Opinion · United States Board of Immigration Appeals
IN THE MATTER OF P----, 1 IN Dec. 267 (BIA 1942)
IN THE MATTER OF P----. IN EXCLUSION PROCEEDINGS., 1 I. & N. Dec. 267 (Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice 1942)
- Type
- Opinion
- Court
- United States Board of Immigration Appeals
- Jurisdiction
- Federal
- Date
- 1942-06-22
- Topic
- general
IN THE MATTER OF P----, 1 IN Dec. 267 (BIA 1942) IN THE MATTER OF P----. IN EXCLUSION PROCEEDINGS. 56107/26Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice Decided by the Board June 22, 1942. Citizenship — Expatriation — Section 401 (e), Nationality Act of 1940 — Voting — Meaning of political election. Voting in a municipal election in Canada is voting in a political election in a foreign state within the meaning of section 401 (e) of the Nationality Act of 1940, and is therefore an act of expatriation.
Citator
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IN THE MATTER OF P----,1 IN Dec. 267(BIA 1942)
IN THE MATTER OF P----. IN EXCLUSION PROCEEDINGS.
56107/26
Board of Immigration Appeals
Executive Office for Immigration Review
U.S. Department of Justice
Decided by the Board June 22, 1942.
Voting in a municipal election in Canada is voting in a political election in a foreign state within the meaning of section 401 (e) of the Nationality Act of 1940, and is therefore an act of expatriation.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Immigrant without immigration visa.
Alien Registration Act of 1940 — No permit to enter.
Executive Order 8766 — No passport.
DISCUSSION: The appellant was born in Bradford, Pa., in 1891, of native-born parents. He has lived in Hamilton, Ontario, Canada, since 1916. Though he denies that he ever acquired Canadian citizenship, he admits that he voted in an election for alderman last November.
The appellant seeks admission for a visit as a United States citizen. He is not in possession of any consular or immigration documents.
The Revised Statutes of Ontario, 1937, in chapter 266, titled Municipal Institutions, provides that a city council for a city such as Hamilton shall be composed of aldermen elected from the several wards of the city. The city council is the governing body of the city within the limitations elsewhere provided in the Municipal Institutions Act. It is specifically provided that voters in the municipal election, whereby aldermen are elected, shall be British subjects by birth or naturalization (sec. 56, p. 233, Revised Statutes of Ontario, 1937). Thus, though appellant denies that he was ever naturalized in Canada and voted simply as a property owner, he, nevertheless, exercised a right which by statute is extended only to British subjects.Page 268
The election obviously was local in nature since it was only the election of a delegate from a ward of the city to the city council. It was, however, a political election in the sense that the city, as a corporate body, is within our understanding of the term a political corporation though it may also be termed a municipal corporation or public corporation.Curryv.DistrictTownship,62 Iowa 102;Smithv.School Trustees,141 N.C. 143. Furthermore, a city, existing by virtue of the Municipal Institutions Act of Ontario and its predecessor statutes, is "political" insofar as that term is defined as:
Political — of or pertaining to or incidental to the exercise of functions vested in those charged with the conduct of the government; pertaining to policy or the administration of government; relating to the management of the affairs of state (49 C.J. 1073).
We have seen from the foregoing that in the conduct of local affairs the city of Hamilton, Ontario, as a municipality, exercises political power delegated to it by the state (i.e., the Province of Ontario) and within the limits of the statutory authorization.
It has been held in the United States that the election of members of a school board is a political election (Nortonv.Letton,271 Ky. 353). In that case the question was whether a local option election, held 7 days after an election of school-board members, was void as held contrary to a statute prohibiting a local option election "within 30 days following a regular political election." It was pointed out that the election of school officers was under legislation of the general assembly, and that the conduct of school affairs is a high political function. A dissenting opinion argued that the election of school officers was not political because not under a machinery wherein political parties are recognized. It will be observed, however, that this argument confuses nonpolitical with nonpartisan. Furthermore, the dissenting opinion attempted no argument on the ground that a local election was not political because it was local and not statewide. This case has been cited with approval inSorensonv.Superior Court of the State of Arizona,31 Ariz. 421.
A suggestion that the term "political" refers to affairs only of state or national importance might be found in the following definition from Black's Law Dictionary, third edition, at page 1375:
Political — pertaining or relating to the policy or the administration of government, state or national.
See Peoplev.Morgan,90 Ill. 558;In re Kemp,16 Wis. 359,396.
The two cases cited, however, do not present the question of local government as contrasted with state or national government. TheMorgancase was on a question of the separation of legislative and judicial powers and theKempcase upon the separation of the legislative and executive powers. Black's definition, therefore, is not authorityPage 269for the proposition that "political" refers only to affairs of state-wide or national scope and not to local affairs.
We, therefore, conclude that the election of an alderman in the city of Hamilton, Ontario, in which the applicant voted was a political election in a foreign state. Was it, however, such within section 401 (e) of the Nationality Act of 1940? That provision reads as follows:
A person who is a national of the United States, either by birth or naturalization, shall lose his nationality by: * * * Voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory;
For one practical reason we may assume that it was intended that the word "political" appearing in subdivision (e) is used in the broadest sense of governmental or public as distinguished from private. If in an election in a foreign state there were candidates for local office and for state-wide and national office as well, enforcement of the provision would depend upon the statement of the applicant that he had voted only for the local officers and had not gone on to vote for the state or national officers. We take notice that in the United States it is usual that local, State, and National officers are elected at the same election. Doubtlessly foreign elections are similarly conducted.
The Nationality Act of 1940 as a bill was submitted to the Congress as a codification of the Nationality Laws in "House Committee Print," in three parts. Part I submitted the proposed code with explanatory comments. There we find subdivision (e) punctuated with a comma as follows:
(e) voting in a political election in a foreign state, or participating in an election or plebiscite to determine the sovereignty over foreign territory.
It might be argued that this punctuation, though not supported by a comma after the word "plebiscite," was intended to mean that the voting in a political election in a foreign state must be "to determine the sovereignty over foreign territory." The comma which does appear in part I, as quoted directly above, was not present in the statement of the proposed code in part II, which was a comparative print of the proposed and present Nationality Laws. The comma does not appear in the proposed act as reprinted in the Congressional Record on submission to the House of Representatives nor in the act as finally passed and approved. Section 401 (e) was not the subject of legislative debate in the bill's passage through Congress. Consequently, for explanatory information we fall back upon the explanatory comment found on page 67 [page 490, Hearings before the Committee on Immigration and Naturalization, House of Representatives] of part I of the House Committee Reprint.
The meaning of this subsection also seems clear. It is applicable to any case of an American who votes in a political election in a foreign state, whether orPage 270not he is a national thereof. 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.
The final clause in this subsection is applicable to the case of one participating in any election or plebiscite to determine the sovereignty over foreign territory, whether such plebiscite is held under the terms of a treaty between two or more states or an arbitral award. If this provision had been in effect when the Saar plebiscite was held, Americans voting in it would have been expatriated.
This comment indicates clearly a distinction between the two clauses of subdivision (e). It indicates that the comma appearing after the word "state" in part I was placed there erroneously and is correctly omitted in part II and in the act. It indicates finally that the rule ofejusdem generisdoes not apply.
We conclude that the appellant by voting for an alderman in Hamilton, Ontario, has expatriated himself by "voting in a political election in a foreign state" within the meaning of section 401 (e) of the Nationality Act of 1940.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing, it is found:
(1) That appellant was born in the United States;
(2) That appellant has resided in Canada;
(3) That appellant seeks admission as a United States citizen without any consular or immigration documents;
(4) That appellant voted in an election of an alderman in Hamilton, Ontario, in November 1941.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 401 (e) of the Nationality Act of 1940, the appellant has lost his United States nationality by voting in a political election in a foreign state;
(2) That under section 13 of the act of 1924, the appellant is not inadmissible as an immigrant not in possession of an immigration visa;
(3) That under section 30 of the Alien Registration Act of 1940 the appellant is inadmissible as not in possession of a visa, reentry permit, or border-crossing card;
(4) That under Executive Order 8766 of June 3, 1941, appellant is inadmissible as not in possession of a passport.
OTHER FACTORS: Appellant is a widower with two children. He has been an automobile dealer in Hamilton, Ontario, Canada, andPage 271owns property there. On his proposed visit to the United States he will inquire as to employment opportunities in this country and may later wish to return to the United States for permanent residence.
He voted also in the Dominion plebiscite on April 27, 1942. In our disposition of this case it is unnecessary to consider whether that was an election within section 401 (e).
ORDER: It is ordered that the excluding decision be affirmed.It is further ordered,That appellant may reapply for admission within 1 year.Page 272