MATTER OF S-
in EXCLUSION Proceedings
A-11537371
Decided by Board December 23, 5518
Citizenship--Acquisition by child born abroad—Section 301(a)(7), (b) and (c),
Immigration and Nationality Act—Failure to retain under section 201 (g) and
(h), Nationality Act of 1940—Savings clause, section 405, Immigration and
Nationality Act—Expatriation, conclusive presumption, section 349(b), 1952
act.
(1) A person who acquired United States citizenship in 1935 at time of birth
abroad its a U.S. citisvo praront pod an alien parent) under section 1993 of
the Revised Statutes, as amended, and who failed to take up residence in
the United States prior to his sixteenth birthday as required by section
201(g) and (h) of the Nationality Act of 1040, retains his United States
citizenship weep he ,m,plice nsoh rho provisions of section 301(b) of the
Immigration and Nationality Act by coming to the United States prior to
his twenty-third birthday and establishing physical presence in the United
States for a continuous period of five years. (Matter of 5 I. & N.
Dec. 291 (1953), overruled.)
(2) Information furnished such person in 1051 by en American consul that
he had lost his United States citizenship under section 201 (g) and (h) of
the Nationality Act of 1940 by failing to take up residence in the United
States prior to his sixteenth hirtnoay 1V11 ,, Acrorato whorl noon but later
became inapplicable by reason of the enactment of section 301(a) (7), (b),
and (c) of the Immigration and Nationality Act. When such person, in the
belief that he had already lost: his United States citizenship, voted in an
Italian political election in 1956. his act of voting will not be considered
expatriative provided he applies for a United States passport prior to his
twenty-third birthday.
(3) Where such person makes timely application for a United States passport
which, because of delay by the Government, is not issued until after his
twenty-third birthday, and he proceeds to the United States immediately
lifter its issuance, he is entitled to admission as a United States citizen
since his failure to arrive in the United 0.5111to,, prior to hig twenty-third
birthday was due to circumstances beyond his control.
(4) An act designated expatriative by statute will not operate to expatriate a
United States citizen who was unaware that he had United States citizenship or of the consequences of the expatriative act, provided (a) he had
been misled by a change in interpretation in the law; or (I)) he had been
misled by the action of a government official whose duty it was to inform
him; or (e) he performed the expatriative act after receiving information
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(which later became inapplicable, though accurate when given) from a Government official that he had already lost United States citizenship.
(5) The provision in section 340 (b) of the Immigration and Nationality Act
that certain acts shall be "conclusively presumed .' to have been performed
voluntarily is not applicable to cases where the United States citizen relied
on the advice of a United States consul that he had already lost his United
States citizenship and where he would not have jeopardized his citizenship
by voting had he not been so informed.
EXCLUDABLE : Act of 1052—Section 2121a) 120) 13 U.S.C. 1182(a) (20)1—Immigrant, no visa.
BEFORE THE BOARD
Discussion: The applicant is a 23-year-old single male who was
burn in Italy oar Mat ch 10, 1035. Its arrived in the United ',Antes
on June 30, 1058, and applied for admission as a United States
citizen. He was in possession of a United States passport issued
to him by the American Consul at Naples, Italy, on June 19, 1958.-
The special inquiry officer ordered that applicant be admitted to
the United States as a citizen of the United States, and certified
the decision to this Board as a case of novel impression.
The applicant was never in the United States prior to his application for entry on June 19, 1958. His father and mother were both
born in Italy, and his father became a naturalized citizen of the
United States on October 5, 1929. His mother has never been a
citizen of the United States. Applicant acquired citizenship of the
United States at birth under section 1993 of the Revised Statutes
of the United States, as amended by the Act of May 24-, 1934.
Under section 201(g) 1 of the Nationality Act of 1940 it was necessary for applicant to arrive in else United States before he became
18 years of age in order to retain his United States citizenship. By
enactment of section 301(a) through (c) of 111e Inunigration and
,• SEE. 201. The following shall be nationals and citizens of the United States
at birth: a a a (g) A person born outside the United States and its outlying
possessions of parents one of whom is a citizen of the United States who,
prior to the birth of such person, has had ten years' residence in the United
States or one of its outlying possessions, at least fire of whirl' were after
attaining the age of sixteen years, the other being an alien: Provided, That
in order to retain such citizenship, the child must reside in the United States
or its outlying Possessions for a Period or Periods totaling live rears between
the ages of thirteen and twenty-one years: Provided fitriser, Thar, if the
child has not taken up a residence in the United States or its outlying possessions by the time he reaches the age of sixteen years, or if he resides
abroad for such a time that it heroines impossible for him to complete the
five years' residence in the United States or its outlying possessions before
reaching the age of twenty-one years, his American citizenship shall thereupon
cease.
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23 at time of documentation, who acquired United States citizenship at birth, and who applied for a passport before reaching 23,
whose application was disapproved because he had failed to take
up residence in the United States before reaching 16, may now be
given a United States passport (under conditions enumerated,
which are not relevant here because they have been complied with).
The memoranda stipulated that the applicant must have been
"wrongfully refused documentation" or "misinformed" that he had
lost United States citizenship under section 201(g) of the 1940 act
for failure to come to the United States before age 16. He must have
been prevented from complying with section 301(b) of the Immigration and Nationality Act by the erroneous previous interpretation of section 301(b) by the State Department.
The instant case differs from similar matters that have reached
us, in that this applicant performed an expatriative act in the
interval during which he believed he had lost his claim to United
States citizenship at his 16th birthday. He voted in municipal
elections on May 27, 1956. The memoranda from the Department
of State, referred to above, specifically instructed consular and
diplomatic personnel that "all cases of the foregoing nature involving otherwise expatriative acts must be submitted for the Department's consideration." The memoranda then set forth three hypothetical cases to illustrate the position that performance of an
otherwise expatriative act would not necessarily preclude an applicant from obtaining the benefits of section 301 (b) of the Immigration and Nationality Act. The hypothetical situations set forth in
State Department memorandum of October 14, 1958 (and we have
abbreviated to some extent) are as follows:
A. A -wan born a United Staten citizen on February 09,
1935. He applied for a United States passport for the first time on
June 1, 1952, at age 17. He was denied a passport because of the
provisions of section 201(g) of the 1940 act, and he was correctly
informed that he had lost his United States citizenship. He voted
in a foreign election in 1956. In January 1958 when he was not
yet 23 years of age he learned of section 301(b) of the 1952 act.
He applied for a passport immediately. Even though he voted, believing himself an alien, and even though he was correctly informed
by a consular official of his status on June 1, 1952, he would be
documented. Because he was not yet 23 when he applied in January 1958, it will be considered his act of voting was not expatriative.
B. B was born a United States citizen on May 31, 1934.
He applied for a passport for the first time on June 1. 1952 (age
18). His application was denied because of section 201(g) of the
1940 act, and he was correctly informed that he had lost his United
States citizenship. He voted in a foreign election in 1956 at the
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age of 22, believing himself to be an alien. He first learned of
the new interpretation of section 301(b) in January 1958 at the
age of 23 years and applied for a passport immediately. (The
facts in B----- are the same as the facts relating to A above,
except that B seas over age 23 at the time of his application
for a passport.) In this case, says the State Department, his
failure to comply with the retention provisions of section 301(b) of
the 1952 act cannot "in equity be attributed to the United States
Government." Hence, they hold B lost his citizenship on his
23rd birthday. (He did not lose his United States citizenship by
the act of voting in the foreign election, but simply by the passage
of time.)
C. C-- was born a United States citizen on June 1, 1934. He
applied for a passport the first time on July 1, 1952 (at the age of
18). His application was denied because of the provisions of section 201(g) of the 1940 act. He was "slot fully Wormed," because
he was not told that the new law passed June 27, 1952 (effective
December 24, 1952) would restore his citizenship on December 24,
1952. (He could not be so informed, because of the departmental
View at that time that ,ectiun 301(b) of the 1952 act would not
restore citizenship to those who had lost it.) He voted in a foreign
election in 1956. He learned of section 301(b) in January 1958, at
the age of 23 - and - s - half years, and reapplied for a passport immediately. The memorandum declares that State would not view his
act of voting as an expatriative act, but would consider it due to
the mistake of the United States Government. He was in the
same position as the person who was misinformed after December 24, 1952. His failure to arrive in the United States before age
23 was also the fault of this Government, and hence he will be given
a passport, even though he was over age 23 when he applied for a
passport in January 1958.
Applicant falls within group A above, and his documentation for
travel to the United States was consistent with the directive of
October 14, 1958.
Whether or not the instructions in the memoranda of the Department of State discussed above and the distinctions made there
are sound in all categories, as to this case the directive seems
reasonable enough, and we will not now take a more restrictive view.
However, we have previously taken the view that when the expatriative act occurred, the consequence of expatriation flowed from
the act, even though the claimant did not intend the consequence.
That is, if he voted intentionally in a foreign election, either not
knowing he was a United States citizen, or not knowing that such
voting had expatriative consequences, he nonetheless was expatriated. This has been the view taken by most courts who have had
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any of several phases of these problems before them. The thesis
has developed as follows: Congress has power to enact legislation
depriving individuals of their United States citizenship as u consequence of conduct engaged in voluntarily (Mackenzie v. Hare,
239 U.S. 299; Savorgnan v. United States,
338 U.S. 491). Citizenship may be renounced voluntarily through exercise of the right of
expatriation and also by other acts "in derogation of individual
allegiance to this country" (Sarargrtan and Mackenzie, supra, also
Roster v. CZo.rk, 161 4'.2.1 297, cert. den.
332 U.S. 839). No conduct
results in expatriation unless the conduct is engaged in voluntarily
(Mandolt v. Acheson,
344 U.S. 133; Acheson v. Murata,
342 U.S.
900). The burden is on the Government to prove the performance
of the expatriating act by clear, convincing and unequivocal evidence (Schneiderman v. United States, 320 U.S, 118; Baumgartner
v. United States,
322 U.S. 665; Gonzales v. Landon,
350 U.S. 920).
The burden is on the Government to prove also by clear, convincing
and unequivocal evidence that the expatriating act (the act showing renunciation of citizenship) was voluntarily performed (Nishilarcoa V. Dul7co,
356 U.S. 109). Wo come now to an issue which
concerns us in the instant case, and which was settled by Perez
v. Brow-nett,
356 U.S. 44, whether a person, in order' to expatriate
himself by the performance of the voluntary act, most know that
the act has an expatriating effect. In Perez the Court said:
But it would be a mockery of this Court's decisions to suggest that a
person, in order to lose his citizenship, must intend or desire to do so. The
Court only a few years ago said of the person held to have lost her citizenship
in Mackenzie v. Hare, supra: "The woman had not intended to give up her
American citizenship." Savorgnun v. United States,
338 U.S. 491, 501 …
Those two cases mean nothing--Mdced, they are deceptive—if their essential
significance is not rejection of the notion that the power of Congress to terminate citizenship depends upon the citizen's assent. * a *
There are many lower court decisions but we quote only one,
Acheson v. TV ohlmuth,
196 F.2d 866 (C.A.D.C., 1952), cert. den.
344 U.S. 833, which states concisely:
. A person cannot avoid the consequences which Congress has attached
to his overt acts by claiming ignorance of the law or a contrary intention on
his own part in performing those acts, even though loss of citizenship is the
result. …
The general rule shruilti onntinue, to he that so long as the act
was unequivocal, proved beyond a reasonable doubt, not under duress, etc., the result was expatriation. The holding of the present
case, that the foreign voting (or any other act designated e,x-
*A minority view is expressed by the Circuit Court of Appeals for the Third
Circuit in Perri v. Duties, 206 F.2d 586, and Petition of deeltione.,
213 F.2d 842,
wherein it is declared, in effect, that a citizen cannot be deprived of his citizenship without his knowledge and concurrence.
23')
patriative by the statute) will'not operate to expatriate where the
claimant Was unaware of the consequences, or was unaware that
he had United States citizenship, should be limited to the following situations : (1) where the claimant was misled by a change of
interpretation in the law, or (2) where he was misled by the action
of the Government officer whose duty it was to inform him, or (3)
where the claimant performed the expatriative act believing, because of information given him by a Government, official (information which, though accurate when given him, later became inapplieabls), that he had already lost his United States citizenship.
If the claimant committed the expatriative act under these circumstances, he will not be found to have forfeited his citizenship.
The Service representative calls our attention to section 349(b)T
of the Immigration and Nationality Act, which provides a conclusive presumption that any expatriative act specified in section
349(a) was done voluntarily and without duress, if the claimant
to citizenship was a national of the state wherein the act was performed, who had bee physically present in that state for ten years
or more. Certainly the terms of the conclusive presumption apply
to the facts in the instant case. The claimant here makes no sug
gestion that his voting in the foreign election was involuntary or
under duress. However, the circumstances under which the preeumption eras intended to operate do not exist here where we must
find that the claimant relied on the advice of a United States official,
and that he would not have jeopardized his citizenship had be not
been informed that it was already lost to him.
The special inquiry officer concluded that applicant's departure
from Italy was dependent upon the issuance to him of a United
States passport, that he could not lawfully enter the United States
until he was documented, that there was no delay in his applying
for a passport as soon as he became aware that he might still have
a claim to United States citizenship. Therefore, his failure to arrive
in the United States prior to his becoming age 23 was due to circumstances beyond his control, and he did enter the United States
to take up permanent residence here as soon as he lawfully could
do so. The order of the special inquiry officer that the applicant
be admitted to the United States as a citizen of the United States
was the correct one.
Order: It is ordered that the order of the special inquiry officer
of August 20, 1958 be and is hereby approved.
Sae. 349(b) Any person who commits or performs any act specified in subsection (a) shall he conclusively presumed to have done so voluntarily and
without having been subjected to duress of any kind, if such person at the
time of the act was a national of the state in which the act was performed
and had been physically present in such state for a period or periods totaling
ten years or more immediately prior to such act.
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