MATTER 01' J—
In DEPORTATION Proceedings
A-11003340
Decided by Board August 12, 1958
Loan of oitiaonahip Sootion 350 of the 1952 eat Roue& sought must he substantial and must be followed by 3 years' residence in foreign state—Obtaining foreign passport without using it not sufficient to cause expatriation.
(1) Expatriation under section 350 of the 1952 act does not take place unless
the benefits of the foreign nationality are sought or claimed after December 24, 1952, following which, and subsequent to the individual's 22nd birthday, he must have resided in the foreign country for 3 years. (Cf. Matter
of G—Q—, A-8949215, 7 I. & N. Dec. 195; Matter of V—, A-6913827,
7 I. & N. Dec. 218.)
(2) Australian passport obtained In 1947 by dual national of United States
and Australia who resided in latter country between December 24. 1952, and
Starch 1. 1117, the date ha enmmenend to reside in the United States. did
not cause loss of U.S. citizenship under section 350 in absence of convincing
evidence that foreign passport was used in travel during that period.
(3) Presentation of Australian passport at time of admission to U.S. on
March 5, 1957, although constituting a claim to the benefits of foreign nationality, did not result in expatriation since subject did not thereafter complete 3 years in residence in Australia.
Car-anon
Order : Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Admitted as
nonimmigrant—Remained longer than permitted.
BEFORE THE BOARD
Discussion: This case is before its on appeal from a. decision
of a special inquiry officer directing the respondent's deportation.
The respondent is a 30-year-old married male, a native of Australia claiming United States citizenship, who last entered the United
States on March 5, 1057, and was admitted as a nonimmigrant for
business. The period of his authorized admission expired on March
5, 1958. He had been in the United States on only one prior occasion, that is, as a visitor from August 23, 1947, to October 1948.
The sole issue to be determined is whether the respondent is a
United States citizen or an alien. For the reasons hereinafter
stated, we hold that the Government has not established alienage.
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We are satisfied from the evidence of record that the respondent's
parents were lawfully married on March 12, 1927, and that he was
born in Australia on March 3, 1928. We agree with the special
inquiry officer that it has been satisfactorily established that the
respondent's father was born in Oklahoma on June 19, 1899. He
lived in the United States until 1905, or later, when his parents
returned to Australia and thereafter he remained in Australia
until his death in 1916. His death certificate contains the statement
that he was born in Oklahoma City, United States of America. The
respondent testified that his father never committed any expatriating act and always considered himself a United States citizen.
The respondent's father became a United States citizen under the
14th Amendment to the Constitution of the United States and
section 1992 of the Revised Statutes. The respondent acquired
United States citizenship under section 1993 of the Revised Statutes.
The issue resolves itself into whether the respondent has become
expatriated.
The special inquiry officer held that the respondent became expatriated under section 350 of the Immigration and Nationality
Act (8 U.S.C. WO) which provides, in part, as follows:
A person who acquired at birth the nationality of the United States and of
a foreign state and who has voluntarily sought or claimed benefits of the nationality of any foreign state shall lose his United States nationality by hereafter having a continuous residence tor tnree years in the foreign otato of
which he is a national by birth at any time after attaining the age of twentytwo years unless he shall ….
The special inquiry officer adopted the factual allegations and
the charge contained in the order to show cause as his findings of
fact and conclusion of law. The order to show cause does not contain any allegation that the respondent was ever a citizen of the
United States or that he became expatriated. Hence, the result of
the special inquiry officer's adoption of the factual allegations is
that, on the issue of expatriation, the formal findings of fact are
merely that the respondent is not a citizen or national of the
United States and that he is a native and national of Australia.
While adoption of the factual allegations in the order to show
cause is in accordance with 8 CFR 242.17, we believe that additional findings of fact should be made where they are essential as in
the respondent's case. Here, there should have been formal findings
of fact as to the specific matters which would bring the case within
the terms of 8 H.S.C. 1482.
Neither the examining officer nor counsel questioned the respondent at the hearing as to whether he had sought or claimed the
benefits of Australian nationality. It is clear that the Government
relies entirely on an affidavit (part of ex. 2) which was made by
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the respondent on September 11, 1957, and the special inquiry officer
set forth in his decision (pp. 2 and 3) much of the contents of the
affidavit. The respondent applied for an Australian passport on or
about June 2, 1947, and traveled to various countries between that
date and March 5, 1957, when he last arrived in the United States.
Parenthetically, we observe that while the plural form - "passports"
was used at one point in the special inquiry officer's decision, the
record does not disclose whether the respondent obtained any
Australian passport other than the one issued on June 2, 1947, nor
whether it was ever revalidated. While the respondent had been
absent from Australia at various times, we believe that the evidence
of record required a finding that he resided continuously in Australia
from his birth until March 5, 1997, and that since that date he has
resided in the United States. His wife and children accompanied
him to this country on the date mentioned.
The special inquiry officer cited our decisions in Matter of
Q—, A- 8949245, 7 I. & N. Dec. 195 (May 7, 1956), and Matter of
17— , A- 8943827,
7 I. & N. Dec. 218 (May 15, 1956). Apparently
ho wan of the opinion that the respondent, used the Australian passport after December 24, 1952, and that this was sufficient to bring
about expatriation under the decision in Matter of 17—, supra,
In that case, there was a claim of Mexican nationality on December 20, 1951, and we held, in effect, that there was a continuing
claim of Mexican nationality until after the effective date of the
Immigration and Nationality Act (December 24, 1952). However,
both decisions make it clear that the 3-year-period of residence
mentioned in 8 U.S.C. 1482 cannot begin to run until after December 24, 1952. Hence, we disagree with a statement in the special
inquiry viiker's decision which is to the effect that, since the respondent became 22 years of age on March 3. 1950, the requirement concerning the 3-year-period of residence was fulfilled on
March 3, 1953.
Matter of V , supra. did not alter any of the principles set
forth in Matter of supra. We held there that 8 U.S.C.
1482 must be given prospective application; that acts performed
prior to the effective date of the Immigration and Nationality Act
(December 24, 1952) must be disregarded; and that there must be a
seeking or claiming of the benefits of a foreign nationality after
December 24, 1952, following which, and subsequent to the individual's 22nd birthday, there must be a residence of 3 years in
the foreign state.
When the respondent applied for an Australian passport on or
about June 2, 1947, he was seeking and claiming the benefits of his
Australian nationality. However, such action did not cause expatriation under the law then in existence, and the 1947 applies-
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tion must also be disregarded under 8 U.S.C. 1482, effective December 24, 1952, for the reasons stated in Matter of G
supra. Similarly, 22 CFR 50.6 is not controlling. Although this
regulation does not purport to set forth all tho aete which might
constitute seeking or claiming the benefits of a foreign nationality,
it does specifically mention "appking for a foreign passport or identity card" but is silent as to the use of a foreign passport previously
obtained.
In view of what has been said, we need not concern ourselves
with the respondent's activities prior to December 24, 1952, but
only with events occurring subsequent thereto. The respondent's
affidavit of September 11, 1957, shows that he returned to Australia
in September 1951, and remained there until he went to England,
the date of the trip to England being stated in the affidavit both
as "1954" and "June 1953." He came back to Australia in June
1954, and thereafter divided his time between Australia and New
Zealand until his departure for the United States in March 1957.
When the respondent presented his passport at the time of his
admission to the United States on March 5, 1957, he was claiming
the benefits of Australian nationality. Our decision in Matter of
G—r-Q—, supra, demonstrates that the presentation by the respondent of the Australian passport on March 5, 1957, did not
cause expatriation because he did not thereafter complete 3 years'
residence in Australia. Similarly, since we hold that he has resided in the United States since March 5, 1957, it necessarily follows that any claim of the benefits of Australian nationality sufficient to cause expatriation must have occurred more than 3 years
prior to March 5, 1957. In other words, it must have antedated
March 5, 1954, because a claim after that date would not have resuited in the completion of 2 Team' residence in Australia. Since
the claiming of the benefits of Australian nationality must also have
occurred subsequent to December 24, 1952, it is obvious that such
claim must have been made between December 24, 1952, and March
5, 1954. The only event that occurred during that period was that
the respondent traveled from Australia to England in "1954" or
in June 1953.
In view of the foregoing, the question to be determined is further
resolved into whether, on the one occasion mentioned above, the
respondent used his Australian passport; whether, if such use occurred, it constituted the seeking ot claiming of a benefit of Australian nationality; and whether in accordance with our decision in
Matter of it S , A- 8995287, 7 I. & N. Dec. 718 (May 26, 1958),
the benefit sought was substantial and indicative of a preference for
the foreign country to a degree inconsistent with United States
citizenship.
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In connection with the question of whether the respondent used
his passport on the journey to England in 1954 or in June 1953,
his affidavit, of September 11. 1957, contains four references to his
use of an Australian passport. In the order in which they appear
in the statement, these references are: (1) that he used an Australian
passport in August 1947; (2) that he used it in October 1948; (3)
that he always traveled on his Australian passport, a statement
which follows an account of his activities between October 1948 and
November 1949, and precedes an account of his activities subsequent to November 1949; and (4) that he used his Australian passport when he entered the United States in March 1957. Other than
the all-inclusive third statement, the respondent made no specific
admiszion that he used the passport at any time subsequent to
December 24, 1952, and prior to his arrival in the United States
in March 1957. In the absence of any specific admission by the
respondent that he presented an Australian passport on the occasion of his journey to England in 1953 or 1954 and inasmuch as this
travel was between two countries of the British Empire, we do not
believe it has been established that the respondent sought or claimed
the benefits of Australian nationality at that time.
It is well settled that in a deportation proceeding the burden of
establishing alienage rests upon the Government (United States
se eat. .1317ahan.hy Y. rod, 253 U.S. 140, 113 (1923)). It was held
in Gonzales v. Landon,
350 U.S. 920 (1955), that the Government
must establish expatriation by clear, convincing and unequivocal
evidence.
The principle stated in the Gonzales case was extended in Nishldawn v. Dulles,
356 U.S. 129 (March 31, 1958), in which the Court
said (pp. 135, 137) that the Government also has the burden of
proving by clear, convincing and unequivocal evidence "that the
act showing renunciation of citizenship was voluntarily performed"
and that voluntary conduct is the essential ingredient of expatriation. The question involved was whether expatriation occurred because of the citizen's service in the Japanese army, and the court
held that the Government had not established that the service was
voluntary. Counsel cited this case and apparently contends that
the respondent's application for an Australian passport on June 2,
1947, was not voluntary because he had previously attempted to obtain a United States passport without. sureass Since we have held
that the respondent's 1947 application for passport must he disregarded, we need not consider this contention.
Two other decisions of the Supreme Court on March 31, 1958.
have a certain relevance. Both involved section 401 of the Nationality Act of 1940 as amended (8 U.S.C. 801, 1946 ed.). Perez
v. Browned,
356 U.S. 44, held that subdivision (e) of that section
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was within the authority of Congress under its power to regulate
relations of the United States with foreign countries. Trap v.
Dulles, 356 U.S. 86, held that subdivision (g), as applied to Trop,
exceeded constitutional limits and that he did not become expatriated.
For the reasons indicated above, we do not believe that the
Government has established that the respondent is an alien. Accordingly, we sustain his appeal.
Order: It is ordered that the appeal be sustained; that the
special inquiry officer's order of deportation be withdrawn ; and
that the proceedings be terminated.
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