Hichino Uyeno v. Acheson

• Decision Date: 23 March 1951
• Docket Number: No. 2154.,2154.
• Court: U.S. District Court — Western District of Washington
• Parties: HICHINO UYENO v. ACHESON, Secretary of State.

96 F. Supp. 510

HICHINO UYENO v. ACHESON, Secretary of State.

No. 2154.

United States District Court W. D. Washington, N. D.

March 23, 1951.

COPYRIGHT MATERIAL OMITTED

A. L. Wirin and Fred Okrand, by A. L. Wirin, Los Angeles, Cal., for the plaintiff.

J. Charles Dennis, U. S. Atty., John E. Belcher, Asst. U. S. Atty., Seattle, Wash., for the defendant.

YANKWICH, District Judge.

Hichiro Uyeno, the plaintiff, was born in Bellevue, King County, State of Washington, on June 12, 1926, of Japanese parentage. When four and one-half years of age, in December, 1930, he was taken by his parents to Japan. His parents, after their return to Japan, engaged in farming. The father died there. The mother is still living in Japan. Of several brothers and sisters who accompanied the family to Japan, a brother and sister returned to the United States. The Government has not challenged their claim to citizenship by reason of birth. Indeed, in 1941, the brother registered for military duty under the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq.

The plaintiff claims his permanent residence at Seattle, Washington, where he resides with his brother, having gained admission to the United States for the purpose of prosecuting the present action, under a "Certificate of Identity", granted on the plea of need of the physical presence of the plaintiff at the trial. 8 U.S.C.A. § 903. The issuance of such certificate does not work an estoppel against the Government. United States ex rel. Lapides v. Watkins, 2 Cir., 1948, 165 F.2d 1017, 1019. Back of the present action is the contention of the United States that the plaintiff has lost the citizenship which he acquired by birth in the United States.

I The Facts Leading to the Controversy

In July, 1948, the plaintiff applied to the United States Consulate in Japan for a passport pursuant to his expressed desire to return to the United States. The application was denied upon the sole ground that the plaintiff was no longer a citizen or national of the United States because he had voted in the Japanese general election of 1947.

It is the plaintiff's contention that he is a citizen and national of the United States, that his participation in the general election of 1947 was forced and was under mistake and misunderstanding, because he had no knowledge that such voting would result in loss of citizenship. He asserts that, at no time, did he intend to do anything which would result in the loss or forfeiture of his United States citizenship and nationality. Upon these grounds, he instituted, on December 6, 1948, the present action against the Secretary of State, under Section 503 of the United States Nationality Code, 8 U.S.C.A. § 903.

The answer of the Government challenges the assertions of the plaintiff, except that it admits his birth in the United States, and departure to Japan, while a child of tender age.

The entire controversy, therefore, centers around the participation by the plaintiff in the Japanese general election of 1947, at which time, although under age, the plaintiff, under the rules laid down by the Supreme Commander Allied Powers (SCAP), was permitted to vote. See, Miranda v. Clark, 9 Cir., 1950, 180 F.2d 257.

And the ultimate question is: Did the plaintiff by this act expatriate himself?

II What is a "Foreign State"?

To achieve expatriation by any of the means provided in Section 802, 8 U.S. C.A., the act must be voluntary.

"To `expatriate' oneself clearly implies voluntary action." Dos Reis ex rel. Camara v. Nicolls, 1947, 1 Cir., 161 F.2d 860, 868.

"Expatriation is the voluntary renunciation or abandonment of nationality and allegiance. It has no application to the removal from this country of a native citizen during minority. In such a case, the voluntary action which is of the essence of the right of expatriation is lacking." Perkins v. Elg, 1939, 307 U.S. 325, 334, 59 S.Ct. 884, 889, 83 L.Ed. 1320.

And see, Attorney General of United States v. Ricketts, 9 Cir., 1947, 165 F.2d 193, 195.

We are to determine the meaning and effect of the participation of the plaintiff in the Japanese election of 1947, at which the voters of occupied Japan voted for Members of the House of Representatives, members of prefectural and village assemblies, as well as for local prefectural and village heads, in the light of the provisions of Subdivision (e) of Section 801 of Title 8 U.S.C.A., which enumerates as one of the actions from which a presumption of loss of United States nationality will arise: "(e) Voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory". Since the termination of hostilities with Japan, many cases of this character have arisen and a rather extensive jurisprudence has developed in the lower courts. The latest published opinion on the subject, — that by Judge McLaughlin in Fujiko Furusho v. Acheson, D. C. Hawaii, 1951, 94 F.Supp. 1021, — contains a complete list of the published opinions. They need not be reviewed here.

The aim of the Congress in enacting Section 801, 8 U.S.C.A., was to enumerate certain general means of losing United States nationality. These means range from acts of treason, Section 801(h), and desertion of military forces in time of war, Section 801(g), or departure from the United States in time of war or national emergency for the purpose of evading service in the Armed Forces of the United States, Section 801(j), to expression of allegiance by participation in elections in the foreign state, Section 801(e). See, Savorgnan v. United States, 1950, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287; Bauer v. Clark, 7 Cir., 1947, 161 F.2d 397. By choosing participation in elections as a means of losing citizenship, the Congress of the United States did not intend to endow the act itself with any particular significance. The Congress designated participation in elections, because such act indicates a desire on the part of the participant to make himself a part of a government by assisting in the choice of those who are, by this mandate, to govern its affairs. The participation in an election is merely one method of expressing one's allegiance to the State in which the election is held. And the Report of the President's Cabinet Committee on the Nationality Act, which prepared the revision of the nationality laws of the United States, gave this interpretation to the suggested provision which later became Section 801 (e): "Taking an active part in the political affairs of a foreign state by voting in a political election therein is believed to involve a political attachment and practical allegiance thereto which is inconsistent with continued allegiance to the United States, whether or not the person in question has or acquires the nationality of the foreign state. In any event, it is not believed that an American national should be permitted to participate in the political affairs of a foreign state and at the same time retain his American nationality. The two facts would seem to be inconsistent with each other." (Report, President's Cabinet Committee on Nationality Act, House Committee Report, 76th Congress, 1st session, p. 67). See, John P. Roche, The Loss of American Nationality, 1950, 99 U. of Pa.Law Rev. 25, 52-54.

The Supreme Court has called voting one of the "per se acts of expatriation" which lack of intent to abandon American citizenship "could not offset". Savorgnan v. United States, 1950, 338 U.S. 491, 501, Note 17, 70 S.Ct. 292, 297. This is in line with the strict policy of the United States which has favored naturalization, has disapproved dual nationality and has recognized only such "temporary or limited duality of citizenship" as arises "inevitably from differences in the laws of the respective nations as to when naturalization and expatriation shall become effective." Savorgnan v. United States, supra, 338 U.S. at page 500, 70 S.Ct. at page 297.

An American national, who undergoes naturalization according to the law of a foreign country, knows that his Government will not question his surrender of American allegiance. This is contrary to the attitude of many countries, which, despite renunciation of allegiance, have asserted certain rights against their former nationals, such as the right to induct them into military service, despite attempted change of nationality, and to punish them for failure to respond to induction, even after naturalization. See, Podea v. Acheson, 2 Cir., 1950, 179 F.2d 306. Consistently, the United States has refused to aid its naturalized citizens who, upon return to the land of their birth, were made to suffer punishment for failure to perform obligatory military service. And so, Subdivision (e) under consideration is but one of the forms in which this distaste of the United States Government for dual allegiance has expressed itself. The entire section of which Subdivision (e) is a part, and the facts in the case must be gauged by this governmental policy.

So doing, it is obvious that the words "foreign state" are not words of art. In using them, the Congress did not have in mind the fine distinctions as to sovereignty of occupied and unoccupied countries which authorities on international law may have formulated. They used the word in the sense of "otherness". When the Congress speaks of "foreign state", it means a country which is not the United States or its possession or colony, — an alien country, — other than our own, bearing in mind that the average American, when he speaks of a "foreigner" means an alien, non-American.

And this is the way in which Courts have urged us to interpret congressional terminology. Illustrative is the use of the words "white person", in legislation dealing with eligibility to naturalization. 8 U.S.C.A. § 703. The courts sustained the popular meaning which makes the word equivalent to "Caucasian" as against the anthropological, scientific...