Interim Decision #2389
MATTER OF SINCLITICO
In Deportation Proceedings
A-19155548
Decided by Board June 2, 1975
The respondent, a native of the United States, became a naturalized citizen of Canada and
thereafter entered the United States as a visitor, and having remained longer than
authorized, was found deportable under the provisions of section 241(a)(2) of the
Immigration and Nationality Act. On appeal the proceedings are terminated upon the
respondent's establishing by a preponderance of the evidence that before and after his
Canadian naturalization, he did not have the mental capacity to expatriate himself
under the provisions of section 349(c) of the Act. Under these circumstances the burden
was on the Go ferzunent to show that respondent had sufficient mental capacity to
understand in a reasonable manner, the nature and effect of his act. The Service failed
to prove, by a preponderance of the evidence, that respondent had expatriated himself
and was an alien. The appeal is sustained.
emsnr.r.:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant visitor—
remained longer
ON BEHALF OF :RESPONDENT: Gordon C. Dale, Esquire
1815 N. Broadway
Santa Ana, California 92706
In a decision of an immigration judge dated September 21, 1970, the
respondent was found deportable on the above-stated charge, but was
granted the privilege of voluntary departure. In that decision, the
immigration judge found that the respondent had expatriated himself as
a result of his naturalization as a citizen of Canada on December 8, 1961.
A reopened hearing was held on November 15, 1971 for the purpose of
affording the respondent an opportunity to present additional medical
evidence concerning his mental condition at the time of his naturalization in Canaea in 1961. In an oral decision of the same date, the
immigration judge found the respondent has been expatriated and is not
a citizen of the United States, found him deportable as charged, and
granted him voluntary departure. This is an appeal from this decision.
The appeal will be sustained.
The respondent is an unmarried male, who was born at Lawrence,
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Interim Decision #2389
Massachusetts, on June 30, 1921, to United States citizen parents. He
was admitted to Canada as a landed immigrant on June 16, 1953 and on
December 8, 1961, took an oath of allegiance rand was granted Canadian
citizenship. He was admitted to the United States as a nonimmigrant
visitor at Niagara-Falls, New York, in October 1968, for a temporary
period not to extend beyond March 1969. He was granted a temporary
stay until February 8, 1970, but failed to depart from the United States
within the time specified. ,
The issue is whether the applicant's naturalization in Canada caused
him to lose United States citizenship. The immigration judge found that
the respondent iwas mentally competent and was aware of what he was
doing when the decision was made to become a citizen of Canada. That
is, he found that the respondent voluntarily became naturalized, has
expatriated himself, and is not a citizen of the United States. It is
counsel's contention that expatriation did not result because the respondent was not mentally competent to intelligently and intentionally surrender his United States citizenship and assume Canadian citizenship.
Prior to the enactment of section 349(c) of the Immigration and
Nationality Act on September 26, 1961, the burden was on the Government to establish -expatriation by clear, convincing and unequivocal
evidence. See Gonzales-Jasso v. Rogers, 264 F.2d 584 (D.C. Cir.. 1959);
Nishikawa v. Dulles,
356 U.S. 120 (1958). .
The Supreme Court held in Woodby v. INS,
385 U.S. 276 (1966) that
the test for burden of proof io a deportation proceeding is as follows:
"No deportation order may be entered unless it is found by clear,.
unequivocal and convincing evidence that the facts alleged as grounds
for deportation are true." However, this is not the situation in reference
to a, case involving loss of„citizenship. Section 349(c) of . the Act 1 was,
specifically enacted by Congress to change the degree of proof required
in loss of citizenship cases from clear, unequivocal and convincing evidence to that of a preponderance of the evidence. This purpose is clearly
shown in the legislative history of the statute (see House Report 1086,
August 30, 1961, to accompany S.,2237). In Matter of Gonzalez-Gomez,
12 L & N. Dec. 344 (BI A,1907), we held that the United States Supreme
Court considered that the degree of proof provision of section 349(c) was
Section 849(c) of the In and Nationality Act reads as follows:
"Whenever the loss of United States nationality is put in issue in any action or
proceeding commenced on or after the enactment of this Subsectiim under, or by virtue of,
the provisions of this or any other. A'et, 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
periormi, or has committed or performed, any act of expatriation under the provisions of
this or any other Act shall be presumed to have done so voluntarily, but such presumption
may be rebutted upon a shiming, by a preponderance of the evidence, that the act or acts
committed or performed were not done voluntarily."
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an exception to the rules the Court was enunciating in the Woodby case.
A medical diagnosis from a psychiatrist was submitted in evidence
(Exh. R-1). The psychiatrist's diagnosis was "Schizophrenia with
paranoid features" and it was his opinion that "it would be justifiable to
claim that he was not well enough to make a rational decision when he
surrendered his United States citizenship. This diagnosis and medical
opinion was based upon the psychiatrist's personal observation of the
respondent from when he first saw him in July 1941 at various intervals
up to March :1950 and upon letters received from the respondent from
1950 through 1960. In the record there is a diagnosis made in 1954 of the
respondent by a psychiatrist and by a psychologist from the Ontario
Mental Health Clinic, in which the respondent was diagnosed as presenting a "paranoid picture" (Exh. R-3) and reflecting "the distortion of
ideational processes seen in schizophrenia" (Exh. R-4). A diagnostic
report dated June 20, 1963, less than two years after the respondent
became a Canadian citizen, was provided by a psychiatrist which was
based on medical visits on five Occasions prior to the date of the report.
The psychiatrist's diagnosis of the respondent Was "Paranoid Schizophrenia."
In addition to the medical evidence, the respondent's brother, the
Dean of the University of Sari Diego Law School, was a witness at the
reopened dep Drtation hearing. He testified as to his knowledge that his
brother had been diagnosed as a schizophrenic as early as 1940 (Tr. pp.
28 and 20; that his brother was treated for schizophrenia; and he related
examples of his brother's poor judgment, mental incompetence and
strange behavior for the period from 1958 to 1968 (Tr. pp. 79, 81, 88, 94
and 95). The respondent coroborated by his own testimony that he made
contributions to religious missions and purchased about 70 medical
books for his medical library, despite his financial problems (Tr. pp.
92-96). In response to questions on his application for voluntary departure, the respondent did not seem to understand the questions and
actually his answers were not responsive. (Tr. pp. 98 and 99).
"Schizophrenia" is defined as "Bleuler's term for dementia praecox. A
psychosis characterized by lack of effect, inappropriate mood, unpredictable behavior, and disintegration..Frequently terminates in mental
regression, total withdrawal from reality into phantasies and paranoid
formulations." (Blackiston's —New Gould Medical Dictionary,' p. 910);
Becker v. Becker, 138 N.Y.S. 2d 397, 399,
207 Misc. 17 (1954). "SchizoThrenia, paramid" is a disintegration of the mind and personality of the
individual characterized by disturbances of thinking, hallucinations, and
similar manifestations. In re Meyers,
189 A. 2d 852, 858,
410 Pa. 455
(1963); Am. jar., Proof of Facts, Medical Glossary, p. 215.
The question to be resolved is not, that of voluntariness, but whether
the respondent had the mental capacity or competence to expatriate
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himself by Canadian naturalization. The whole pattern of the respondent's life, including his poor judgment, strange behavior and medical
diagnosis of schizophrenia from childhood, shows mental incompetence
to make an intelligent decision regarding voluntarily surrendering his
United States citizenship. We are satisfied that the respondent has
successfully rebutted any presumption that he voluntarily expatriated
himself as a result of Canadian naturalization in 1961. Under these
circumstances, the burden was on the Government to show that at the
time of his naturalization as a citizen of Canada, the respondent was
experiencing a lucid interval when he had sufficient capacity to understand in a reasonable manner the nature and effect of the act which he
was doing. We conclude that the Service has not sustained its burden of
proving by a preponderance of the evidence that the respondent was
expatriated and was an alien. The deportation proceedings will be
terminated.
ORDER: The appeal is sustained and the deportation proceedings are
terminated.
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