In DEPORTATION Proceedings

MA rraR or DI—

In DEPORTATION Proceedings

A-11875663

Decided by Board August 2,1961

Expatriation—Section 349(a)(3), 1952 act—Volunntary service in Rebel Army

of Cuba after January 1, 1959.

(1) Native-born United States citizen who served in We Reno. Army ut Cuba

subsequent to January 1, 1959, is held to have expatriated under the provisions of section 349(a) (3) of the Act upon evidence establishing that he

voluntarily joined the rebel forces in Cuba in January 1958, that he went

back to the United States in December 1958, and that he voluntarily returned to Cuba in January 1959 and resumed his military rank (Captain)

and duties without protest.

(2) Service In the Rebel Army of Cuba after January 1, 1959, the date on

which Castro came to power, constitutes service in the arn .,,c1 forces of a.

foreign state as defined in section 349(a) (3) of the Act.

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CHARGES :

Order : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—No immigrant visa.

Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Convicted of

crime involving moral turpitude, to wit, carnal knowledge and

abuse.

BEFORE THE BOARD

DISCUSSION: The case comes forward on appeal from the orderof the special inquiry officer dated May 31, 1961, finding the respondent to be an alien and directing his deportation on the charges

contained in the order to show cause.

The respondent was born in Milwaukee, Wisconsin, on August 1,

1921, last entered the United States at the port of El Paso, Texas,

on or about July 22, 1960, and was admitted upon his claim that

he was a citizen of the United States_ The rpsponclent was, of

course, a citizen of the United States at birth.' The primary question to be resolved is whether the respondent, as result of conduct

subsequent to his birth, expatriated himself under the provisions of

section 349(a) (3) of the Immigration and Nationality Act (8 U.S.C.

1 U.S. Constitution, Fourteenth Amendment, and section 1992, U.S. Revised

Statutes.

452

1481 (a)(3)), which provides for loss of nationality by

a native or

naturalized citizen after the effective date of the Act by:

entering, or serving in, the armed forces of a foreign state unless, prior to

such entry or service, such entry or service is specifically authorized in writing by the Secretary of State and the Secretary of Defense * • *.

It has been established that the respondent was a citizen of the

United States at birth. The Government, therefore, has the burden

of proving that the respondent subsequently becalm:, expatriated.

The burden is a heavy one; the proof to establish loss of citizenship must be clear, unequivocal and convincing? Likewise, the

burden is upon the Government to establish that the expatriatory

act was performed voluntarily.' The contentions raised by brief

and oral argument on the issue of alienage raise the following

quections:

(1) Did the respondent serve voluntarily in the Rebel Army

of Cuba after January 2, 1959?

(2) Did service in the Rebel Army of Cuba constitute service

in the armed forces of a foreign State within the meaning

of section 319(a) (3) ?

The record establishes that respondent went to Cuba in January

1958 to join the revolutionary forces of Castro against the existing

Batista regime. The motivation which prompted the respondent to

join the Castro regime does not appear to us to be material. Starting as a private he rose to rank of Captain in July 1958. He testified that he returned to the United States in November or December 1958 for medical treatment. However, after Batista had been

deposed, and the respondent knew the actual fighting had ceased,

the respondent returned to Havana about January 5, 1959, allegedly

for a reunion with comrades, in arms with whom he had fought

during the revolution. There is some inconsistency in the testimony

of the respondent regarding his own thoughts as to his status upon

his return to Cuba, but it is established by the record that respondent returned to one of the leaders of the revolutionary forces in

whose home he slept in La Cabana, a military fortress in Havana,

and who, on the next day, took him to general quarters and assigned

him to take over the corps of guards and the security of the Rebel

Army at La Cabana, with the rank of Captain, supervising the

guards at the tribunalc of the revolutionary forces in executing

the orders of the tribunals. He remained at La Cabana until May

1959, when the executions of persons condemned to death by the

revolutionary tribunals ceased, and acknowledged that during that

2 Nishikawa v. Dulles, 356 U.S. 129; Gonzales v. Landon, 350 U.S. 920;

Baumgartner v. United States, 322 U.S. 665; Schiteiderman v. United States,

320 U.S. 118.

3 Nishikawa v. Dulles, supra; Perez v. Brownett, 306 U.S. 44; Matter of C8-317.

453

period he was a member of the Rebel Army and the men under his

command were likewise members. About June 1959 he was transferred to various installations, men under him performing chiefly

guard duty, although for one month during July 1959 gave instructions in the use of weapons at a military police school and

again at Principe Prison, Havana, from March 1960 until he left

Cuba in May 1960.

It has been established that during the period of his service the

respondent retained his military rank of Captain, wore the insignia,

issued commands to men under his jurisdiction and was himself

subject to official orders of his commanding officer or chief of staff,

and was paid by the Chief of Staff of the Rebel Army. He was

holder of an identity card issued by the Director of Personnel of

the itebel Army on August 17, 1959, identifying him as a Captain

of the Rebel Army. Several witnesses testified to the effect that the

respondent wore a uniform, olive-green in color, and that the men

under his command in the firing squad wore the same uniform without the insignia of Captain (three chevrons) which the respondent

wore. He vouched for the truth and correctness of a magazine

article covering his military activities subsequent to January 1959.

Although the respondent has claimed that his service in the

Cuban army after January 1959 was involuntary, it is to be remembered that the respondent's original act of joining the Cuban revolutionary forces was voluntary and that he was in the United States

at the time the Batista regime was overthrown and the actual fighting had ceased. There is no showing that his return to Cuba in

January 1959 was other than voluntary, for it is manifest that he

could have remained in the United States without fear of punishment or retribution from the Rebel Army of Cuba. There is some

indication that the respondent's return to Cuba in January 1959

was motivated by 1 - -pect of sharing in the land distribution

of the agrarian re—tai program promised by Castro. However,

when he returned, it does not appear that he was impressed into

service or compelled to return to service. The respondent, it is to

be remembered, was a volunteer foreigner and his case differs from

those persons who were conscripted into service. 4 On the other

hand, he sought out his commander, was cordially received, and was

continued in the rank of Captain with complete willingness and

without any protest either to the commanding officer or to the

American Consul. After voluntarily returning to Cuba and continuing in his military rank and duties since January 1959 without

protest, his present claim of duress does not appear credible.

Having established his return to military service in the Rebel Army

4 Nishikawa v. Dulles,

356 U.S. 129 (1958); Podea v. Acheson, 170 F.2d 306

(C.A. 2, 1950).

454

in January 1959 was voluntary and of respondent's own free will,

a discussion as to respondent's difficulty in thereafter obtaining his

release from milit a ry service would appear to be academic. It is

believed that the evidence establishes conclusively the voluntari ess

of the respondent's service in the Cuban•revolutionary armed forces

after January 6, 1959.

The next question to be resolved is whether the Rebel Army after

the fall of the Batista regime subsequent to January 1, 1959, when

Castro took over the reins of the Cuban Government, constituted

the armed forces of a foreign state within the meaning of section

349(a) (3) of the Immigration and Nationality Act. Prior to the

fall of Batista and the then duly constituted Government of Cuba,

it is not doubted that the Rebel Army was merely a revolutionary

force and had no official or legal status. However, after January 1,

1959, Castro, by decree published in the Official Gazette of Cuba on

January 2, 1959, wee appointed the Commanding Chief of the Air,

Sea and Land Forces of Cuba. Law #13 promulgated on January 13, 1959, temporarily suspended the Organic Law relating to

the organization of what had previously constituted the regular

Cuban Army, pending a reorganization of the armed forces. The

fundamental law of Cuba setting up the organization and the new

government became effective on February 7, 1959. Article 126 assigned to the President of the Republic, assisted by the Council of

Ministers, the function of directing the Armed Forcer of the Republic as their supreme head. Law #100 enacted February 23, 1959,

created certain nonmilitary departments in the Rebel Army and

assigned them to the Ministry of Defense. Law #600 of October 16,

1959, created a new Minister of Revolutionary Armed Forces (in

lieu of the former Ministry of Defense) and placed all the armed

forces of the country under its jurisdiction. This law dissolved the

previously existing regular Cuban Army, Navy, National Police and

Joint Chiefs of Staff and provided for the preparation of a new

Organic Law within 60 days. However, the Rebel Army never disappeared but its continued existence as the armed forces of Cuba

after Castro had taken over was explicitly recognized in Article 6

of Law #600 which stated that "members of the Rebel An and

other persons at present rendering real and effective service in any

of the Armed Forces of the Nation, shall retain their mil:dal

sta tus."

The Service produced a witness, Dr. J—A--M—, a former practicing attorney and public defender in Cuba, as an expert on Cuban

law to testify as to the effect of these various provisions of law set

out above. His qualifications were not disputed. This witness testified that although Law #13 temporarily suspended the Organic

Law relating to the army, it did not dissolve the army itself nor

455

was Article 3 of Law #600 necessary to give the Rebel Army legal

sanction; that law merely provided for the administrative organization of the Rebel Army and did not relate to the creation or existence

of the Rebel Army as a military force of Cuba; and even without

such a law, the Minister of the Revolutionary Armed Forces was

empowered to issue decrees providing for the organiz'ation of the

Rebel Army.

The Immigration and Nationality Act does not define the term

"armed forces" as used in section 349(a) (3). The legislative history

relating to loss of citizenship by serving in foreign military forces 5

comments that before enactment of the Nationality Act, entry into

or service in the armed forces of a foreign state would not, of itself,

cause loss of citizenship but that under the Nationality Act loss of

citizenship occurred under certain circumstances, such as the possession or acquisition of the nationality of the state for which he was

serving. The report referred to the modification of the general

rule of expatriation by entering foreign service by certain Executive Agreements which permitted foreign service without expatriation. It also made reference to the holding that service in the

reserve forces in a foreign state would expatriate if the obligations

thereby incurred were the same rs those in active service if nationality of the foreign state was acquired. The Subcommittee commented that the provisions covering loss of nationality through service in the armed forces of a foreign country should be uniform and

should not be dependent upon foreign law, and was therefore recommending changes in the subsection relating to expatriation by service in foreign military forces. In the report to accompany S. 5550,

which became the Immigration and Nationality Act,° in connection

with the provision of the Nationality Act of 1940 which caused loss

of nationality by entering or serving in the armed forces of a foreign

state unless expressly authorized to do so by the laws of the United

States, the report pointed out that the new bill requires, in lieu of

general authorization, that a specific authorization in writing must

be made by the Secretary of State and the Secretary of Defense

before a national of the United States may enter or serve in the

armed forces of a foreign state without losing his status as a national

of the United States. The legislative history, therefore, discloses an

intent on the part of Congress to broaden the expatriatory consequences of service in the armed forces of a foreign state.

There is no doubt in the testimony of witnesses and from reference

to the various Cuban laws, previously referred to, that after Castro

came into power in January 1959 the Rebel Army constituted the

only effective military establishment in Cuba, that it was, de facto,

6

enate Report No. 1515 (81st Cong., 2d Sess., p. 749).

Senate Report No. 1137 (82d Cong., 2d Sess., p. 4G t.

456

the exclusive armed force prior to the passage of laws which directed the absorption of the remnants of the former Cuban army in a

subordinate or subservient role until the final dissolution of the

former regular army in October 1959, 'We agree with the conclusion of the special inquiry officer that the assignment of certain

nonmilitary duties to the Rebel Army did not negate its status as a

military force. Cases cited by counsel limiting the term "aimed

forces" under prior law are distinguishable since they involve reserve or training units rather than active military components, and

there is no dispute that respondent was actually serving in the active

part of the Cuban military armed force. The unreported Matter

of F—A--F—, A-11884065, cited by counsel, in which proceedings

were terminated by the special inquiry officer on May 14, 1961, is

not a binding precedent and the issue, there appeared to be whether

that respondent was an officer of the Rebel Army after January 1959.

In this case, the testimony of the respondent and of witnesses clearly

demonstrates that, respondent served voluntarily in active service in

the armed forces of a foreign state. Voluntary foreign military

service having been proved, the element of intent as a factor in

expatriation is not critical.? Expatriation of the respondent pursuant to section 349(a) (3) of the Immigration and Nationality Act

has been established by clear, convincing and unequivocal evidence.

Alienage having been established, consideration of the deportability of this respondent on the charges set forth in the order to show

cause is in order. At the time of his last entry the respondent intended to remain in the United States indefinitely although not in

possession of an immigrant visa or any document in lieu thereof. It

is the performance of expatriatory acts which results in loss of nationality, not the time of the adjudication thereof. 8 The respondent

has admitted that he was put on notice as to the effect of his conduct

by the service of a certificate of loss of nationality upon him by the

consular officer at Havana. True, such certificate is not conclusive

on the issue of loss of nationality, but the respondent cannot now

plead ignorance or surprise and should have resorted to established

procedures for seeking a final determination on the issue of loss of

nationality. Although the respondent testified that he was in contact with the American Consul in Havana, there is no indication that

he sought to avail himself of the procedure act forth in sections

360(a) and (c) of the Immigration and Nationality Act for a determination of his citizenship status. The case appears to be distinguishable from the capes of naturalized citizens who subsequently

were denaturalized and to whom the relation back doctrine as to

7 MacKenzie v. Rare, 239 U.S. 299; Savorganit v. Umited Suites, 338 U.S.

491: Perez a, Brownell, $99 U.S. 44.

- Section 355 of the Immigration and Nationality Act.

457

documentary requirements has been held inapplicable. 9 The first

charge in the order to show cause is sustained.

The record establishes that the respondent was convicted_ on November 14, 1951, on his plea of guilt in the Municipal Court, City

of Milwaukee, Wisconsin, of the offense of carnal knowledge and

abuse of a female, 16 years of age, contrary to section 5 0.17 of the

statutes and was sentenced on January 11, 1952, to an indeterminate

sentence of one to four years. Section 340.47, Wisconsin Statutes,

provides: "Any person over eighteen years of age who shall unlawfully and carnally know and abuse any female under the age of

eighteen years shall be punished by imprisonment in the State Prison

for not more than 35 years nor less than one year ; or by a fine not

exceeding $200 * * *." This crime has been likened to statutory rape

and involves moral turpitude.°

Counsel does not dispute that respondent has been convicted of a

crime involving moral turpitude. However, counsel coniends that

respondent was not a member of an excludable class at the time of

his last entry by virtue of such conviction because section 212(a) (9)

of the Immigration and Nationality Act (8 U.S.C. 1182(a) (9))

applies to "aliens" who have been convicted of such a crime and the

respondent's conviction occurred :n 1952 when he was a citizen of

the United States and prior to the occurrence of any of the allegedly

expatriating acts. The same contention was raised in Matter of S ,

5-678, and was rejected, it being held that the respondent's conviction of crime involving moral turpitude was precedent to his

excludability and the adjudication of his status as an alien was a

necessary further condition to the requirements of the Immigration

and Nationality Act. 1'

Counsel has raised constitutional objections to the provisions of

section 349(a) (3) upon the record, but recognizes that such constitutional objections cannot be entertained at the administrative level.

We have read the record and believe that respondent was accorded

a fair hearing and due process and that the• special inquiry officer

permitted counsel for the respondent wide leeway in raising objections and expressing himself upon the record. We see no evidence

of prejudgment upon the part of the special inquiry officer. We

—

Matter of 147—, 5--759. The holding in the case of Podea v. ichevon, 179

F.2d 306, cited by counsel, was that the plaintiff's ninitary service wan undo],

duress and did not result in expatrialion.

1O Pin0 V. biieolls, 215 F.2d 237, rev. on other grounds, 349 U.S. 901; Bendel

v. Nagle, 17 F2d 719; Matter of R—, 3-562.

Reliance was placed upon United States ex rod. Eichenlaub v. Shaughnessy,

338 U.S. 521, and the decision in Mangaoang v. Boyd, 205 F.2d 533, cert. den.

346 U.S. 876, was held to be not controlling for the reasons set forth on page

555 of that decision ; see also Matter of B—, 5-405, footnote 4.

458

are not prepared to disturb the finding of the special inquiry officer

who had an opportunity to observe the demeanor and deportment

Of the respondent and the witnesses on the issue of credibility. After

a careful consideration of the record, we concur with the finding of

the special inquiry officer as to alienage and deportability.

ORDER: It is ordered that the appeal be and the same is hereby

dismissed.

459