she must swear Allegiance -- before she may regain her citizenship."
The same result was reached in Shelley v. United States, 1941, 74 App.D.C. 181, 120 F.2d 734. There, Judge Edgerton, in discussing the same problem, stated, 120 F.2d at page 735:
"But the government concedes that its construction of the statute 'is not in harmony with the legislative intention expressed in the committee report and debates on the bill. It is apparent therefrom that it was the intention of the framers of the Act to defer repatriation until the oath of allegiance was taken.' The government asks us to ignore what it concedes to be the actual intent of Congress, on the theory that the statute clearly expresses a different intent. We are not prepared to assert that Congress clearly said the opposite of what it meant. It is possible to interpret the statutory proviso as meaning 'Provided that she shall first take the oath of allegiance.' The other interpretation, for which the government contends, would involve this paradox, that Congress created a class of so-called 'citizens' from whom, although they had committed no offense, it withheld all the rights of citizens. Resort to the usual evidence of congressional intent is proper. That evidence makes it clear that an expatriated wife does not become repatriated until she takes the oath of allegiance."
In resorting to the Congressional Record, this statement will be found with reference to the Act of June 25, 1936:
"Mr. Dickstein: * * * This bill provides a short form of naturalization allowing native-born women, who have lost their citizenship through marriage to an alien, to take the oath of allegiance to the United States and thereby be repatriated. " 80 Cong.Rec. 9971, 74th Cong.2dSess., 1936. (Emphasis supplied.)
It is crystal clear that Congress intended that the wife take an affirmative step -- the oath of allegiance -- to regain her citizenship.
That the oath of allegiance is to be considered merely "tangible evidence" of the existence of the rights of citizenship seems to be inconsistent with the function of the oath in our naturalization system. Cf. United States v. Macintosh, 1931, 283 U.S. 605, 51 S. Ct. 570, 75 L. Ed. 1302; United States v. Bland, 1931, 283 U.S. 636, 51 S. Ct. 569, 75 L. Ed. 1319; United States v. Schwimmer, 1929, 279 U.S. 644, 49 S. Ct. 448, 73 L. Ed. 889; and see In re Losey, D.C.E.D.Wash., 1941, 39 F.Supp. 37.
When Congress enacted the Nationality Act of 1940, it clarified its intent with a section that leaves no room for doubt (54 Stat. 1146, 8 U.S.C.A. § 717(b) (1):
"* * * a woman, who was a citizen of the United States at birth, and who has or is believed to have lost her United States citizenship solely by reason of her marriage prior to September 22, 1922, to an alien, and whose marital status with such alien has or shall have terminated, * * * shall, from and after the taking of the oath of allegiance * * * be deemed to be a citizen of the United States to the same extent as though her marriage to said alien had taken place on or after September 22, 1922."
In view of the fact that Mrs. Portner has not taken the oath of allegiance, she is not a citizen, and her husband is not entitled to be granted citizenship by virtue of his marriage to her under the provisions of Sec. 310(a) of the Nationality Act of 1940.
The petition must be and accordingly is hereby denied.
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