946, the district court entered its order dismissing the petition, discharging the writ, and remanding Camara to the custody of respondent. The present appeal is from this order.

In its opinion the district court recognized that Camara did not enter the Portuguese army on a voluntary basis, and that his Portuguese nationality was derivative from his father and not voluntary. But it read § 401(c) as applicable to deprive Camara of his American nationality whether he was inducted into the Portuguese army voluntarily or involuntarily. D.C., 68 F.Supp. 773.

When Camara was born in Massachusetts in 1921, he then became an American citizen, not by gift of Congress, but by force of the Constitution of the United States (Fourteenth Amendment). United States v. Wong Kim Ark, 1898, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890. When he was taken to Portugal during his minority, Portugal had a claim upon him as a Portuguese citizen, by derivation from his father's citizenship. His case presented a familiar situation of dual nationality as recognized in international law. But Camara has never forsworn his American allegiance; upon the contrary he has done what he could to assert it and preserve it. His service as a draftee in the Portuguese army, with a concentration camp as the alternative, was under duress. As soon as he could manage it he returned to this country, as a stowaway, which attests the intensity of his purpose to retain his American nationality.

It is by no means clear that Congress would have power to deprive a native-born American citizen of his nationality under the circumstances here presented.1 In United States v. Wong Kim Ark, supra, the court said, 169 U.S. at page 703, 18 S. Ct. at page 477, 42 L.Ed. 890: "The power of naturalization, vested in Congress by the Constitution, is a power to confer citizenship, not a power to take it away." By the Act of July 27, 1868, 15 Stat. 223, 8 U.S. C.A. § 800, Congress declared that the "right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness". The reference, of course, is to voluntary expatriation. Mackenzie v. Hare, 1915, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297, Ann.Cas. 1916E, 645, is authority for the proposition that Congress has some legislative power on the subject of nationality and loss of nationality. In that case the Citizenship Act of 1907, 34 Stat. 1228, provided that "any American woman who marries a foreigner shall take the nationality of her husband." After the passage of the Act, a native-born American woman married a subject of Great Britain in California. The husband was then residing in California, and it was his intention to make California his permanent residence, though it does not appear that he intended ever to become a naturalized citizen of the United States. The woman applied to register as a voter in California but was turned down on the ground that she had, by her marriage, ceased to be a citizen of the United States, and this ruling was upheld in the California courts and by the Supreme Court of the United States. The Citizenship Act of 1907 was held to be applicable, though the woman had never taken up a residence abroad subsequent to her marriage. As so applied, the Act was held valid. The woman had chosen to marry a foreigner in the face of a statutory provision that such marriage constituted a renunciation of American citizenship — "a condition voluntarily entered into, with notice of the consequences." But the opinion of the court in Mackenzie v. Hare, 239 U.S. at page 311, 36 S.Ct. at page 108, 60 L.Ed. 297, Ann.Cas.1916E, 645, was careful to add: "It may be conceded that a change of citizenship cannot be arbitrarily imposed, that is, imposed without the concurrence of the citizen. The law in controversy does not have that feature."

From the language of § 401(c) and its legislative history, we think an interpretation which avoids this constitutional question is fully warranted.

The draft of the Nationality Act of 1940 originated, not in the Congress, but in the executive departments. By Executive Order of the President of April 25, 1933, No. 6115, the Secretary of State, the Attorney General, and the Secretary of Labor were designated a committee to review the nationality laws of the United States, to recommend revisions, and to codify the laws into one comprehensive nationality law for submission to the Congress. Pursuant to this order, the Cabinet committee set up a committee of advisers composed of representatives of the three departments to study the existing laws governing nationality and to prepare a draft code. This proved to be a task of great complexity, and the draft code, together with explanatory comments section by section, was not completed until August 13, 1935. After further study by the Cabinet committee, which made certain changes in the draft, the proposed code, with explanatory comments thereto, was transmitted to the President under cover of a Letter of Submittal dated June 1, 1938, signed by the three members of the Cabinet committee. On June 13, 1938, the President transmitted to the Congress the report of the Cabinet committee, accompanied by the draft code and explanatory comments. Section 401(c) of the draft code as thus submitted to Congress then read:

"Sec. 401. A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:

* * * * * *

(c) Entering, or serving in, the armed forces of a foreign state unless expressly authorized by the laws of the United States;".

The explanatory comment to this section stated:

"This provision is based upon the theory that an American national who, after reaching the age of majority (see proviso (2) to this section, infra) voluntarily enters, or continues to serve in, the army of a foreign state, thus offering his all in support of such state, should be deemed to have transferred his allegiance to it. The...

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