Interim Decision #2650

Interim Decision #2650

MATTER OF DAVIS

In Exclusion Proceedings

A-7449011

Decided by Board May 24, 1978

(1) In cases involving loss of American citizenship, the law and the facts are to be

construed as far as reasonably possible in favor of the claimant.

(2) Under the provisions of section 3t9(c) of the Immigration and Nationality Act, the

burden is on the one asserting that a loss of citizenship occurred to prove that claim by a

preponderance of the evidence.

(3) A voluntary renunciation of nationality in accordance with section 401(f) of the Nationality Act of 1940 (coati= 549(a)(G), Immigration and Nationality Act), woo effective

to accomplish expatriation even if the former citizen did not acquire another nationality,

and became stateless.

(4) An Oath of Renunciation pursuant to section 401(f) of the Nationality Act of 1940

accomplished expatriation where the 2e was a specific intent tv renuuuce all allegiance to

the United States and to become a "world" citizen.

(5) Since the United States is not a signatory to the United Nations Convention on the

Reduction of Statelessness, U.N. Dec. A/CONF. 9/15 (August 29, 1961), its provisions

have no applicability to loss of United States citizenship. Even if this were not the case,

the Convention provides for voluntary renunciation of citizenship with resulting

statelessness "where the national _ . gives definite evidence of his determination to

repudiate his allegiance."

(6) One who has lost United States citizenship by a voluntary oath of renunciation is no

longer a national of the United States since a renunciation of citizenship embraces a

renunciation of American nationality- as well.

(7) Former citizen who executed an Oath of Renunciation of United States citizenship in

1948 to become a citizen of the world, who left the United States in 1961 and lived

abroad for many years after his ree retry permit expired, remarried in France, established a business, had three children born in that country, and entered the United

States as a visitor in 1975, 1976, and 1977, held to have abandoned his status as a lawful

permanent resident alien.

EXCLUDABLE: Act of 1952—Section 212(a)(14) [8 U.S.C. 1182(a)(14)]—No valid labor

certification

Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigrant, no

visa

Act of 1952—Section 212(a)(26) [8 U.S. C. 1182(a)(26))—Not in possession

of a passport and nonimmigrant visa to enter the United

States for a temporary visit

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Interim Decision #2650

ON BEHALF OF SERVICE:

ON BEHALF OF APPLICANT:

George Indelicate

David L. Carliner, Esquire

Appellate Trial Attorney

931 Investment Building

1511 K Street, N. W.

Washington, D. C. 20005

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

In a decision dated May 17, 1977, an immigration judge found the

applicant excludable under sections 212(a)(14), 212(a)(20), and 212(a)(26)

of the Immigration and Nationality Act, 8 U. S.C. 1182(0(14), (0(20), and

(a)(26) and ordered him deported from the United States. The applicant

has appealed from that decision. The appeal • will be dismssed.

The applicant for admission, Garry Davis, was born at Bar Harbor,

Maine, in 1921. His father, Meyer Davis, was a famous American orchestra leader. Davis served in the United States Armed Forces during

the Second World War as a bomber pilot. On May 25, 1948, he appeared

at the United States Embassy in Paris and signed a "formal renunciation of nationality" in accordance with the provisions of section 401(f) of

the Nationality Act of 1940, 8 U.S.C. 801(f), 54 Stat. 1169. 1

Attached to the Oath of Renunciation at Davis'. request, is. a "Statement of Beliefs." This document contains Davis' reasons for signing the

Oath of Renunciation. 2 Davis thus launched his career as the selfproclaimed "first citizen of the world."

' The Oath of Renunciation contained the following pertinent language:

I desire to make a formal renunciation of my American nationality, as provided by

Section 401(f) of the Nationality Act of 1940, and pursuant thereto I hereby absolutely

and entirely renounce my nationality in the United States and all rights and privileges

thereunto pertaining and abjure all allegiance and fidelity to the United States of

America.

I In this document, Davis stated:

In the abs-ence of an international government, our world, politically, is a raw, naked

anarchy. Two interglobal wars have shown that as long as two or more powerful

sovereign nation-states regard their own national law as supreme and sufficient to

handle affairs between nations, there can be no order on a planetary level. This

international anarchy is moving us swiftly toward a final war.

I no longer find it compatible with my inner convictions to contribute to this

anarchy—and thus be a party to the inevitable suicide of our civilization—by remaining

solely loyal to one of these sovereign nation-states. I must extend the little sovereignty

I possess, as a member of the world community, to the whole community, and to the

international vacuum of its government—a vacuum into which the rest of the world

must be drawn if it would survive, for therein lies the only alternative to this final war.

I should like to consider myself a citizen of the world.

All history has shown—and especially American history— that peace is notmerelY

the absence of war, but the presence of a superstructure of law and order, in short,

government, over non-integrated political units of equal sovereignty. The world today

is split by seventy to eighty of these sovereign units. Therefore, without the immediate

creation of this superstructure of world law and order, each unit must continue the

idiotic, suicidal, unchristian and undemocratic anarchy of Nationalism, and the resulting

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Interim Decision #2650

At the exclusion hearing- below, Davis related how he declared a

"world government" on September 4, 1953, while in Maine, "after having received a mandate of upwards of 675,000 individuals from all over

the world who registered at the international registry [of] world citizens

in Paris. The world government came about five years after my renunciation and was mandated by a registration of 750,000 people who declared themselves as world citizens from all over the world, more than

100 countries at the international registry of world citizens in Paris,

which I also founded." (Tr. at p. 37)

Davis has frequently travelled across international borders with a

passport issued by his "world government," which he calls the World

Service Authority. This 'organization is based in Basel, Switzerland.

Davis' passport lists his occupation as "world coordinator." His previous

occupation was that of an actor.

Since 1948, Davis has travelled very extensively. He has made

numerous trips back to the United States and has lived here off and on

for considerable periods of time. From the record it is not always clear

in what status he reentered this country.

Davis obtained an immigrant visa on March 10, 1950, and reentered

the United States on April 8, 1950, after his sojourn in France. In his

application for the visa, Davis listed himself as "stateless" in the space

reserved for "Nationality." He remained in the United States until July

1950 and then returned to France. He encountered trouble with the

Parisian authorities because he lacked proper papers. He then made his

way to Haiti. There, 'he obtained another American immigrant visa on

September 13, 1950, and reentered the United States a few days later.

The immigrant visa application again lists his nationality as stateless.

Davis lived in New York until 1953. He then went to London, where he

had an acting engagement. He was deported back to the United States,

against his will, when his vrork permit expired. He remained in New

York from 1954 to 1956.

Sometime in 1956 he went to Bangalore, India. He came back to the

United States in 1957_ The record does not show in what status he

reentered. He left the United States again in 1957, this time for Europe.

rn March 1958, he obtained yet another American immigrant visa from

the American consulate general in Naples, Italy. Again he listed his

nationality as "stateless." Be reentered the United States on April 22,

1958, as a lawful permanent resident. He left for Europe in 1960, came

atomic-biological war will then level all political, economic, religious, and personal

differences by death.

The real question today seems to be: World Citizenship or world war?

One leads to peace. The other leads to oblivion.

And the choice is ours.

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Interim Decision #2650

back briefly in 1961, and left again for. Europe early in 1961. At that time

he was issued a reentry permit, valid until February 8, 1962.

Davis next reentered the United States "in the late sixties." "I was in

France, married, in business, etc. I may have come back for family

reasons, I can't recall at this moment_" (Tr. at p. 17) The record does not

indicate in what status Davis returned, or when "in the late sixties."

The record does not indicate how long he stayed in the United States at

that time, but the stay was brief. (Tr. at p. 43) The next tithe that he

applied for admission to the United States for more than a brief visit

was around June 1975; he sought to enter without any documents

Davis testified at the

exclusion hearing which is before us for review that he was granted a

waiver of the documentary requirements of the immigration law in

except his World Service Authority passport.

connection with the June 1975 entry. However,, he did not know

whether he had been admitted as an immigrant or a nonimmigrant

visitor. The possibility also exists that he was paroled into the United

States under the provisions of section 212(d)(5) of the Immigration and

Nationality Act, 8 U.S.C. 1182(d)(5).

Davis left the United States for France around September 1975. He

carne back to New York in April 1976, for his father's funeral. Again, he

had only his World Service Authority passport; he was again granted a

waiver of documents. Again the record does not show in what status he

was admitted' He then left the country, presumably for Europe, and

returned on June 19, 1976: He applied for admission as a returning

resident, that is, as "an immigrant, lawfully admitted for permanent

residence, who is returning from a temporary visit abroad." Section

101(a)(27)(B) of the Act, 8 U.S.C. 1101(a)(27)(B). He was paroled into

the United States for-an exclusion hearing. Davis was charged with

being an immigrant not in possession of a valid, unexpired immigrant

visa. Section 212(a)(20) of the Act, 8 U.S.C. 1182(a)(20). The exclusion

hearing was rescheduled several times and had still not been held'by the

time Davis left for France on November 3, 1976.

•

Davis next returned to the United States on January BO, 1977. This

tin-ie he was in possession of a valid nonimmigrant visitor's visa. He was

authorized to stay until April 30, 1977. He left for Europe on April 15..

He returned on May 13, 1977, without any documents except his World

Service Authority passport.

_

Davis' sworn statement was taken by an immigration officer at Dulles

Airport. He was asked of what country he is a citizen. He replied:

"None. I have no nationality. I renounced my nationality 1948 in Paris,

Davis testified: "I was not seeking entry as a returning resident. I mean my reasons

for entering were not even questioned. I was not asked why I was coming back,_or why I

was here. The immigration officials were waiting for me as I came out of the line at the

airport." (Tr. at p. 26)

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France." (Ex. 5) The end of the recorded interview reveals how Davis

intended to enter the United States:

Davis: . . . One question you forgot. On what basis do I desire to enter the United

States?

Officer: What is the basis?

Davis: The World Service Authority passport is mandated by the Universal Declaration of Human Rights, article 13, section 2. I enclose a copy. Therefore, on the basis of

this article I am returning to my native country. 4

Article 13, sectiein 2, states: "Everyone has the right to leave any

country, including his own, and to return to his country." Davis was

paroled into the United States for an exclusion hearing, which was held

in Washington, D. C., on May 17, 1977.

The Immigration and Naturalization Service charged that Davis was

excludable on two grounds: that he was either an immigrant without a

visa, section 212(a)(20) of the Act, 8 U.S.C. 1182(a)(20), or a nonimmigrant without a visa., section 212(a)(26) of the Act, 8 U.S.C. 1182(a)(26);

and that he was seeking to enter the United States for the purpose of

performing skilled ox unskilled labor without having acquired the necessary labor certification, section 212(a)(14) of the Act, 8 U.S.C.

1182(a)(14).

As a defense to these charges, Davis asserted, at various points of the

exclusion hearing, that he is admissible as (1) a national of the United

States; (2) a lawful permanent resident alien; and (3) a native of the

United States, who, under the Ninth and Tenth Amendment, retains

the right to live in his native country. Davis did not claim to be a United

States citizen. Counsel conceded that he had effectively renounced his

citizenship at the United States Embassy in Paris. (Tr. at pp. 27, 38-39,

47)

At the hearing, it was brought out that Davis is seeking to enter the

United States on a permanent basis. (Tr. at p. 42) Indeed, his various

defenses all show this. Davis conceded that he did not have an alien

registration card, reentry permit, or any document other than his World

S ervice Authority passport. (Tr. at pp. 47-48) Davis' purpose in coming

to the United States was to take up his duties as chairman and president

of the World Service Authority District 3, a nonprofit corporation in the

District of Columbia. Davis' testimony indicated that he had maintained

a place of residence in Washington, D.C., for some time prior to his most

recent return to the United States.

Davis has several close relatives who are United States citizens.

These include his mother, a brother, two sisters, and a 26-ye ar-old

'The document Davis refers to is the Universal Declaration of Human Rights adopted

2nd proclaimed on December 10, 1948, by the General Assembly of the United Nations.

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Interim Decision #2650

daughter. He testified that he has three younger children who are

French citizens. (Tr. at p. 33) Davis never became a French citizen or a

citizen of any other country. He was divorced in February, 1977.

At the exclusion hearing, Davis was asked whether he had ever

sought to regain his United States citizenship. He stated that he had

asked to be "reinstated" as a United States citizen in 1950, but that his

request was denied. (Tr. at p. 35) The Service trial attorney then

explained the provisions of section 329 of the Immigration and Nationality Act, 8 U.S.C. 1440, and asked Davis if he wished to apply for

citizenship as a person who served honorably in an active duty status in

the Armed Forces of the United States during the Second World War.

Under section 329, no period of residence or physical presence in, the

United States is required; nor need the applicant have been lawfully

admitted to the United States for permanent residence if he enlisted or

was inducted while in the United States. 5 Davis stated that he did not

wish to apply for citizenship under section 329. He did not offer any

explanation for this decision. Presumably, he still objected to the idea of

citizenship in a nation-state.

The Act defines "national of the United States" as "(A) a citizen of the

United States, or (B) a person who, though not a citizen of the United

States, owes permanent allegiance to the United States." Section

101(a)(22), 8 U.S.C. 1101(a)(22). In support of his claim to be a "national

of the United States," Davis testified that when he renounced his

citizenship "it was in no way a disavow[all of my loyalty or my love for

my native country. In fact quite the contrary." (Tr. at p. 39) Davis was

then asked if he regarded himself as owing allegiance to the United

States Government. He answered: 'Well insofar as my first allegiance is

to a higher loyalty of -whole in which the part can be protected, yes. And

with that sense, my allegiance is to all the parts." (Tr. at p. 40) Davis

was asked if he regarded himself as owing allegiance to the laws and the

Constitution of the United States. He answered as follows: "Well,

insofar as these laws equate with human rights and the normal, the

commonalty of law by which people are governed, yes of course." ('Tr. at

pp. 40-41)

With regard to his claim to be a permanent resident of the United

States, the following dialogue between Davis and his attorney at the

exclusion hearing is pertinent:

-

Q. What country did you regard as the country of your permanent residence [in the

period after 1961]?

5 The Service trial attorney stated that Davis was eligible for citizenship under section

329. We note the reference in section 329 to 'any person, who, while an alien or a

noncitizen national of the United States, has served honorably. . . ." Davis was, of course, a

United States citizen when he nerved. However, we do not meet. the issue of his eligibility

for citizenship.

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A. Being stateless, whatever country I was in; I limited my residence by definition. So,

I always had to renew continuously my residence papers in any country in which I

was. As far as I am concern[ed] my native land, I have said is still America, the

United States of America, and always will be, I can't deny that.

Q. D[id] you regard the United States then as the country of your permanent residence

while you were travelling in other countries?

A. In principle, yes. Although I did nut establish a residence here.

In subsequent testimony, Davis remarked that he was always received by his family when he returned to the United States. He freely

admitted, however, that when he was not in the country he did not

maintain an address, residence, or assets, such as furniture or clothing

here.

The immigration judge ordered Davis excluded and deported "for the

reasons set forth by the Government." Davis appealed the immigration

judge's decision to this Board.

On appeal, Davis, through counsel, argues for the first time that he is

a citizen of the United States. He argues, in the alternative, that he is

admissible as a "national of the United States." Nowhere in the brief or

at oral argument did counsel argue that Davis is, in the alternative, a

lawful permanent resident of the United States. However, we will

consider that possibility since Davis did make such a claim at the

exclusion hearing below.

I

Counsel's entire brief and nearly all of his oral argument are devoted

to the proposition that Davis is a United States citizen. We start from

the premise that in cases involving the loss of nationality, the law and

the facts are to be construed as far as reasonably possible in favor of the

claimant. Nishikawa v. Dulles, 356 U.S. 129, 134 (1958); Schneiderman,

v. United States, 320 U.S. 118, 122 (1943). Nevertheless, we do not find

counsel's arguments persuasive.

A.. The first argument is that the "Statement of Beliefs" attached to

Davis' 1948 Oath of Renunciation shows that "he had no intention of

becoming an alien in his relationship to the United States, that his sole

intention was to embrace the citizenship of a larger authority, namely a

World government, and to have a concomitant allegiance. . . [T]here is

nothing in stating allegiance to a world government . . . that suggests

any implication that his allegiance thereto would necessarily conflict

With his allegiance to the United States Government." (Tr. of oral

ax-g-ument at p. 3)

Had Davis merely declared his "world government" and carried out

his activities as its head, we think that counsel's argument might have

interit. However, the facts speak for themselves. Davis unequivocally

renounced his citizenship and "abjured all allegiance and fidelity to the

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United States of America." See footnote 1, supra. He evidently believed that allegiance to world government did conflict with continued

allegiance to the United States. He freely renounced his allegiance for

precisely that reason. At all times after he signed the Oath of Renunciation, Davis referred to himself as a stateless person. We think that those

statements, as well as the words of the Oath of Renunciation and his

"Statement of Beliefs" clearly show that Davis had a specific subjective

intent to renounce all allegiance to the United States. 6 At the exclusion

hearing itself, Davis refused to apply for United States citizenship

under section 329 of the Act, while equivocally maintaining that he had

some vague sort of residual loyalty to his native country.

Counsel conceded that "Et)here is no issue here as to whether Mr.

Davis did what he did voluntarily, there is no duress when he appeared

before the American consul. He is not claiming there was, that he was

incapacitated in any way, that the conduct was not rational, but to the

contrary he believes it was the most rational conduct he could engage

in." (Tr. of oral argument at p. 6)

Counsel urges that in weighing his argument that the renunciation

was ambiguous, the Government should have to show by clear, convincing, and unequivocal evidence that the renunciation was intended to

sever Davis' allegiance to the United States. He argues that in 1961,

when Congress changed the burden of proof required to establish loss of

United States citizenship to that of a preponderance of the evidence, it

meant only to affect the standard required for proving voluntariness.'

Since voluntariness is not in issue here, counsel argues that the older

standard should apply. He also argues that it is anomalous to have a

preponderance of the evidence rule apply here, where United States

citizenship is at stake, while the Government's burden of proof in a

proceeding to establish the deportability of an alien is one of clear,

convincing, and unequivocal evidence. Woodby v. INS, 385 U.S. 276

(166).

Section 349(c) of the Immigration and Nationality Act, 8 U.S.C.

1481(e), as amended by section 19 of the Act of September 26, 1961, P.L.

87-301, 75 Stat. 656, speaks for itself. 8 It may be anomalous, but it is the

6

We assume, without deciding, that a specific subjective intent to renounce United

States citizenship Is required for expatriation. See King v. Rogers, 463 F'.211 1188, 1139 (0

Cir. 1972); Gordon, "The Power of Congress to Terminate United States Citizenship--A

Continuing Constitutional Debate," 4 Conn. L. Rev. 611, 628-629 (1972).

7 Counsel cites certain language in House Report 1086 (1961), and argues that Congress

was motivated by dissatisfaction with the Supreme Court's decision in Niskikam v.

Dulles, 356 U.S. 129 (1958), which imposed upon the Government the burden of establishing the voluntariness of expatriating act by clear, convincing, and unequivocal evidence.

Section 349(e) provides:

Whenever the luau of United States nationality is put in issue in any action or

proceeding commenced on or after the enactment of this subsection under, or by virture

521

111Lel ILL i

z•v.v

law which we must apply. 9 It clearly establishes a burden of proof of

preponderance of the evidence, except upon the issue of voluntariness.

There, the burden is on the person claiming United States citizenship to

show that his act of expatriation was not performed voluntarily. See

King v.Rogers,supra, at 1189. The discussion is academic in any event,

because even if the Government's burden were one of clear, convincing,

and unequivocal evidence, we would find that the Government had met

that burden here.

B. Counsel for Davis next argues that section 349(a)(6) of the

Aetn, 8 U.S.C. 1481(a)(6), should be construed to mean that a

voluntary renunciation of American citizenship will be effective only if

the person acquires another nationality. To interpret section 349(a)(6)

otherwise would, it is argued, cause that provision to run afoul of the

Ninth and Tenth Amendments to the Constitution. None of the authorities cited by counsel persuades us that his suggested construction

of section 349(a)(6) is in accord with Congress' intent. He has cited no

authority whatever to support his argument with regard to the Ninth

and Tenth Amendments.

Related provisions of the Act demonstrate that counsel's construction

of section 249(a)(6) is erroneous. Moreover, such direct authority as

exists on this point supports the conclusion that a voluntary renunciation of citizenship under section 349(a)(6) is effective even though it

results in statelessness. Section 349(a) provides:

From and after the effective date of this Act a person who is a national of the United

States whether by birth or naturalization, shall lose his nationality by—

(6) making a formal renunciation of nationality before a diplomatic or consular

of, the provisions of this or any other Act, the burden shall be upon the person or party

claiming that such loss occurred, to establish such claim by a preponderance of the

evidence. Except as otherwise provided n3 subsection (b), any person who commits or

performs, or who has committed or performed, any act of expatriation under the

provisions of this or any other Act shall be presumed to have done so voluntarily, but

such presumption may be rebutted upon a showing, by a preponderance of the evidence,

that the act or acts committed or performed were not done voluntarily.

e We have no power to declare provisions of the statutes which we administer unconstitutional. Matter of Cortez, Interim Decision 2503 (BIA 1977); Matter of Lennon-,

Interim Decision 2304 (BIA 1974).

1 ° Section 349(a)(6) is identical to section 401(f) of the Nationality Act of 1940. Since the

relevant provisions of the Immigration and Nationality Act of 1952 are virtually identical

to the corresponding provisions of the Nationality Act of 1940, further references will be

nna<le only to the Immigration and Nationality Act of 1952.

Section 405(e) of the 1952 Act, 8 U.S.C. 1101 (note), preserved the comparable loss of

nationality provisions in the 1940 Act applicable to expatriating acts performed during the

ercective dates of the 1940 Act.

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interim Decision Vizobt)

officer of the United States in g foreign state, in such forms as may be prescribed by

the Secretary of State."

It may be seen that the section, by its terms, does not make renunciation conditional upon the acquisition of another nationality.

Section 349(a)(7), 8 U.S.C. 1481(a)(7) provides for loss of nationality

by making a formal written renunciation in the United States whenever

the United States is at war and the Attorney General approves such

renunciation.

Section 349(a)(8), 8 U.S.C. 1481(a)(8), provides for loss of nationality

for deserting the United States Armed Forces in time of war. 12

Section 349(a)(9), 8 U. S. C. 1481(a)(9), provides for loss of nationality

for any act of treason against, or attempting by force to overthrow, or

bearing arms against the United States.

Section 349(a)(10), S U.S.C. 1481(a)(10), provides for loss of nationality for departing from or remaining outside of the United States in

time of war or during a period declared by the President to be a period

of national emergency for the purpose of avoiding training and service in

the United States Armed Forces. i 3

Plainly, sections 349(a)(7) through 349(a)(10) provide for expatriation

for acts which are not connected with the acquisition of a foreign nationality.

Section 349(a)(4)(A), 8 U.S.C. 1481(a)(4)(A), on the other hand provides for loss of nationality by "accepting, serving in, or performing the

duties of any office, post, or employment under the government of a

foreign state or a political subdivision thereof, if he has or acquires the

nationality of such foreign state." (Emphasis supplied.) The terms of

section 349(a)(4)(A) indicate that Congress considered the acquisition of

foreign nationality significant in that particular context. Therefore, it

" Counsel cites language from a Cabinet Committee report to the effect that section

41111(f) of the Nationality Act of 1940 was "designed especially for the use of persons who

shall have acquired at birth the nationality of a foreign state, as well as that of the United

States, and who, upon reaching majority, elect that nationality of a foreign state. It is

obvious that such person cannot obtain naturalization iii the foreign state, since they are

nationals thereof, and it frequently happens that there are no provisions in the laws of the

foreign state of which they are nationals under which they may take an oath or make a

formal affirmation of allegiance thereto, and thus divest themselves of their American

nationality. . . ." Revision and Codification of the Nationality Laws of the United States,

Part I, pp. 67-68 (June 13, 1938).

The fact that most people who expatriated themselves under section 401(f) and its

successor provision in the 1952 Act were dual nationals does not in any way show that

Congress intended to preclude American citizens who were not dual nationals from

expatriating themselves under the same provision.

12 This provision was declared unconstitutional in Trop v. Dulles, 356 U.S. 86 (1958).

This provision was added. in 1444. See 58 Stat 746. It was declared unconstitutionality

Kennedy v. Mendoza-Martinez, and Rusk v. Cort, 372 U.S. 144 (1963).

"

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would seem that the absence of a similar proviso in section 349(a)(6) is

not an oversight, a conclusion supported by the fact that foreign naturalization is itself made a ground for expatriation in section 349(a)(1).

Section 351(a), 8 U.S.C. 1483(a) provides:

Except as provided in paragraphs (7), (8), and (9) of section 349 of this title, no

national of the United States can expatriate himself, or be expatriated, under this Act

while within the United States or any of its outlying possessions, but expatriation shall

result from the performance within the United States or any of its outlying possessions

of any of the acts or the fulfillment of any of the conditions specified in this chapter if and

when the national thereafter takes up a residence outside the United States and its

outlying possessions.

Congress evidently believed that certain acts, performed in the United

States, should not result in expatriation unless the person thereafter

took up a residence outside the United • States. The way Congress

defined "residence" (8 U.S.C. 1101(a)(33)) when read in relation to

section 351(a), clearly shows that it did not want statelessness to be a

bar to expatriation. See also section 352(a) of the Act, 8 U. S. C.

1484(a). 14

In Jolley v. INS, 441 F.2d 1245 (5 Cir.), cert. denied 404 U.S. 946

(1971), a native-born United States citizen had gone to Canada and

executed a formal Oath of Renunciation pursuant to section 349(a)(6).

He did this to avoid military service during the Vietnam War. Despite

the fact that Jolley would clearly become stateless, and would, unlike

Davis, be permanently barred from entering the United States, even as

an alien, id at 1257, the court found that he had expatriated himself.

There is no hint or suggestion, even in the dissent, that section 349(a)(6)

might not contemplate expatriation where it resulted in statelessness.

See also United States v. Lucienno D'Hotelle, 558 F.2d 37, 42 43 (1 Cir.

1977). Similarly, legal scholars have assumed that a voluntary renunciation of American citizenship would be effective, even if statelessness

resulted."

It is true that there has been some movement in the international

sphere to reduce the incidence of involuntary statelessness resulting

from various national expatriation laws. The 1961 United Nations Conference - on the Elimination or Reduction of Future Statelessness, in

which the United States participated, adopted a Convention on the

Reduction of Statelessness, U.N. Doc. A/CONF. 9/15 (August 29,

1961). Articles 5 through 9 of the Convention provided, in general, that

any involuntary expatriation law of a signatory state is to be conditioned

upon the person's possession or acquisition of another nationality. How-

" This provision was held unconstitutional in Schneider v. Rusk, 377 U.S. 163 (1964)•

" Gordon, "The Citizen and the State: Power of Congress to Expatriate American

Citizens," 53 Georgetown L.J. 315, 360-361 (1965); Fort, "Involuntary Expatriation:

Rogers v. Bellei—A. Chink in the Armor of Afroyim," 21 Am. U. L. Rev. 184, 205 (1971);

Agate, 27 U. Pitt. L. Rev. at 39.

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Interim Decision #2650

ever, as of 1970, only five countries had signed the Convention, and only

one country, the United Kingdom, had ratified the Convention.

The United States has not signed or ratified the Convention. This

country's reluctance to do so is "probably explained by its comments'

during the drafting stage, which specified that Articles 6, 7, and 8 of the

Convention conflicted with . . . the Immigration and Nationality Act of

1952." 16 Even if the Convention becomes effective and the United

States adheres to it, it would not affect Davis' case because it contains

several exceptions, whereby expatriation could still result in statelessness. One exception is "where the national . . : gives definite evidence

of his determination to repudiate his allegiance." 17 Thus, even the

Convention on the Reduction of Statelessness deems it appropriate to

allow for voluntary renunciation of citizenship where statelessness results.

II

Davis contends that if he is not an American citizen, he is an American

"national." The argument is that even if he did renounce his citizenship,

this is not inconsistent with continued permanent allegiance to the

United States. See section 101(a)(22) of the Act, supra. The argument

fails for two reasons.

First, section 349 of the Act speaks in terms of "loss of nationality,"

not loss of citizenship. The Oath of Renunciation signed by Davis contained the same language:

I hereby absolutely and entirely renounce my nationality in the United States . .

and abjure all allegiance and fidelity to the United States of America.

We hold that when a person renounces his citizenship, he necessarily

renounces his American nationality as well.

Second, there is nothing in Davis' "Statement of Beliefs" or in his

subsequent conduct which would make us doubt that he did intend to

abjure all allegiance to the United States. Thus, even if it were possible

to renounce one's citizenship while maintaining permanent allegiance to

the United States, we would find that Davis had not done so,

In view of the above, we need not decide whether the statutory

category "nationals of the United States" is exhausted by (1) citizens of

the United States and (2) nationals at birth, as defined by section 208 of

the Act, 8 U.S.C. 1408."

Having found that Davis is not a United States citizen or national, it

16 Duvall, "Expatriation Under United States Law, Perez to Afroyim: The Search for a

-Philosophy of American Citizenship," 56 Va. L. Rev. 408, 419 (1970).

17 Id, n. 67.

18 See the Koszta case, involving an Austrian subject who came to the United States,

declared his intention to become an American citizen, and wont abroad. Protection was

granted on the theory that he had severed his relationship with Austria and had become

525

interim 'ecision iT4uou

III

follows that he is an alien. Section 101(a)(3) of the Act, 8 U.S.C.

1101(a)(3) defines an alien as "any person not a citizen or national of the

United States."

It remains to be determined whether Davis is still a lawful permanent

resident alien or whether he abandoned that status. It must be emphasized that Davis is excludable under section 212(a)(20) of the Act in

either case, because he is in possession of no valid documents. However,

if he is an alien returning to an unrelinquished lawful permanent residence in the United States, the normal documentary requirements may

be waived pursuant to section 211(b) of the Act, S U.S.C. 1181(b). See 8

C.F.R. 211.1(b). 19 On the other hand, if he abandoned his permanent

resident status, Davis must go through the process of obtaining a new

immigrant visa. See section 211(a) of the Act, 8 U.S.C. 1181(a).

The Board has held that once a colorable claim to returning lawful

resident status is established, the burden is on the Government to show

that that status has been abandoned. Matter of Kane, Interim Decision

2371 (BIA 1975). See Chew v. Rogers, 257 F.2d 607 (D.C. Cir. 1958).

The last time that Davis appears to have been- admitted to the United

States for lawful permanent residence was in 1958. In determining

whether his subsequent absences from this country were "temporary

visits abroad" or whether they constituted an abandonment of status,

we refer to the standards set out in Matter of Kane, supra. The basic

standard is the intention of the alien, when it can be determined.

Attention is given such factors as the purpose of departing, the length of

the stays abroad, and the extent of the alien's ties with the United States.

Davis left the United States early in 1961, after having been issued a

Permit to Reenter the United States (Form 1-131). Information contained in the application for that permit indicates the following: that

Davis was divorced, that he intended to be abroad in the United Kingdom, France, and West Germany on business for 17 days. His occupation and employer were given as travel agent and Transglobe Travel,

Inc. of 119 West 57th St., New York. The permit, issued on February S,

1961, was valid for one year.

Davis did not return for a number of years after the permit had

expired. During his absence, he lived in France, remarried, and went

into business. His three younger children were born. Although Davis

does not remember exactly when or why he returned to the United

States, he concluded at the hearing that it was sometime in the late

an American "national" entitled to protection. 2 Wharton, Digest of International Lai)).

357-358 (1886). See also Agata, 27 U. Pitt. L. Rev. at 39, n. 171.

19 As a permanent resident, Davis would also be exempt from the labor certification

requirements of section 212(a)(14) of the Act.

526

Interim Decision #2659

sixties and that he had probably come back for "family reasons." (Tr. at p.

17) He characterized the trip as brief. (Tr. at p. 43)

Davis traveled to the United States in 1975, 1976, and 1977, and

remained for approximately three months each time. Referring to the

1975 visit, he explained that he had "come over for a World citizen

assembly of San Francisco." (Tr. at p. 25) With respect to his arrival in

June 1976, Davis testified that he was not seeking entry as a returning

resident. (Tr. at p. 26) Although a hearing was scheduled to determine

his status, he returned to France before the hearing was held. Before

his next visit to the United States in 1977, Davis secured a 13-2 visa at

Strasbourg, France, as a nonimmigrant visitor for pleasure. A nonimmigrant visitor is defined in section 101(a)(15)(B) as "an alien . . . having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or

temporarily for pleasure." As a visitor, Davis arrived on January 30,

1977, and was authorized to remain for three months. Two weeks before

his visa expired, he returned to France. A divorce had apparently been

granted in February, while he was in the United States. On May .13,

1977, he made his most recent application for admission, with no documents except his World Service Authority passport.

From Davis' testimony it is apparent that his soujourn in Europe

after 1961 cannot be characterized as a "temporary visit abroad." For

nearly 10 years Davis lived in Europe—principally in France—where he

married, raised a family, and engaged in business. His periodic trips to

the United States were of brief duration and appear to have been for

family or business reasons. We can find no indication that he intended to

maintain his resident status throughout his absence. His decision in late

1976 to secure a nonimmigrant rather than an immigrant visa from the

United States consulate in France corroborates our conclusion that Davis

abandoned his status after 1961. He did not take steps to reacquire that

status.

We note that Davis has obtained three immigrant visas in the past.

He has several immediate relatives who are United States citizens. Any

of them might submit the necessary visa petition in his behalf.

We find that Davis is excludable under section 212(a)(20) , of the

Immigration and Nationality Act. He is not excludable under section.

212(a)(26) because he was not a nonimmigrant. There is no evidence

concerning whether Davis is coming to the United States to perform

labor, so the applicability of the exclusion ground under section

212(a)(14) remains in doubt; however, because of our disposition under

the section 212(a)(20) ground, we deem it unnecessary to, look further

into the alleged requirement of a labor certification. The appeal will be

dismissed.

ORDER: The appeal is dismissed.

527