U.S. Code » Title 8 » Chapter CHAPTER 12— IMMIGRATION AND NATIONALITY › Subchapter SUBCHAPTER III— NATIONALITY AND NATURALIZATION › Part Part II— Nationality Through Naturalization

8 U.S.C. § 1438

Former citizens losing citizenship by entering armed forces of foreign countries during World War II

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(a) Requirements; oath; certified copies of oath

Any person who, (1) during World War II and while a citizen of the United States, served in the military, air, or naval forces of any country at war with a country with which the United States was at war after December 7, 1941, and before September 2, 1945, and (2) has lost United States citizenship by reason of entering or serving in such forces, or taking an oath or obligation for the purpose of entering such forces, may, upon compliance with all the provisions of subchapter III of this chapter, except section 1427(a) of this title, and except as otherwise provided in subsection (b), be naturalized by taking before the Attorney General or before a court described in section 1421(b) of this title the oath required by section 1448 of this title. Certified copies of such oath shall be sent by such court to the Department of State and to the Department of Justice and by the Attorney General to the Secretary of State.

(b) ExceptionsNo person shall be naturalized under subsection (a) of this section unless he—(1) is, and has been for a period of at least five years immediately preceding taking the oath required in subsection (a), a person of good moral character, attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the United States; and(2) has been lawfully admitted to the United States for permanent residence and intends to reside permanently in the United States.(c) Status

Any person naturalized in accordance with the provisions of this section, or any person who was naturalized in accordance with the provisions of section 323 of the Nationality Act of 1940, shall have, from and after such naturalization, the status of a native-born, or naturalized, citizen of the United States, whichever status existed in the case of such person prior to the loss of citizenship: Provided, That nothing contained herein, or in any other provision of law, shall be construed as conferring United States citizenship retroactively upon any such person during any period in which such person was not a citizen.

(d) Span of World War II

For the purposes of this section, World War II shall be deemed to have begun on September 1, 1939, and to have terminated on September 2, 1945.

(e) Inapplicability to certain persons

This section shall not apply to any person who during World War II served in the armed forces of a country while such country was at war with the United States.

(June 27, 1952, ch. 477, title III, ch. 2, § 327, 66 Stat. 248; Pub. L. 101–649, title IV, § 407(d)(7), Nov. 29, 1990, 104 Stat. 5042.)Editorial NotesReferences in Text

Section 323 of the Nationality Act of 1940, referred to in subsec. (c), which was classified to section 723 of this title, was repealed by section 403(a)(42) of act June 27, 1952. See subsec. (a) of this section.

Amendments

1990—Subsec. (a). Pub. L. 101–649 substituted “the Attorney General or before a court described in section 1421(b) of this title” for “any naturalization court specified in section 1421(a) of this title” and inserted “and by the Attorney General to the Secretary of State” before period at end.

Statutory Notes and Related SubsidiariesAbolition of Immigration and Naturalization Service and Transfer of Functions

For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title.

Notes of Decisions
Cited in 17 cases (2 in the last 5 years), 1953–2021 · leading case: Monssef Cheneau v. Merrick Garland, 997 F.3d 916 (9th Cir. 2021).
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Monssef Cheneau v. Merrick Garland, 997 F.3d 916 (9th Cir. 2021). · cites it 2× “Take for instance 8 U.S.C. § 1438 . It provides that former U.”
Nwozuzu v. Holder, 726 F.3d 323 (2d Cir. 2013). “” 8 U.S.C. § 1438 (b)(2) (2012) (emphasis added).”
Texas v. United States, 328 F. Supp. 3d 662 (S.D. Tex. 2018). “§§ 1438 (a) (persons who lost United States citizenship because they served in the armed forces of a United States ally during World War II); 1439 (noncitizens who have served honorably in the United States armed forces for at least one year); 1440 (noncitizens who served in the…”
Harriott v. Ashcroft, 277 F. Supp. 2d 538 (E.D. Pa. 2003). “Petitioners advance several arguments in support of this claim, the most persuasive of which is that Respondents should be estopped from denying Ryan’s citizenship because it was their own unreasonable delay and failure to expedite the Application, in contravention of applicable…”
Evaristo Gonzalez Gonzalez v. Eric Holder, Jr., 771 F.3d 238 (5th Cir. 2014). “§ 1433 (a)(5)(A) (1994) (amended 2000) and 8 U.S.C. § 1438 (b)(2) (2012)). Moreover, the Second Circuit had previously interpreted “reside permanently” as only requiring “some lesser official objective manifestation” of residing permanently.”
Minoru Tanaka v. Immigr. & Naturalization Serv., 346 F.2d 438 (2d Cir. 1965). · cites it 2× “495 , 496, July 20, 1954, 8 U.S.C. § 1438 note, which temporarily provided simplified naturalization procedures for certain persons who had lost their citizenship by voting in Japanese elections between September 2, 1945 and April 27, 1952, provides no support for Tanaka’s claim…”
Reaume v. United States, 124 F. Supp. 851 (E.D. Mich. 1954). · cites it 2× “It Is Further Ordered that the complaint be dismissed as to the United States of America and the District Director of Immigration and Naturalization, because they are neither necessary nor proper defendants.”
Kenji Kamada v. Dulles, 145 F. Supp. 457 (N.D. Cal. 1956). “Indeed it hardly appears to be questioned that the campaign stressing the function of voting was so powerful that many deemed it mandatory to vote, and it has been suggested that the Watkins Act, Act July 20, 1954, 8 U.S.C.A. § 1438 note, passed by Congress for the restoration…”
Antonio Hector Millan-Garcia v. Immigr. & Naturalization Serv., 343 F.2d 825 (9th Cir. 1965). “§ 1429 (1952)] referred to by the Court, in material part, is as follows: “* * * Notwithstanding the provisions of section 405(b) of the Act, and except as provided in sections 327 [ 8 U.S.C.A. § 1438 , (1952)] and 328 [ 8 U.”
Serizawa v. Dulles, 134 F. Supp. 713 (N.D. Cal. 1955). “495 , note to 8 U.S.C.A. § 1438 . 1 The plaintiff in the instant case testified that he voted in the elections because he feared that he might lose his rations if he did not.”
In re Naturalization of Carnavas, 155 F. Supp. 12 (S.D.N.Y. 1957). “§ 723 , the prevailing law at the time petitioner filed a preliminary application for naturalization on Immigration Form N-400, or whether it is to be governed by Section 327 of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1438 , the present law, which would clearly…”
In re Chin King, 124 F. Supp. 911 (S.D.N.Y. 1954). “The conferees agreed to retain the Senate provision exempting from it aliens who have served honorably in the Armed Forces of the United States and who are seeking naturalization on this basis either while so serving or following their honorable discharge.” Section 318, 8 U.”
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