Lapas attēli
PDF
ePub

Part 315-PROCEDURE FOR OVERCOMING THE PRESUMPTION OF EXPATRIATION UNDER SECTION 402 OF THE NATIONALITY ACT OF 1940

Sec.

Sec. 315.1 Nationals subject to presump- 315.7 When evidence is not satistion of expatriation.

factory to diplomatic or 315.2 When presumption arises.

consular officer, 315.3 When six months' residence 315.8 When evidence is not satisbegins.

factory to immigration of 315.4 To whom evidence shall be

ficer.

315.9 When evidence overcomes presented to overcome pre

presumption; effect of desumption.

cision. 315.5 Evidence required to over- 315.10 Proof of facts not relating to come presumption.

presumption under section 315.6 Form of evidence.

402. § 315.1 Nationals subject to presumption of expatriation. Section 402 of the Nationality Act of 1940 (54 Stat. 1169; 8 U.S. C. 802) provides:

A national of the United States who was born in the United States or who was born in any place outside of the jurisdiction of the United States of a parent who was born in the United States, shall be presumed to have expatriated himself under subsection (c) or (d) of section 401, when he shall remain for six months or longer within any foreign state of which he or either of his parents shall have been a national according to the laws of such foreign state, or within any place under control of such foreign state, and such presumption shall exist until overcome whether or not the individual has returned to the United States. Such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, or to an immigration officer of the United States, under such rules and regulations as the Department of State and the Department of Justice jointly prescribes. However, no such presumption shall arise with respect to any officer or employee of the United States while serving abroad as such officer or employee, nor to any accompanying member of bis family. Subsections (c) and (d) of section 401 of the act (54 Stat. 1169; 8 U. S. C. 801 (c), (d)) provide that a person who is a national of the United States either by birth or naturalization shall lose his nationality by

(c) Entering, or serving in, the armed forces of a foreign state unless expressly authorized by the laws of the United States, if he has or acquires the nationality of such foreign state; or

(d) Accepting, or performing the duties of, any office, post, or employment under the government of a foreign state or political subdivision thereof for which only nationals of such state are eligible. Subsection (b) of section 403 of the act (54 Stat. 1170; 8 U.S. C. 803 (b)) provides:

No national under eighteen years of age can expatriate himself under sub sections (b) to (g), inclusive, of section 401.

315.2 When presumption arises. The presumption that a person who was born in the United States or in any place outside of years.*

the jurisdiction of the United States of a parent who was born in the United States has committed the acts of expatriation specified in subsections (c) and (d) of section 401 of the Nationality Act of 1940 will only arise under section 402 of the act when the person, while not an officer or employee of the United States serving abroad or an accompanying member of the family of such officer or employee, shall have remained for six months after the date stated in section 315.3 of this part, in a foreign state or in any place within the control thereof which he or either of his parents shall have been a national.*

*$$ 315.2 to 315.10, inclusive, issued under authority contained in sec. 402, 54 Stat. 1169; 8 U. S. C. 802; sec. 22, title 5, U. 8. C. ; sec. 37 (a), 54 Stat. 675; 8 U, S. C. 458. Statutes interpreted or applied are sec. 401 (c), (d), sec. 402, and sec. 403 (b), 54 Stat. 1169, 1170; 8 U. S. C. 801 (c), (d), 802, 803 (b).

315.3 When six months' residence begins. The six months' residence referred to in section 402 of the Nationality Act of 1940 cannot begin before January 13, 1941 (the effective date of the act), nor before the person in question has reached the age of eighteen

315.4 To whom evidence shall be presented to overcome presumption. Evidence intended to overcome the presumption of expatriation under section 402 of the Nationality Act of 1940 shall be presented (1) to a diplomatic or consular officer of the United States, if the person making a claim to nationality of the United States is in a foreign country; (2) to an immigration officer at a port of entry of the United States, if such person is applying for admission to the United States; (3) to the Department of State, Washington, D. C., if such person is residing in the United States and is applying for a passport or for protection abroad or for any other official assistance from that Department; and (4) to such immigration officer as required by regulations under the immigration or nationality laws relating to the right or privilege which the person residing in the United States seeks to avail himself of as a national thereof. In the case of any other person residing in the United States who is seeking to avail himself of a right or privilege as a national thereof, if it appears that a presumption of expatriation has arisen against him under section 402 of the Nationality Act of 1910, the Commissioner of Immigration and Naturalization, Washington, D. C., should be consulted.*

315.5 Evidence required to overcome presumption. The presumption described in section 402 of the Nationality Act of 1940 may be overcome by the presentation of satisfactory evidence that the person subject to the presumption has not, on or after January 13, 1941, (a) entered or served in the armed forces of a foreign state, or, if he has so entered or served, that he did not have and did not acquire the nationality of such foreign state; and (b) that he has not, on or after January 13, 1941, accepted or performed the duties of any office, post, or employment under the government of a foreign state or political subdivision thereof, or, if he has accepted or performed any such duties, that nationality of such foreign state was not a prerequisite to eligibility therefor. A statement of the cause of his foreign residence which has given rise to such presumption, the places in the foreign state or states

*For statutory citation, see note to 8 315.2.

[ocr errors]

where he resided, and the occupations he followed in each such place shall be required.*

315.6 Form of evidence. Evidence to overcome the presumption under section 402 of the Nationality Act of 1940 shall be in the form of statements made under oath or affirmation by the person seeking to overcome such presumption. The officer examining any case under section 315.2 of this part may, in his discretion, require additional evidence in support of any such statements. When it appears that the person against whom the presumption has arisen has performed any of the acts specified in subsections (c) or (d) of section 401 of the Nationality Act of 1940, a written statement by the appropriate officer of the foreign state shall be required, if practicable, showing whether such person at the time of performing such acts was a national of that state, whether only nationals of that state were eligible for such service, or whether by performing such acts he acquired its nationality. The statement of such foreign officer shall be accepted as prima facie correct.*

315.7 When evidence is not satisfactory to diplomatic or consular officer. When the evidence presented is clearly not satisfactory to the diplomatic or consular officer of the United States to overcome the presumption of expatriation under section 402 of the Nationality Act of 1940, he shall refer his findings to the Department of State and if the latter concurs it shall inform the Department of Justice. In any case in which the evidence is not entirely satisfactory to such officer to show that the presumption of expatriation has arisen, or, if it has arisen, that it has been overcome by the evidence presented, he should consult the Department of State.*

315.8 When evidence is not satisfactory to immigration officer. (a) When, in the case of a person applying at a port of the United States for admission as a national thereof, an immigration officer is not entirely satisfied that the presumption of expatriation under section 402 of the Nationality Act of 1940 has arisen, or, if it has arisen, he is not entirely satisfied that it has been overcome by the evidence presented, he shall refer the case to a board of special inquiry. Such board, if not satisfied that the presumption is overcome, and if such person is not admissible to the United States as an alien, shall exclude him from adınission to the United States, and inform him of his right of appeal on each question.

(b) In any case in which a person residing in the United States seeks as a national thereof to avail himself of any right or privilege in connection with the administration of the immigration laws or the nationality laws, and the immigration officer is not entirely satisfied that the presumption of expatriation under section 402 of the Nationality Act of 1940 has arisen, or, if it has arisen, he is not entirely satisfied that it has been overcome by the evidence presented, the case shall be handled in the manner and in the channels as required by the regulations relating to the exercise of such right or privilege. If the final decision be that such presumption has arisen and has not been overcome, the Central Office, Immigration and Naturalization Service, shall so inform the Department of State.* (Secs. 16, 17, 39 Stat. 885, 887; 8 U.S. C. 152, 153)

* For statutory citation, see note to 8 315.2.

8687000-44-44

315.9 When evidence overcomes presumption; effect of decision. When the United States diplomatic or consular officer or immigration officer is satisfied that the evidence presented overcomes the presumption of expatriation under section 402 of the Nationality Act of 1940, the United States passport or other travel document of the person shall be endorsed by or on the part of such officer with a certificate as follows: I certify that the holder of this --

has submitted to me evidence which I believe to be sufficient to overcome, as of this date, the presumption of expatriation under section 402 of the Nationality Act of 1940. If the person has no such passport or travel document, the certificate shall be made in the form of a letter to him. The certificate shall be dated and signed by the officer making it, and he shall add thereto the title of his office and his station. Such certificate shall be accepted by diplomatic, consular, and immigration officers of the United States as prima facie evidence that the presumption of expatriation has been overcome, but shall not preclude such officers or the United States from requiring satisfactory evidence that the certificate was not obtained or issued through fraud or other illegality when there is reasonable cause to believe that such is the case.

315.10 Proof of facts not relating to presumption under section 402. Nothing in this part shall relieve any persons from complying with any requirements with respect to proof of facts which do not relate to overcoming the presumption under section 402 of the Nationality Act of 1940.*

* For statutory citation, see note to 8 315.2.

Part 317–CERTIFICATE OF IDENTITY FOR ADMISSION TO THE UNITED STATES TO PROSECUTE AN ACTION UNDER SECTION 503 OF THE NATIONALITY ACT OF 1940

Sec.

Sec. 317.1 Authority for Issuance of cer- 317.5 Denial of a right or privilege tificate of identity.

as a national of the United 317.2 Application for certificate of

States. identity.

317.6 Proof of institution of action. (a) What application shall

317.7 In case of doubt as to issushow.

ance of certificate of iden(b) Supporting witness.

tity. (c) Form and execution.

317.8 Form and issuance of certif. 317.3 Independent investigation.

cate of identity. 317.4 Good faith and substantial

317.9 Period of validity of certifbasis of claim of United States nationality.

cate of identity, (a) Relationship to provi

317.10 Denial of certificate of idension concerning loss

tity. of nationality.

317.11 Appeal by applicant. (b) Meaning of good faith. 317.12 Certificate of identity ob(c) Meaning of substantial

tained by fraud or other basis.

illegality. 8 317.1 Authority for issuance of certificate of identity. Section 503 of the Nationality Act of 1940 (54 Stat. 1171, 1172; 8 U. S. C. 903) provides:

If any person who claims & right or privilege as a national of the United States is denied such right or privilege by any Department or agency, or executive official thereof, upon the ground that he is not a national of the United States, such person, regardless of whether he is withia the United States or abroad, may institute an action against the head of such Department or agency in the District Court of the United States for the District of Columbia or in the district court of the United States for the district in which such person claims a permanent residence for a judgment declaring him to be a national of the United States. If such person is outside of the United States, and shall have instituted such an action in court, he may, upon submission of a sworn application showing that the claim of nationality presented in such action is made in good faith and has a substantial basis, obtain from a diplomatic or consular officer of the United States in the foreign country in which he is residing a certificate of identity stating that his nationality status is pending before the court, and may be admitted to the United States with such certificate upon the condition that he shall be subject to deportation in case it shall be decided by the court that he is not a national of the United States. Such certificate of identity shall not be denied solely on the ground that such person has lost a status previously had or acquired as a national of the United States; and from any denial of an application for such certificate the applicant shall be entitled to an appeal to the Secretary of State, who, if he approves the denial, shall state in writing the reasons for his decision. The Secretary of State, with the approval of the Attorney General, shall prescribe rules and regulations for the issuance of certificates of identity as above provided.

« iepriekšējāTurpināt »