Interim Decision #1244
KUM Or LYONS
In. EXCLUSION Proceedings
A-12737518
Decided by Board September 5, 1962
A native-born citizen who voluntarily voted in municipal elections in Canada,
choosing mayors and other city officials, from about 1938 until about 1954 or
1955, lost her United States citizenship under section 401(e) of the Nationality
Act of 1940 by voting m political elections, since elections to choose representatives of the people for the conduct of the government of a geographical subdivision of a foreign state falls squarely within the purview of the statute.
Trocerrtnentm : Act of 1952—Section 212(a) (20) (8 U.S.C. 1251 (a) (20)3—Immigrant, no visa.
The special inquiry officer has certified. the case, of the applicant to
this Board because of en apparent conflict in rulings by the Department of State and the Immigration and Naturalization Service on the
issue of loss of citizenship by voting in a local election in a foreign
country. The point of controversy is the scope of the term "political
election" as used in section 401(e) of the Nationality Act of 1940 and
section 349 (a) (5) of the Immigration. and Nationality Act.
The applicant was born in Presque Isle, Maine, and is now a widow,
-
14 years old. She resided. in the United States from birth until 1937
in which year she married a Canadian citizen and took up residence
with him in Canada. Her husband died there in the fall of 1961 She
subsequently applied for admission as a United States citizen destined
to live with her daughter in New Hampshire. She is not in possession
of an immigrant visa or other valid travel document.
The applicant's testimony indicates that she has performed no act
of an expatriating nature other than her several acts of voting in
municipal elections in. Canada. She states that she did not vote in
any national or provincial elections because her husband never voted in
those elections. She stopped voting in municipal elections when her
husband became disabled. The elections in which she participated
ohoso mayors and other city officials.
Prior to her application for admission to the United States, the
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Interim Decision #1244
applicant inquired at the American Consulate at St. John, New Brunswick, about her United States citizenship. She informed the Consulate that she intended to come to the United States to live with her
daughter. In. connection with her inquiry, she completed a questionnaire in. which she admitted. that she had voted at Fredericton, New
Brunswick, in municipal elections.
The applicant's documents were returned to her in an envelope of
the American Consulate, St. John, New Brunswick, along with an
unsigned note stating that it appeared from the information presented
that she is a citizen of the United. States and suggesting that she communicate with the Immigration and Naturalization Service for requirements to prove her United States citizenship.
During the hearing before the special inquiry officer the applicant
admitted that she voted in municipal elections at Fredericton, New
Brunswick, from about 1938 until about 1954 or 1855. She further
admitted that she voted voluntarily. The special inquiry officer concluded that she has expatriated herself under the provisions of section
401(e) of the Nationality Act of 1940 and therefore, as an immigrant
not in possession of proper documentation, is excludable from the
United States.
The Service Representative during oral argument before this Board
submitted a letter dated January 11, 1960 from the Passport Office of
the Department of State to the Commissioner in another case. The
letter requested. the Service to disregard two certificates of loss of nationality which the Department of State had approved under the provisions of section 401(e) of the Nationality Act of 1940, based upon
acts of voting in a municipal election in Saskatchewan, Canada.
The letter states that in view of the comments of the Supreme Court
in the case of Perez v. Brownell, the Department of State requested
the American Consulate at Winnipeg to make , a further investigation
of that election. The Consulate's report showed that the Canadian
authorities had stated the municipal election in question was not of
a political nature in any sense, since it was not campaigned along
any political line and was conducted on a strictly municipal basis
involving only local municipal issues. On these further facts the
Department of State reversed its decision of expatriation.
As the Service Representative has noted, the record in the instant
case does not reflect whether the facts pertaining to the elections in
which the applicant participated would cause the officials of the Department of State in Washington to support the action of the consular
officer at St. John, New Brunswick, or whether that officer acted independently in the matter. Apparently, however, the unsigned. communication to the applicant from the consulate indicating that she still
possessed United States citizenship was based upon. a conclusion that
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Interim Decision #1244
those elections were not "political elections" within the meaning assigned to that term by the Department of State.
This Board has previously ruled that voting for an alderman in
a municipal election in Ontario, Canada, was voting in a political
election within the meaning of section 401(e) of the Nationality Act
of 1940, Matter of P. ,118nN. Dec. 267. In that case we concluded
—
that the term "political" is used in that section in the broad sense of
"governmental" or "public," as distinguished from "private."
We later considered whether a local election in Canada to determine
whether the sale of beer and wine should be under the provisions of
the Liquor Control Act was a political election within the meaning
of that same provision of law, Matter of F—, 2 I.&N. Dec. 427. The
majority of the Board indicated its belief that Congress employed
the word. "political" in its sense of that which is done pursuant topolitical affiliation, but decided that the election was a referendum or
plebiscite and not an "election," political or otherwise, as the term
.
is employed in section 401(e) of the Nationality Act of 1940
In that case there was also a communication from the Department
of State. Richard W. Flournoy, Assistant Legal Adviser, commented
to the Board, "in my opinion a local election of the kind mentioned
does not come within the statutory provisions in question and is not
to be regarded as a 'political election.' I have discussed the matter
with other members of the office, and this appears to represent the
consensus of opinion."
The case also referred to a prior ruling of the Department of State
that the test whether American nationals who voted in. municipal elections in Chile lost their American nationality depended upon whether
the elections were properly to be denominated political elections, that
is, whether political issues were involved or the campaigns waged
alo
ng political lines between candidates of opposing political parties.
The Chairman and one member of the Board dissented, arguing
in favor of a. broader interpretation of the word "political," and the
case was certified to the Attorney General. That officer, noting the
conflicting opinions, the majority of the Board and the Legal Adviser
of the Department of State on one side and the Commissioner of
Immigration and Naturalization and a minority of the Board on the
other, reversed the Board's decision.
We have subsequently in considering local elections given a broad
interpretation to the term "political election," in line with the Attorney General's opinion. Matter of R R , 3 I. & N. Dec. 890;
— —
Matter of M—G—, '7 I. & N. Dec. 665 ; Matter of Int. Dec.
1182, Nov. 20, 1961. Matter of M—C-- involved prior voting in a
national election as well as voting in a municipal election in Mexico,
but we considered both expatriating in nature.
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It appears the Department of State has until recent years interpreted the term "political election" broadly, modifying the view which
it expressed in Matter of F—, supra, possibly due to the Attorney
General's opinion in that case. The letter of January 11, 1960, referred to above and certain judicial deeisions involving local elections
so indicate. In at least three cases the Department of State held
that voting for a mayor in Italy resulted in expatriation. The Circuit
Court of Appeals for the District of Columbia upheld the Government
stating, "There can be no serious dispute that a mayoralty election
is a 'political election' in any ordinary and reasonable meaning of the
phrase, and we must assume--nothing to the contrary appearing—
that Congress used the language in its usual sense." The court further said that if the election is "political," its scope, local or national,
is immaterial and cited Matter of P—, supra, with approval. Bisceglia
v. .Acheson, 196 F. 2d 865 (C.A.D.C., 1952). One of the other cases
was decided adversely to the Department of State on the issue of
voluntariness of the voting, but did not question whether the election
was a "political election" within the meaning of the statute. T omasicchio v. Acheson,
98 F. Supp. 166 (1951). The third case upheld
the Department of State's decision that expatriation had occurred.
Seavonev. Acheson,
103 F. Supp. 59 (1952) .
Voting in a local primary election for mayor of a city in Mexico has
also been held to, be expatriating. Miranda v. Mark,
180 F. 2d 257
(CA. 9, 1950). A person who voted first in local elections and then
in national elections held in 1946 in Italy was expatriated on the
authority of Bisceglia v. Acheson, Longobardiy. Dunes,
204 F. 2d 407
(C.A. D.C., 1953).
Other cases involving local elections held in occupied Germany following World War II have gone off on the question whether they took
place in a "foreign, state" within the meaning of the statute, but did not
question whether the elections were "political." Brehm v. Acheson,
90 F. Supp. 662 (1950) and In re Riedner,
94 F. Supp. 289 (1950).
The term "political election" for the purposes of section 401(e) of
the Nationality Act of 1940 has been defined judicially as the Act of
choosing by vote a person to fill an office, which office pertains to the
conduct of government, Kuwahara v. Acheson,
96 F. Supp. 38 (1951) ;
Moldoreanuv. Dulles,
168 F. Supp. 1 (1958) .
The current position of the State Department appears to be based
upon dicta with reference to the term "political election" in the decision
by the Supreme Court in Perez v. Brownen,
356 U.S. 44 (1058). The
Court said that that description carries with it the scope and meaning
of its context and purpose; and that classes of elections—nonpolitical
in the colloquial sense —as to which participation by Americans could
not possibly have any effect on relations of the United States with
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another country are excluded by any rational construction of the
phrase. Supra at 59, 60.
The Court was not concerned with a local election in Perez. A footnote to the majority opinion reflects that the petitioner did not object
to the characterization of the election in which he voted as a "political
election," and that in oral argument counsel for the petitioner expressed
his understanding that the election was for Mexico's president. The
scope intended by the Court in its expressions, "nonpolitical in the colloquial sense" and "as to which participation by Americans could not
possibly have any effect on the relations of the United States with
another country" is not entirely clear.
There is no indication that the court contemplated that all local
elections should be excluded, thereby overruling the Biseeglia and
Miranda cases. Neither the majority nor any of the minority opinions
discussed or cited those cases.
The majority said the successful conduct of international relations
may be jeopardized "when the citizen of one country chooses to participate in the political or governmental affairs of another country."
(Emphasis supplied) 356 U.S. at 59. The Court concluded that Congress had provided, without exceeding its Constitutional powers, that
anyone who votes in a foreign election of significance politically in the
life of another country shall lose his American citizenship. Supra at
62. There is no reason to suppose that the Court did. not here use the
term "significance politically" to encompass "governmental affairs,"
as it had previously indicated.
The Chief Justice, joined by Justices Black and Douglas, dissenting,
referred to both Matter of P— and Matter of F—, supra. The reference to Matter of P—, appears to be unfavorable, although the opinion
does not indicate whether the Chief Justice actually disagreed with the
decision or merely considered it an extreme example of conduct which
would result in loss of nationality. The dissenting Justices did not,
however, appear disturbed by the fact that Matter of P—, involved a
local election for an alderman, noting, however, that that election was
open only to British subjects.
The applicant is also a British subject, or at least she was at the time
the voting in question took place. The evidence in this case does not
indicate whether the elections in which the applicant voted required
the possession of British or Canadian nationality. The special inquiry
officer's decision, however, indicates that property owners and taxpayers were expected to vote.
The Seamone case contains an indication that at least one political
party was involved in the particular election covered by the case, the
administrative election of March 81, 1916, at Guardia Lombardia,
Italy. BiscegLia and Tomasiechio also involved elections for mayor
Interim Decision #1244
during March 1946 in other communities in Italy, but did. not specifically indicate any activity by political parties. The opinion in
Miranda v. Clark indicates there was e, contest between parties. The
candidates in the elections involved in the Brehm and 1?ianer cases
appear to have represented political parties. None of these cases,
however, indicates that the presence of political parties in the elections
was at all determinative of the outcome of the case or that such presence is a necessary ingredient of the term "political election."
Moreover, the limited reference to Matter of P— in one of the dissenting opinions in Perez is not an indication that the election must
be open only to those possessing the nationality of the country in
question, in order for expatriation to occur. In fact the legislative
history indicates otherwise. A suggestion to so restrict section 401(o)
was rejected. Hearings on H.R. 6127 before House Committee on
Immigration and Naturalization, 76th Cong., 1st Sess., 398, 490, 491.
The majority and minority opinions in Perez contain numerous
references to the effect that elections conforming to the statutory purpose should bear sonic connection withthe relations between the United
States and the other country, or that participation by United, States
nationals in the elections should otherwise be in derogation of their
allegiance to the United States. These references present imprecise
standards, however. The Department of State's reliance in its letter
of January 11, 1960, on the lack of a campaign along political (presumably partisan) lines, the strictly municipal basis of the elections
and the exclusively local municipal issues encounters the same
difficulty.
Doubtless the consular officer relied on a similar test in. the applicant's case, unless he considered that all muncipal elections are excluded from the operation of the statute.
It is not always apparent what local elections, or local issues, have
political significance in the life of another country. The distinction
certainly cannot be made on the basis that they are "local." Local
questions, or personalities today, may become national, or international, issues or figures tomorrow. An election for the mayor of West
Berlin, for example, would without question have an immediate effect
on our relations, not only with Germany but with other countries.
Other situations may be much more subtle, however, and their effects
only apparent over a long period of time. Moreover, the foreign relations of the United States do not not only involve high-level policy
matters and headlines. They include the day to day negotiations
between governments in behalf of individuals. The effect of individuals' actions in this area are even more elusive.
The Court itself in Perez recognized the vagueness of its suggested
standards for determining "political" elections when it said that spe-
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cific applications are open to judicial challenge, as are other general
categories in the law, by a "gradual process of judicial inclusion and
exclusion," citing Davidson. v. New Orleans, 90 U.S. 97, 104 (1878).
356 U.S. at 60.
In the absence of any judicial decision defining more clearly a requirement that any election coming within the purview of the statute
must be political in the sense that it is likely to affect the relations
between this country and the country concerned, we do not feel called
upon to make such a determination here. We believe, however, that
participation in foreign elections of a purely local character may well
be inconsistent with allegiance to this country, and that in many such
elections the repercussions may be unfavorable to the United States.
We doubt that Congress contemplated that each and every election be
analyzed from the point of view of its effect on our foreign relations,
especially since that effect may be extremely difficult, or impossible
to ascertain at or about the time of the election_ Cf. Biseegna v_
Acheson, supra.
Factors in elections such as the nature of the issues involved, their
possible effect on the foreign relations of the United States, the administrative and controlling bodies, the presence or absence of support of certain issues or candidates by political parties, may be relevant and material, individually or in combination, in determining
whether some elections are "political" for purposes of the statute.
We do not attempt to rule here for all the different types of elections
of a public nature.
Wo hold, however, the elections to choose representatives of the
people for the conduct of the government of a geographical subdivision of a foreign state fall squarely -within the purview of the
statute. Therefore, the absence in this record of evidence delineating
the factors set forth above is immaterial.
The Attorney General's ruling in Matter of F—, supra, occurred
early in the history of the statutory provisions covering expatriation
by voting in foreign elections, and was somewhat tentative. It is
clear, however, that the meaning with respect to local elections which
has been given to the term "political election" by the Attorney General, and subsequently by this Board, is also the meaning attributed
to that phrase by the only courts which have directly considered the
question. Our review of the law leads us only to the conclusion that
the elections in which the applicant participated were "political" in
the colloquial sense. We find nothing in Perez, even as dicta, which
induces us to conclude otherwise. We consider that the decisions of
the courts of appeals in BiesegZia v. Acheson, decided in this circuit,
and in Miranda v. Clark are controlling in. this situation.
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The Service takes a firm position that the view of the Department
of State is contrary to the law on the point considered here. The
Service Representative in oral argument has referred us to Biseeglia
v. Acheson and EutvaTiara v. Acheson, as well as the prior precedents
of this Board, and argues that Peres does not alter them. We strongly
concur.
The difficulties in which this 74-year-old, ill widow finds herself
stem solely from the conflicting interpretations which the two Government agencies place upon section 401(e) of the Nationality Act
of 1940 and its successor, section 349 (a) (5) of the Immigration and
Nationality Act. The facts were made available equally to both
agencies. There is little doubt that if the consular officer had considered the applicant expatriated, she would have qualified readily
for an immigration visa and been found admissible by the Service.
While noting the many decisions relating to expatriation which
indicate that factual doubts should be resolved in favor of the individual, and the law construed as far as is reasonably possible in his
favor, we hold that the law and the facts in this.case. are clear and
necessitate a ruling that the applicant has expatriated herself. The
order of the special inquiry officer will be affirmed.
ORDER: It is directed that the order of the special inquiry officer
be and is hereby affirmed.
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