In DEPORTATION Proceedings

MATTER OF G—

In DEPORTATION Proceedings

A-11292757

Decided by Board May 6, 1959

of eitiAenoltip —Voting in foreign political election (ricetion 401(o), Nationality Act of 1940)—Claim of fear, where believed, sufficient to put voluntariness in issue.

Loss

Government's burden of proving voluntariness of expatriating conduct by clear,

convincing, and unequivocal evidence is not met under section 401(e) of the

Nationality Act of 1940 where uncorroborated testimony of native-born

United States citizen shows that he voted in Greece in 1951 under a genuine,

if unfoundorl, lone of harm or reprisal for failure to vote.

CHARGE:

Order to Show Cause: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a)

(2)l—neummeo longer roan toe pernOttet1 period

after admission as a nonimmigrant seaman.

BEFORE THE BOARD

Discussion: This case is before us on certification of the order

of the special inquiry officer, dated November 5, 1958, holding that

respondent is still a United States citizen and terminating the deportation proceedings. Respondent acquired United States citizenship at birth at Mobile, Alabama, on August 12, 1926. In 1929, his

parents took him to Greece to live and he remained in that country

until his last entry on December 17, 1957, as a seaman.

In 1948, while living on the Island of Andros in Greece, respondent's name was entered on the list for Greek naval service and about

a month later he was called for such service. Respondent testified

that he protested such service, but was told that if he failed to serve

he would be branded a communist and also he would be punished

by a court martial.

He served in the Greek Navy from April 2, 1948, to April 25,

1950, admittedly taking an oath of allegiance in June 1948. According to Greek law, a prospective inductee who failed to appear

would be subject to 2 additional years' military service and criminal

penalties.

317

In 1050 and twice in 1951, respondent voted in elections in his

native village. Respondent testified that he feared being branded

a communist if he 4.11.d to vote and also was of the impression that

the homes of persons who failed to vote would be burned.. On

February 23, 1952, respondent applied for registration as a United.

States citizen.

The special inquiry officer concluded that the Government had

failed to prove that respondent's entry into the Greek Navy was

voluntary and, therefore, the Government had failed to discharge

its burden of proof in this regard. Concerning voting, the special

inquiry officer concluded that respondent's actions were involuntary

for they were the result of fear that he would be branded a communist and that harm ,eight moult to his family if he failed to vote.

Again, the special inquiry officer concluded that the Government

had failed to discharge the burden of proving the voluntary character of respondent's acts of voting in order to support their contention of loss of citizenship. Hence, respondent was still considered

to be a citizen and the deportation proceedings inappropriate.

The e -vomining officer has appealed from this decision on the issue

of expatriation under section 401(c) of the Nationality At of 1940

by foreign army service and on the question of expatriation under

section 401(e) of the Nationality Act of 1940 in connection with two

acts of voting in 185.1.. The raainining officer concedes that the act

of voting in 1950 was not voluntary.

The Immigration Service contends that the burden of proof of

loss of citizenship has been satisfied by the present record and that

the special inquiry officer's conclusion to the contrary resulted from

misconstruction of the applicable law. On the other hand, counsel

has argued from known facts in this case and the applicable law as

it has been enunciated by the courts, in support of the cpecial inquiry officer's conclusion.

In Perez v. Brownel?, 359 U.S. 44 (1658), the Supreme Court discussed expatriation generally. However, this case stands primarily

for the principle that even though the right to United States citizenship may be relinquished or abandoned, either by expressed language or by conduct amounting to renunciation, loss of citizenship

may be accomplished only voluntarily. See also Mandoli v. AcAeson, 344 U.S. 133 (1952). The specific act of expatriation under

consideration in the Peri=, ease was that of voting in a foreign

political election (section 401(0; 8 U.S.C. 801(0, 1540 ed.). On

the other hand, in Niaikenca v. Dulles, 356 U.S. 129 (1958), the

Supreme Court stated:

* * the parties are agreed that when a citizenship claimant proves his

birth in this country or acquisition of American citizenship in some other

way, the burden is upon the Government to prove an act that shows expatriation by clear, convincing and unequivocal evidence. In Gonzales v, Landon,

319

350 U.S. 920, we held that the rule as to burden of proof in denaturalization

cases applied to expatriation cases under section 401 (1) of the Nationality

Act of 1940. We now conclude that the same rule should govern eases under

all the subsections of section 401.

Concerning the element of voluntariness, the following comments

were set out in the Nishikawa case:

* * * Petitioner contends that voluntariness is an element of the expatriating act, and as such must be proved by the Government. *

Because the consequences of denationalization are so drastic petitioner's

contention as to burden of proof of voluntariness should be sustained. *

'rho same principle applies to expatriation cases, and its calls for placing upon

the Government the burden of persuading the trier of fact by clear, convincing

and unequivocal evidence that the act showing renunciation of citizenship was

voluntarily performed. While one finds in the legislative history of section

601, and ,,,,ocularly section 401(c). recognition of the concept of voluntariness, there is no discussion of the problem of the burden of proof. * It is

altogether consonant with this history to place upon the Government the burden of proving voluntariness. The Court has said that "rights of citizenship

are not to be destroyed by an ambiguity." Perkins v. EIS, 307 U.S. 325, 337.

The reference was to an ambiguity in a treaty, but the principle there stated

demands also that evidentiary ambiguities are not to he resolved against the

citizen. [356 'U.S. 129, 133-1361

Although the Government set up a prima facie case in support of

its allegation of loss of citizenship (foreign army service and voting

in Greece), respondent has produced evidence that he had a bona

fide fear of reprisal or pominlIment if he failed to pro-form the expatriating acts. Voluntary action presupposes the conscious exercise of a free choice in the doing of an act which will cause loss of

United States citizenship, with proof of the voluntary character of

the act required to be clear, convincing and unequivocal?

If a penalty provision for failure to perform compulsory military

service is involved, grave doubts immediately arise concerning the

voluntary character of such service. Also, useless protests of United

States citizenship, etc., are not required to preserve the person's

right to claim United States nationality (Nishikawa T. Dulles,

supra).

Hence, the Government is required to prove by clear and convincing evidence that the conscript's military service was voluntary

and, at the same time, rebut respondent's prima facie showing of

involuntariness. See Perri v. Dulles, 206 F.2d 586 (C.A. 3, 1953);

Lehmann v. Acheson, 206 F.2d 592 (C.A. 3, 1953) ; Geosheimer T.

Dulles, 117 F. Supp. 836 (D.C.. B.J.; 1954) ; IVarnba T. D2411,38, 119 F.

°The situation here is quite different from Savorgnan v. Untied States, 338

U.S. 491 (1950), and Mackenzie v. Hare, 239 U.S. 299 (1915), for having no

distinct intent to give up United States citizenship, those women both velum.tarily engaged in conduct which Congress had prescribed as the basis for loss

of citizenship.

319

Supp. 633 (N.D. Calif., 1955) ; Correia v. Dulles, 133 F. Supp. 442

( D.C. 11.I., 1955).

In this case, respondent lived in an outlying area of Greece. If

he refused to serve in the navy as directed, he could be punished

and he had no means of escape, no one to turn to for help. His

decision to serve was not a free choice. The evidence clearly shows

that his foreign army service was involuntary and not an act of

expatriation (Nishikawa v. Dulles, supra; lifoldovearn v. Dulles,

108 F. Supp. 1 (F.D. Mich., 1958) ).'

The crux of the expatriation by voting problem now before the

Board is whether the citizen's genuine, but unfounded, fear of harm,

if he failed to vote in the 2 Greek election eonteRtg in 1951, constituted duress or reduced his acts of voting to being involuntary in

the legal sense. Of necessity, every allegation that a person committing an expatriating act out of fear does not per se constitute an

excuse for such an action, for each set of circumstances must be

examined individually and the validity of the averred factors

determined.

According to the Nishikawa case (at pp. 133, 131), the Government must prove voluntariness, which in this case means that the

Government must prove that respondent was completely a free agent

and that his 2 acts of voting in 1051 occurred spontanoowly, apart

from the force of outside pressures.° Also, this proof must affirmatively establish the voluntary character of the acts in issue by clear

and convincing evidence (Gonzales v. London, supra, at p. 920).

The Immigration Service is troubled by the fact that the sole

evidence of voluntariness is responsive testimony of the alleged

citizen on this point. The Service feels that the Nishikawa decision

never intended such evidence to be sufficient to support the alleged

citizen's claim of retention of United States nationality.

First of all, it must be emphasized that in Gonzales v. Landon,

supra, and Gonsales-Jasso v. Rogers, 264 F.2(1 584, the court definitely

stated that testimony of a native-born United States citizen, unsupported by other proof, about the facts surrounding the expatriating

act in issue may be considered sufficient as evidence worthy of belief

and that prima facie proof of involuntariness must of necessity be

overcome by clear, convincing and unequivocal evidence to the conThe draftsmen of the Nationality Act's expatriation provisions stated that

It was designed to take away United States citizenship from persons who had

shown that "their real attachment is to the foreign country and not to the

United States." (Codification of United States Nationality Laws, SIR. Comm.

Print, Pt. 1, 76th Gong., 'Ist Sass., V—VII)

It Is altogether consonant with this [the legislative] history [of section

401(c)] to place upon the Government the burden of proving voluntariness."

(856 U.S. 135, 136.)

320

trary (Nishikawa v. United States, supra, at pp. 133-136, quoted

above).

Significantly enough, the Government in both the Gonzales and

Go,,ale, - Jason cases argued unsuccessfully in a manner not unlike

tlui Immigration Service's contention here—respondent's statements

that his acts of voting were involuntary, were self-serving, unsupported, uncorroborated ones and consequently valueless. In each

instance, the court held that the alleged expatriate's statements that

he acted involuntarily under trying circumstances were indeed sufficient to enable him to maintain his United States nationality, after

specifically determining that the Government had failed to discharge

its burden of proving the converse by the very strong, affirmative

evidence required in so-called denationalization situations. 4

The Immigration Service contends that the ',Logue of voinntariness

was never properly raised, because the only evidence on this point

is the self-serving and uncorroborated statements of respondent,

which the Service feels the special inquiry officer rejected as incredible.

However, the special inquiry officer in his decision stated only

that he had some doubts concerning the substance of respondent's

testimony, which were insufficient in law 5 to overcome the evidentiary requirement that the Government prove expatriation (including the element of voluntariness) by clear, unequivocal and convincing evidence. "Ordinarily, the opportunity of the trial court

to observe the demeanor of the witness will be given great weight,

and the court's conclusions of fact will not lightly be overturned

(Fed. R. Civ. P. 52(a)). But in citizenship cases the appellate

courts will 'reexamine the facts to determine whether the United

States has carried its burden •* •' Knauer v. United States, 328

U.S. 654 at page 657 (1046)." (ionzatex-Jasso v. Rogers, 261 F.20

584 (C.A.D.C., 1950).

• In Gonzalez-Joss v. Rogers, supra, the Court said:

• • • there most be "solidity of proof which leaves no troubling doubt In

deciding a question of such gravity as is implied in an attempt to reduce a

person to the status of alien from that of citizen." Baumgartner v. United

States, 322 U.S. at p. 670. The burden is on the Government to prove an act

of expatriation, Nishikawa v. Dulles, 356 U.S. 129, 133 (1958), and it must do

so by evidence which is "clear, unequivocal, and convincing," and which does

not lane. the iSSIIP in donht. Schneiderman v. United States, 820 U.S. at p. 125.

Or as it was phrased in the Nishikawa case at pp. 137, 138:

• • • Nor can the district judge's disbelief of petitioner's story of his motives and fears fill the evidentiary gap [of affirmative evidence of voluntariness of the actl in the Government's case • • • [for] the Government most in

each ease prove voluntary conduct by clear, convincing and unequivocal evidence.

321

In Gonactlea-Masao, the Court also stated:

* not to establish a sound basis for expatriation, these statements must

be satisfactorily corroborated, and the totality of the evidence must rise to

the standard set by the Supreme Court. In criminal proceedings the rule is

that extra-judicial admissions are insufficient to establish the corpus dolled

or uphold the conviction without corroborative evidence. (citation) Though

the "corroborative evidence need not he sufficient, independent of the statements, to establish the corpus deticti. * * * (it should) tend to establish the

trustworthiness of the statement." (Citations) We need not go so far as to

any that these ruler., or nay others in tra Said of criminal law, are directly

applicable to cases like the present. But they provide a' helpful analogy. If

uncorroborated admissions are insufficient to convict a man of a crime, they

Should hardly suffice to deprive him of his citizenship. (p. 587)

The Immigration Service's contentions attempt to reverse this

reasoning, and necessarily reach tin inappropriate conclusion. In

the instant case, voluntariness being in issue, the question is whether

the Government failed to prove this fact by the required clear and

convincing evidence.

In 1951, respondent lived in a remote area of Greece where cornmturdeatiee with the taide world_ wag ,light, and rumors, once

started, were not easily stifled. Respondent, lacking educational

advantages, became convinced that failure to vote in the 2 elections

in question would result, in his being branded a communist, together

with being in danger of harm to his home and family. His fear

of harm and reprisal was a genuine, though mistaken, belief, engendered by the prevailing mob atmosphere. These factors transformed respondent's acts from spontaneous actions of a free agent

to that of involuntary conduct by one acting under extreme pressure or compulsion.

Respondent's 2 ad, of voting,- in 1051, performed under tho.

taken belief or inducement that he would be branded a communist

if he abstained, were ineffective as an act of expatriation, for the

essential element of voluntariness (the conscious exercise of a free

choice) is lacking in these acts of voting (Nis/alertwa v. Dulles,

supra; Peres v. Brownell, supra; Ka8,1171.1: Nakashigna v. Acheson,

98 F. Supp. 11 (S.D. Calif., 1931); Gon2alea-Jasso V. Rogers,

supra).

Consequently, respondent is presently a United States citizen and

a deportation proceeding is inappropriate. The decision of the

special inquiry officer should be approved.

Order: It is directed that the order of the special inquiry

officer be approved.

322.