Interim Decision #2025
MATTER OF SOLIS-BUENDIA
In Deportation Proceedings
A-17303412
Decided by Board February 20, 1970
A dual national of the United States and Mexico at birth who, claiming
Mexican nationality, purchased land in Mexico in an area where only
Mexicans may acquire title, did not thereby lose his United States citizenship under section 350 of the Immigration and Nationality Act, since
there is no evidence of an intent to relinquish United States citizenship
nor of the commission of acts in derogation of allegiance to the United
States. [Matter of Prieto-Perez, 10 I. & N. Dec. 740 (BIA, 1964), superseded.]
CHARGE:
Order : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251 (a ) (1)3—Excludable at time of entry under section 212(a) (20)—no
immigrant visa.
ON BEHALF OF SERVICE: Irving A. Appleman
Appellate Trial Attorney
(Memorandum submitted)
The question is whether respondent's ownership of land in
Mexico resulted in his expatriation under section 350 of the Act
(8 U.S.C. 1482).
The special inquiry officer terminated proceedings and certified
the case to the Board. We held decision in abeyance pending a
statement of interpretation by the Attorney General concerning
expatriation. The statement was issued on January 23, 1969, 34
Fed. Reg. 1079 (1969-). A Service memorandum of law dated
June 27, 1969, asks the Board to affirm the special inquiry
officer's order of termination. We shall do so.
The respondent, a 39-year-old married male, born in Mexico to
United States citizen parents, was a citizen of both the United
States and Mexico at birth. Since his parents lived in the United
States prior to his birth, no question concerning acquisition and
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Interim Decision #2025
retention of United States citizenship exists because the birth
was outside the United States.
Before 1953, respondent lived and worked in Mexico. In 1953,
he came here as a United States citizen. Thereafter, he worked
here, but until 1964 daily commuted to his home in Mexico,
except when he worked too far away from home to commute—a
period of about four months each year. In December 1964, he
moved his home to the United States.
In 1960, respondent bought land in an area in Mexico where
only Mexicans may acquire title. Respondent claimed Mexican
nationality when he bought the property. Under such circumstances we have held that United States citizenship is lost under
section 350 of the Act, Motto' of Prieto-Perez, 10 I. & N. Dec.
740 (BIA, 1964). Our ruling in such a case was made without
consideration of whether the individual voluntarily abandoned
United States citizenship. We thought it enough that he did an
act which could be described by the provisions of an expatriatory
statute. In other words, we did not think it material to determine
whether he showed a desire to abandon United States citizenship
or whether his act was in derogation of allegiance to the United
States. However, the Attorney General's statement analyzing
Afrogim v. Rusk,
387 U.S. 253 (1967), reveals that in a case such
as this, expatriation will not result unless there is an intent to
transfer or abandon allegiance, or the commission of an act
which is in derogation of allegiance to the United States.
Applying the principles in the Attorney General's statement to
the instant case we conclude that expatriation is not established.
The record shows no more than that the respondent bought land
in Mexico in an area where only Mexican nationals could hold
title. There is no evidence of an intent to relinquish United States
citizenship or the commission of acts in derogation of allegiance
to the United States. We find the proceedings were properly terminated.
In view of the action we have taken, we find it unnecessary to
determine whether the respondent's residence after December 25,
1952 was such that it would have brought him within the provisions of section 350. We do note for the record, however, the care
taken, by both the special inquiry officer and the trial attorney, in
creating a record which would fairly reflect the facts on this
issue.
ORDER: No change is made in the order of the special inquiry
officer.
489
Interim Decision #2026
MATTER OF DUGGAN
In Exclusion Proceedings
A-18558057
Decided by Board February 20, 1970
[n the absence of a specific authorization by the Secretary of State and the
Secretary of Defense to enter into or serve in the Armed Forces of Canada, applicant's service in the Royal Canadian Navy with the intention of
voluntarily rclinquizhing his citizenship resulted in the loss of his United
States citizenship under section 349(a) (3) of the Immigration and Nationality Act.
■:3(CLUDABLE: Act of 1952—section 212 (a) (20) [8 U.S.C. 1182 (a) (20) ]-1m-
migrant without immigrant visa.
These exclusion proceedings have been certified to us by the
pecial inquiry officer for final decision. In the proceedings, the
pecial inquiry officer held that the applicant, formerly a United
tates citizen, had expatriated himself under section, 349 (a) (3)
the Immigration and Nationality Act and he was ordered exuded and deported from the United States as an immigrant
ithout an immigrant visa.
The applicant is a 36-year-old divorced male who was born at
cult Ste. Marie, Michigan on September 1, 1933 and who ac-
.ired United States citizenship by reason of his birth in the
cited States under section 1 of the Fourteenth Amendment to
e United States Constitution. After several visits to Canada he
came a landed immigrant in Canada on January 4, 1953. Thereter, on September 15, 1953 he enlisted in the Royal Canadian
ivy and served therein until March 2, 1954 when he was disnorably discharged for misconduct (Ex. 6). On the day of his
ring the Canadian Armed Forces he took an oath of allegiance
Her Majesty Queen Elizabeth II.
Applicant testified that ever since 1946 he has desired to make
permanent home in Canada and to become a citizen of that
ntry because he has many relatives there and he liked the
ntry and was always able to obtain suitable employment dur-
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Interim Decision #2026
ing the several periods he resided there. He further testified that
when he joined the Royal Canadian Navy and took the oath of allegiance to the Queen he thought that this would result in the loss
of his United States citizenship, a result he desired. He stated
that after he had joined, he was informed by United States immigration officials that since he did not have the written permission
of the Secretary of State and the Secretary of Defense he should
immediately terminate his service or he would face a loss of his
citizenship (Tr. of hearing, p. 3). He did not terminate his service at that time. The record also shows that recently, in 1968, he
applied to the United States consul at Halifax, Nova Scotia, Canada for a certificate of loss of United States citizenship and filed
an affidavit with the consul relative thereto (Ex. 5).
These exclusion proceedings arose in the following manner.
From November 14, 1955 until March 1966 the applicant was imprisoned in a Michigan State penitentiary for the crimes of kidnapping and gross indecency. He was released on parole, but on
October 4, 1968 he was arrested by the police in Pontiac, Michigan on the charge of disorderly molesting, which arrest resulted
in the violation of his parole status. Two days after the arrest he
entered Canada where, on December 13, 1968, he was arrested by
the Halifax police on suspicion of violating their firearms laws,
but no charges were filed. The arrest, however, did reveal his
criminal record in the United States. Accordingly, the police
turned him over to the Canadian immigration authorities for deportation to the United States to be remanded to the Michigan
State Bureau of Pardons and Paroles as a parole violator. Exclusion proceedings were instituted when he was brought to Detroit
for entry into the United States.
Let us first . examine the claim that applicant's United States
citizenship was lost under section 349(a) (3) of the Immigration
and Nationality Act by reason of his service in the Royal Canadian Navy in 1953 and 1954, Section 349(a) (3) provides as follows :
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— …
(3) entering, or serving in, the armed forces of a foreign state unless,
prior to such entry or service, such entry or service is specifically authorized
in writing by the Secretary of State and the Secretary of Defense.
The constitutionality of this provision was upheld in Marks v.
Esperdp, 377 U.S. 214 (1964), and this Board held in Matter of
D—,
5 I. & N. Dec. 674 (BIA, 1954), that expatriation under this
section is avoided only when there is specific authorization by the
491
Interim Decision #2026
Secretary of State and the Secretary of Defense to enter into or
serve in the armed forces of a foreign state.
It is undisputed that the applicant served in the Royal Canadian Navy. No claim has been advanced that any authorization
for such service was given by the Secretary of State and the Secretary of Defense. The final matter to consider in deciding
whether the applicant expatriated under section 349(a) (3) is to
determine if he "voluntarily relinquished" his citizenship as required under the doctrine set forth in A froyint v. Rusk, 387 U.S.
253 (1967). The court stated in that case that the Congress lacks
power under the Constitution to expatriate a citizen unless the
citizen voluntarily relinquishes his citizenship. Although the Afroyim case concerned expatriation under section 349 (a) (5), Immigration and Nationality Act, by voting in a foreign political
election, the principle stated in Afroyim is to be taken into account in considering expatriation under other sections of law.'
On January 18, 1969 the Attorney General of the United States I
issued a Statement of Interpretation 2 to serve as a guide to both
the Department of State and the Immigration and Naturalization
Service in the performance of their functions insofar as they involve questions of loss of citizenship. He stated :
Under any reading of A f royint, however, it is clear that an act which does
tot reasonably manifest an individual's transfer or abandonment of allegiance to the United States cannot be made a basis for expatriation.
For administrative purposes, and until the Courts have clarified the scope
f Afroyim, I have concluded that it is the duty of executive officials to
.pply the act on the following basis. "Voluntary relinquishment" of citizenhip is not confined to a written renunciation ... It can also be manifested
y other actions declared expatriative under the act, if such actions are in
erogation of allegiance to this country. Yet even in those cases, Afroyim
sves it open to the individual to raise the issue of intent .. . The voluntry performance of some acts can be highly persuasive evidence in the parcular case of a purpose to abandon citizenship. Yet some kinds of conduct,
lough within the proscription of the statute, simply will not be sufficient to
ipport a finding of voluntary expatriation.
For instance, it is obviously not enough to establish a voluntary relintishment of citizenship that an individual accepts employment as a public
hool teacher in a foreign country. This I have already decided in the case
a dual national, Matter•of Sally Ann Becher, 12 I. & N. 380; Interim Desion No. 1771 (August 21, 1967).
A similar approach may be taken with respect to service in a foreign
my, depending upon the particular circumstances involved . . . In each
se the administrative authorities must make a judgment, based on all the
I Opinion of the Attorney General of the United States, Vol. 42, Op. 34
969).
2 Opinion of the Attorney General of the United States, supra.
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Interim Decision #2026
evidence, whether the individual comes within the terms of an expatriation
provision end has in fact voluntarily relinquished his citizenship.
There is no dispute that the applicant in the case before us did
voluntarily serve in the armed forces of a foreign state. We think
that the evidence of record is abundantly persuasive that this applicant, with the clear and subjective intent to transfer and abandon his allegiance to the United States, voluntarily relinquished
his citizenship by entering and serving in the Royal Canadian
Navy. Ne testified that he desired by this means to transfer his
citizenship and he believed that this result was accomplished by
his service.
We hold that expatriation did take place under section
349 (a) (:3) of the Act. Having so determined, it is unnecessary to
consider whether applicant also expatriated under section
349(a) (2) as one who took an oath of allegiance to a foreign
state, or under section 349(a) (6) as one who made a formal renunciation of nationality before a consular officer of the United
States in a foreign state.
The record indicates that if this Board finds that the applicant
is excludable, the Immigration and Naturalization Service plans
to parole him into the United States to serve further time in
prison as a parole violator, after which he will be deported to
Canada (Tr. of hearing, pp. 22, 23). Canada has gone on record
that they will accept him as a deportee under the terms of a reciprocal agreement between the United States and Canada (Ex.
4)
We will thus affirm the decision of the special inquiry officer
that the applicant be excluded and deported from the United
States as an immigrant without an immigrant visa.
ORDER: It is ordered that no change be made in the order of
the special inquiry officer that the applicant be excluded and deported from the United States.
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