The opinion of the court was delivered by: YANKWICH
Hichiro Uyeno, the plaintiff, was born in Bellevue, King County, State of Washington, on June 12, 1926, of Japanese parentage. When four and one-half years of age, in December, 1930, he was taken by his parents to Japan. His parents, after their return to Japan, engaged in farming. The father died there. The mother is still living in Japan. Of several brothers and sisters who accompanied the family to Japan, a brother and sister returned to the United States. The Government has not challenged their claim to citizenship by reason of birth. Indeed, in 1941, the brother registered for military duty under the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq.
The plaintiff claims his permanent residence at Seattle, Washington, where he resides with his brother, having gained admission to the United States for the purpose of prosecuting the present action, under a 'Certificate of Identity', granted on the plea of need of the physical presence of the plaintiff at the trial. 8 U.S.C.A. § 903. The issuance of such certificate does not work an estoppel against the Government. United States ex rel. Lapides v. Watkins, 2 Cir., 1948, 165 F.2d 1017, 1019. Back of the present action is the contention of the United States that the plaintiff has lost the citizenship which he acquired by birth in the United States.
The Facts Leading to the Controversy
In July, 1948, the plaintiff applied to the United States Consulate in Japan for a passport pursuant to his expressed desire to return to the United States. The application was denied upon the sole ground that the plaintiff was no longer a citizen or national of the United States because he had voted in the Japanese general election of 1947.
It is the plaintiff's contention that he is a citizen and national of the United States, that his participation in the general election of 1947 was forced and was under mistake and misunderstanding, because he had no knowledge that such voting would result in loss of citizenship. He asserts that, at no time,did he intend to do anything which would result in the loss or forfeiture of his United States citizenship and nationality. Upon these grounds, he instituted, on December 6, 1948, the present action against the Secretary of State, under Section 503 of the United States Nationality Code, 8 U.S.C.A. § 903.
The answer of the Government challenges the assertions of the plaintiff, except that it admits his birth in the United States, and departure to Japan, while a child of tender age.
The entire controversy, therefore, centers around the participation by the plaintiff in the Japanese general election of 1947, at which time, although under age, the plaintiff, under the rules laid down by the Supreme Commander Allied Powers (SCAP), was permitted to vote. See, Miranda v. Clark, 9 Cir., 1950, 180 F.2d 257.
And the ultimate question is: Did the plaintiff by this act expatriate himself?
What is a 'Foreign State'?
To achieve expatriation by any of the means provided in Section 802, 8 U.S.C.A., the act must be voluntary.
'To 'expatriate' oneself clearly implies voluntary action.' Dos Reis ex rel. Camara v. Nicolls, 1947, 1 Cir., 161 F.2d 860, 868.
'Expatriation is the voluntary renunciation or abandonment of nationality and allegiance. It has no application to the removal from this country of a native citizen during minority. In such a case, the voluntary action which is of the essence of the right of expatriation is lacking.' ...