view of all the circumstances, I believe that the petitioner did not take the Oath of Allegiance to the Czechoslovakian Government
3. Was petitioner inducted into the Czechoslovakian Army under duress?
In this connection it appears that he received a notice in April or May of 1922 that he was going to be inducted into the Czechoslovakian Army. He states that no attention was given to this notice for the reason that he was born in the United States; that he was unable to speak English, and that he lived some distance from the location of the American Consulate. During the first part of October, 1922, he received an additional notice that he was to be formally inducted into the armed forces of Czechoslovakia, and again no attention was given to said notice; that a short time thereafter he was forceably taken from his home by the police authorities in the country of Czechoslovakia, given a uniform, and compelled to enter military service. I, therefore, believe that the petitioner was inducted into the Czechoslovakian Army under duress, force, fear and intimidation.
4. Was the Oath of Allegiance administered to petitioner an unqualified Oath of Allegiance to Czechoslovakia?
It appears from the oath which has been forwarded by the Department of State in the Country of Czechoslovakia to the Secretary of State of this country that it does require unqualified allegiance to Czechoslovakia. However, for reasons heretofore given, I do not believe that the petitioner accepted or swore to said Oath of Allegiance.
5. Was he lawfully admitted to the United States when he entered the United States at Buffalo, New York, on August 12, 1928?
I believe this question should be answered in the affirmative for the reason that the petitioner was a citizen of the United States at the time of his admission, as a result of his birth in this country at Walston, Jefferson County, Pennsylvania, on September 22, 1901.
A person who is born in the United States, regardless of the citizenship of his parents, becomes an American citizen not by gift of Congress but by force of the Constitution. U.S.C.A., Constitutional Amendment 14, Section 1.
The power of naturalization vested in Congress by the Constitution is the power to confer citizenship, not a power to take it away. The statute providing that a national of the United States by birth or naturalization shall lose his nationality by entering, or serving in, the armed forces of a foreign state, unless expressly authorized by laws of the United States, does not cause loss of nationality where such a person is drafted over his protest into foreign military service, and the statute is limited to cases where induction into foreign military service is voluntary. Nationality Act of 1940, Sec. § 401, 8 U.S.C.A. § 801; Executive Order April 25, 1933, No. 6115; In re Dos Reis ex rel. Camara v. Nicolls, District Director of Immigration and Naturalization, 1 Cir., 161 F.2d 860.
Although the Oath of Allegiance, which was required by all persons who entered the armed forces of Czechoslovakia, contains phraseology which indicate that an unqualified Oath of Allegiance to Czechoslovakia becomes mandatory, this oath at the most creates a presumption of expatriation on the part of the petitioner created by service in the armed forces of Czechoslovakia. However, this presumption may be rebutted and under the facts in the instant case I believe the petitioner has met that burden of proof. As a result thereof the only conclusion which can be reached is that the petitioner was inducted into the Czechoslovakian Army against his will, under fear, duress and compulsion and, as a result thereof, did not lose his United States citizenship. It is clear to me that Congress intended that in no event should a person entering or serving in the armed forces of a foreign state, where the service is involuntary and where the avoidance thereof is not within the power of the individual, lose his citizenship as a result thereby. See Ruling of Attorney General, Opinion No. 130 (Vol. 40) October 16, 1947 (made public November 5, 1947), 16 L.W. 2249; Dos Reis ex rel. Camara v. Nicolls, supra.
It is a matter of historic record that the government of the United States, as an encouragement to loyal aliens who engaged in the defense of this country by service in the armed forces, has in past years relieved them from some of the burdensome requirements of the general naturalization laws. This attitude proceeds upon the principle that even non-citizens who are ready and willing to sacrifice their lives in the maintenance of this democratic government are deserving of the high gift of citizenship when vouched for by responsible citizens as loyal and of good character, and shown by government records that they served honorably.
I make the comment just expressed, although it does not have application to the facts in this case for the reason that I feel the petitioner to be a citizen of the United States, and he has carried an excellent reputation and standing in every respect since he came to this country on August 12, 1928. He was a blood donor to the Red Cross during World War II, he purchased Government Bonds, he became a member of the armed forces of this country, and later was engaged in the pursuit of employment in essential war industry. It would appear harsh to me and very unfair to require this individual to become a subject of deportation to the Country of Czechoslovakia, and it is extremely unfortunate that he has been denied the right to have his wife and two children with him since he was at first able to financially request the right to bring them to this country in the year 1937.
The Petition for Naturalization is refused for the reason that the petitioner is already a citizen of the United States by virtue of his birth on September 22, 1901, at Walston, Jefferson County, Pennsylvania.
I would suggest and recommend that the proper governmental authorities extend a helping hand to this petitioner to make possible the bringing of his wife and children to this country at the earliest possible date. I make this comment for the reason that I believe petitioner has been unjustly denied the companionship and comfort of his family for over ten years.