In DEPORTATION Proceedings

MATTER or C—S---

In DEPORTATION Proceedings

A-12269404

Board Dociaione Dcocrnbeir 26, 1961, and March. 7, 1969

Decided by Attorney General May 24, 1962

Expatriation—Section 349(a)(5)—Voting in foreign election while unaware of

United States citizenship.

(1) A native of Cuba who acquired United States citizenship at birth in 1933

through his father and who resided in Cuba until 1960 did not become expatriated when he voted in a Cuban political election in 1958 while unaware

of his United States Citizenship.

(2) The presumption contained in section 349(b) of the 1952 Act is addressed

only to the question whether the asserted act of expatriation was committed voluntarily or under duress, and has no application to acts which were

performed voluntarily but without knowledge of United States citizenship.

CHARGE :

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

at time of entry—No valid visa.

BEFORE THE BOARD

(December 26, 1961)

DISCUSSION: The special inquiry officer terminated proceedings

and ordered the case certified to the Board for final decision. Brief

has been submitted by the examining officer requesting that the respondent be ordered deported.

The issue is one of alienage. The respondent claims that he was a

United States citizen at birth. The Service does not contest the

possibility but argues that citizenship was lost when the respondent

voted in a political election in Cuba. The respondent was born on

May 31, 1933, in Cuba. His father was born in the United States.

The respondent's mother was born in Cuba. The respondent's father lived in the United States for about a year after birth and then

was taken to Cuba. He died when the respondent was four years

of age. There is no evidence that he had lost United States nationality prior to the birth of the respondent. It appears that the respondent had a colorable claim to United States citizenship at birth

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under section 1993 of the Revised Statutes (see, Matter of L—G--J-and C—I—P—, 3--206).

The respondent's uncontradicted testimony, accepted by the special inquiry officer, was that he voted in an election in Cuba on November 3, 1958, when his father-in-law, the mayor of the city, was

running for the national senate of Cuba ; that prior to October 1959,

he had made an application for a visa to come to the United States

for permanent residence; that he received a letter with instructions

telling him that if he considered himself an American citizen he

should not apply for a visa ; that in October 1959, in connection with

an application he had made for a visa, he learned for the first time

that he had a possible claim to American citizenship by birth. The

special inquiry officer was of the belief that Rogers v. Patokoski, 271

F.2d 858 (C.A. 9,'1959), required a decision in favor of the respondent because the respondent had no knowledge that he had a claim

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to United States citizenship when he voted. The examining officer,

in a capable brief, raises a question as to the applicability of Patokoski because of his belief that section 349(b) of the Immigration

and Nationality Act (8 U.S.C. 1481) raises a conclusive presumption

that the act of expatriation was voluntary.

In Matter of C—A—, 9 182 (Oct. 17, 1961), which was decided

subsequent to the decision of the special inquiry offier in the instant

case, we held, on the basis of Patokos1i and other cases there mentioned, that a citizen of the United States could not lose United States

citizenship by committing an act which would otherwise he, the basis

for a loss of citizenship, if, at the time the act was committed, he had

no knowledge that he had a claim to United States citizenship.

The respondent's expatriation is alleged to have occurred under

section 349(a) (5) of the Immigration and Nationality Act (8 U.S.C.

1481) which provides for loss of citizenship by voting in a political

election in a foreign state. Section 349(b) of the Immigration and

Nationality Act (8 U.S.C. 1481) provides as follows:

Any person who commits or performs any act specified in subsection (a) of

this section shall be conclusively -presumed to have done so voluntarily and

without having been subjected to duress of any kind, if such person at the

time of the act was a national of the state in which the act was performed

and had been physically present in such state for a period or periods totaling

ten years or more immediately prior to such act.

Despite the existence of section 349(b), we have found that an act

which would otherwise accomplish expatriation will not do so if the

act was done in the belief that a claim to United States citizenship

does not exist and such belief is based on the claim of a responsible

United States official (Matter of 8—, 8-266 ; Matter of S—, 8-221).

Here too where action was taken without knowledge that United

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States citizenship existed, the circumstances under which the presumption was intended to operate do not exist. The record fails to establish

that the respondent is an alien. Termination of proceedings is proper.

ORDER: It is ordered that proceedings be and the same are hereby

terminated.

BEFORE THE BOARD

(March 7, 1962)

DISCUSSION: On December 26, 1961, the Board ordered proceedings terminated. The Service now moves that the Board withdraw

its order and enter one of deportation on the charge stated above.

Respondent has submitted a letter asking that no change be made

in the Board's order. The motion will be denied.

The facts have been fully stated in the Board's previous order.

Respondent, a native of Cuba, became a United States citizen at

birth. He was physically present in Cuba for a period of ten years

or more prior to voting there in a political election in 1958. At the

time he voted, he did not know that he was a citizen of the United

States. The issue is whether he lost United States citizenship under section 349(a) (5) of the Act, 8 U.S.C. 1481(a) (5). 1

The Board's order of termination is based upon Matter of C--A—,

9 482, holding that a United St; tes citizen did not expatriate himself by committing an act which would normally result in loss of

United States citizenship, if, at the time the act was committed, he

did not know that he was a United States citizen. Matter of C—A,

supra, is based upon Rogers v. Patokoski, 271 F.2d 858 (C. A. 9,

1959), which holds that one who committed acts of an expatriating

nature without knowledge of his United States citizenship did so

involuntarily. As we read the motion, it does not take issue with

Matter of C—A-- or Patokoski, but attempts to distinguish each from

the case before us on the ground that section 340(b) of the Act did

not apply to either but does here and establishes a conclusive pre-

smnption tha,, the voting was voluntary. We agree that section

349(b) of t'te Act could not have been applied in either Patokoski or

Matter of c -A—; however, we find that'the section does not apply

to the instant situation. 2 Therefore, the rule stated in the two precedents controls here.

'Section 349(a) (5) of the Act provides that "a person who is a national of

the United States whether by birth or naturalization, shall lose his nationality by • • • voting in a political election in a foreign state or participating

in an elertIon or plehieeite to determine the sovereignty over foreign territory."

2 Section 349(b) of the Act is prospective only and therefore did not apply

to Patokoski's conduct which occurred prior to the effective date of the Act

(foreign army service 1941-14, voting 1949). C—A—'s conduct is made a

ground for loss of citizenship under section 350 of the Act, whereas section

349(b) by its terms applies only to conduct found in section 349(a) of the

Act.

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Section 349(b) of the Act (8 U.S.C. 1481 (b) ) provides:

Any persop who commits or performs any act specified in subsection

shall be conclusively presumed to have done so voluntarily and without having

been subjected to duress of any kind, if such person at the time of the act

was a national of the state in which the act was performed and had been

physically present in such state for a period or periods totaling ten years or

more immediately prior to such act.

We have held that where section 349(b) of the Act is applicable,

it prevents inquiry into the voluntariness of an act of expatriation

(Matter of M—G—, 7-065) ? However, we have concluded that section :.;49(b) of the Act was not meant to apply where the act of expatriation followed erroneous advice of a United States official (Matter of

8-221; Matter of 5—, 8-226). 'lie Service has not contested

this distinction in the past (Matter of 1"—, 8-307), nor do we understand the present motion to take issue with the distinction. While it is

clear that respondent's conduct was not based on erroneous official advice, his situation and that where action was based on erroneous official

advice are similar in that duress is not an element in either instance.

It appears to us that-section 319(b) of the Act requires a distinction to be made between situations in which duress can be offered as

a defense and situat ions in which duress is not an element and that

section 349(h) of the Act has no application to the latter situations.

The pertinent words in section 349(b) of the Act are "to have done

so voluntarily and without having been subjected to duress of any

kind." The general words "to have done so voluntarily," in our

opinion, are limited and qualified by the special words following

(2 Sutherland, Statutory Construction, sec. 4908 (3d ed., 1943)).

We believe this is so because there is no legislative expression of an

intent that an act of expatriatory force performed by a dual national with the necessary residence should be considered a voluntary

act under all circumstances, and that the fact that Congress made

express provision fur the loss of nationality by dual nationals in

section 350 of the Act, 8 U.S.C. 1482, expressly providing that loss

of citizenship could not result except by voluntary action' Further

3 The nature of the duress is not shown in Matter of M—G----, supra; however, the order of November 12, 1957, reZerred to in the case, revealed that

duress was found in the fact that believed she was required to vote

under the laws of Mexico.

4 Exam inati on of the legislative history fails to reveal any clue as to the

Congressional intent in regard to section 349(b) of the Act. The Senate Committee which investigated the immigration system and made conclusions upon

which the Act is based, recommended only that there be a conclusive presumption that one who took an oath to bold employment with a foreign government, did take such an oath, and that there should be a presumption that

an alien who departed from the United States and failed to comply with the

provision of the compulsory service law departed for the purpose of avoiding

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factors considered are the unusual nature of the presumption and

the fact that ambiguity should be resolved in favor of retention of

United States citizenship. We conclude that section 349(b) of the

Act is applicable only in situations where duress could have been

offered as a defense. In the instant case, duress, is not involved;

section 349(b) is, therefore, not applicable.

It is the Service view that section 349(b) of the Act became law

with Congressional knowledge of decisions of the courts which allegedly preclude the possibility of exempting a person who committed an act of expatriation without knowing that he was a United

Vtes citizen. Cases cited express the view that an intent to expatriate is not necessary to bring about expatriation. 5 However,

these cases" unlike the one before us, involve action by persons who

knew they were citizens of the United States when the action took

place, and the latest court to consider the type of situation before

us stated that knowledge of the existence of United States citizenship must exist before a person can voluntarily expatriate himself

(Rogers v. Patokosie,i, supra). We believe we are bound to follow

this ruling.

It is the Service belief that Congressional expressions of desire

to be relieved of problems arising out of dual nationality require

the finding that section 349 (b) of the Act applies here. We believe

the Service reads too much in the fact that Congress s:xpressed its

'concern with problems arising out of dual nationality. As we have

service in the armed forces (S. Rept. No. 1515, 81st Cong., 2d Sess., pp. 74952, 7664)9). The Committee report which accompanied S.2550 restates the

second recommendation (S. Rept. No. 1137, 82d Cong., 2d Sees., pp. 46-47, 49).

The conference report on the bill which became the Immigration and Nationality Act offers no help (H. Rept. No. 2096, 82d Cong., 2d Sees., pp. 127-29).

We are unaware that debate on the bills which became the Immigration and

Nationality Act sheds any light upon the intent of Congress in providing for

the conclusive presumption (for history of law see Besterman, Commentary,

S. U.S.C.A., p. 4).

5 Section 349(b) of the Act had no counterpart in previous legislation. Section 401(31) of the Act of 1940 did establish the presumption that a United

States citizen who acquired foreign nationality through the naturalization of

his parents and who failed to return to the United States by January 13,

1045, would be deemed to have elected to discontinue his status as a United

States citizen. In interpreting section 401(a) of the Act of 1940, the courts

found no expatriation had occurred where the individual's failure to come to

the-United States was due to circumstances beyond his control (Perri v. Dulles,

220 P.2d 250 (C.6. 3, 1056)) or where the failure to come in time was the

result of mistake which stemmed from erroneous information supplied by

officials of the United States (Reef v. Brownell, 116 F. Supp. 298 (D.C. N.J.,

1953)). And, the court held that the period Which one had to return to the

United States did not begin until the individual learned that he had a right

to United States citizenship (Petition of Acchione, 213 F.2d 845 (C.A. 3,

1954)).

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pointed out, Congre s s provided aroundc of expatriation for

dual

nationals which are not applicable to a United States citizen without dual nationality (section 350 of the Act, 8 U.S.C. 1482) and by

a conclusive presumption prevented certain dual nationals from raising a defense available to other dual nationals and to United States

citizens without dual nationality. However, Congress made no effort to eliminate the concept of dual nationality. It would be highly

improper to deprive the respondent of a possible defense merely

because he is a dual national.

The Service expresses the belief that section 349(c) of the Act,

8 U.S.C. 1481(c), which places the burden of proof in expatriation

cases on the one who raises the involuntary nature of conduct as a

defense, is pertinent in determining the Congressional purpose in

establishing section 349(b) of the Act. Section 349(c) of the Act

merely relates to burden of proof and is applicable only when action has been started after September 26, 1961. We fail to see its

relation to the problem before us or how it assists in determining

Congressional intent in enacting eection 349(b) (H. Rept. No. 1086,

87th Cong., 1st Sess., pp. 40-41).

Finding that section 349(b) of the Act does not prevent establishing that an act of expatriation was committed without knowledge of

the existence of United States citizenship, and finding that the establishment of such a fact precludes the conclusion that expatriation

resulted, we believe that proceedings are properly terminated.

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

denied.

BEFORE THE ATTORNEY GENERAL

(May 24, 1962)

The Board of Immigration Appeals, pursuant to 8 CFR 3.1(h) (1)

(iii), has, at the request of the Commissioner of Tmmigration and

Naturalization, referred its decision in this case to me for review.

The issue is one of expatriation. The Board, in agreement with the

special inquiry officer, ordered termination of the proceedings to deport the respondent on the ground that he did not have a visa at

the time he entered the United States in October 1960, holding that

the record failed to establish that he is an alien. The Board's view

is that an act of expatriation has no effect if at the time the act took

place the individual did not know he was a citizen of the United

States. The Commissioner disagrees and points out that the view

of the Department of State is likewise contrary to that expressed by

the Board.

The facts are not in dispute. The respondent who was born in

Cuba on May 31, 1933, acquired United States citizenship upon his

birth through the citizenship of his father. R.S. § 1993.

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The father

died when respondent was 4 years old and respondent did not know

of his citizenship until many years later, in 1959. He had resided in

Cuba continuously until he entered the United States in October

1960. On November 3, 1958, while unaware of his United States

citizenship, respondent voted in a Cuban political election.

Under the provisions of section 349(a) (5) of the Immigration and

Nationality Act of 1052 (8 U.S.C. 1481(a) (5)), a person "who is a

national of the United States whether by birth or naturalization,

shall lose his nationality by . . . voting in a political election in a

foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory . . ." Section 349(b)

provides that a person who commits any act specified in subsection

(a) "shall be conclusively presumed to have done so voluntarily and

v,ithout having been subjedted to duress of any kind, if such person

at the time.of the act was a national of the state in which the act

was performed and had been physically present in such state for a

period or periods totaling ten years or more immediately prior to

such act."

The Board of Immigration Appeals relied on Rogers v. Patolcoski,

271 F.2d 858 (C.A. 9, 1959), which holds, on facts closely similar to

those of the present case, that voluntary acts abroad of voting and

serving in the armed forces of a foreign country did not result in

expatriation where the individual was unaware of his United States

'citizenship. The same rule was applied by the Board in Matter of

C—A—, 9 182 (1961). Compare, Perri v. Dulles, 206 F. 2d 586,

591 (C.A. 3, 1953), and Petitio. n of Acchione, 213 F.2d 845 (C.A. 3,

1954), holding that the two-year period established by section 401(a)

of the Nationality Act of 1940, 54 Stat. 1168, during which a dual

national must return to the United States or forfeit his American

citizenship, did not begin to run until he became aware of his United

States citizenship.

The Patokoski case arose under the expatriation provisions of

section 401(a) of the. Nationality Act of 1940, which did not contain the statutory presumption established by section 349(b) of the

1952 Act quoted above. That presumption is in terms addressed

only to the question whether the asserted act of expatriation was

committed voluntarily or under duress. Hence, it has no application to a case such as the present in which the acts were performed

voluntarily but without knowledge of the individual's United States

citizenship

The Supreme Court has emphasized that, where deprivation of

the "precious right of citizenship" is involved, "the facts and the

law should bo construed as far as is reasonably possible in favor of

the citizen." Nishikawa v. Dulles, 356 U.S. 129, 134 (1958). In the

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fibspnas of clear and compelling statutory language, I am unwilling

to attribute to Congress an intention that the United States citizenship of an individual should be forfeited by reason of actions taken

at a time when he was unaware of his citizenship.

The decision of the Board of Immigration Appeals is approved.

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