Interim Decision #2039

Interim Decision #2039

MATTER OF JOLLEY

In Deportation Proceedings

A-18168898

Decided by Board March 19, 1970

Respondent, by formal renunciation'of U.S. nationality before an American

Consul at Toronto, Ontario, Canada, on May 16, 1967, thereby lost United

States citizenship under section 349(a) (6) of the 'Immigration and Nationality Act, he being presumed under section 349(c) of the Act to have voluntarily performed the expatriating act since he has not testified or offered any evidence to support a conclusion that his renunciation was other

than voluntary.•

CHARGES:

Order : Act of 1952—Section 291(a) (1) [8 U.S.C. 1251 (a) (1) 1—Excludable at time of entry, to wit, immigrant, no visa

(section 212(a) (20); 8 U.S.C. 1182(a) (20)).

Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable at time of entry, to wit, person who departed from or remained outside United States

to avoid or evade training or service in the

armed forces in time of war or national emergency (section 212(a) (22); 8 U.S.C. 1182(a)

(22)).

ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:

Irving A. Appleman

Appellate Trial Attorney

(Brief filed)

Peter E. Rindskopf, Esquire

859 1/2 Hunter Street, N.E.

Atlanta, Georgia 30314

(Brief filed)

Joseph W. Monsanto

Trial Attorney

(Brief filed)

This is an appeal from an order of a special inquiry officer

dated November 25, 1968, finding the respondent deportable on

both charges above stated and granting voluntary departure

within 90 days, with an alternate order for his deportation to

* Reaffirmed, 441 F.2d 1245 (C.A. 5, 1971).

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iterim Decision #2039

anada if he fails to depart when and as required. The appeal

ill be dismissed.

The facts have been fully stated and the evidence has been critally examined in the special inquiry officer's exhaustive and able

pinion, and need not be repeated here at length. The special inuiry officer concluded that the evidence had been properly admited into the record and that it established clearly, convincingly,

,d unequivocally that the respondent is an alien and that he is

leportable as charged. We concur in those conclusions.

At , the hearing, the respondent denied that he is an alien and

hat he is deportable. Indeed, he refused to concede that he is the

Jerson to whom much of the documentary proof related. Consemently, the threshhold question presented is one of identity.

The order to show cause, dated March 20, 1968, charges that

Thomas Glenn Jolley, the respondent, is not a citizen or national

if the United States; that he is a native of the United States and

undetermined citizenship; that he renounced his United States

citizenship before an American consul at Toronto, Ontario, Canada on May 16, 1967; that he entered the United States at Detroit, Michigan on an unknown date subsequent to May 16, 1967,

for the purpose of resuming his residence; and that at the time of

entry he was not in possession of a valid immigrant visa. Deportability was charged under section 241 (a) (1) of the Immigration

and Nationality Act on the ground that he was inadmissible at

entry under section 212(a) (20) of the Act for lack of the required visa.

At the deportation hearing, respondent was represented by

counsel, who conceded that respondent is the Thomas Glenn Jolley named in the order to show cause (Tr. p. 10). Called as the

Service's first witness over his attorney's objection, respondent on

advice of counsel refused to answer most of the questions on

self-incrimination grounds. He did testify that he is 24 years old

(Tr. p. 26) and that he is married (Tr. p. 27); that he is Thomas

Glenn Jolley, married to Margaret Elizabeth Townsend, aged 20,

a citizen of the United States born in Atlanta, Georgia (Tr. p.

80) ; and that he had lived in Canada (Tr. p. 93).

Admitted into evidence over respondent's objection was a certified copy of a birth certificate (Ex. 6) attesting to the birth of

Thomas Glenn Jolley on January 26, 1944 in Greensboro, North

Carolina. Also admitted over objection were certified copies (Ex.

7) of the following: (1) an oath of renunciation of allegiance

under section 349(a) (6) of the Act, signed and sworn to on May

16, 1967 before the American consul at Toronto, Ontario, Canada

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Interim Decision #2039

by Thomas Glenn Jolley, born at Greensboro, North Carolina on

January 26, 1944; (2) a supporting affidavit, executed by Thomas

Glenn Jolley on the same day before the same American consul;

and (3) a Consular Certificate executed May 31, 1967 and approved by the State Department on June 16, 1967, reciting that

Thomas Glenn Jolley, born at Greensboro, North Carolina on January 26, 1944, had expatriated himself on May 16, 1967 under

section 349 (a) (6) of the Act.

James R. Coplen, a Service investigator, testified over objection

that he had interviewed the respondent at the latter's home on

March 19, 1968, during the course of an investigation into the respondent's immigration status. Mr. Coplen testified that he had

then asked the re s pondent whether he was the Thomas Glenn Jolley who had renounced his citizenship in Canada and he said he

was; that respondent stated he had last entered the United States

through the port of Detroit, Michigan, but he refused to state

what name he had used or what he told the officials when he entered (Tr. p. 60).

We agree with the special inquiry officer that the foregoing evidence was properly received and that it establishes clearly, convincingly, and unequivocally that respondent is the Thomas Glenn

Jolley who executed the renunciation forms at Toronto on May

16, 1967. In our view, the Service has amply met its burden of establishing that the respondent is an alien.

The dissenting opinion strongly contends, however, that on this

record it cannot be said that respondent's act of renunciation was

voluntary. Even though the respondent did not testify as to the

circumstances which led him to execute the renunciation, we

agree that it is clearly inferable that respondent's action was motivated by his desire to avoid induction in our armed forces. That

this desire may have been based on conscientious scruples does

not, in our view, make his act of renunciation any the less deliberate or voluntary. There is no evidence that, confronted with the

choice of facing liability to induction or renouncing his citizenship, the respondent was subjected to influences which overbore

his free will in making his election.

Our unreported decision of June 26, 1969 in Matter of Susan B.

Anthony (A-8823447), cited in the dissenting opinion, is readily,

distinguishable. The expatriating act in that case (an oath of allegiance) took place in 1954 and the deportation proceedings were

started in 1961, before the enactment of section 349 (c) of the

Act. Consequently, under the rule then applicable, as enunciated

in Nishikawa, v. Dulles, 356 U.S. 129 (1958), the burden was on

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;erim Decision 4t20:39

Service to prove not only the expatriating act, but also that it

Ls voluntarily performed; and this burden could be met only by

.ar, convincing and unequivocal evidence. The respondent in the

ithany case testified in the deportation proceedings as to the

- cumstances surrounding her decision to take the oath of alleance. We concluded, on the basis of her testimony, which we beLved, that the Service had not borne its burden of establishing

clear, convincing, and unequivocal evidence that her act was

duntary.

The case now before us is not only factually different but is

wernecl by a different rule. Under section 349(c) of the Act,

hich now applies, there is a presumption that respondent acted

Militarily in performing the expatriating act; and the burden is

a him to rebut that presumption. This he has not done. He has

of testified, or offered any evidence, to support a conclusion that

is renunciation of allegiance was other than his voluntary and

3nsidered choice.

We must also reject respondent's challenge to section

49(a) (6) of the Act. Although the Board may not pass on the

onstitutionality of the statutes we administer, Matter of L—, 4

. & N. Dec. 556 (BIA, 1951), the Attorney General has laid

own guide lines for the application of the principles set forth in

Ifroyim v. Rusk, 387 U.S. 253 (1967). 1 If anything emerges with

rystal clarity from the diverse views expressed in Afroyim, it is

he unchallenged proposition that an articulated renunciation of

;llegiance is a constitutionally permissible means of expatriation.

Respondent's alienage having thus been satisfactorily estabished, under section 291 of the Act the burden is upon him to

wove the time, place, and manner of his entry into the United

;tates. The respondent has presented no evidence on this issue.

-laving failed to sustain his burden, under the specific terms of

section 291 respondent is presumed to be in the United States in

iiolation of law. There is no evidence to show that at the time of

its entry at Detroit at an unspecified date he was in possession of

sn immigrant visa or any document in lieu thereof. The charge

stated in the order to show cause is clearly sustained.

We have reached the foregoing conclusion without _

on

the portions of respondent's Selective Service record (Ex. 9)

received in evidence over his objection. While we agree with the

special inquiry officer that these were properly received and that,

Attorney Generta's Statement of interpretation Concerning Expatriation

of United States Citizens, 42 Op. Atty. Gen. No. 34 (January 18, 1969); 39

Fed. Reg. 1079.

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Interim Decision #2039

when coupled with the other evidence, they sustain the lodged

charge, we wish here merely to point out that the finding of

deportability is amply sustained on the original charge, even

without the Selective Service records.

We must also reject respondent's thesis tnat, even if the Service's charges have been established, his marriage to a United

States citizen saves him from deportation under section 241 (f) of

the Act. He argues that his entry at Detroit must have involved

fraud and that this brings him within the ambit of section

241(f). Fraud is not an essential ingredient of the documentary

charge on which he has been ordered deported. An alien may not

pull himself up by his own bootstraps and claim he was guilty of

fraud at entry and thereby eligible for the benefits of section

241(f). See Ntovas v. Ahrens, 279 F.2d 483 (7 Cir., 1960), cert.

denied 364 U.S. 826 ; Tsaconas v. INS, 397 F.2d 946 (7 Cir.,

1968) ; Ferrante v. INS, 399 F.2d 98 (6 Cir., 1968). Congress did

not intend to grant immunity from deportation to all aliens entering by fraud merely because they have the requisite family ties in

this country, De Vargas v. INS, 409 F.2d 335 (5 Cir., 1969), cert.

denied 396 U.S. 895.

Even if fraud were shown to be the basis for the documentary

charge under section 212(a) (20), so as to bring into play the

rationale of Mustemi v. INS, 408 F.2d 1196 (9 Cir., 1968),

respondent would still not be entitled to the benefits of section

241 (f). That provision requires the alien to be "otherwise admissible at the time of entry." An alien who enters the United States

without inspection by a knowingly false claim of citizenship,

thereby completely circumventing the immigration visa system, is

not "otherwise admissible" within the meaning of section 241 (f),

Matter of Lee, Interior Decision No. 1960 (A.G., 1969); Gambino

v. INS, 419 F.2d 1355 (2 Cir., January 7, 1970) footnote 1.

We have carefully considered the other arguments raised on

appeal and find them without merit. The same contentions were

urged before the special inquiry officer and he disposed of them

properly in his exhaustive opinion. To the cases cited at page 14

of his opinion, as to the admissibility of respondent's admissions

to Investigator Coplen, there can now be added Lavoie v. INS,

418 F.2d 732 (9 Cir., 1969).

The running of the voluntary departure time authorized by the

special inquiry officer has been stayed pending this appeal.

ORDER: It is ordered that the appeal be and it is hereby dismissed.

It is further ordered that, pursuant to the special inquiry

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nterim Decision #2039

ifficer's order, the respondent be permitted to depart from the

Jnited States voluntarily within 90 days of this order or any

xtension beyond that date as may be granted by the District

Director; and that, in the event of failure so to depart, the

respondent shall be deported as provided in the special inquiry

)fficer's order.

I

DISSENTING OPINION: Antlion , L. Montagu;la, Alternate Member

Since this record fails to establish by clear, unequivocal and

tonvincing evidence that respondent voluntarily and meaningfully

renounced his United States citizenship, acquired by reason of his

birth here, I dissent from the majority opinion finding loss of

American nationality.

The issue presented here is narrowly circumscribed: Did

respondent voluntarily and meaningfully intend a renunciation of

his citizenship? Do the circumstances leading to such renunciation dilute the oath of renunciation and, thus, render it involuntary and ineffective?

Respondent refused to testify at his deportation hearing other

than to state his name, place of birth and recent marriage to a

United States citizen.

The evidence presented by the Immigration and Naturalization

Service to establish loss of United States citizenship is, in substance, documentary, with the exception of testimony concerning

pertain draft records relating to one, Thomas Glenn Jolley, the

-

name of respondent; and the testimony of an Immigration inspec-

:or who testified that he interviewed respondent who admitted to

-Jim that he had renounced his American nationality before an

American consul in Canada.

Respondent on May 16, 1967 made formal renunciation of his

American nationality pursuant to section 349 (a) (6) of the Immi;ration and Nationality Act, before an American consul in

Toronto, Canada, and at the same time, and as part thereof,

stated, "I do not wish to break the laws of the United States.

These laws (Selective Service) conflict with my present beliefs"

(Ex. 7).

Prior thereto, on March 5, 1967, respondent had attempted to

secure reclassification of his draft status without success. He had

been ordered to report for induction on June 13 and again on

August 7, 1967, but failed to do so. He had already departed for

Canada on March 31, 1967. He was classified I—A on April 18,

1967 and again on July 19, 1967. On April 7, 1967, while in

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Interim Decision # 2039

Canada, respondent wrote his draft board requesting a 1-0 classification (that of a conscientious objector available for civilian

work contributory to the maintenance of the national health,

safety or interest). On April 18, 1967 and again on July 19, 1967,

as stated, he was classified I—A. Respondent returned to the

United States sometime after May 17, 1967, the exact date not

having been established.

It was after all efforts to secure a change in his draft status,

that respondent executed the renunciation on May 16, 1967. So, in

reality, the renunciation was to avoid regular army service. He so

indicated in the oath of renunciation; and in his letter to the local

draft board relative to his renunciation of American nationality.

Thus, as indicated, the issue narrows to whether respondent's

renunciation constituted a voluntary and meaningful act.

There is no need here to discuss the effect of various provisions

of the statute relating to loss of citizenship' or, the several decisions of the Supreme Court of the United States relating to the

constitutionality thereof,' for we are here concerned with the

right to renounce American nationality. Section 349 (a) (6) of the

Immigration and Nationality Act; Act of July 27, 1968, section

1999 of the Revised Statutes. Even in the absence of a statute,

formal renunciation of nationality usually has been considered an

act of expatriation. 14 Op. Atty. Gen. 295 (1873); Borchard, The

Diplomatic Protection of Citizens Abroad, 552, 681. However,

since 1940, our statutes have recognized the expatriative effect of

a formal renunciation of nationality made before an American

diplomatic or consular officer outside the United States. Section

401(f), Nationality Act of 1940, 54 Stat. 1169; section 349 (a) (6),

Immigration and Nationality Act, 8 U.S.C. 1481 (a) (6). In addition, a 1944 Act codified in 1952, sanctions renunciation of citizenship in the United States during time of war, if approved by

the Attorney General. Section 401 (i), Nationality Act of 1940, as

amended, 58 Stat. 677; section 349(a) (7), Immigration and

Nationality Act, 8 U.S.C. 1481 (a) (7).

The Immigration and Naturalization Service receives communications from persons in the United States imprisoned for crime

who wish to renounce their citizenship, and those who wish to

avoid military service. It would appear that on the basis of the

Afroyim ruling emphasizing a citizen's voluntary choice to re1 Section 1481, Title 8, U.S.C.A.

2 Savorgnan v. Unitpd States, 338 U.S. 491 (1950) ; Kennedy v. MendozaMartinez, 372 U.S. 144 (1963) ; Schneider v. Rusk, 377 U.S. 163 (1964) ;

Marks v. Esperdy, 377 U.S. 214 (1964).

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Interim Decision #2039

nounce, that some doubt would exist if a statute attempted to circumscribe that choice. The exception would be where a state of

war exists and by reason thereof prohibiting renunciation. However, there are no procedures in the present laws as was the case

involving Japanese renunciants during World War II. See

Kiyama v. Rusk, 291 F.2d 10 (9 Cir., 1961), cert. denied 368 U.S.

866; McGrath v. Abo, 186 F.2d 766 (9 Cir., 1951); Acheson v.

Murakami, 176 F.2d 953 (9 Cir., 1949).

In Afroyim v. Rusk, 387 U.S. 253 (1967), which involved the

constitutionality of section 401(e), Nationality Act of 1940, relating to loss of American nationality by voting in a foreign election, the court questioned the power of Congress to expatriate

without consent. However, there is unanimity in the right of voluntary renunciation or abandonment by the citizen himself. However, the court did not indicate what constitutes voluntary relinquishment of citizenship. As indicated in the Attorney General's

interpretation of the Supreme Court's decision in Afroyim as to

what constitutes voluntary renunciation, it is necessary to look to

earlier decisions of the court. In Perez v. Brownell, 356 U.S. 44

(1958), overruled by Afroyim, the Chief Justice stated that it has

long been recognized that citizenship may not only be voluntarily

relinquished through exercise of the right of expatriation but also

by other actions in derogation of undivided allegiance to this

country; and in Nishikawa v. Dulles, 356 U.S. 129 (1958), Justice

Black stated that, of course, a citizen has the right to abandon or

renounce his citizenship and that Congress can enact measures to

regulate and affirm such abjuration.

The Afroyim ruling apparently does not affect the right, of renunciation of citizenship under section 349(a) (6) of the Immigration and Nationality Act upon which the respondent's act is

used. Hence, for example, expatriation may result by naturalization in a foreign state or the taking of a meaningful oath of allegiance to a foreign state, and the like. But even in these situations the act must he voluntary and meaningful.

The rule should be no less here. It would seem that in all such

cases, including renunciation, the person involved should be

given, to the extent possible, an opportunity to state fully all the

facts and circumstances, and the motives and purposes surrounding the expatriative act, with emphasis on ascertaining the intent

in performing such act. While respondent gave very limited testimony, the other evidence of record appears clear on this important aspect of the case.

Whatever else may emanate from respondent's conduct in

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Interim Decision #2039

violating the draft laws, criminal proceedings or otherwise, his

continued attempts at reclassifications, both before and after he

left the United States, his stated reasons at the time of renunciation and his letter to the draft board the following day, all concerned with his prospective status in the military, evince a clear

intent that his act was involuntary. While renunciation cannot be

used as "on again, off again" to justify a change of mind,

respondent's act was not a normal act of renunciation. He did not

acquire a new nationality but became a "man without a country."

The possibility of deportation is remote, if not indeed, improbable.

The circumstances of this case bring it squarely within the

ruling of this Board in the Matter of Susan B. Anthony,

A-8823447 (June 26, 1969), that the taking of an oath of allegiance to the British Crown was, because of surrounding circumstances, involuntary, and, hence, not expatriative. And in the case

of Baker v. Rusk, decided by a Federal District Court in California in March 1969, it was held that an oath of allegiance to King

George V was not meaningful. The renunciation must involve

duress, whether economic or otherwise. Stipa v. Dulles, 233 F.2d

551 (3 Cir., 1956). Where the renunciant's intent is clear, as

here, that renunciation is the result of factors not consonant with

a normal desire to abandon or change citizenship, then the

burden on the sovereign is a heavy one. The loss must be established by clear, unequivocal and convincing evidence. Nishikawa

v. Dulles, 356 U.S. 129; Gonzales v. Landon, 350 U.S. 926 (1955);

cf. Matter of Jacuzzi, A-16841893, approved by Attorney Gen-

eral Rogers February 2, 1959. In the absence thereof, retention of

citizenship is favored. Schneiderman v. United States, 320 U.S.

118 (1943); Chin Chuck Ming v. Dulles, 225 F.2d 849 (9 Cir.,

1955); Yee Mee v. Dulles, 136 F. Supp. 199 (U.S.D.C., W.D. Pa.,

1955); Fletes-Mora v. Rogers, 160 F. Supp. 215 (U.S.D.C., S.D..

Cal., 1958) .

Because of the conclusion reached herein, it is unnecessary to

reach other issues presented by this record.

I would hold that respondent retains his American citizenship

acquired at birth.

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