SANCHEZ

Interim Decision -#1471




                              Mamma or Simon=
                          In Exclusion Proceedings
                                   A 14267096
                                     -




                      Decided by Board June 8,1985
Anuellee. a United States citizen who believes she voted in an election in Mexico in 1904, did not expatriate under section 349(a) (5), Immigration and
 Nationality Act, since under section 849(c) of the Act, as amended, the government has the burden of proof of citizenship loss by a preponderance of the
 evidence and the burden has not been met when a certification by the Municipal President of the•City of Huanusco, Mexico, states that a search of the.
 1964 voters' records fails to reveal any evidence that appellee voted in any
 of the 1964 elections.

MCCILT/DABLE Act of 1952—Section 212(a) (20) (8 U.S.C. 1182(a) ( 20)1—Imml-
             :

                          grant without visa.


  The appellee is a 09-year-old married female, born in the United.
States on January 3, 1926. The issue is that of loss of United.
States citizenship under section 349(a) (5) of the Immigration and
Nationality Act' The special inquiry dicer found that she has not
lost her United States citizenship and ordered that she be admitted_
to the United States. The trial attorney appeals from this decision..
The appeal will be dismissed.
  Appellee lived in the United States from the time of her birth in
1926 until she returned to Mexico with her parents in 1938. She was
one of 12 children, and testified that the eight oldest were born. in
the United States. ,She was married at the age of 15, and is the
motherin ten children. She is, apparently, barely abled. to read an
write in Spanish. She stated that she went to school in the United
  'Immigration and Nationality Act, sec. 349(a) From and after the effective.
date of this Act a person who is a national of the United States whether by
birth or naturalization, shall lose his nationality by . . . (5) voting in a political election in a foreign state or participating in an election or plebiscite to.
determine the sovereignty over foreign territory.

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States as a child, and when she left this country had some fluency
in the English language. She has been living on a small farm with
her husband and children many miles from Huanusco. She had
never voted in Mexico until last yeax, but she stated that In July
1964, shortly before the election here in question, the "commissar"
visited their village and told the women of the town that they must
vote, that it was their duty and obligation to vote. She said that
they were told also that in order to travel to the United States they
would all have to vote. She testified that he came to her house, but
that she was sick in bed, and he delivered the inc,c.age through one
of her children. She testified. that one of her children was seriously
ill, and she traveled on. the voting day to the town with her child
by mule back, took the child to the doctor, presented her voter's
registration at the voting booth, voted, and immediately returned to
her home. She testified on several-occasions that she voted on that
day, and that it was the 'only time she voted. She testified 'atio
(p. 11) that there was "a lot of commotion going on around that the
election was crooked." Appellee is articulate and her responses were
complete.
   Apparently appellee sent for her Mexican voter's certificate but
did not receive it. In lieu of this document she presented (Ex. 6)
a letter from the Municipal President of Huanusco certifying that
this official had searched the voter's records for 1964 and had been
unable to find any evidence of her having voted in any of the 1964
elections. Exhibit 6 is signed. by "the presiding official" of the City
of Huanusco, Zacatetas, Mexico, and states, "That having searched
the voting registrations, Federal, State and City, the name of Maria
Dolores Garcia Viramontes' de Sanchez, a resident of rancho Guatemala of this city does not appear. These voting records cover the
Presidential, State Gubernatorial and City elections." Appellee
stated that she has known all her life that she was a United States
citizen (Ex. 5, p. 2, sworn statement, January 13, 1965), and also
that everyone in the community knew that she was a 'United States
citizen (p. 10, record.).
   The special inquiry officer found that the proof of appellee's
foreign voting is too ambiguous to sustain a conclusion of her expatriation under section 349(a) (5) of the Immigration and Nationality Act.. He stated that the evidence that she voted in. a political
election in Mexico must be clear, convincing and unequivocal, citing
cases, and that the Government carries the heavy burden of proof of
establishing a knowing, complete and voluntary act of expatriatiOn.
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The Board believes that the special inquiry officer applied the
wrong standard of proof in the light of se,ction . 319(c) 2 added to
the Immigration and Nationality Act by the Act of September 26,
1961, but that his conclusion was correct that the record does not
establish expatriation. The special inquiry officer cites GonzalezJane v. Rogers, •264 F. 2d 584 (D.C. Cir. 1959), which held that
uncorroborated admissions, later repudiated, are insufficient to de- .
                                                                       priveasonfhctzip.TeourlacdnthGvement the burden of proving the act' of expatriation by '"clear, unequivocal and convincing" proof, the same standard of proof required for revocation of naturalisation. Reacting to Gonsaboo jasso,                         -


Congress criticized the application of this standard of proof in proceedings affecting loss of citizenship, as distinguished from proceedings for revocation of naturalization. Congress indicated that the
burden of prod in loss of citizenship cases should be merely "the
preponderance of the evidence" and, accordingly, added section
349(e) to the Immigration and Nationality Act. House of Representatives Report No. 1086, 8Ttb. Cong., 1st Bess., pp. 40 and 41, to
accompany S-2237. Therefore, when it is claimed that a dual national lost United States nationality, the Government must establish
this claim by a preponderance of the evidence only. However, we
believe that even under this amended burden of proof, the Government has not established the alienage of this appellee and that she is,
therefore, not excludable as charged. Appellee stated that she was
incorrectly informed by a loc;I politician that it was her duty to
rote, and she had to vote in order to protect her United States citizenship. She believed that she voted, but Exhibit 6, the voters'
record, declares that appellee's name -was not on the list of voters.
Thus, there is no preponderance of the evidence.
 There is no reason on this record to disturb the order of the special

  'Immigration and Nationality Act, sec. 349(c), added by sec. 19 of the Act of
September 26, 1961 (75 Stet. 858) : Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after the
enactment of this subsection under, or by virtue of, the provisions of this or
any other Act, the burden shall be upon the person or party claiming that such
loss occurred, to establish such claim by a preponderance of the evidence.
Except as otherwise provided in subsection (b), any person who commits or
eerforms. or who has committed or performed, any act of expatriation under
the pro:visions of this or any other Act shall be presumed to have done so
voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were
not done voluntarily.

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inquiry officer that appellee be admitted to the United States as a
citizen thereof. The appeal of the Immigration and Naturalization
Servile will be dismissed.
   ORDER; It is ordered that the appeal be and is hereby dismissed.
  It is further ordered that the order of the special inquiry officer
of February 15, 1965 be and is hereby affirmed.




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