S

                                MA ILEX OF S--

                      In SECTION 341 Proceedings

                                  A-12030644

          Decided by Assistant Commissioner June 14, 1962
Loss of citizenship—Residence in country of former nationality—Voting in
  foreign election—Presumption of voluntariness.

 (1) Lengthy residence of naturalized United States citizen In the country In
   which her place of birth is situated must be voluntary in order to cause
   expatriation under section 404(b), Nationality Act of 1940, or section
   352(a) (1), immigration ana Nationality Act. This applicant has established by uncontroverted evidence that her presence In Lithuania at least
   since 1942 has not been voluntarily continued on her part.
(2) Where the individual concerned was acting under duress and not as a
   free agent, voting in political elections in a foreign state did not cause loss
   of United States nationality under section 401(e) of the Nationality Act of
   1940.
(3) Notwithstanding the conclusive presumption of voluntariness In section
  349(0) of the Immigration and Nationality Act, the defense of duress remains available and effective to preserve nationality if the prolonged physical presence in the foreign state has been Involuntary by reason of inability
  to obtain required official permission to depart.

               BEFORE THE ASSISTANT COMMISSIONER

  DISCUSSION: The applicant is a 71 - year - old married female, a
a native of Lithuania, who was admitted to the United States on
 May 10, 1960, on a nonquota immigrant visa as the spouse of a citizen of the United States. On March 30, 1961, she submitted an
 application for a certificate of citizenship under section 341 of the
Immigration and Nationality Act. The District Director recommends that the application be granted. The Regional Commissioner to whom the case was certified agrees with the District Director's conclusion, and this office concurs.
   Applicant's claim to United States citizenship arises out of her
marriage in Newark, New Jersey, to 1V—S— on April 23, 1913,
and his naturalization in the Common Pleas Court of Hudson
County, Jersey City, New Jersey, on October 3, 1921. The fact
that she derived United States citizenship upon his naturalization
is not contested, the only issue being with regard to whether sub-


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-sequent to such derivation she has lost her United States citizenship by residence in Lithuania or by voting in political elections
 in that country.
   The applicant has testified that she went to Lithuania in August
 1938 with her husband for a visit; that while there, because of illness on her part and inability to rent rooms, her husband purchased
a small two-family dwelling in December 1938; that in 1939 he
returned to Newark to the home which they had continued to own
in the United States; that her health at that time and until about
 1942 would not permit her to travel; and that she herself was not
  ermitted to return to the United States until 1960.
   Concerning her prolonged residence in Lithuania, the applicant
has further testified that occupation of the country by Russian or
German authorities during the war years made it impossible for
her to leave; that during all her residence there she continued to
live in the same house; that she wrote to her husband many times
requesting his help in leaving Lithuania ; that she received no
letters from him until about 1956; and that it was not until 1960
that she could obtain permission to depart and documentation to
return to the United States.
   The record substantiates applicant's testimony regarding her inability to make an earlier return to the United States. It shows
that her husband wrote to her many times, but received no answer,
and that since 1940 several attempts were made through the State
Department to bring her back to the United States. An approved
petition for issuance of an immigrant visa grating her nonquota
status as of December 4, 1940, was on file in the American Embassy
in Moscow. Inquiry was also made of that Department in May
1946 by the applicant's daughter concerning the procedure to be
followed in order that applicant might return to the United States.
The applicant's husband further exhibited a letter from the State
Department dated December 31, 1941, stating it had not been possible to contact her. She eventually succeeded in re-establishing
contact with him, and in 1956 executed an application for registration a     Atizen of the United States through the Embassy at
Moscow. The application was approved and the Embassy was
authorized to issue a 'passport to her upon her application therefor, but no passport was issued as she was unable then and until
1960 to secure permission to depart.
   Section 404(b) of the Nationality Act of 1940, prior to its repeal
on December 24, 1952, and current section 352 ( a) (1 ) of the Immigration and Nationality Act provide for the loss of United States
nationality by a naturalized citizen of the United States—that is,
by a person who acquired United States nationality subsequent to
birth—:through three years' continuous residence in the country of

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 nativity or former nationality. The residence cont. 11 -Tinted, however, is voluntary residence (31 (:(ter of C (1947) ). Inasmuch as the applicant has established that site derived citizenship
 flu-ough the naturalization of her husband and has injected the issue
 of voluntarines in con nection with her lengthy residence in Lithuania,
 the burden is upon the Government to show that she voluntarily
 resided in Lithuania (Nisfilkawa. v. Dulles, 

 (1958)).
 The weiht of the uneontroverted evidence of record is t,o the effect
 that her presence in Lithuania since at least 1942 has not been voluntarily continued on her part. On the contrary, it has been enforced
by circumstances beyond her control, including inability to communicate with her family and the State Department and to se.cure an exit
permit.. A conclusion, therefore, that she has lost nationality under
section 40 -1(b) or 352(a) (1) cannot be sustained_
    The applicant has further testified that she voted in elections in
 Lithuania approximately 10 times between February 194-4 and February 1959. She alleges, however, that such voting was under
 duress and that if one did not vote "they put you in jail." A resume
 of the laws relating to voting in Lithuania, received from the
 Library of Congress, points out that these laws are patterned on
 Soviet electoral laws and that duty to vote is emphasized by threats
 in newspapers and statements of public officials.
   Section 401(e) of the Nationality Act of 1940, prior to its repeal
 on December 24, 1952, provided for loss of United States nationality
 by voting in a political election in a foreign state. Again, the issue
 of voluntariness having been raised by the applicant in connection
 with her voting during the effective period of section 401(e), the
 burden is upon the Government to show that when she voted she
 was acting as a free agent, without force from outside pressures
 (Mauer of G        3 817 (1059)). There is no such evidence of voluntariness, and consequently the record -cannot sustain a conclusion
 that her voting prior to December 24, 1952, resulted in loss of
 nationality under section 401 (e) of the Nationality Act of 1940.
   Section 349(a) (5) of the Immigration and Nationality Act,
which became effective on December 24, 1952, contains provisions
identical to those of section 401(e). This later Act, however, contains an additional provision—section 349(b)—which raises a conclusive presumption that voting on or after December 24, 1952, has
been performed voluntarily and without duress of any kind if the
person involved is a national of the state in which the voting occurs
and has been physically present in that state for a period or periods
totaling 10 years immediately prior to voting. The applicant's nationality at. the time of this subsequent voting and the length of her
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 physical presence in Lithuania are material, therefore, in considering
 the efficacy of the defense of duress which has been advanced and
 whether the conclusive presumption in section 349(b) operates
 against her. In this connection, the question of her status as a national of the foreign state where the voting occurred is not clear,
 but clarification thereof is not deemed necessary in 'view of the
 conclusion reached below that her presence in Lithuania did not
•constitute physical presence within the meaning of that section.
    Section 349(b) introduces a new concept into the field of expatriation law. It removes from consideration by direct legislative action
 a defense hitherto firmly entrenched in the law, voluntariness in the
performance of an expatriatory act having been traditionally essential to cause a loss of United States nationality. As such, the provisions of this section require a narrow interpretation and more than
 ever in its administration "the law should be construed as far as is
-reasonably possible in favor of the citizen" (Nishikawa v. 

 and Schneiderman v. United States, 

). So
 construed, the section is regarded as effective to raise a conclusive
presumption that the expatriatory act was voluntarily performed
only if the physical presence in the foreign state was voluntary. It
does not operate with that effect when, as in the instant case, the
 record establishes continuing unavailing efforts to depart from the
foreign state and that, the prolonged physical presence there is the
-


result of official prevention of departure. When freedom of egress
is shown to be so restricted, it is the view of the Service that physical
presence within the meaning of section 349 (b) does not accrue and
that duress in the performance of an expatriatory act remains available as a defense.
   In the instant case, the applicant has fully established the involuntary nature of her presence abroad. The defense of duress in
connection with her voting on or after December 24, 1952, may, therefore, be given effect, and on the entire showing made a finding of
expatriation under section 349(a) (5) cannot be sustained.
   ORDER: It is ordered that the decision of the District Director and
the Regional Commissioner, finding that the applicant deriVed citizenship through the naturalization of her husband on October 3,
1921, and that she has not subsequently been expatritaed, be and
hereby is approved.




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