BECHER

    Interim Decision #1771




                                 MATTER OF BECHER

                             In Exclusion Proceedings

                                      A-13466018

                      Decided by Board March, 03, 1965
                Decided by Attorney General August 1, 1967

    In the absence of substantial evidence that applicant, a dual national of the
      United States and Canada, "voluntarily relinquished" her United States citizenship (AfroViln v. Rusk, 

 (1967)1, she did not lose her citizenship
      under the provisions of section 349(a) (4) (A) of the Immigration and Nationality Act, as a result of her employment as a public school teacher in Canada,
      while a national of that country.
    &UM:MAINZ: Act of 1952r--Section 212(a) (20) 18 U.S.O. 1182(a) (20)3—Immigrant without immigrant visa.


                                BEFORE THE BOARD


   The applicant applied for admission as a United States citizen; she
 has no documents authorizing her admission as an immigrant. The
 special inquiry officer, finding that she had lost her citizenship by
-working in Canada, excluded her and certified his order to the Board.
 Applicant contends she is a citizen of the United States. No change in
 the special inquiry officer's order will be made, but the case will be
referred to the Attorney General for review.
   The applicant, born in the United States on December 11, 1919,
married a native of Canada on February 13,1941; she was admitted to
Canada for permanent residence on June 2, 1944. For a substantial
part of the time from 1955 to 1962, the applicant was a public school
teacher in the Province of Ontario, Canada. In January 1962, entering
as a United States citizen, she resumed residence in the United States;
her husband was admitted for permanent residence on June 17, 1964.
Returning from a visit to Canada on August 23, 1963, applicant attempted to enter as a United States citizen; the fact of her employment
in Canada was learned, and these proceedings arose.
   The special inquiry officer found that applicant had lost United


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 States citizenship by reason of the provisions of section 349(a) (4) (A)
 of the Act (8 U.S.C. 1481 (a) (4) (A) ) which in pertinent part provide
 as follows :
    Section 349. (a) From and after the effective date of this chapter a person
 who is a national of the United States whether by birth or naturalization, shall
 lose his nationality by—
        (4) (A) accepting, serving in, or performing the duties of any ante, post,
     or employment under the government of a foreign sate or a political subdivision thereof, if he has or acquires the nationality of such foreign state;
     •
The issues presented by the record are whether (1) applicant has
Canadian nationality, (2) applicant has been employed under a political subdivision of Canada, and (3) applicant's employment as a
teacher comes within the statute.
   The record establishes that applicant had Canadian as well as
United. States nationality when she accepted employment in September 1905 as a school teacher. The special inquiry officer, setting forth
the pertinent laws and correctly applying them, has shown that the
applicant's husband was a British subject, but not a Canadian citizen
at the time of his birth, that the applicant became a British subject by
marriage on February 13, 1941 (Er. 3-R), that on January 1, 1947, the
applicant's husband became a citizen of Canada (Er. 4-R, Canadian
Citizenship Act of 1946 (R.S.C. 1EF.52, c. 33), Part I, sec. 4(1) (a) ), and
that by operation of law, the applicant became a citizen of Canada as
of June 2, 1944, the date of her lawful admission to Canada for permanent residence (Canadian Citizenship Act, eupra, Part II, subsections (1) (d) and (2) (d) of sec..9) ; this automatic naturalization did
not result in her loss of United States citizenship (see Matter of TV—,
3 I. a., N. Dec. 107).
   The question now is whether the applicant was employed by a foreign state or a political subdivision of Canada. In Matter of L—, 

, we held employment as a public school teacher by the
Public School Bo'ard of London, Ontario, Canada avas such employment; however, the answer to the question must be based upon the
evidence of record before us (see. 236 of the Act, 8 U.S.C. 1226).
  Mr. A. W. Bishop, Assistant Superintendent, Registrar's Branch of
the Department of Education, Ontario, Canada stated in an official
letter dated August 7, 1964 (Er. 6-R) :
  We do not consider that a teacher in the Public Schools of Ontario is performing duties of any canoe, post, or employment under the Government or the
Province of Ontario or the Dominion of Canada.
Mr. Bishop's statement is not determinative of the question : Judgement as to the nature of the employment must be made by the United

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Interim Decision *1771
 States authorities to whom Congress has entrusted the responsibility;
 the statement leaves open the question as to whether the applicant was
 employed by a political subdivision; and finally, it gives no convincing
 reason for the conclusion stated.
   While Congress has not defined the words "political subdivision"
 for the purpose of the immigration laws, in definitions for other purposes Congress gave the term a meaning broad enough to bring within
its compass any instrumentality or organization of the state (26 U.S.C.
3121(j) (4) (C) ; 43 U.S.C. 617k) ; and judicial interpretations bring
within its compass "bureaus or corporations which are government
owned and controlled" (Sawed& v. United States, 343 'U.S. 717, 729
 (1952) ) and divisions of a state, made by the state for the purpose of
using public funds to carry out functions which are commonly regarded as public (Comenissicmer v. Shantherg's Estate, 

 (2d Cir. 1944) ; 30 Op. Atty. Gen. 252 (1914) ).
   These definitions are broad enough to require the finding that the
applicant was working for a political subdivision of Canada. To teach
in Ontario one must hold a certificate issued by the Department of Education of the Province of Ontario; applicant had such a certificate.
Teaching positions are contracted directly with local school boards.
Applicant's first (and major) employment was with The Public
School Board of School Section No. 11 of the Township of Westminister in London, Ontario. This Board engaged her to teach in a
rural public school, paid her salary, and had the power to terminate or
continue her contract. Members of the board are elected ; they are
constituted by the Public, Schools Act; they receive their money from
local taxation and from grants made by the Ontario Department of
Education. Public school teachers pay contributions to a, retirement
fund (Teachers' Superannuation Fund)—a provincial fund administered by a Commission of the Province of Ontario; the teacher's
payment is six percent of her salary; the Province of Ontario contributes six percent. Contracts with teachers cannot be broken without
reasons being given, and every teacher has the right to appeal through
an agency set up by the Province of Ontario. The teachers and school
boards carry on under the Department of Education Act, and various
school acts and regulations. We believe the record satisfactorily establishes that the .school board which is set up by the Province of
Ontario and uses tax money for a public purpose is a political subdivision of the Province.
  To determine whether or not the occupation of a public school
teacher is within the statute of expatriation, we must consider the
meaning of the phrase "office, post or employment" and then determine
whether the mere holding of an occupation coming within the phrase
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  will result in expatriation or whether only the holding of an occupation, the duties of which exclude allegiance to the United States can
  result in expatriation.
     The combination of words "office, post or employment" commonly
 appear as classifications of occupations held by public employees; in
 this area, each word has gained a recognized meaning. "Office" covers
  occupations in which sovereign powers are exercised and the duties
  are prescribed by law; "post" covers occupations involving nonpolitical functions; and "employment" covers occupations of less importance, dignity or independence where the work is performed under
  close supervision, the duties can often be changed at will, and the
  employee is often subject to summary discharge (United States v.
 &Merit°lz, 

, E.D. Ark (1905) ; Gain v. United State's, 

, N.D. Ill. (1947) ). Congressional use here of the
 phrase "office, post or employment" indicates that the broadest description of occupations was intended: this description would include public
 school teaching.
    We may now consider whether taking or holding an occupation
 need be inconsistent with retention of allegiance to the United States
 to result in expatriation. It is our conclusion that such a requirement does not exist. An act performed with intent to give up allegiance
 would not result in loss of United States citizenship unless the act
 was one which Congress specifically made a ground of expatriation; on
 the other hand, the mere performance of an act specifically made a
 ground of expatriation, results in loss of citizenship regardless of
 intent (Perez v. Brownell, 

 (1958) ). Since actual intent
 to give up allegiance is not material and since the range of occupations included under section 349(a) (4) (A) runs from the highest
to the lowest, it would seem to follow that the mere doing by a dual
national of what Congress specifically made a ground of expatriation—here, the taking of an occupation under the government of his
foreign nationality, would result in expatriation.
    In a similar situation providing for loss of nationality by naturalized aliens residing abroad, the Court held that the Congressional
plan provided that the mere doing of the act proscribed, regardless
•of intent and regardless of whether it was inconsistent with retention
 of allegiance to the United States was to result in expatriation
,(Sohneider v. Busk, 

 (1964) (declaring section 352 of the
Act (8 U.S.C. 1484) unconstitutional) ).
    Historically, the question of allegiance was not a factor in deciding
cases involving loss of citizenship from employment. Without discussing the question of intent or the relation of the duties to the re-


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Interim Decision #1771
tention of allegiance to the United States, the following occupations
were expressly or by implication considered expatriating : 1
     postal employee (Mexico) 2
     member of agricultural guild (Italy) 3
     paymaster's assistant (Japan) 4
     engineer on ferry boats (Japan) 5
     policeman (Mexico) 6
     public school teacher (Japan) 7
     school board member (Canada) 8
     stenographer (Canada)°
     2d mate on merchant ship (Norway) '°
     pumpman municipal water system (Mexico) 11
  By way of dicta two cases opposed the tenor of the cases previously
set forth: In Kenji Kamada v. Dulles, 

 (N.D. Cal.,
1956), teaching from 1941 to 1949 in a primary school operated by a
Japanese municipality was by way of dicta held not to be the type of
occupation condemned, since performance of the duties was not inconsistent with retention of allegiance to the United States. Insogna v.
Dulles, 113 F_ Supp. 473, D.C., D.C. (1953), involved the question of
whether Insogna had been expatriated because of her employment by
the Bureau of Vital Statistics in Italy. Insogna contended that the

     Most eases were decided under the predecessor section which was more restrictive in that it required the occupation to be open only to nationals of the
foreign country (section 401(d), Nationality Act of 1940, 54 Stet. 1168). To
"strengthen the law and make for a determination of citizenship and an elimination of dual citizenship" (S. Rep. No. 1515, 81st Gong., 2d Sess. 749 50 (Iwo),
                                                                     -


the predecessor section was revised to eliminate the requirement that the occupation be open only to nationals of the foreign state and to make it sufficient
that the dual national had the nationality of the country which employed him.
It would, therefore, appear that the same views would be taken today.
   ° Fletes-Mora v. Rogers,

 (S.D. Cal., 1958).
  9 In re Torchia, 

 (N.D. Pa., 1953).

  4 Teruo Naito v. Aaeson, 

 (S.D. Cal., 1952).

  o Minoru Furuno v. Acheson,

 (S.D. Cal., 1952).
  "Blizarraraz v. Brownell, 

 (9th Cir., 1954) ; Matter of M—P--,

; Stiing, v. Dulles, 

 (3d Cir., 1956) (auxiliary
policeman, Italy).
     Dulles v. Katamoto, 

 (9th Cir., 1958) ; Aki1lo Oye v. Acheson,

 (N.D. Cal., 1935) ; Matter of Z—, 

 (Israel) ;
Matter of L—, 

 (Canada): Matter of t7—, 4 L & N. Dec. 521
(Italy): Matter of 2—P—, 2 I. & N. Dee. 57 (Mexico) ; Matter of 2—, 1 I. & N.
Dee. 304 (Canada ).
  o Matter of .2—, 2 I. &. N. Dec. 60.
  °Matter of W—, 2I. &N. Dec. 231.
  "Matter of L—, 

.
  "Matter of Hernandez, Int. Dee. No. 1289.

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 employment was not employment as is contemplated by the statute
 and that she had taken the job under duress. The court decided the
 case on the theory that duress was present; however, without specifying the reasons, the court did state that the case raised grave doubt
 as to whether Insogna had technically placed herself within the framework of the statute.
   In holding that section 849(a) (4) (A) does not call for inquiry into
 whether the requirements of an occupation are inconsistent with the
 retention of United States citizenship, we realize that a question as to
 its constitutionality will arise; however, matters of constitutionality
 are not within our jurisdiction. It is our function to interpret the
 intent of Congress; we can find nothing in the history of the Act
which indicates that it was the intent of Congress that only an occupation whose duties are inconsistent with retention of allegiance to the
United States was to result in expatriation.. We also realize, having
been so informed by the Service representative on several occasions
when similar cases were before us, that the Department of State has
taken the position that teaching in a state-operated school system is
not the holding of an occupation which will bring about loss of United
States citizenship under section 849(a) (4) (A). We are, however, not
 aware of the basis for this conclusion..
   The applicant contends that her employment was under duress of
economic pressure since her husband's income was inadequate for the
family's needs. The contention must be dismissed. First, we do not
believe the defense of duress is available to the applicant. Section
349 (b) of the Act (8 U.S.C. 1481 (b) ) provides a conclusive presumption that an act was voluntarily done, if at the time of its doing, the
doer was a national of the state in which the act was done and had
been physically present there for ten years or more immediately prior
to the act. The section applies to the applicant: She was employed in
Canada for periods from September 1955 to December 31, 1962; she
lived in Canada for the greater part of the.period from 1988 to 1962;
any employment she took or held after she had been physically present
in Canada for ten years requires the application of section 349 (b) of
the Act. The record is not clear as to the total physical presence in
Canada from 1988, but it does show that in the more than 18 years
between June 1944 and December 1962, even taking into consideration
the fact that applicant spent up to six months in the United States
when her children were born, she was physically present in Canada
about three fourths of the time. In the period from June 1944, two
children were born (about 1946 and 1947). Giving applicant credit
for being physically present in Canada for four months in 1955, six
months in 1046, six months in 1947, and nine months in each of the

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 remaining years of the period, it can be seen that by the end of 1959,
:applicant had over 130 months of physical presence in Canada, or
 well over the ten years of physical presence specified in section 349 (b)
of the Act. Applicant was employed for ten months in 1960; clearly
then, when applicant took employment in 1960 she called the provisions
 of section 319 (b) of the Act into operation.
    Furthermore, even if the defense of duress was available to applicant, we would 'hold that she had lost United States citizenship. The
 applicant's loss of nationality was put in issue when she applied
'for admission on August 23, 1963; if the claim of duress could be
litigated, the law would impose a presumption that applicant taught
 voluntarily, and place upon her the burden of showing by a preponderance of the evidence that she had not taught voluntarily (section 349(c) of the Act, 8 U.S.C. 1481(c) (Supp. IV) ; Matter of
 P-1?--, 9 L & N. Dec. 578). Applicant cannot satisfy this burden. She
claims that she began to work in 1955, because her husband could not
•adequately support the family whose needs were great, for they were
buying a house, had small children, and had heavy medical bills. She
also claimed that ther husband's income came irregularly and to
 prevent a "feast or famine" situation she went to work 50 that a steady
 income could be counted upon (p. 35). However, at that time her
 husband, a real estate salesman, had an income of from three to six
thousand dollars a year (p. 36). It is true that the income was irregularly received,, however, we do not believe that this fact or the size
of the income is sufficient to permit a finding that applicant has borne
her burden of establishing economic duress.
-


    The Service has established by a preponderance of evidence that
applicant expatriated herself under section 349(a) (4) (A) of the Act
by taking employment as a public school teacher in Canada.
    Since our interpretation of section 349 (a) (4) (A) is in conflict with
the interpretation of the Department of State, we shall, in accordance
with the provisions of 8 Ont 3.1(h) (1) (ii), refer the case to the Attorney General for review.
   ORDER: It is ordered that no change be made in the order of the
-special inquiry officer.
   It is further ordered that in accordance with the provisions of 8
CPR 3.1 ( h) (1) (ii) this case be referred to the Attorney General for
review.
                  BEFORE THE ATTORNEY GENERAL
  The Board of Immigration Appeals referred to the Attorney General for review, under 

(h) (1) (ii), its order of March 23,
1965, affirming an order of the special inquiry officer for exclusion on

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the ground' that the applicant is an alien who did not have an immigrant visa. The applicant, who was born in the United States, contends that she is a United States citizen.
  The special inquiry officer and the Board of Immigration Appeals
found that she lost her United States citizenship by her employment
as a public school teacher in Canada, while a dual national of that
country, under section 849(a.) (4) (A) of the Act, 8 T.J.b.:C. §1481.(a)
(4) (A), which provides in pertinent part:
      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-
                                            •                                 •
       (4) (A) accepting, serving in, or performing the duties of any office, post,
    or employment unner tne government of a foreign state or a political subdivision thereof, if he has or acquires the nationality of such foreign state • • •.
 The particular question on which the Board sought review is whether
 public school teaching is a type of "employment under the government of a foreign state or political subdivision thereof" within the
 statute quoted above. The Board had answered this question in the
 affirmative, while the Department of State adhered to a contrary
 position.
   After consideration of this issue in my Office, resolution of it was
 deferred because of the pendency in the Supreme Court of a case
 which presented legal issues that might have a bearing on the particular question of statutory coverage raised by the Board. In its recent decision in that case, Afroyim v. Rude, 

 (May 29,
 190), the Court held unconstitutional section 849(a) (5) of the Act,
providing for expatriation of a citizen who votes in a foreign political
election. The ground for the holding is that Congress lacks power
under the Constitution to expatriate a citizen unless he "voluntarily
relinquishes" his citizenship. This principle of Afroyim must obviously
be taken into account in considering cases of possible expatriation
under other provisions of section 349(a). Application of Afroyim
makes it unnecessary at this time to answer the Board's question about
the statutory coverage of school teaching, in view of the facts of the
present case.
   These facts may be stated briefly. In addition to applicant's United
States citizenship by birth, she had also acquired Canadian citizenship
under the law of that country by virtue of her marriage to a Canadian
followed by her admission to Canada for permanent residence, both
of which events occurred before she began to work as a public school
teacher in the Province of Ontario. However, the record is devoid of


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Interim Decision #1771
any substantial evidence that applicant at any time voluntarily relinquished her United States citizenship.
   In applying the newly-announced constitutional requirement of
" voluntary relinquishment" to the present case, it is not necessary to
determine what the full reach of Afroyim may be, either in terms of
its effect on each of the provisions of the present statute, or in terms
of what kinds of conduct might validly be held+to constitute voluntary
relinquishment of United States citizenship.* In this case it is clear
that the record does not show a voluntary relinquishment of United
States citizenship.
   Accordingly, the case is remanded to the Board of Immigration
Appeals for disposition in conformity with this opinion.
    •see footnote 1 of the dissenting opinion in Ali-01am.




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