Interim Decision #1361

Interim Decision #1361

MATTER OF SANOECEZ-MONREAL

In EXCLUSION Proceedings

A-12698450

Decided by Board Mareh.8,1964

A dual national of the United States and Mexico at birth who in 1918 purchased

a house in Mexico in an area in which only Mexican citizens could own property did not thereby voluntarily seek or claim Mexican nationality in the

absence of a showing he represented himself to be a Mexican or knew that

ownership must be based upon his being a Mexican citizen. (Cf. Matter of.

17--, 7 L & N.Dec.218.)

EXCLUDABLE : Act of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20)]—Imntigrant without 'visa.

The special inquiry officer has certified this case in which he has

ordered the applicant excluded on the ground stated above. The applicant's admission will be ordered.

The applicant is a 49-year-old married male who has lived in the

United States since February 20, 1961 when he entered as a United

States citizen. On October 22, 1962 he attempted to return to the

United States as a United States citizen after a short visit to Mexico;

he was excluded on the ground that he had lost United States citizenship in 1955 and therefore needed a visa entitling him to enter as an

alien immigrant. He was paroled into the United States pending

final adjudication of his case.

The issue is whether the applicant's purchase of a home in Mexico

in 1948 resulted in the loss of United States citizenship under section

350 of the Immigration and Nationality Act (8 U.S.C. 1482) which

provides:

A person who acquired at birth the nationality of the United States and of a

foreign state and who has voluntarily sought or claimed benefits of the nationality of any foreign state shall lose his United States nationality by hereafter

having a continuous residence for three years in the foreign state of which he

is a national by birth at any time after attaining the age of twenty-two years

unless he shall—

(1) prior to the expiration of such three-year period, take an oath of allegiance

to the United States before a United States diplomatic or consular officer in a

manner prescribed by the Secretary of State; and

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(2) have his residence outside of the United States solely for one of the

reasons set forth in paragraph (1), (2), (4), (5), (6), (7), or (8) of section

353, or paragraph (1) or (2) of section 354 of tnis title: Provided, however, That

nothing contained in this section shall deprive any person of his United States

nationality if his foreign residence shall begin after he shall have attained the

age of sixty years and shall have had his residence in the United States for

twenty live years after having attained the age of eighteen years.

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Applicant was born in Texas in 1914 of parents who were Mexican

nationals at all times. The applicant is married to a Mexican citizen

and has seven children; his family resides in Mexico; he began to

reside in the United States in 1961, and prior to this had commuted to

the United States daily for 26 years to work as a tailor.

For two years starting in 1946 applicant made payments toward

the purchase of a house in Mexico in an area in which only Mexican

citizens could own land. On May 5, 1948, a contract for the sale of

the property was executed and about two months later was recorded

(Ex. 4). Title was taken in. the name of both the applicant and his

wife. In 1955, applicant heard that his ownership of the property in

Mexico could affect his United States citizenship. He inquired of

the American Consul in Mexico and was apparently told he would

lose United States citizenship unless he sold the property or made his

home in the United States. Applicant did not then come to the United

States for residence; he could not meet the cost of supporting his family in the United States, nor could he afford to maintain a residence

both in the United States and in Mexico. He did try to dispose of

the property but could not find a buyer at a. reasonable price and his

wife would not let him dispose of it at a loss. On July 11, 1961, in the

belief that the sale of the property would safeguard his United States

citizenship, applicant entered into a contract for a sale of his house

for 2000 pesos although he had paid over 9000 for it (Ex. 5).

The special inquiry officer finding that the applicant had been a national both of the United States and Mexico at birth, that he had purchased a home in an area where ownership of land was restricted to

Mexican nationals, that this purchase constituted a voluntary seeking

or claim of the benefits of the Mexican nationality, that applicant had

resided in Mexico for the necessary period after claim of the benefit,

concluded that applicant had lost United States citizenship under

section 350 of the Act.

Counsel contends that applicant was not a dual national after 1939.

He contends that applicant had lost Mexican nationality in 1939 by

applying for a United States citizen's identification card. Moreover,

counsel contends applicant had never voluntarily sought or claimed

a benefit of Mexican nationality.

We find that the applicant has -failed to establish that he lost

Mexican nationality in 1939, or thereafter by applying for United

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States identification. The applicant became a citizen of the United

States at birth under the Fourteenth Amendment of the Constitution

of the United States and sv,ction. 1992 of the Act of April 9, 1866.

He became a Mexican national at birth under Article 30 of the

Mexican Constitution which provides as follows :

Mexican nationality is acquired by birth or by naturalization.

A. Mexicans by birth are :

I. Those who are born in territory of the Republic, regardless of the

of the nationality of their parents ;

II. Those who are born in foreign countries of Mexican parents; of a

Mexican father and an 'alien mother; or of a Mexican mother and

a father of unknown nationality; and

IIL Those who are born on board of Mexican vessels or airships, whether

warships or merchant ships.

B. Mexicans by naturalization are:

I. Miens who obtain a letter of naturalization from the Department of

Foreign Relations, and

II. Any alien woman who marries a Mexican and has or establishes

residence within the national territory.

Loss of Mexican nationality is governed by Article 37, Political

Constitution of the United Mexican States as amended, and Article 3

of the Law of Nationality and Naturalization which provide as

follows:

A. Mexican nationality is lost:

I. By voluntary acquisition of a foreign nationality ;

II. By accepting or using titles of nobility that imply submission to a

foreign state;

III. By residing, being Mexican by naturalization, for five years continuously in the country of origin; and

IV. By passing in any public instrument, being Mexican by naturalization,

as a foreigner, or by obtaining and using a foreign passport. (Article

37)

Mexican nationality is lost:

I. By voluntarily acquiring a foreign nationality, it being understood

that it is not a voluntary acquisition when it may have occurred by

operation of law, by simple residence, or by being an indispensable

condition for obtaining work or for retaining work already acquired,

in the judgment of the Secretary of Foreign Relations;

IL By accepting or using titles of nobility that imply submission to a

foreign state;

III. By residing, being a Mexican by naturalization, for five continuous

years in the country of origin;

IV. By representing himself in any public instrument, being a Mexican by

naturalization, as a foreigner, or by obtaining and using a foreign

passport.

The loss of Mexican nationality only affects the person who has lost

it. (Article 3, Law of Nationality and Naturalization)

Applicant maintains that he lost Mexican nationality in 1989 under

paragraph IV of the above articles. The Service contends that all

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of paragraph IV relates to a Mexican by naturalization only and

therefore does not relate to the applicant whose Mexican nationality

arose other than by naturalization. The Service contention is based

on the belief that only a naturalized Mexican is mentioned in the

article. The applicant, however, maintains that while the first part

of the article, that is, the portion concerning the passing as a foreigner

in a public instrument, relates to a naturalized Mexican only, the

remainder of the section relates to either a Mexican by naturalization

or one by birth.

In support of his argument, the applicant presented an attorney

admitted to practice in Mexico who had no experience with Mexican

ntitionality law but who testified that such experience was not necessary to interpret the nationality law. The attorney testified that the

portion of paragraph IV preceding the last comma, related to a

Mexican by naturalization, and the portion following the same comma

related to a Mexican by birth. The basis for the latter part of his

conclusion was twofold: (1) he is of the belief that a Mexican by

birth was alone capable of using a foreign passport within Mexico—

the Mexican by naturalisation being able to use only a Mexican

passport (p. 58) , and (2) he is of the belief that the punctuation of

Article 37(A) (IV) makes the first part refer to Mexicans by

naturalization and the second part to Mexicans by birth (p. 57).

The witness' attention was called to the fact that paragraph IV of

Article 37 as translated in the 'United Nation's Legislative Series calls

for the loss of Mexican nationality by a person who—

Being a Mexican national by naturalization, represents himself as an alien in

any public instrument, or obtains and uses a foreign passport.

The witness commented that the translation had changed the word

order of the Spanish (p. 60).L

The Service conducted an. investigation to determine the meaning

of this section. On May 2, 1963, the District Director, El Paso, Texas,

sent a letter to the District Director in Mexico asking that an opinion

be obtained from the Office of the Attorney General of Mexico (Ex. 11,

p. 1). (We take administrative notice that the District Director at

Mexico City is the administrative official who supervises the activities

of subordinates in charge of offices in certain cities in Mexico and that

Donald G. Brown is the subordinate in charge of the office in Mexico

City.) On May 9, 1963, Donald G. Brown sent a letter to Fernando

Roman Lugo, Attorney General of Justice of the District and Federal

Territories, Attorney General's Office of the Republic of Mexico, D.F.,

The Spanish reads as follows : -Per Immerse pasar en qualquier instrument*

pOblico, siendo mexicano por naturalization, como extranjero, o por obtener y user

un pasaporte extranjero. (Ex. 10)

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stating that the applicant had been born in Texas of Mexican parents

and that he had in 1939 applied for and obtained a card. of identification as a citizen and claimed that this at brought about the loss of his

Mexican nationality wider Article 37, paragraph IV. The letter asked

for the opinion of the Attorney General as to whether loss of Mexican

nationality occurred (Es. 11, pp. 3 5). On a sheet of paper without

letterhead, signature, or date, but to which is stapled the card of Lie.

Oscar Trevino-Rios, the Sub Procurador General de la Republica, is an

opinion stating that paragraph IV of Article 37 brings about the loss

of Mexican nationality only where it is acquired by naturalization and

that this fact is so clear as to require no detailed comment (Ex. 11, pp.

64). On May 27, 1963, the Acting District Director at Mexico City

forwarded to the District Director, El Paso, Texas, "the opinion of Lie.

Oscar Trevino-Rios, Sub Procurador General de la Republica regarding the citimuship of the subject." (Ex. 11, p. 6)

Over counsel's objection that a proper foundation had not been laid,

the special inquiry officer permitted the opinion from the Mexican

official to be placed into evidence, and considered it as expert testimony

on the issue. Finding the two experts in disagreement, the special

inquiry officer made his own findings in the matter ruling (1) that

paragraph IV applied only to Mexicans by naturalization and (2)

that identification cards obtained by applicant in 1939 and 1948

were not passports (pp. 6-7, special inquiry officer opinion).

We believe counsel's objection to the introduction of the opinion from

the Mexican official was well taken and will give the opinion no weight..

Nevertheless, we reach the same conclusion as did the special inquiry

officer concerning the interpretation to be given to the section. The

weight to be given the opinion evidence produced on applicant's behalf

must stand upon the witness' expertise (the witness does not specialize

in Mexican nationality laws), the authorities advanced by him (his

interpretation is not based upon judicial authorities or otherwise supported), and the process of his reasoning (a grammatical construction

and a belief for which no support is given that only a Mexican national

by birth can obtain and use a foreign passport). In examining the

witness' reasoning we may consult the foreign statutes which are part

of the record and the law derived from the statutes "in spite of the

fact that the uncontradicted testimony of the experts places a contrary

interpretation thereon" (20 Am. Jur., Evidence, Section 1210, pages

1061 2; see Application of Chase National Bank, 191 F. Supp. 206,

S.D. N.Y. (1961) affirmed 297 F. 2d 611, 2d Cir. (1962) ) .

Examination of Article 37 reveals that the first paragraph relating

to loss by acquisition of foreign nationality and the second paragraph

relating to loss by use of foreign titles of nobility, apply to a person of

Mexican nationality generally; that the third paragraph mentions only

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the Mexican by naturalization found in the condition of having renewed his residence in the country of his origin; and that the fourth

paragraph mentioning only the Mexican by naturalization sets forth

two additional conditions for loss of citizenship both arising out of the

use of non-Mexican public instruments or passports. The witness' construction of paragraph IV is that the first condition representation

of oneself as a foreigner in a Mexican public document—refers to the

expressed subject of the paragraph: the naturalized Mexican, and that

the second condition—use of a non-Mexican passport—refers to an implied subject: the native-born Mexican. We must reject this construction. Grammatically, there is no reason to change the expressed

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subject of the paragraph (Mexican by naturalization) and substitute

therefor a subject (Mexican by birth) to whom part of the paragraph

would apply to the exclusion of the expressed subject. Moreover, it is

difficult to believe that in a. matter as important as citizenship loss

should result by implication. We find equally unconvincing the pragmatic approach of the witness—the contention that paragraph IV

cannot be read sensibly unless the portion concerning loss by use of

a foreign passport is held to refer to the Mexican by birth only because

he alone by virtue of his dual nationality is in a position to obtain a

foreign passport. The witness has failed to show why a naturalized,

Mexican could not obtain a passport from a foreign nation. It appears

tons that just as the naturalized Mexican may claim in a Mexican public document that he is a foreign national and thus bring himself

within the first part of paragraph IV, so may he claim in an application for a foreign passport that he is still a foreign national. Neither

grammar nor logic requires acceptance of the reading given by applicant's expert.

We may also point out that counsel takes issue with the opinion of his

own witness for counsel believes that the last part of paragraph IV

applies to both Mexican nationals by birth and naturalization whereas

the expert is of the belief that it applies only to Mexicans by birth. We

note also that the United Nations translation of paragraph IV makes

it apply only to a Mexican national by naturalization (Ex. 10). For

the reasons stated, we conclude that the applicant did not lose Mexican nationality under paragraph IV of Article 37. (The special inquiry officer has also pointed out that the United States citizen's

identification card which counsel considers a passport states that "it

is not a passport" (Ex. 3) ; the special inquiry officer has concluded

that reason alone would prevent the application of paragraph IV.

Counsel contends that Mexico regards such a document as a passport.

We do not find the record adequate on this issue and make no ruling

on the issue.)

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The applicant's expert testified that the applicant also lost Mexican

nationality under Article 37 (A), paragraph I by having voluntarily

obtained a United States citizen's identification card in 1939 such

action amounted either to the voluntary acquisition of foreign (United

States) nationality or an election of United States nationality and

—

implied renunciation of Mexican nationality (pp. 38 42, pp. 35 69).

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The Service supplied no expert testimony on this issue. The special

inquiry officer found that no naturalization had occurred: obtaining

the card was not an act of naturalization but a sign that applicant was

already a United States citizen. Counsel contends that it is error to

reject the uncontradicted opinion of the expert in the matter. The

remarks we made previously concerning the weight and sufficiency of

the opinion evidence apply here too. We must therefore examine the

record and the statute to determine if the expert's uncontradicted

opinion is acceptable. The expert has failed to set forth laws and

precedents which establish that a dual national's exercise of rights

of the nationality other than Mexican constitutes a naturalization

under Mexican law. We do not believe that the applicant's use of a

right of his United States nationality constitutes such a naturalization

or election because Mexico recognizes that a Mexican national may

validly possess the rights of dual nationality (p. 38). The International Treaty upon which the expert bases his conclusion that applicant made an election of United States nationality and renunciation

of Mexican is not set forth for our examination.

Having determined that the appliCant had not lost dual nationality

prior to the effective date of section 350 of the Act (December 24,

1952), we may proceed to the issue as to whether he lost United States

nationality by taking title to land in Juarez, Mexico on May 5, 1948

and holding title until July 11, 1961—the land being located in an

area in Mexico within 100 kilometers of that country's border.

The law restricting title to certain lands in Mexico only to Mexican

nationals is found in Article 27, paragraph I of the Political Constitution of the United Mexican States which provides as follows:

Only Mexicans by birth or by naturalization, and Mexican societies have the

right to acquire control over land, water and its accessions or to obtain concessions for the exploitation of mines, waters or combustible minerals in the

Mexican Republic. The state may concede the same right to aliens provided

they agree before the Department of Relations to consider themselves as nationals with respect to said possessions and not invoke therefor the protection of

their governments with reference to them minor the penalty in the case of default

in the agreement, to lose in benefit of the Nation, the possessions acquired by

virtue of the same. In a zone one hundred kilometers along the border and

fifty from the seacoast aliens may not under any circumstances acquire direct

control over land and water.

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The registration of applicant's title follows in pertinent part :

In the City of Juarez. Chihuahua. at twelve-thirty on the fourteenth day of

August Nineteen Hundred Forty-eight, before the Registrar that is authorized

by Attorney Miguel Collado, there was presented for registration in this Section,

an instrument of Bargain and Sale nort officially recorded, executed in this City

the fifth day of May of the current year by which the owner Natividad Treviso

Corral, single, sells to Mr. Ismael Sanchez Monreal, married and to his wife

Mrs. Guadalupe Sanchez de Sanchez for the sum of $500.00 Five Hundred pesos,

an urban property * * * (description follows) * ". Thus the present which

is returned with the respective note remains recorded. I certify. Miguel

Collado. (Ex. 4)

The special inquiry officer held that applicant's taking of title to

property which could be held only by a. Mexican national constituted

the voluntary claiming of the benefits of foreign nationality and resulted in applicant's loss of United States citizenship. Counsel contends that the taking of title did not result in loss of United States

citizenship under section 350 of the Act because the record does not

establish that applicant actually claimed the benefits of his Mexican

nationality in making the purchase. In support of his contention

counsel points out that the record of transfer reveals neither that inquiry was made as to applicant's nationality nor that applicant held

himself out to be a Mexican national. Counsel further states that an

American citizen who does not have Mexican nationality can acquire

an interest in real estate within the forbidden zone in error and that

title taken in error cannot be divested until the American citizen has

been granted a period of one year within which to sell the property.

Having thus established that one other than a Mexican national can

hold property and that applicant had not claimed Mexican nationality

in purchasing the property, counsel concludes that no positive act

of claiming or seeking benefits has been established, and section 850

does not therefore apply.

Applicant's expert witness testified that at the time of executing a

contract for sale of real estate, it is the obligation of a notary to

establish the citizenship of the buyer (p. 27), that this is so whether or

not the property is within the 100 kilometer zone (p. 32), and that the

notary cannot permit the consummation of the transaction in the forbidden zone under penalty of law if he determines that the buyer is

not a Mexican citizen (pp. 3243). The witness stated that the title

to property would not necessarily show whether or not the official had

questioned the parties concerning the nationality of the buyer (p. 35)

The witness' testimony is inconsistent as to whether there is a requirement in the law that the instrument record the buyer's nationality.

At one point he testified that there was no such requirement (p. 35) ;

elsewhere he testified that the law did require that nationality be set

forth in all contracts (p. 36). The witness examined the title in the

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instant case and stated it was not made out before a notary or judge

although the law provided for the drawing up of such an agreement

between the parties where the value of the property is less than 1000

pesos (pp. 35-36).

The applicant testified that not until 1955 did he know that ownership of land in the area where he had purchased was denied to United

States citizens. In 1955 he went to the American Consulate in Juarez

and obtained the information as to the bar to land ownership. The

record reveals that on December 13, 1955, applicant appeared at the

consulate where he was advised that he would become expatriated on

December 24, 1955, under section 350 of the Act if he continued to

reside in Mexico (Ex. 3) .

We do not believe that applicant comes within section 350 of the

Act. Under the circumstances of this case, the execution of the contract of sale between private parties without appearance before a

Mexican official, the applicant's lack of knowledge concerning the

inability of a non-Mexican national to own land in the area, the

applicant's testimony that the issue of nationality did not arise during

the transaction, and the testimony that a non-Mexican national who

purchased land in error could hold it until the government proceeded

against him legally, we find that the Service has failed to establish

that applicant voluntarily sought or claimed the benefits of his Mexican nationality when he purchased the property. While there is a

presumption that an individual knows the laws of his country, the

existence of the presumption does not establish under circumstances

such as we have set forth that there was a voluntary seeking of the

benefits of foreign nationality. Decisions of the Board -on this issue

in other cases were made in the belief that land in the proscribed area

could not have been acquired without claiming of Mexican nationality; this record establishes the contrary.

What is the effect of the fact that on December 13, 1955, applicant

was advised by the State Department that he would become expatriated

on December 24, 1955, if he continued to reside in Mexico (Ex. 8) V

Was his continued enjoyment of his property after that date a voluntary claim of the benefits of Mexican nationality? We do not believe

so. In the absence of evidence that the Mexican authorities sought to

divest him of his title and that such divesture was defeated by applicant's claim to Mexican nationality we do not believe it may be said

that his continued enjoyment of the property after the conversation

with the consul was a voluntary claiming of the benefits of Mexican

nationality.

It is to be noted that the purchase of the property occurred on May 5,

1948, some years before December 24, 1952, the effective date of section

850 of the Act. Where the record establishes that the enjoyment of

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benefit of foreign nationality on or after December 24, 1952, was the

result of a voluntary seeking or claiming prior to that time, then the

continued enjoyment of the benefit brings the individual within section

350 of the Act and loss of United States citizenship results if the enjoyment of the benefit continues for three years after December 24, 1952.

The fact that Congress designed the section to divest dual nationals of

their United States nationality and not protect it, and the fact that

Congress afforded the individual a period of three years after the law

became effective to preserve his nationality is the basis for our conclusion (Matter of V—, 7 I. & N. Dec. 218; see Matter of G— Q—,

7 I. & N. Dec. 195). However, applicant's enjoyment of his property

was not based on a claim to Mexican nationality; he has not lost United

States citizenship under section 850 of the Act.

ORDER: It is ordered that the order of the special inquiry officer

be and the same is hereby withdrawn.

It io further ordered that the applicant's admission as a United

States citizen be authorized.

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