"The second proviso (to sec. 401 (a)) grants the privilege of returning to this country and thus be deemed a citizen in any case where one who has dual nationality by reason of the naturalization of his parent has not elected to give up his American citizenship by a 'voluntary act,' which connotes something more than mere residence abroad." The issue now before us is whether the appellant has elected to give up his American citizenship in this fashion. The acts by which such an election may be manifested are not necessarily limited to "those which would under the statutes result in the loss of single American citizenship." For example, voting in Canada, before the Nationality Act of 1940 made such action an act of expatriation, constituted such an election and caused a loss of American citizenship." However, registering in the Canadian draft as a Canadian national, and an unsuccessful effort to enlist in the Canadian Army during the present war do not indicate an election of Canadian nationality or a voluntary abandonment of American citizenship.*

Has this appellant performed any acts that would indicate an abandonment of his American citizenship? He testified that he has never voted in Canada, has never held public office there, has always considered himself to be an American citizen, and does not believe that he is a national of Canada. Apparently he has been admitted to this country on a few occasions as an American citizen, remaining, however, only for short periods of time. The foregoing acts and omissions to act are clearly indicative of an intention on the part of the appellant to retain his American citizenship. Insofar as his actions in attempting to enlist in the Canadian militia at the end of June 1939 and his apparent 2-weeks' service therein are concerned, we do not feel that they are any more an indication of an abandonment of American citizenship and an election of Canadian nationality than was the action of S (56127/518) in registering for the Canadian draft and attempting to enlist in the Canadian Army.

On the basis of this record, we feel that the appellant has not elected to give up his American citizenship by a "voluntary act" and we therefore conclude that he is now a citizen of this country and should be admitted as such.

FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:

(1) That the appellant was born in Inverness, Mont., on October 4, 1915;

(2) That the appellant, when 4 weeks of age, was taken by his parents to live in Canada where he has since maintained his home;

In re JIn re W

B. S

Jr. (56127/518) [see page 476, this volume]. (56048/958) [see page 24, this volume).

(3) That the appellant's father was naturalized a Canadian citizen on October 26, 1921;

(4) That the appellant applied for admission as an American citizen on December 19, 1942;

(5) That the appellant has not performed any acts indicating an abandonment of his American citizenship.

CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:

(1) That under Section 1992 of the Revised Statutes and section 1 of Article XIV of the amendments to the Constitution of the United States, the appellant was a citizen of the United States at birth;

(2) That on October 26, 1921, the appellant acquired Canadian nationality by reason of his father's naturalization in that country during the appellant's minority and while he was residing there permanently;

(3) That under the second proviso of section 401 (a) of the Nationality Act of 1940, the appellant has the privilege of returning to this country and thus be deemed an American citizen; (4) That under section 30 of the Alien Registration Act of 1940, the appellant is not inadmissible as not in possession of a visa, reentry permit or border-crossing card;

(5) That under Executive Order No. 8766 of June 3, 1941, the appellant is not inadmissible as not in possession of a passport. ORDER: It is ordered that the appeal be sustained and the appellant admitted as an American citizen.

IN THE MATTER OF DE S

In EXCLUSION Proceedings

56143/551

Decided by the Board October 13, 1943

Admission of crime-Attempt to smuggle (sec. 1593, title 19, U. S. C.).

An admission by an alien that she attempted to smuggle merchandise into the United States with intend to defraud the revenue of the United States in violation of section 1593, title 19, United States Code, does not constitute the admission of a crime involving moral turpitude since by the statute an attempt is not defined as a crime.

EXCLUDED BY BOARD OF SPECIAL INQUIRY:

Act of 1917-Admits commission of a crime involving moral turpitude attempt to defraud the revenue of the United States.

Mr. Leon Ulman, Board attorney-examiner.

STATEMENT OF THE CASE: The appellant applied for admission to the United States at San Ysidro, Calif., on June 21, 1943, as a returning resident and presented a valid resident alien's border-crossing identification card. A board of special inquiry has excluded her on the ground above stated and pending our consideration of the case the appellant has remained in Mexico.

DISCUSSION: The appellant is a native and citizen of Mexico, 39 years of age, married. It appears that she was admitted to the United States for permanent residence in 1926 and has resided in the United States continuously since such time. On June 19, 1943, she went to Mexico for a visit and on her attempted return on June 21, she was apprehended by the United States Customs Service. It was then ascertained that she was endeavoring to smuggle several dozen pairs of silk stockings into the United States. The appellant admits that she committed the crime of unlawfully attempting to smuggle the merchandise into the United States with intent to defraud the revenue of the United States. We note, parenthetically, that on August 6, 1943, the appellant pleaded guilty to a violation of section 1593, title 19, United States Code, in that she unlawfully imported the said merchandise into the United States. Section 1593 provides so far as pertinent that:

If any person knowingly and wilfully, with intent to defraud the revenue of the United States, smuggles, or clandestinely introduces into the United States any merchandise which should have been invoiced, or makes out or passes or attempts to pass, through the customhouse any false, forged, or fraudulent 553

612416-47-38

shall be

invoice, or other document or paper, every such person guilty of a misdemeanor

In Keck v. United States, 172 U. S. 434, 43 L. Ed. 505 (1899) the Supreme Court has before it an indictment laid under Section 2865 of the Revised Statutes, which in terms was practically identical with Section 1593. The Court there held that the offense does not include mere attempts to commit smuggling, and is not committed by the concealment of goods, when they are not taken through the lines of customs authorities but are delivered to the customs officer on board a vessel at the time when or before the obligation to pay the duties arises. The Court said in referring to the offense of smuggling—

Nothing in the statute by the remotest possible implication can be found to cover mere attempts to commit the offense referred to.

The same conclusion was reached on the authority of the Keck case in United States v. Ritterman, 12 F. 2d 849 (C. C. A. 2 (1926)), reversed on other grounds (273 U. S. 261). Consequently, we conclude that the appellant's admission is of no significance, since in fact an attempt to smuggle does not constitute a crime. The appeal must be sustained. FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:

(1) That the appellant is a native and citizen of Mexico;

(2) That the appellant was admitted to the United States for permanent residence in 1926;

(3) That the appellant has resided in the United States continuously since her admission;

(4) That on or about June 19, 1943 the appellant went to Mexico for a visit;

(5) That the appellant seeks admission to resume her residence; (6) That the appellant has presented a valid resident alien's bordercrossing identification card;

(7) That the appellant admits having committed the crime of attempting to smuggle goods into the United States with intent to defraud the revenue of the United States.

CONCLUSION OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:

That under section 3, of the Immigration Act of 1917, the appellant is not inadmissible as one who admits having committed a crime involving moral turpitude, to wit: attempting to smuggle goods into the United States, with intent to defraud the revenue of the United States.

ORDER: It is ordered that the appeal be sustained and that the appellant be admitted as a returning resident.

IN THE MATTER OF THE S. S. "RODSLEY"

In FINE Proceedings

56118/526

Decided by the Board October 16, 1943

Fines-Section 20, Immigration Act of 1924-Failure to comply with order to detain on board.

A fine has not been incurred under section 20 of the Immigration Act of 1924 for failure to detain on board an alien seaman when a seaman ordered detained was permitted to land in response to what appeared to be a bona fide need for medical treatment.

Kirlin, Campbell, Hickox, Keating and McGrann, attorneys for the respondent.

Miss Arlene Tuck, Board attorney-examiner.

STATEMENT OF THE CASE: This is a fine proceeding under section 20 of the Immigration Act of 1924 against Simpson, Spence & Young, agents, for failing to detain the alien seamen RC- RS- and E G- - after service of an order to do so. Notice of intention to fine was served on the agents on January 21, 1943. DISCUSSION: The record establishes that on December 26, 1942, when the S. S. Rodsley arrived at New York, notice was served on the master to detain on board seven alien seamen, including those named above. Like notice was served on the agents on December 29, 1942. According to the agents' protest, several days later the seamen Sand G― complained of illness, and the master sent them ashore for examination. A certificate from the Long Island College Hospital states that G― was admitted as an out-patient and was treated for possible early tuberculosis but made one visit only, and studies were not completed. A certificate from the same hospital states that S was admitted to the hospital on January 7, January 15, and February 4, 1943, and was treated for chronic bronchitis and tachycardia, after which he was certified as unfit for duty and repatriation was advised. Concerning the seaman C―, the protest states that on January 7, 1943, he suffered serious burns and was sent to the United States Marine Hospital at Stapleton, Staten Island. The record contains a photostatic copy of a certificate from the United States Marine Hospital stating that he was admitted there on January 7, 1943, for treatment of burns and on March 17, 1943, had not yet been discharged.