Interim Decision #1289
MATTER OF HERNANDEZ
In EXCLUSION Proceedings
A-13013528
Decided by Board June 18,1963
In determining loss of citizenship under section 349(a) (4) (A), Immigration and
Nationality Act, evidence of employment under the government of a foreign
state or a political subdivision thereof should be established by properly
authenticated documents which refer to the pertinent portion of the constitution, laws, and regulations of that foreign state. •
EXCLUDABLE: Act of 1052—Section 212(a) (20) [8 U.S.C. 1182(a) (20)1—Immigrant without visa.
This is an appeal from the order of the special inquiry officer excluding the applicant upon the ground stated above.
The applicant a 40-year-old married male, became a citizen of both
the United States and Mexico at birth. Since 1935 he has lived in
Mexico; he has been working for the Minicipal Water System of Naco,
Sonora, Mexico since 1961. The Service charges that this employment
resulted in the applicant's loss of United citizenship under the provisions of section 349( a) (4) (A) of the Act (8 U.S.C. 1481) which provides that a United States national shall lose his United States 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 … C."
Loss of United States nationality occurs under this section when the
employment is "under the government of a foreign state or a political
subdivision" even though performance of the duties of the employment is not inconcistent with retention of United States nationality
(Matter of Le Couteur, Int. Dec. No. 1146), and even though the
employment is not restricted to nationals of the foreign state• We are
thus faced with the sole issue as to whether applicant's employment is
"under the government of a foreign state or a political subdivision."
• This conclusion is founded on the fact that express language of the predecessor section (section 401(d) of the Nationality Act of 1940, 54 Slat. 1197)
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Interim Decision #1289
The special inquiry officer's finding that the applicant's employment
was under the government of a foreign state or a political subdivision
thereof is based on information from applicant's employer Roberto
Duarte Guerrero, Manager of the Potable Water System, Municipal
Government of Nano, Sonora, Meiico, who on a paper without letterhead and without seal furnished the information, that applicant works
for the system and receives his pay as a pumpman from the Federal
Government of Mexico, that the system is an agency of the Federal
Government of Mexico in the Department of Hydraulic Resources,
and that the system is owned by the Government of Mexico. He also
states that the employees must be Mexican citizens. No reference to
the legal basis for the hearsay opinion given by the manager of the
system is set forth.
We believe the record is deficient. Evidence that the applicant's
employment is under the Government of Mexico or a political subdivision of Mexico should be established by reference to the constitution,
laws, and regulations of Mexico by documents which are properly
authenticated. Proceedings will be ordered reopened for this purpose (See Akiyo Oye v. Acheson,
N.D. Cal. (1953) ;
Teruo Naito v. Acheson, 106 F. Stipp. 770 SI/ Cal. (1952) ) .
ORDER: It is ordered that the proceedings be reopened for the
purpose stated in our opinion and for such further action as the special inquiry officer may deem appropriate.
It is further ordered that the order of the special inquiry officer be
certified to the Board.
requiring the employment to be that "for which only nationals of such [foreign]
state are eligible" does not appear in section 249(a) (4) (A) of the Act. The natural inference of this omission is underlined by following comment made concerning the restriction; by the Senate committee on whose recommendations the
present section was based
This subdivision (section 401(d) of the Nationality Act of 1940] is highly
technical and has been the subject of much discussion and interpretation. Generally, expatriation does not result where.the restriction as to "nationals only"
is not generally enforced. Likewise. if nonnationals are permitted to take such
employment after an official of the foreign state has stated that no nationals are
available, expatriation does not result. It does not apply to those who have
merely applied for employment. where the position is open to nationals only, or to
temporary employment thereafter made permanent, where permanent employment
is restricted to nationals only. The fact that a person may be a national of the
foreign state is irrelevant if the position is open to others than nationals. The
subsection does not, therefore, in many cases, affect dual nationals, and therefore
has been ineffective in making such persons elect American citizenship exclusively. The subcommittee is recommending changes in this subsection which,
is felt, will strengthen the law and make for a determination of citizenship and
an elimination of dual citizenship. … (Footnotes omitted.) (S. Rep. No.
1518, 81st Cong., 2d Bess. 749-450 (1950). )
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