Attorney General of United States v. Ricketts, 11594.

• Decision Date: 30 December 1947
• Docket Number: No. 11594.,11594.
• Citation: 165 F.2d 193
• Parties: ATTORNEY GENERAL OF UNITED STATES v. RICKETTS.
• Court: U.S. Court of Appeals — Ninth Circuit

165 F.2d 193 (1947)

ATTORNEY GENERAL OF UNITED STATES v. RICKETTS.

No. 11594.

Circuit Court of Appeals, Ninth Circuit.

December 30, 1947.

Harvey Erickson, U. S. Atty., and Frank R. Freeman, Asst. U. S. Atty., both of Spokane, Wash., for appellant.

George W. Young, of Spokane, Wash., for appellee.

Before GARRECHT, DENMAN, and HEALY, Circuit Judges.

HEALY, Circuit Judge.

This case presents a problem of dual nationality as affected by a provision of the Nationality Act of 1940, 8 U.S.C.A. § 801.

Appellee's claim of American citizenship being denied by the Immigration and Naturalization Service he sued below to obtain a judgment declaring him to be a national of the United States.¹ The facts found by the court were that he was born in Oklahoma on February 3, 1902 of native-born parentage. When he was eight years of age his parents took him to Canada where the father, in 1914, became a naturalized British subject. Appellee continued to reside in Canada with his parents until he reached his majority. Three years later (in 1926) he returned to the United States where he remained for a period of approximately six months after which he returned to Canada, residing there until 1936 when he again entered the United States. Since that time he has remained here constantly, engaged in business in the State of Washington, where he participated in civic affairs, registered as a voter, and voted in elections. It was found that he "did not by his own voluntary act expatriate himself, but to the contrary has continuously asserted his claim of United States citizenship." The court concluded as a matter of law that appellee is entitled to the benefit of the second proviso contained in § 401(a) of the 1940 act, 8 U.S. C.A. § 801(a), and accordingly adjudged him a citizen.

The statute provides that a person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by obtaining naturalization in a foreign state, either upon his own application or through the naturalization of a parent, "provided however, That nationality shall not be lost as the result of the naturalization of a parent unless and until the child shall have attained the age of twenty-three years without acquiring permanent residence in the United States: Provided further, That a person who has acquired foreign nationality through the naturalization of his parent or parents, and who at the same time is a citizen of the United States, shall, if abroad and he has not heretofore expatriated himself as an American citizen by his own voluntary act, be permitted within two years from the effective date of this chapter to return to the United States and take up permanent residence therein, and it shall be thereafter deemed that he has elected to be an American citizen." Failure to return and take up permanent residence during the prescribed period is deemed by the statute to be a determination on the part of such person to discontinue his status as an American citizen and estops him from thereafter claiming that status.

The decisive question here is whether there is substantial evidentiary support for the finding quoted above, namely, that appellee did not by his own voluntary act expatriate himself. The Attorney General insists that prior to appellee's entry into the United States for permanent residence he was shown to have elected to become a Canadian national. The argument is based mainly on two facts, (1) that appellee, during his minority, had held public office in Canada, and (2) that after attaining his majority he had voted once at a provincial election in Alberta and had several times voted in that province at school and municipal elections.

Concerning the office held, appellee testified that the post was that of counsellor or secretary of the school board in an isolated community where there were many foreigners who could not write English. Someone with knowledge of the language was needed for the post, and appellee, who was at the time about eighteen years old, undertook to fill it. The Attorney General concedes that the mere holding of public office during minority is not an act of expatriation, since an infant is incapable of a binding choice, Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320. It is contended only that appellee's conduct in this respect bears on his mental attitude. Similar if more persuasive effect is claimed for his conduct in voting, that is to say it is not contended...