MATTER or J
In EXCLUSION Proceedings
A-10841893
Decided by Board July 18, 1958
Commissioner's motion August 11, 1958
Beaded ay Boars September 22, 1958 and January 6, 1959
Decided by Attorney General February 26, 1959
Expatriation —Section 349(a)(10) of 1952 act—Not established where primary
purpose in remaining abroad was to fulfill bona fide business commitments—
Presumption that departure or absence was to avoid military service is rebuttable.
(1) Govoramoneo burden of proving ttsvatiluttou by clear, convincing, and
unequivocal evidence under section 249(a) (10) of the 1952 act is not met
where prospective draftee, under notice to report for induction on May 29,
1951, establishes that his primary purpose in remaining in Mexico from
Taxauary 1051 to May 1827 was is taint/ genuine business commitments and
not because of reluctance to serve in the armed forces.
(2) Presumption in section 349(a) (10) that departure or absence was for
purpose of avoiding military service is rebuttable and is applicable only to
cases- where there was a failure on or after December 24, 1952, to comply
with a provision of the compulsory service law.
EXCLUDABLE: Act of 1952—Section 212(a) (22) [8 U.S.C. 1182(a) (22)]—
neman,,ed outside the nested States to evade or avoid military
service.
Act of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20)7—No Immigrant visa.
BEFORE THE BOARD
(July 18, 1958)
Discussion: This ease is before us on appeal from a decision of
the special inquiry officer dated August 16, 1957, holding the alien
an expatriate under section 349(a) (10) [8 U.S.C. 1481(a) (10)], and
oseluding him on the above-stated grounds. Appellant acquired
United States citizenship at birth on August 28, 1929, at Berkeley,
California.
Appellant was classified I-A by his local draft board in the summer of 1950, but departed to Mexico on January 8, 1951, without
obtaining draft board permission. Appellant remained in Mexico
from January 8, 1951, to May 15, 1957, when he applied for admission to the United States as a citizen.
Appellant was convicted on June 10, 1957, on a plea of guilty in
the United States District Court, Northern District of California,
of knowingly failing and neglecting to report for induction on May
29, 1951, contrary to section 12(a), Selective Service Act of 1948
[50 U.S.C. App. 462(a)]. Appellant was sentenced to 8 months'
imprisonment and fined $5,000.
According to the record, appellant had previously been in the
habit of making trips to Mexico for business (although the visits
were not so prolonged) ; and appellant asserted that he applied for
draft board permission to leave the United States and assumed it
was granted, for he was granted similar permission in 1949. Moreover, several of appellant's trips to Mexico prior to 1951 were made
on behalf of his father's pump company and in 1501 he established
a factory in Mexico for the company, as previously planned. To
this end, he obtained the necessary Mexican work permit and renewed
it in succeeding years.
Appellant testified that the draft board induction order (notice of
which came to him in Mexico after the date specified) intervened
boforo he had finished his company duties and he sought a deferment via the American Embassy. Appellant asserted that before
he could complete his work and return to the United States to join
this country's armed forces, he was indicted for failure to report for
induction and, consequently, did not attempt to reenter this country
while the indictment was outstanding.
On May 31, 1957, as a result of his father's efforts, the indictment
was dismissed to permit appellant to be inducted. However, appellant then being over 26 years of age he was no longer subject to
the draft. On June 7, 1957, the court ordered the reinstatement of
the indictment, with a conviction following on June 10, 1957.
Appellant testified that he has always considered Lafayette, California, as his permanent residence and took no steps to become a
Mexican citizen while there. Appellant registered his child, born
July 8, 1956, in Mexico, at the American Consulate at Monterrey
as a United States citizen within 30 days after the birth. Appellant
specifically testified that it was the necessity of attending to business
interests, not a desire to evade and avoid military service, which
kept him in Mexico from 1951 to 1957.
The special inquiry officer held that appellant was an expatriate
for remaining outside the United States to evade or avoid military
service from January 8, 1951, to May 15, 1957, with the loss of
citizenship occurring under section 349(a) (10) of the Immigration
and Nationality Act. The special inquiry officer stated, "Personal
79
expediency cannot suspend the operation at the sincute and the appiicant's belated appearance for induction into the armed forces."
The special inquiry officer specifically referred to the section 349
(0(10) presumption that "departaTe from a^ shAenre from the
United States was for the purpose of evading or av oiding" military
service in this country in ruling that appellant had lost 'his United
States citizenship. However, since appellant has furnished affirmative evidence that he went to Mexico in 1951 and remained there
for business reasons, this statutory presumption is not controlling.
In support of his arguments against expatriation, counsel cites
as controlling precedents Perez v. Browne% 686 U.B. 44 (l988) ;
Trap v. Dulles, 356 U.S. 36 (1958); and Nisltikau4 v. Dulles,
356
U.S. 129 (1958).
While the Pores case discusses expatriation in general, the case
stands primarily for the principle that while the right to United
States citizenship may be relinquished or abandoned, either by
expressed langUage or by conduct amounting to renunciation, this
loss of citizenship may be accomplished only voluntarily. The specific act of expatriation under consideration in the Perez case was
that of voting in a foreign political election [section 401(e), Nationality Act of 1940].
The Trap case turned on the issue of desertion from the United
States military forces as an act of expatriation [section 401(g),
Nationality Act of 1940] and contains little on the general topic of
loss of citizenship, except a restatement of the Perez holding.
On the other hand, in the Nislakatea case, the Supreme Court
stated:
• • • the parties are agreed that when a citizenship claimant proves his
birth in this country or acquisition of American citizenship in some other way,
the burden is upon the Cieveluulet.11. Lo prays un act Chat bLuws enpaLlitithou by
clear, convincing and unequivocal evidence. In Gonzales v. Landon,
350 U.S.
920, we held that the rule as to burden of proof in denaturalization cases
applied to expatriation cases under section 401(1) of the Nationality Act of
1940. We now conclude that the same rule should govern cases under all the
subsections of section 401.
Although the Government set up a prima facie case in support of
its allegation of loss of citizenship (departure or remaining in
Mexico for the purpose of evading or avoiding military service),
appellant has produced substantial affirmative evidence that he had
a bona Me business purpose for being in Mexico after January 5,
1951. Hence, the weight of the Government's proof of expatriation
falls short of the "clear, convincing and unequivocal" evidence required by the Gonzales and Nislalcawa cases.
Consequently, the Government has failed to support the bufden
of proof of expatriation. Appellant being a citizen is entitled to
80
immediate entry into this country and the appeal is accordingly
sustained.
Order: It is hereby directed that the appeal be sustained.
BEFORE THE CENTRAL OFFICE
(August 11. 1858)
Discussion: The appellant is a 28-year-old married male who
was born in the United States on August 28, 1929, at Berkeley,
California. He was found inadmissible on the above-stated grounds
by a special inquiry officer, and on July 18, 1958, the Board sustained
his appeal from the special inquiry officer's decision. The issue presented is whether the appellant lout United States citizenship by
remaining outside the United States during a period of national
emergency to avoid military service.
On January 8, 1951, the appellant left the United States for
Mexico, allegedly for a short business visit. He was then 21 years
old and had lived in this country at all times except for short visits
to Mexico in 1948, 1949, and 1950. At the time that he left he
was classified I-A by his local draft board and had been so classified
for at least 6 months. He failed to receive permission to depart,
stating in this regard that he had applied for that permission and
had assumed that it would be granted as it had on a previous
occasion in 1949 when he was absent for a period of 4 months.
On May 23, 1951, the appellant's attorney in Berkeley, California,
addressed a letter to the local hoard advising of the appellant's
address in Mexico, and further indicating that a request for deferment would follow. By letter dated May 28, 1951, a formal request
for deferment was made, predicated upon the need for the appellant's services in Mexico in establishing, organizing, and managing
a factory engaged in the manufacturing of pumps.
A notice of induction dated May 17, 1951, was mailed to the appellant at his address in Mexico directing that he report for induction
on May 29, 1951. The appellant took no action upon receipt of the
notice of induction. Thereafter, approximately 3 months after the
request for deferment was made, ix ., about the latter part of August
or early part of September, the appellant, according to his testimony, learned of the denial of the request for deferment.
Notwithstanding the fact that as of the beginning of September
the appellant had already been ordered to report for induction, and
was fully aware of the denial of a request for deferment, he took
no action to return to the United States. On the contrary, in October 1951, he conferred with American Embassy officials in Mexico
City respecting a postponement of his induction. According to his
testimony, he made representations that his company was in the
process of moving its factory from Mexico City to Monterrey, and
81
that it was necessary to remain in Mexico to complete the company
plans. He stated that his request was denied with the words, "I have
interviewed thousands of boys in your same condition and I don't see
why your case would be any different." Despite the rejection of this
further request for intervention made by him upon Embassy officials, he made no effort to contact his local draft board thereafter,
nor to return to the United States. When asked for an explanation,
he testified, "I had intended to finish the installation of this plant,
our factory, and then report in a short time thereafter, and the
indictment intervened."
The indictment in question charged him with knowingly failing
and neglecting to report for induction on May 29, 1951, in violation
of section 12(a), Selective Service Act of 1948 (50 U.S.C. App.
402(a) ). It was filed on November II, 1901, approximately o
months after he received notice to report for induction, at least
2 months after he had received notice of denial of any request for
deferment, and approximately 1 month after the denial by American
Embassy officials of his request for intervention.
The appellant continued to reside in Mexico, registering as an
alien in Mexico City on January 20, 1952, February 9.2, 1252, April
12, 1954, and December 14, 1954. Exhibit 4, Docurrtento Migratorio
rinse Del immigrant e, page 19, reflects that on January 13, 1956,
there was conferred upon him the status of an admitted immigrant
in Mexico. The appellant's only explanation for accepting immigrant status in 1956 was that it was necessary in connection with
his carrying on his work in Mexico, but that at no time did he intend to become a permanent resident of Mexico. His testimony
throughout has been that he desired to return to the United States
at all times.
It will be noted that shortly before assuming Mexican immigrant
status in January of 1956, specifically on October 18, 1955, a certificate of loss of nationality of the United States was approved by
the Department of State upon a finding that the appellant had expatriated under the provisions of section 349(a) (10) of the act.
It was not until May 15, 1957, more than 6 years from the date of
his departure from the United States, and long after the termination of the hostilities in Korea, that the appellant sought reentry into
the United States. He was paroled in, and the record reflects that
the indictment was dismissed to permit him to be inducted. No
induction took place, the indictment was reinstated, and on June 10,
1957, the appellant was convicted and sentenced to 8 months' imprisonment and a $5,000 fine. With respect to the failure to be
inducted, there is evidence that the appellant was then over 26 years
of age and no longer subject to the draft; that he signed a waiver
82
of the age limit, but for reasons not established by the record the
draft board refused to accept him.
Under the provisions of section 349(a) (10), nationality , is lost by
departing from or remaining outside of the jurisdiction of the United States
to time or war er thttlet; a yutoU do:hared try the Prettltleat to te a puma or
national emergency for the purpose of evading or avoiding training and service
in the military, air, or naval forces of the United States. For the purposes of
this paragraph failure to comply with any provision of any compulsory service
laws of the United States shall raise the presumption that the departure from
or absence from the United States was for the purpose of evading or avoiding
training or service in the military, air, or naval forces of the United States.
This provision, with the exception of the presumption bet forth
in the last sentence (and the reference to the air force), is identical with the predecessor legislation, section 401(j) of the Act of
October 14, 1940, as amended September 27, 1944_
That the period of the Korean conflict was a "period of national
emergency" within the meaning of the foregoing section is well
established (Matter of B—M—, 6 I. & N. Dec. 756, 757, and
cases cited therein).
The Board, in its order of July 18, 1958, found that since the
appellant furnished affirmative evidence that he went to Mexico
in 11)51 and remained there for business reasons, the statutory presumption set forth in section 349(a) (10) is not controlling. While
it is true that the presumption would have no effect with respect
to a departure prior to the effective date of the Immigration and
Nationality Act, nevertheless it has full force and effect with respect
to conduct occurring after Deember 24, 1952 (Matter of F M—,
6 I. & N. Dec. 379). In view of his conviction, it is clear that the
appellant's continued absence after December 24, 1952, and up to
May 15, 1957, brings him within the scope of the presumption.
While the presumption is rebuttable, it is submitted that, for the
reasons set forth below, the Government has fully met its burden
of proving expatriation in the subject case, both under section. 401
(j) of the Nationality Act of 1940, as amended, and under the provisions of section 349(a) (10) of the 1952 act with respect to the
conduct after December 24, 1952.
The Service is fully mindful of the burden it carries in this type
of case under the rule laid down in Gonzales v. Landon,
350 U.S.
920. However, Gonzales was taken to Mexico when less than 2 years
old by his parents who were citizens of Mexico. During the 30
years he remained in Mexico thereafter, his father died and there
was evidence he failed to return to the United States because his
mother would not let him. It is obvious that on those facts satisfaction of the government burden was more difficult than in the
instant case.
83
Here the appellant is an educated person of considerable means.
He is fluent and literate both in English and in Spanish. He left
the United States when he was 21 years of age. He not only was
eligible for the draft, hot had in fact registered and had been classified for several months in class I-A. He must reasonably have
anticipated that induction was imminent. He was fully aware of the
draft requirements respecting obtaining permission to leave the
country, as evidenced by his prior requests for such permission, but
nevertheless chose to depart without receiving such permission. He
was at all times fully aware of his obligation to serve his country
in a period of national emergency.
After his departure he received notice to report for induction.
He chose to ignore this notice, on the plea that his business activities and the interests of the company by which he was employed were
of more importance than the needs of this government. Following
the denial of his request for deferment, his obvious duty was to
terminate his activities in Mexico and return forthwith to the
United States to present himself for military service. In lieu thereof,
he continued to occupy himself with the factory in Mexico.
He pursued this willful course of conduct, notwithstanding a firm
rejection by the United States Embassy in Mexico of his request to
intervene to obtain a deferment for him. In short, notwithstanding
that all of the facts respecting the nature of his employment in
Mexico had been presented to the draft board through competent
counsel and rejected, and notwithstanding the fact that United
States officials on the scene in Mexico were not sufficiently impressed
with the importance of his work to intervene in his behalf, he nevertheless took it upon himself to disregard the order of the draft
board and to continue to remain in Mexico to pursue his business
activiti es
If the judgment of the draft board and of the United States Embassy is respected, there were no compelling reasons and no circumstances beyond his control barring his return at that time. Whether
he was motivated in not returning at that time by fear of military
service in an armed conflict or by a desire not to interrupt his business activities is of no consequence. The fact remains that when
called to serve he deliberately remained abroad to avoid having to
serve at that time and that he continued to remain abroad thereafter
until 1957 in order to avoid military service, notwithstanding his
desire to return and notwithstanding that no circumstances beyond
his control prevented his return.
Clearly it was not for the appellant to say when he would serve
in the armed forces, nor to impose conditions under which he would
present himself to draft authorities. Subsequently, he imposed
still another condition, namely, that the indictment which was finally
entered against him in Isiovember of 1951 for violation of the draft
laws be withdrawn before he would return and serve in the armed
forces of this country. The necessity for an indictment was brought
upon the respondent by his own action in willfully failing to respond
to the draft call. Having thus placed himself in the position where
he was subject to a penalty, he can hardly be permitted to plead
the very result of his misconduct as an excuse for failing to return
and report for induction. The fact remains that by stipulating that
the indictment against him must be withdrawn before he would
return to the United States, and by continuing to remain out of this
country until well after his 28th birthday, he avoided service during
the period of actual hostilities, and ultimately circumvented any
military service whatsoever. It is no excuse that he was willing to
execute a waiver of the age requirement. Whether because he was
over 26 years of age, or for other reasons not shown, the fact remains that by his actions he successfully evaded all military service.
It appears also that the appellant has sought to reap the benefits
of lawful status both in Mexico and in the United States, as evidenced by his acceptance of immigrant status in Mexico in 1956.
Certainly this action is inconsistent with, and casts doubts upon,
his ullegalione that he was willing to return to the United &alma
to serve in our armed forces.
Upon consideration of the record in its entirety, the Service is
of the view that expatriation has been established by "clear, con
vincing and unequivocal" evidence. It is, therefore, moved that the
Board reconsider its order of July 18, 1958, sustaining the appeal,
and that the order of the special inquiry officer directing exclusion
be affirmed.
Motion is hereby mule that the Board reconsider its order of
July 18, 1958, sustaining the appeal, and that the order of the special inquiry officer be affirmed.
BEFORE THE BOARD
(September 22, MS)
Discussion: This case is before us on motion of the Immigration
Service for reconsideration of our decision of July 18, 1958, in
which we ruled that appellant was still a United States citizen, entitled to immediate entry into this country.
Appellant acquired United States citizenship at birth on August 28,
1929, at Berkeley, California. He was classified 1—A by his local
draft board in the summer of 1950, but departed to Mexico on
January 8, 1951, without obtaining draft board permission. Appellant remained in Mexico from the latter date to May 15, 1957, when
he applied for admission to the United States as a citizen.
85
On August 16, 1957, a special inquiry officer held appellant an
expatriate under section 349(a) (10), for remaining outside the
United States to evade or avoid military service between January 8,
1051, and May 15, 1057.
The Board determined on July 18, 1958, that "Although the Goveminent set up a prima facie case in support of its allegation of loss
of citizenship (departure or remaining in Mexico for the purpose of
evading or avoiding military service), appellant has produced substantial affirmative evidence that he had a bona fide business purpose for being in Mexico after January 8, 1951. Hence, the weight
of the Government's proof of expatriation falls short of the 'clear,
convincing and unequivocal' evidence required."
The Immigration Service contends that the presumption set out
in the last sentence of section 349(a) (10) applies and although the
presumption is rebuttable, the burden of proof has been met by the
Government. With regard to this presumption,' we must reiterate
our previously-stated view that since appellant has furnished affirmative evidence that he went to Mexico in 1951 and remained there
for business reasons, this statutory presumption is not controlling.
The Immigration Service argues that the facts of the instant ease
fall within the rule of Gonzales v. Landon [350 U.S. 920 (1955)] ;
apelntbigrducate,hvingkowldfte
English language, being over 21 years of age, and having had considerable United States residence. Moreover, the Immigration Service contends that:
… Whether he [appellant] was motivated in not returning at that time
by fear of military service in an armed conflict or by a desire not to interrupt
his business activities is of no consequence. The fact remains that when called
to serve he deliberately remained abroad to avoid having to serve at that time
and that he continued to remain abroad thereafter rmtil 1957 in ova." to avoid
military service, notwithstanding his desire to return and notwithstanding
that no circumstances beyond his control prevented his return.
The heart of the issue in the instant case is appellant's motive in
failing to return to the United States after January 1951. According to the record, appellant definitely had a valid business reason
for going to Mexico in 1951 and remaining thereafter in that
country. These genuine business commitments (on behalf of his
father's pump company) constituted his primary purpose in remaining in Mexico, according to substantial affirmative evidence produced by appellant.
'SEC. 349(a) (10) " • • For the purposes of this paragraph failure to comply with any provision of any compulsory service laws of the United States
shall raise the presumption that the departure from or absence from the United
States was for the purpose of evading or avoiding training and service In the
military, air, or naval forces of the United States.
86
Furthermore, certain other evidence tends to corroborate this view.
Appellant had previously been in the habit of making trips to
Mexico for business, although the visits were not so prolonged.
Appellant asserted that he applied for draft board permission to
leave the United States and assumed it was granted, for he was
granted similar permission in 1949. Several of appellant's trips
to Mexico prior to 1951 were also made on behalf of his father's
pump company and in 1951 he established a factory in Mexico for
the company, as previously planned. To this end, appellant obtained the necessary Mexican work permit and renewed it in succeeding years.
Appellant also testified that he has always considered Lafayette,
California, as his permanent residence and took no steps to become
a Mexican citizen while there. Appellant registered his child, horn
July 8, 1956, in Mexico, at the American Consulate at Monterrey
as a United States citizen within 30 days after the birth.
For these reasons, we must reaffirm our conclusion that the weight
of the Government's proof of expatriation falls short of the "clear,
convincing and unequivocal" evidence required by Gonzales v.
Landon [350 U.S. 920 (1055)] and Ni.shikaava v. Dulles [356 U.S.
.129 (1998)]. The motion is accordingly denied.
Order: It is hereby directed that the motion be denied.
BEFORE THE BOARD
(January 6, 1959)
Discussion: This case is before us on motion of the Service
dated October 3, 1958, requesting that the case be certified to the
Attorney General.
The appellant is a 29-year-old married male, native of the United
States and claiming United States citizenship, who applied for
admission to this country on May 15, 1957. The special inquiry
officer held that he had lost his United States citizenship and that,
as an alien, he was excludable on the two grounds stated above.
On July 18, 1958, we held that he was a citizen and sustained his
appeal. The Assistant Commissioner's motion for reconsideration
of that decision was denied by this Board on September 22, 1958. The
present motion dated October 3, 1958, requests that the case be
certified to the Attorney General and advances additional arguments
which we will discuss following a review of the facts.
The appellant's father is the general manager of Jacuzzi Brothers,
Inc., a manufacturer of pumps in California. Commencing about
1946, the company contemplated establishing a plant in Mexico, and
since 1948 the appellant has been involved in this venture. In this
connection he made a few trips to Mexico and during 1949 received
the permission of his Selective Service local board for a 4 months'
trip to Mexico.
87
On January 8, 1951, subsequent to the date when the appellant was
classified 1-A by his local board, he again departed to Mexico. He
stated that he requested permission of his local board to depart and
assumed that it would again bo granted. The appellant stated that
he went to Mexico at that time for the purpose of establishing the
contemplated Mexican branch of Jacuzzi Brothers and hot for the
purpose of avoiding United States military service. The Mexican
factory was, in fact, established at about that time. During October
1951 it was transferred from Mexico City to Monterrey, Mexico,
and the operation has continued successfully since that time. Approximately 200 workers are employed in the factory. The appellant has been in complete charge of the Mexican factory from January 1951 until his return to the United States in May 1957.
The appellant was ordered to report to his local board on May 29,
1951, for forwarding to an induction station for examination, but
the notice reached him in. Mexico subsequent to the appointed day.
Jacuzzi Brothers requested an occupational deferment for the appellant on May 28, 1951. On November 14, 1951, he was indicted on
2 counts of violating the Selective Service Act of 1948. The appellant stated that between that time and May 15, 1057, when he returned voluntarily to the United States, a number of attempts were
made by his attorney to have the indictment dismissed with a view
of permitting him to enter the United States Army. On May 31,
1957, the indictment was dismissed and the appellant reported to
his local board for induction. At that time he was over 26 years
old and no longer subject to compulsory service but he signed a
waiver as to that. However, he was not inducted. Subsequently,
the court reinstated the indictment and on June 10, 1957, the appellant pleaded guilty to the second count which charged that he failed
and neglected to report for induction on May 00, 1051.
The special inquiry officer held that the appellant became expatriated under section 349(a) (10) of the Immigration and Nationality Act (8 U.S.C. 1481(a) (10)) on the effective data of that act
(December 24, 1952). The Assistant Commissioner's motion asserts that expatriation occurred either under that provision or under section 401(j) of the Nationality Act of 1940 (8 U.S.C. 801(j),
1946 ed.) which was in effect from September 27, 1944, until December 23, 1952. Both provided that a person who is a national of
the United States shall lose his nationality by departing from or
remaining outside of the jurisdiction of the United States in time of
war or during a period of national emergency for the purpose of
evading or avoiding military service. The provision which became
effective on December 24, 1952 (8 U.S.C. 1481(a) (10)) contained,
in addition, the statement that failure to comply with any provision
of any compulsory service laws shall raise the presumption that
88
the departure from or absence from the United States was for the
purpose of avoiding military service. In our decisions of July 18,
1958, and September 22, 1958, we stated that this presumption was
not controlling here because the appellant had furnished affirmative
evidence that he went to Mexico in 1951 and remained there for
business reasons. We will discuss later herein the question of
whether the presumption has any applicability to the appellant's'
case.
The special inquiry officer found that the appellant remained outside the United States to avoid military service and his conclusion
of law was to the same effect. Hence, he presumably did not believe
that the appellant departed from the United Slates fur that purpose.
In its motions, the Service did not comment specifically as to
whether there was any allegation that the appellant's departure
from the United State. on January 8, 1951, was for the purpose of
avoiding military service but the motion of October 3, 1958, does contain the statement that the appellant, in remaining outside the United
States from 1951 to 1957, may have been motivated by an incidental
desire "to avoid prosecution for departing to evade military service."
However, neither count of the indictment accused him of having
departed from the United States to evade military service. In the
absence of any specific contention that the appellant became expatriated by departing from the United States and in view of our previous conclusion, we hold that the appellant did not depart for the
purpose of avoiding military service, and the question resolves itself
into whether he remained abroad for that purpose.
The Assistant Commissioner's motion of October 3, 1958, contains
the statement that, after a full examination of the facts, the appellant's local board and American Embassy officials in Mexico "found
that he had no business activities in Mexico urgently requiring his
presence in that country." The record does not indicate that such
findings were made. What it does show is that a request for occupational deferment was addressed to the local board on May 28,
1951 (the decision on this request does not appear of record but
obviously it was not granted) ; that in October 1951 the appellant
had a conference with 2 employees of the American Embassy in
Mexico City ; that he was endeavoring to procure their assistance
in obtaining a Selective Service deferment of several months in
order to permit completion of the Mexican factory ; that he stated
to them that as soon as the factory was completed he intended to
enter the United Slates Army ; and that they refused to take any
action.
The motion of October 3, 1958, contains the statement that the
appellant testified to a continuous desire to return to the United
States following his departure in 1951, and it was indicated that
89
162711-61 8
our decision in the case represented a departure by us from our
previous view that expatriation occurs where the individual desires
to return to the -United States but is deterred primarily by reluctance
to serve in the armed forces. Actually, when the appellant spoke
of his desire to return to the United States, he did not say that he
refrained from doing so because of reluctance to serve in the armed
forces, but instead his answers were always coupled with the statement that lie intended to return to the United States for the purpose
of serving in the armed forces. His testimony is to the effect that he
wanted a few months' deferment and then intended to enter the
United States Army; that, following the indictment, efforts were
made to have it dismissed in order that he might enter the Army;
that he voluntarily returned to the United States on May 15, 1937,
for the purpose of entering the armed forces; that he appeared before his local board for induction on May 31, 1957; and that he
signed a waiver insofar as being over military age was concerned.
Accordingly, the record does not show that the appellant refrained
from returning to the United States because of reluctance to serve
in the armed forces, and the conclusion which we reached in his case
represents no departure from the view we had previously followed.
It was also stated in the motion of October 3, 1958, that the issue
is whether United States citizenship was lost by one who remained
abroad from January 8, 1951, to May 15, 1957, "primarily to avoid
military service" although there may have been other incidental
reasons. The motion concludes with the statement that the effect of
the instant decision is to cast into confusion the long line of administrative decisions holding that it is of no consequence what other
motivation may exist "if in fact the appellant remained outside of
the United States primarily to avoid military service." If the facts
were as stated by the Service, expatriation unquestionably would
have occurred. However, the vulnerability of the Assistant Commissioner's entire argument is that the prop which supports it is the
assumption of the Service that the appellant remained abroad
primarily to avoid military service; whereas, we have held in our
previous orders in this case that this fact has not been established.
The statutory provision under which it is asserted that the appellant became expatriated contains three elements applicable to his
case: (1) remaining outside the jurisdiction of the United States,
(2) during a period of national emergency, and (3) for the purpose
of avoiding training and service in the armed forces. It is clear that
the appellant's case contains elements (1) and (2). Hence, the question in the appellant's case is solely the factual issue of whether his
action in remaining abroad was for flee purpose of avoiding military
service. This must be determined on the particular facts in his case
which is an unusual one, involving as it does his presence in Mexico
90
for the purpose of establishing a subsidiary of an American company. Because of the peculiar circumstances of the case, we do not
share the fears expressed by the Service that the decision here will
cast into confusion our decisions in other cases involving entirely
different facts.
We have carefully examined the special inquiry officer's decision
and the two motions of the Service in order to ascertain what evidence is relied on to support the contention that the appellant remained abroad for the purpose of avoiding military service. As far
as we have been able to determine, the only possible matters are (1)
the indictment and conviction, (2) tho presumption in 8 U.S.C.
1481(a) (10), and (3) the appellant's own testimony. The indictment and conviction are of no assistance in showing the appellant's
purpose in remaining outside the United States for, as we have indicated above, the indictment did not accuse him of having departed
from the United States to evade military service, nor did it accuse
him of having remained abroad for that reason. The count to which
he pleaded guilty charged only that he did knowingly fail and neglect to report for induction on May 29, 1951. It was immaterial
to that charge whether there was a purpose to avoid military service or whether the failure to report for induction was for some other
reason, and-the question of whether the appellant was in the United
States or in Mexico between 1951 and 1957 was equally immaterial
in that prosecution.
The second item on which the Government relies is the presumption under 8 U.S.C. 1481(a) (10). We stated above that we would
discuss the question of whether it had any applicability to the appellant's case. The opening phrase in 8 U.S.C. 1481(a), that is, "From
and after the effective date of this chapter …," indicates clearly
that paragraphs (1) to (10) of that subsection are prospective only.
Paragraph (10), which relates to departing from or remaining outside the United States to avoid military service, contains a sentence
reading: "(10) … For the purposes of this paragraph failure to
comply with any provision of any compulsory service laws of the
United States shall raise the presumption that the departure from
or absence from the United States was for the purpose of evading
or avoiding training and service in the military, air, or naval forces
of the United States."
In Matter of F-31—, 6 I. & N. Dec. 379 (1954), we discussed
I TT.S.C. 7451 (n) (tn), and we specifically held that this pimisiun
had no retrospective force and that the presumption was limited to
cases in which, on or after December 24, 1952, there was a failure to
comply with a provision of a compulsory service law. It may be
that the appellant failed to comply with such a provision after
December 24, 1912, but the only "failure to comply .' disclosed by the
91
present record is the appellant's failure to comply with the order to
report for induction on May 29, 1951. Since this was prior to
December 24, 1952, when 8 U.S.C. 1481(a) (10) became effective, it
has 11,1, been established on the present record that the appellant's
case is even within the presumption. In any event, assuming that
the presumption is applicable, we adhere to our previods view that
the appellant has overcome the presumption by affirmative evidence.
The third item on which the Government relies is the appellant's
own testimony. No other witnesses testified. The Government's
case must stand or fall on the has'ie of that testimony alone for we
have indicated above that the record of conviction and the presumption contained in 8 TJ.S.C. 1481(a) (10) would not support a conclusion of expatriation. Since the appellant's own testimony must
afford the principal support for the Government's case, we believe
that his explanation of what might otherwise be considered adverse
factors is entitled to considerable weight.
The appellant made no admission that he remained outside the
United States for the purpose of avoiding military service. On the
contrary, he testified that he did not depart from or remain outside
the TTnited States for the purpose of avoiding military service, and
that he had desired a short deferment but intended thereafter to
serve. He voluntarily returned to the United States - on May 15,
1957, and his counsel had informed officials of the Service and of
the Department of Justice of the date and place where he would
apply for admission to the United States. He knew that the indictment was still outstanding at that time, and it was not until May
31, 1957, that it was dismissed. He did, in fact, appear before his
local board for induction later on that date. In this state of the
record, we do not believe that there is evidence that the appellant
remained outside the United States for the purpose of avoiding
military service. Hence, we hold that it has not been established by
clear, convincing and unequivocal evidence that the appellant became
expatriated in accordance with the rules laid down in Gonzales v.
Landon, 350 U.S. 920 (1955); Nishikawa v. Dulles,
356 U.S. 129;
Trop v. Dulles,
356 U.S. 86; and Perez v. Brownell,
356 U.S. 44,
the latter three having been decided on March 31, 1958. We adhere
to our previous conclusion that the appellant has established that
his primary purpose in remaining in Mexico was to fulfill his business commitments on behalf of the Mexican subsidiary of Jacuzzi
Brothers.
Order: It is ordered that no change be made in our previous
orders in this case.
It is further ordered that, in accordance with the Assistant Corn.
missioner's request, this case be certified to the Attorney General pur•
suant to 8 CFR 3.1(h) (1) (iii).
92
BEFORE THE ATTORNEY GENERAL
(February 26, 1959)
This case is before me for review of the decision of the Board of
Immigration Appeals pursuant to 8 CFR 3.1(h)(1)(iii). The
issue involved is whether the applicant lost citizenship under section
401(j) of the Nationality Act of 1910 or section 349(a) (10) of the
Immigration and Nationality Act.
Order: After review of the record and of the applicable law
and decisions of the United States Supreme Court, it is directed that
the order of July 18, 1958, by the Board of Immigration Appeals,
sustaining the appeal of J B—J— and directing his admission to the United States as a citizen, be approved.
93
