L

                              MA1 i ER OF L—

                     In EXCLUSION Proceedings
                                A-11681384
           Decided by Special Inquiry Officer April 4, 1961
                 Approved by Board June 2, 1961
Expatriation—Section 349(a)(4)(A), 1952 act—Employment as public school
 teacher in Canada.
Employment as a public school teacher in the Province of Ontario results in
 expatriation of dual national of United States and Canada under section
 349(a) (4) (A) of the 1952 Act. (Cf. Kenji Kamada v. Dulles, 

.)
EXCLUDABLE Act of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20) ]   —   Immigrant, no visa.

               BEFORE THE SPECIAL INQUIRY OFFICER
                              (April 4, 1961)
   DISCUSSION: A reopened hearing in this case was held on March
3, 1961, pursuant to the order of remand of the Board of Immigration Appeals of January 30, 1961. The Board's remand was made on
the motion of the Assistant Commissioner, Examinations, requesting
withdrawal of the Board's order of November 15, 1960, sustaining the
applicant's appeal from the exclusion decision of the special inquiry
officer dated July 11, 1960.
   The record relates to a married male who was born in Detroit,
Michigan, July 15, 1921, and so was a United States citizen at birth
under the Fourteenth Amendment to the United States Constitution.
The applicant's father was a British subject, as a consequence of
which under section 1 (1) (b) of the British Nationality and Status
of Aliens Act of 1914 the applicant was also a British subject at
birth.' When applicant was nine months old, his parents took him
  1 The record herein does not contain a marriage certificate relating to the
applicant's parents. The applicant is uncertain of the date of his parents'
marriage, but testified they were married in Detroit. If his parents were not
married, then he would not have acquired British nationality through his
tamer at birth. In tne ansence or any eviaence that nis parents were not
married, a general presumption of legitimacy will prevail, especially in view
of the fact that the applicant is recognized by Canadian authorities as a
Canadian citizen who acquired Canadian citizenship by operation of law as a
British subject and who was a British subject at birth through his father.


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 to Canada, where he has since resided. Under section 9(1) (b) of
 the Canadian Citizenship Act of 1946 he acquired Canadian citizenship as a British subject who immediately before January 1, 1947,
 had Canadian domicile, if he did not then already have that citizenship.
   On January 9,2, 1960, at the Detroit Canada Tunnel, Detroit,
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Michigan, the applicant applied for admission to the United States
for permanent residence as a United States citizen. He was not then
in possession of an immigrant visa or any document in lieu thereof.
Accordingly, if he is an alien, he is excludable under section 212(a)
(20) of the Immigration and Nationality Act. The issue in this
case is whether the applicant expatriated as a United States citizen,
specifically under section 349(a) (4) (A) of the Act by reason of
serving as a public school teacher under the Board of Education of
the City of London, Ontario, Canada.
  The decision of the special inquiry officer of July 11, 1060, found
that the applicant was not expatriated under section 2 of the Act
of March 2, 1907 for having taken an oath of allegiance or joining
the Canadian Armed Forces on September 21, 1939, since he was
then under twenty-one years of age. The possibility that he might
have affirmed this oath after attaining majority by serving as a
public school teacher in Canada is obviated because applicant did
not reach ago twenty one until after January 13, 1011, the effective
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date of the Nationality Act of 1940, which contains no provision for
affirmation of an oath made during minority.
  The special inquiry officer's decision of July 11, 1960, discussed
possible grounds for expatriation other than section 349(a) (4) (A)
of the Immigration and Nationality Act, which the applicant's history as a Canadian soldier and as candidate for the position of a
public school teacher could have presented, but none was found
applicable. With respect to section 349(a) (4) (A), however, the
special inquiry officer found the applicant expatriated. After noting that the applicant had Canadian nationality as required by that
section, he resolved the issue of whether the applicant had accepted,
served in, or performed the duties of any office, post or employment
by concluding that teaching is employment, and resolved the next
issue of whether such employment was under the government of a
foreign state or a political subdivision thereof by finding that the
various area public school boards are under the jurisdiction of the
Department of Education of the Province of Ontario, therefore,
under the jurisdiction of a political subdivision of the Dominion of
Canada •and, accordingly, are political subdivisions within the meaning of the Act.
  At his first exclusion hearing, the applicant had testified that
as a public school teacher he did not hold a government position
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 and while he had to meet certain governmental requirements in
order to teach, he was not considered a government employee and
had nothing'to do with civil service grants.
   The Board of Immigration Appeals in its decision of November 15,
1960, sustained the applicant's appeal and ordered that he be admitted for permanent residence as a citizen of the United States.
The Board considered that the record did not sustain the Government's burden to establish loss of citizenship by clear, unequivocal
and convincing evidence which does not leave the issue in doubt,
relying in part on Kenji Kamada v. Dulles, 

 (N.D.
Cal., 1956), in which the court expressed doubt that teaching in a
public school operated by a foreign government is the type of employment condemned by section 401(d) of the Nationality Act of
1940, a predecessor to section 349 (a) (4) (A) of the Immigration and
Nationality Act.
   Thereupon, the Assistant Commissioner, Examinations, Immigration and Naturalization Service, moved for reconsideration of the
Board's order of November 15, 1900, as mentioned above, appending
to his motion a letter from the Director of Education of London,
Canada, dated November 22, 1960, containing information regarding
the applicant's employment as a public school teacher. The Board's
order of remand, granting the Service's motion, was for consideration of and incorporation into the record of the aforesaid letter and
such other action as may be appropriate.
   At the reopened hearing, the letter in question was introduced in
evidence as Exhibit 1—R and its contents reviewed by the applicant,
who stated his substantial agreement with it paragraph by paragraph. With respect to the nature of the employment of a public
school teacher in Ontario, this letter states that every teacher must
participate in a superannuation fund, which is a provincial fund
administered by an official commission and to which the Province of
Ontario contributes. All teachers are employed under a contract
which the local authority cannot terminate without reasons being
given, with the right of appeal to a provincial board of reference.
The applicant was inclined to question the last paragraph of the
letter to the effect that it is the Public School Act by which he works
rather than the Department of Education Act under which he is
certificated. An examination of the Public Seim& Art shows, however, that it sets forth the duties and functions of teachers, as well
as other school officials, and, in any event, the preceding paragraph
of the letter states, "every teacher in the schools of Ontario, and
every school board in the Province of Ontario must carry on under
the Department of Education Act and the various school acts and
regulations." There was also introduced into evidence as Exhibit
2—R a letter dated January 12, 1960, to the applicant from a
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  Canadian barrister and solicitor indicating that the applicant had
  lost his American citizenship acquired at birth through employment
  with a foreign government and was solely a Canadian citizen. The
  applicant testified that he submitted this letter to the Department of
  Education as a candidate for a permanent First Class Certificate,
  which was granted him the following March.
    From the letter, Exhibit 1—R, of the Director of Education, it
 appears clear that employment as a public school teacher in the
 Province of Ontario is governmental employment, contrary to the
 applicant's assertion made at the hearing held on January 26, 1960.
 From the second letter, Exhibit 2—R, and the applicant's statement
 of the purpose for his submission of it to the Department of Education, it appears that as a dual national he would not have been
 awarded the permanent certificate. To the same effect, and decisively, is the letter of February 9, 1960, Exhibit 5B, of the Assistant
 Registrar of the Ontario Department of Education that a waiver
 of claim to dual citizenship was required of the applicant for his
 further retention as a public school teacher.
   The facts of this case clash squarely with the views expressed by
Judge Weinfeld in Kenji Kamada v. 

 that teaching
in a foreign governMental school system is not the type of employment condemned by section 401(d) of the Nationality Act. Judge
Weinfeld was of the opinion that the employment by a foreign
government must be such that its performance required absolute
allegiance to the foreign government and necessarily excluded allegiance to our government. But the Canadian school authorities
did require -absolute allegiance of the applicant and did exclude
allegiance to our government.
  The Public Schools Act of Ontario (Revised Statutes of Ontario,
1050, Chapter 316), in the section relating to teachers, provides:
   103. It shall be the duty of every teacher, (a) to teach diligently and faithfully the subjects of a public school course of study as prescribed by the
regulations, to maintain proper order and discipline in the school, to encourage the pupil in the pursuit of learning, and to inculcate by precept and example respect for religion and the principles of Christian morality and the
highest regard for truth, justice, loyalty, love of country, humanity, benevolence, sobriety, industry and frugality, purity, temperance and all other virtues.
Obviously, one whose duty it is to "inculcate by precept and example . . . the highest regard for . . . loyalty, love of country . . ."
should not be a person of divided loyalty and allegiance.
  The inculcation of loyalty and patriotism is, as is well recognized, a function of the public schools of the United States. As
said by Mr. Justice Minton in Adler v. Board of Education., 

 (1952), at page 493, "A teacher works in a sensitive area
in a schoolroom. There he shapes the attitude of young minds

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toward the society in which they      live. In this, the state has a
vital concern. It must preserve the integrity of the schools." As
said by Mr. Justice Douglas in dissent, at page 508, "The public
school is in most respects the cradle of our democracy." Similar
statements may be found in many cases, examples of which are
Board of Education v. Jewett, 

, 

 (1937),
stating in effect that it is the duty of all teachers to endeavor to
impress upon the minds of the pupils the principles of patriotism,
and State ex rel. Schweitzer v. Turner, 

, 

 (1945), to the effect that teachers by precept and example should
teach their students honesty and patriotism.
   There seems plenty of room for disagreement with Judge Weinfeld's further expression of his views in Kenji Kamada v. 

 that "It is difficult to understand why if plaintiff had been
employed by a privately operated school she would not forfeit her
American citizenship, whereas performance of the same service in a
school operated by a foreign government would effect that result."
  Our public school systernc ere an integral and extremely          important part of the Government of the United States. In the majority of the States, oaths of allegiance or loyalty are required of
the teacher by statute (see National Education Association Manual
on Certification Requirements for School Personnel in the United
States, 1959 edition, Table 7), and it is a safe assumption that the
remaining States exact undivided loyalty by some method or other
for teaching in their public schools. The teaching of the three
R's is but one function of a public school teacher. His responsibilities as a governmental official are heavy and demanding. Section
349(a) (4) (A) does not expressly require that the "office, post, or
employment under the government of a foreign state or a political
subdivision thereof" be confined to sensitive positions. Yet, Adler
T. Board of 

 indicates that the position of the public school teacher is a sensitive position. In my opinion, employment of the applicant as a public school teacher in the schools of
London, Ontario, is employment as contemplated by section 349(a)
 (4) (A) and inconsistent with retention of United States citizenship.
   FINDINGS OF FACT: Based upon the evidence of record, I find
that :
      (1) The applicant was born in Detroit, Michigan, on July 15,
          1921;
      (2) The applicant, at the time of his birth, was a citizen of the
          United States;
      (3) The applicant, at the time of his birth, was also a citizen of
          Great Britain;
      (4) The applicant was admitted to Canada as a landed immigrant on or about April" 12, 1922, and thereafter eon-
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          tinuously had Canadian residence and domicile with the
          exception of a brief period in 1945;
     (5) Thereafter, as of April 12, 1927, and, in any event, as of
          January 1, 1947, the applicant became a citizen of Canada;
     (6) The applicant, on and after December 24, 1952, has served
         in the employment of the Board of Education" of London,
         Canada;
     (7) The applicant sought admission to the United States for
         permanent residence at the Detroit-Canada Tunnel, Detroit,
         Michigan, on January 22, 1960;
     (8) Applicant was not then in possession of any valid immigrant visa or any other entry document permitting him
         to enter the United States for permanent residence as an
         alien.
CONCLUSIONS OF LAW:
     (1) Under section 349(a) (4) (A), the applicant, who was a
         national of the -United States by birth, has lost nationality
         by accepting, serving in, or performing the duties of a
         post, office, or employment under the government of a foreign state or a political subdivision thereof, since he had or
         acquired the nationality of such foreign state, to wit,
         Canada;
     (2) The applicant is subject to exclusion under the provisions
         of section 212(a) (20) of the Immigration and Nationality
         Act, in that, he is an immigrant, not in possession of a
         valid unexpired immigrant visa, reentry permit, bordercrossing identification card, or other valid entry document
         and not exempted from the presentation thereof by the
         statute or any regulations made thereunder.
   ORDER: It is ordered that the applicant be excluded and deported
from the United States. -
  It is further ordered that this case be certified to the Board of
Immigration Appeals for review and final decision.
                        BEFORE THE BOARD
                            (June 2, 1961)
  DISCUSSION; The special inquiry officer certified the case to the
Board after ordering the applicant excluded upon the ground stated
above.
  The applicant became a citizen of the United States by birth in
Michigan on July 15, 1921. If the relationship of father and son
existed between the applicant and his alleged father, the applicant
was also a British subject at birth. He was taken to Canada in
1922 when he was nine months old and, except for a brief period
in 1945, has been a resident of Canada. On September 1, 1952,
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the applicant became an employee of the Board of Education,
London, Canada, as a public school teacher and has continued in
this employment. The issue presented by the special inquiry officer's
decision is whether the applicant lost United States citizenship
under the provisions of section 349(0 (4) (A) of the Immigration
and Nationality Act, 8 U.S.C. 1481(a) (4) (A).
  Section 349(a) (4) (A) provides, as follows:
   Sec. 349. (a) From and after the effective Gate of thia Act a person who
is a national of the United States whether by birth or naturalization, shall
lose his nationality by-
     •           •           ♦          •            •          •            •
   (4) (A) Accepting, serving In, or performing the duties of any office, post,
or employment under the government of a foreign state or a political subdivision thereof, if he has or acquires the nationality of such foreign state • • •.
   In Kenji Kaman v. Dulles, 145 F. Srpp. 457, 459 (N.D. Cal,
1956), the Court stated that employment as a public school teacher
was not the type of employment which should cause expatriation,
for it was the intent of the statute to include service on behalf of
a foreign government "the performance of which required absolute
allegiance to the employing government and necessarily excluded
allegiance to our government." The special inquiry officer accepted
the test and concluded that under the Canadian law employment as
a teacher required the absolute allegiance of the applicant and excluded allegiance to our government. The statement of the court
is dicta. We do not believe that the test requires consideration as
to whether the employment by the foreign government is inconsistent with retention of allegiance to the United States. It is sufficient that the employment is under the government of a foreign
sate and that the person employed has the nationality of the 'foreign state. The record establishes the existence of these factors. No
change will be made in the special inquiry of ficer's order (Matter
         4-521).
  ORDER: It is ordered that no change be made in the special inquiry officer's order of exclusion.




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