Mitsugi Nishikawa v. Dulles

• Decision Date: 18 June 1956
• Docket Number: No. 14742.,14742.
• Citation: 235 F.2d 135
• Parties: MITSUGI NISHIKAWA, Appellant, v. John Foster DULLES, as Secretary of State, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

235 F.2d 135 (1956)

MITSUGI NISHIKAWA, Appellant, v. John Foster DULLES, as Secretary of State, Appellee.

No. 14742.

United States Court of Appeals Ninth Circuit.

June 18, 1956.

Wirin, Rissman & Okrand, A. L. Wirin, Fred Okrand, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Max F. Deutz, James R. Dooley, Los Angeles, Cal., for appellee.

Before CHAMBERS, Circuit Judge, and SOLOMON and HAMLIN, District Judges.

HAMLIN, District Judge.

This is an appeal from a judgment of the District Court decreeing that the appellant Nishikawa, who was born in the United States, lost his United States citizenship by entering and serving in the Armed Forces of Japan from March 1, 1941 to September 6, 1945, and denying appellant's prayer for judgment that he is a national of the United States.

The action was begun when Nishikawa filed a complaint for a judgment declaring that he was a national of the United States under § 503 of the Nationality Act of 1940, 8 U.S.C.A. § 903, 1946 Ed.¹ The complaint alleged that he was born in the United States on April 20, 1916 and that on August 15, 1939 he went to Japan for the purpose of education and experience in the engineering field and that his intention was to return to the United States. The complaint further alleged that on or about March 1, 1941, plaintiff was conscripted into the Japanese army and served in that army until August, 1945, and that his service in said army was due to the Japanese conscription law and was the result of coercion, and was not the plaintiff's free and voluntary act. The defendant answered and admitted that the plaintiff had served in the Japanese army during the above dates at a time when the plaintiff was a national of Japan, and denied that such service was not a free and voluntary act of the plaintiff, denied that it was the result of coercion, and denied that it was due to the Japanese conscription law. The answer specifically alleged that such service was the free and voluntary act of the plaintiff.

On the trial of the matter, the plaintiff was called as the first and only witness. He testified, in substance, as follows: Until he went to Japan in 1939 he had resided and gone to school in the United States, graduating from the University of California with a degree in engineering. His parents then resided in the United States and his father had registered him in the family register in Japan when he was born. He stated he intended to stay two to five years in Japan to visit and to study. When he went to Japan he knew that Japan was fighting in Manchuria. In Japan he started to study under a tutor in Japanese language. His father died in November, 1939, and funds were not available and he found a job in an aircraft plant in Ota. About June of 1940 he received a notice to report for his physical examination pursuant to army service and he was inducted into the Japanese army in March, 1941. Between those dates he did not contact or attempt to contact any American or Japanese official, nor did he at any time protest his induction. At no time did he tell any Japanese or American official that he was a United States citizen. He had heard rumors that the Kempi Tai (Secret Police) beat up persons who attempted to avoid conscription, and a friend of his who worked at the American embassy told him that the consulate could do nothing for dual nationals, such as he was. When asked if he believed the rumors about the Kempi Tai, he stated:

"Well, at that time the Japanese government — Japanese army was coming into control of the Japanese government and even the high officials were killed in their homes. So I had no alternative. But it might have been true." Emphasis added.

He testified that he knew nothing about the conscription of men in the army in the United States in September, 1940, or of conditions in the United States, and that he was not told of these matters in letters from home and they were not discussed among his United States citizen friends in Japan.

He testified, in part, as follows:

"Q. Now, you stated, did you not, Mr. Nishikawa, that in 1940 you received a notice to report for physical examination, is that correct? A. Yes, sir.

* * * * * *

"Q. Do you recall the approximate date? A. It was around June, 1940.

"Q. June of 1940. And you entered the Japanese army in March of 1941, is that correct? A. Yes, sir.

"Q. Now, between June of 1940, and March of 1941, did you go to the American Consulate and tell them that you did not want to serve in the Japanese army?

* * * * * *

"The Witness: No, sir, because I talked to friends of mine and they mentioned the fact that the American Consulate couldn\'t do anything for dual citizenship of Japanese while in Japan.

"Q. (By Mr. Dooley): Between June of 1940, and March of 1941, did you tell any Japanese official that you were an American citizen?

* * * * * *

"The Witness: No, sir.

"Q. (By Mr. Dooley): Between June of 1940 and March of 1941, did you make any effort to renounce your Japanese nationality?

* * * * * *

"The Witness: No, sir.

* * * * * *

"Q. Did you read the newspapers between September 16th, 1940, and March of 1941? A. No, sir.

"Q. You didn\'t read any newspapers? A. No, sir.

"Q. Now, how far did you go in school before you went to Japan in 1939, Mr. Nishikawa? A. I graduated from the University of California at Berkeley, sir.

"Q. And you took up engineering, did you not? A. Yes, sir.

* * * * * *

"Q. Now, when you received your notice to report to the Japanese army did you protest in any way your entrance in the Japanese army?

* * * * * *

"The Witness: No, I didn\'t." Tr. pp. 26-30.

"Q. (By Mr. Manes): Now, you indicated under cross-examination, Mr. Nishikawa, that you did not protest against your induction into the army — A. Yes.

"Q. — and that you did not protest against the taking of a physical examination? A. Yes, sir." Tr. p. 37.

"The Court: And in June, 1940, when you were told that you were to be drafted into the Japanese army, between June, 1940, and March, 1941 — a period of almost a year — you didn\'t make any effort to find out whether an American citizen — you knew you were an American citizen?

"The Witness: Yes, sir.

"The Court: You didn\'t make any effort to find out whether an American citizen was required to go into the Japanese army. And the reason that you didn\'t make any effort was that you heard rumors that the Kempi Tai would beat you if they found that you didn\'t want to go into the army; is that your testimony?

"The Witness: Yes, sir. Also, this nisei friend of mine that was employed in the embassy stated the fact that dual citizen niseis, the American Consulate couldn\'t do anything for the citizen nisei." Tr. p. 47.

"The Court: In other words, he told you that if you went to the officials of your own country, the United States —

"The Witness: Yes.

"The Court: — that the Japanese police would find out about it and they would beat you; right?

"The Witness: Yes." Tr. p. 49.

After argument by counsel, the Court made the following statements:

"Well, of course, the short answer to the entire argument, counsel, is that the Court simply does not believe the testimony of the witness. That is all. I simply do not believe his testimony." Tr. p. 55.

"I believe this: he went into the service because he wanted to go into the service. I believe he went to Japan, and I believe that he waited for them to call him to the service, because under the laws of Japan that\'s the manner in which they took their men into the service under the draft laws, the conscription laws." Tr. p. 56.

"* * * All I am saying is that he went over because as a Japanese citizen under the laws of Japan it was necessary for him to serve his hitch in the army. He went over there to serve his hitch in the army. He went over and waited until they reached him on the draft, and when they did he was drafted. And that is what he was there for. And his service could not be considered involuntary." Tr. p. 57.

The Court entered Findings of Fact in which the Court found that plaintiff went to Japan in August, 1939 at twenty-three years of age, knowing at that time that he was likely to be called for military service in the Japanese Armed Forces; that he served in those armed forces from March, 1941 to September, 1945 while he was a national of Japan; that from the time he received his notice to report for physical examination in June, 1940 until March, 1941 when he was inducted, the plaintiff made no effort (1) to return to the United States; (2) to avoid entry or service in the Japanese Armed Forces; (3) to renounce his Japanese nationality; (4) to communicate or attempt to communicate, either with American officials in Japan, or with Japanese officials, with respect to the necessity or propriety of his entry and service in the Japanese Armed Forces. The Court further found that the service was not the result of coercion, and that it was the free and voluntary act of the plaintiff. On these Findings, he entered the Judgment from which this appeal is taken.

Appellant contends that some of the findings made by the lower court must be set aside, because (1) there is no positive evidence in the record to support them and they were expressly negatived by the plaintiff on the stand; (2) the proof of expatriation must be "clear, unequivocal and convincing"; and (3) the burden of proof of the voluntary nature of the expatriating act is on the one trying to show expatriation (here, the defendant) and the burden of proof is not on the plaintiff to show involuntariness.

Counsel for both parties agree that the act of expatriation must be a voluntary act on the part of the plaintiff in order to effect an expatriation. However, there is no requirement that he knew or intended that his act would result in an expatriation. Savorgnan v. United States, 1950, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287. The ground of expatriation relied on by the defendant in the present case is that contained in § 401(c) of the ...