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Opinion of the Court.
Japan to study Japanese; that he possessed dual nationality from birth but that his name was not entered in the census register until March 8, 1943; and that he had "never been naturalized, taken an oath of allegiance, or voted as a foreign citizen or subject, or in any way held myself out as such."
The United States foreign service officer concluded that petitioner had overcome the presumption of expatriation. He reported, "In 1943 his possession of Japanese nationality was made a matter of record by the entry of his name into his uncle's Family Census Register. He states that this action was taken under severe pressure by the Japanese police and by his uncle, on whom he was financially dependent after his supply of funds from the U. S. was cut off; this office has reason to believe this statement." These representations led to the issuance of an American passport on which he returned to the United States in 1946.
If petitioner were to be believed in December, 1945, he never once renounced his American citizenship. If what petitioner now says were his thoughts, attitudes, and motives in 1943 and 1944 and in part of 1945, he did intend to renounce his American citizenship. If the latter version were believed by the jury, the signing of the family register, and the changing of his registration at the police station and at the University would assume different significance; those acts might then readily suggest the making of a declaration of allegiance to Japan within the meaning of § 401 (b). If, on the other hand, petitioner were to be believed when in 1945 he stated he had not done acts by which he renounced his American citizenship, then the Koseki incident and the changes in his police and University registration could reasonably be taken as amounting to no more than a public declaration of an established and preexisting fact, viz. his Japanese
Opinion of the Court.
nationality. We think, in other words, that the question whether petitioner had renounced his American citizenship was on this record peculiarly for the jury to determine. The charge was that the jury must be satisfied beyond a reasonable doubt that during the period specified in the indictment, petitioner was an American citizen. We cannot say there was insufficient evidence for that finding.
Petitioner concedes he did not enter the armed services of Japan within the meaning of § 401 (c) of the Act but claims that during his tour of duty at the Oeyama camp he was "serving in" the Japanese armed services within the statutory meaning of those words. In this connection he also argues that his work in the Oeyama camp was the performance of the duties of an "office, post, or employment under the government" of Japan "for which only nationals of such state are eligible" within the meaning of § 401 (d) of the Act.
The Oeyama Nickel Industry Co., Ltd., was a private company, organized for profit. It was engaged in producing metals used for war under contracts with the Japanese government. In 1944 it was designated by the Japanese government as a munitions corporation and under Japanese law civilian employees were not allowed to change or quit their employment without the consent of the government. The company's mine and factory were manned in part by prisoners of war. They lived in a camp controlled by the Japanese army. Though petitioner took orders from the military, he was not a soldier in the armed services; he wore insignia on his uniform distinguishing him as nonmilitary personnel; he had no duties to perform in relation to the prisoners, except those of an interpreter. His employment was as an interpreter for the Oeyama Nickel Industry Co., Ltd., a private company. The regulation of the company by
Opinion of the Court.
the Japanese government, the freezing of its labor force, the assignment to it of prisoners of war under military command were incidents of a war economy. But we find no indication that the Oeyama Company was nationalized or its properties seized and operated by the government. The evidence indicates that it was a part of a regimented industry; but it was an organization operating for private profit under private management. We cannot say that petitioner's status as an employee of a private company was changed by that regimentation of the industry.
It would require a broad and loose construction of "office, post, or employment under the government of a foreign state" as those words are used in § 401 (d) to hold that petitioner had sacrificed his American citizenship by accepting or performing the duties of interpreter. We are thinking not only of this case but of other cases to which § 401 (d) is applicable. We are reluctant to resolve the ambiguity contained in § 401 (d) so as to provide treacherous ground for the loss of the rights of citizenship by the Nisei. As the Court said in Perkins v. Elg, supra, p. 337, "Rights of citizenship are not to be destroyed by an ambiguity." It would be harsh indeed to hold that a Nisei, marooned in Japan when World War II broke out, would be expatriated merely by working for a private company whose business was supervised and whose labor supply was controlled by the Japanese government in time of war. That would give § 401 (d) a broad, pervasive sweep. Section 401 (d) not only makes acceptance of "any office, post, or employment under the government of a foreign state" the basis of expatriation; it also makes "performing the duties" of any such office, post, or employment a ground for expatriation. One who was drafted for such service would be included, as well as one who volunteered. In time of war that would bring most employees of private companies within the danger
Opinion of the Court.
zone in view of the hold which a war economy places on industry and the supervision and control which it asserts. We therefore incline to a construction of the words "under the government of a foreign state" to mean the relationship that public employees have with their government or with the bureaus or corporations which are government owned and controlled. Support for that narrower meaning is found in the legislative history.
3 The explanatory comments on the draft code of the Nationality Laws transmitted with the message of the President on June 13, 1938, stated the following as respects § 401 (c) and (d):
"With reference to subsections (c) and (d) attention is called to the following statement in an opinion of Attorney General Williams, dated August 20, 1873 (14 Op. Atty. Gen. 295, 297):
"My opinion. . . is that, in addition to domicile and intent to remain, such expressions or acts as amount to a renunciation of United States citizenship and a willingness to submit to or adopt the obligations of the country in which the person resides, such as accepting public employment, engaging in military services, etc., may be treated by this Government as expatriation, without actual naturalization. Naturalization is without doubt the highest, but not the only evidence of expatriation.'" (Italics added.) Codification of the Nationality Laws of the United States, 76th Cong., 1st Sess., House Committee Print, p. 67.
Mr. Flournoy, speaking for the State Department at the hearings (see Hearings on H. R. 6127, H. R. 9980, 76th Cong., 1st Sess., pp. 131-132), described the provision that became § 401 (d) in the following way:
"It seems to me the object of that is fairly clear. A foreign state has some position in its government which can be held only by its citizens and an American accepts such a position and serves the foreign state and loses his American nationality. That is intended particularly for cases of persons of dual nationality, and there are not a great many of those cases. There are not many thousands of them. . . . This is intended particularly for those cases of dual nationality. Say an American is born here and he goes to and is living in Mexico and he takes a position in the Mexican Government, that is regarded as equivalent to a choice of his citizenship and he loses his American nationality." (Italics added.)
Opinion of the Court.
Section 402 creates a presumption that a national in Kawakita's category who remains six months or longer within a foreign state of which he or either of his parents shall have been a national shall be presumed to have expatriated himself under § 401 (c) or (d). Section 402 does not enlarge § 401 (c) or (d); it creates a rebuttable presumption of expatriation; and when it is shown that the citizen did no act which brought him under § 401 (c) or (d), the presumption is overcome. On that showing the person never loses his American nationality. See Dos Reis v. Nicolls, 161 F. 2d 860, 868. In other words, once it was shown that petitioner was not expatriated under § 401 (c) or (d), the force of § 402 was spent.
Section 408 provides, "The loss of nationality under this Act shall result solely from the performance by a national of the acts or fulfillment of the conditions specified in this Act." The District Court therefore charged
4 Section 402 reads as follows:
"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 prescribe. 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 his family."
5 Section 402 was adopted "upon the special recommendation of the War Department with a view to checking the activities of persons regarded as prospective 'fifth columnists.'" 86 Cong. Rec. 11948.