Takehara v. Dulles

• Decision Date: 11 June 1953
• Docket Number: No. 13555.,13555.
• Citation: 205 F.2d 560
• Parties: TAKEHARA v. DULLES, Secretary of State of the United States.
• Court: U.S. Court of Appeals — Ninth Circuit

205 F.2d 560 (1953)

TAKEHARA v. DULLES, Secretary of State of the United States.

No. 13555.

United States Court of Appeals Ninth Circuit.

June 11, 1953.

Toru Sakahara, Gerald Shucklin and Hile, Hoof & Shucklin, Seattle, Wash., for appellant.

J. Charles Dennis, U. S. Atty., Seattle, Wash., Guy A. B. Dovell, Asst. U. S. Atty., Tacoma, Wash., for appellee.

Before HEALY, BONE, and POPE, Circuit Judges.

HEALY, Circuit Judge.

This appeal is from a denial of appellant's application under 8 U.S.C.A. § 903 for a decree adjudging him to be a citizen of the United States.

The findings below were these: Appellant was born in the State of Washington in 1926 of Japanese-born parents, nationals of Japan. At the age of four years he was taken to Japan for a visit with his grandparents, and after some months there returned to the United States. In 1935, in company with his older brother, he again went to Japan to be with his grandparents. The brother returned to the United States in 1939, and appellant remained in Japan, attended school during his minority and worked on a farm. During World War II he was given a physical examination preliminary to serving in the Japanese Army, but was rejected because of his failure to measure up to physical requirements. On April 5, 1947, shortly after obtaining his majority,¹ he voted in the Japanese election held on that date, this being during the military occupation by United States forces. The concluding finding, nebulously indicative of the court's approach to the case, we quote in full:

"That the evidence before the court reveals that the plaintiff in implicit obedience to his elders and without objection on his part at any time had grown up from early childhood as a Japanese National, completely forgetful of the language, customs and ways of the land of his birth, and that neither at the time of nor at any time prior to the Japanese political election on April 5, 1947, had he then or on any other occasion asserted his claim to American citizenship or objected to being treated by his elders or the authorities as a Japanese National; and such being the situation and in view of the plaintiff\'s antecedents, his upbringing and schooling in the language, customs, habits and ways of Japan by those equally unobservant of anything attached or related to his becoming a National of the United States by choice, and in view of his naturalization as a Japanese National and his admitted ignorance of the effect of his voting upon his claim to American citizenship, it must follow that the plaintiff had no reason to abstain from voting in the Japanese political election of April 5, 1947, and did so as a natural consequence of a Japanese National\'s interest therein, by whatever inducement, and without any relation or reference to his claim to being a National of the United States."

The court concluded that by virtue of his voting appellant had expatriated himself under the statute.

We turn for a moment to the evidence concerning the circumstances under which appellant voted at the Japanese election. Appellant, testifying through an interpreter, was the only witness who gave information on the subject. He said that he was taught implicit obedience to his elders; that while taking his army physical during the war he was kicked and struck for trivial reasons; that by means of newspapers and radio everyone was told that he should vote in the election; that after his grandfather had voted he told appellant that there were Japanese police and American military police at the polls, and that if he did not go to the polls he might get into trouble such as cancellation of his food ration card or other trouble. His uncle, too, he said, conveyed the same message to him as had his grandfather.

Since this was obviously a claim that the voting was not voluntary within the intendment of 8 U.S.C.A. § 801, a glance at the opinion of the trial court, as distinguished from its findings, may be helpful. In the opinion it was said to be clear that no actual physical force was used to make appellant vote. The judge observed that "most courts seem to have attempted to repeal the statute by a `liberal' interpretation of the word `voluntarily.' With these interpretations the Court does not agree." The judge remarked that he did not accept the theory that appellant voted because he feared the loss of his ration card, but that he obeyed the directive of his grandfather and uncle to vote at the election. "In any event," said the judge, "the fear of loss of a food rationing card is not sufficient to raise the doctrine of duress in commercial transactions, and no good reason is seen why it is acceptable in an important transaction of this type." The judge added that if such were not the case, appellant lost his citizenship by his conduct "of which voting is a minor factor." He observed that appellant had been brought up in the native Japanese tradition and educated in a family and social background requiring implicit obedience to his elders and the Imperial Government of the Emperor; that he was educated in Japanese schools, and has no education in English or training in our form of government. Further, he remarked that, since responsibility as well as allegiance is individual, it is immaterial that a brother of appellant was killed in the American service during the war and that another is presently in the American army.

It would seem, on the whole, to have been the philosophy of the trial judge that the manner of appellant's upbringing unfitted him for American citizenship, and that neither prior to nor upon his reaching his majority had he elected to retain it. The case was decided prior to Mandoli v. Acheson, 344 U.S. 133, 73 S.Ct. 135, 138, in which the Court held that it is not legally required that a citizen by nativity elect between dual citizenship upon or after reaching majority. The Court thought that "the dignity of citizenship which the Constitution confers as a birthright upon every person born within its protection is not to be withdrawn or extinguished by the courts except pursuant to a clear statutory mandate."

The government argues that while appellant was not required to make an election he might choose to do so, and that he did so choose by voting. However, in order to effect expatriation the voting must have been voluntary. A number of district courts have held that the fear of loss of a ration card is sufficient to constitute duress.² These decisions the trial court repudiated, but we think the validity of the view taken in them was recognized by us in Acheson v. Mariko Kuniyuki, 9 Cir., 189 F.2d 741.

A study of the findings and opinion below indicates unmistakably the view of the judge that the very upbringing of appellant rendered it inevitable that he would obey the orders of his elders in the matter of voting, from which it would seem to follow that the voting was not representative of a voluntary choice on appellant's part. Compare the facts here with those in Tomoya Kawakita v. United States, 343 U.S. 717, 72 S.Ct. 950, 96 L.Ed. 1249, where Kawakita claimed unavailingly that by choice after majority he had expatriated himself. We think the holding below is out of line with the Kawakita decision, as well as wholly inconsistent with the philosophy of Mandoli v. Acheson, supra. The inconsistency with the latter case becomes all the more glaring upon a study of the opinion of the dissenting justices.

The judgment is reversed and the cause is remanded with directions to make a finding on the question whether appellant's voting was voluntary, such finding to be made in light of what the majority has here held to be the law.

POPE, Circuit Judge (concurring).

I agree that the case of Mandoli v. Acheson, 334 U.S. 133, 73 S.Ct. 135, decided after the decision of the trial court, necessitates a reversal. I also agree that by our decision in Acheson v. Mariko Kuniyuki, 9 Cir., 189 F.2d 741, we approve the view of the law expressed by Judge Yankwich in Hichino Uyeno v. Acheson, D.C., 96 F. Supp. 510. I think, however, that these conclusions lead to the result that there remains a question of fact undecided, namely, whether the appellant's voting was voluntary. As I read the record this question has not yet been decided in the light of what we have here held to be the law. I believe that this is a question of fact which is properly for the trial court and not for us.

Accordingly, I am of the opinion that the cause should be remanded with directions to the trial court to make appropriate findings upon this matter.

BONE, Circuit Judge.

I dissent from the views expressed by my associates and for reasons hereafter stated I would affirm the judgment on appeal. Furthermore, I see nothing in the doctrine of the Mandoli case relied on by the majority which requires a reversal.

Appellant voted in a Japanese political election held in 1947 after he was 21 years of age (see Miranda v. Clark, 9 Cir., 180 F. 2d 257) and from the record and the inferences which might legitimately be drawn from the testimony of appellant¹ I am fully persuaded that the findings of the lower court are not clearly erroneous. Argument is unnecessary to emphasize that there are altogether too many imponderable factors and elements present in the process of judging the credibility of a witness (who in this case is certainly a vitally interested party and not an impartial witness) to justify us in substituting our judgment as to what the trial judge must accept as true in weighing the testimony of such a witness. (See cases footnote 3.) His manner of testifying, the nature and the probability of the truth of his story told through an interpreter, the appearance of candor or lack of candor in his testimony, and the other shadings and nuances of a trial, all of which cannot be disclosed to an appellate court in a cold record, are here completely stripped of significance if we disregard, as we seem to do, the obvious advantages of...