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
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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,
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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
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 a
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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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