A-6605457.
Decided by Central Office April 16, 1947. Decided by Board May 15, 1947.
Citizenship — Expatriation — By remaining out of the United States to escape United States military service — Section 401 (j) of the Nationality Act of 1940, as amended — Evidence.
The evidence fails to establish expatriation under the provisions of section 401 (j) of the Nationality Act of 1940, as amended, on the ground of remaining out of the United States to escape United States military service during the period stated in the statute though he knowingly failed to register for such service, where the native born citizen has resided in Mexico since 1931, denies he was in Mexico during the period stated in the statute for the purpose of escaping United States military service, insists he stayed in Mexico throughout such period (up to his application for admission in March 1947) to be with his family and support his two sisters, and there is no evidence that he wished to come to the United States from Mexico heretofore but decided not to do so because he feared United States military service.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Executive Order No. 8766 — No passport.
BEFORE THE CENTRAL OFFICE
(April 16, 1947)
Discussion: The appellant applied for admission as a citizen of the United States at El Paso, Tex., and was excluded by a Board of Special Inquiry on March 12, 1947, on the above grounds. He appeals from this decision.
The appellant was born in Kansas in 1925 and acquired citizenship under the Fourteenth Amendment to the Constitution. The Board of Special Inquiry found that he expatriated under section 401 (j) of the Nationality Act of 1940, as amended. The appellant has resided in Mexico since 1931. He states that he did not register for military service at an American consulate in Mexico because he thought he would be called for military duty and wished to stay with his family in Mexico. He states that he remained in Mexico for the purpose of supporting his two dependent sisters who are now accompanying him to the United States. He states he does not know why he did not bring them to the United States 2 years ago.
The record shows that the appellant deliberately avoided military service by declining to register with the proper authorities in Mexico and permits an inference that avoidance of his military duties was the dominant reason for his remaining in Mexico during the war. The only reason advanced for his continued residence in that country during hostilities was his desire to support his dependent sisters. Yet he and his sisters are found shortly after the termination of hostilities seeking admission to the United States and he is unable to explain why they did not apply at an earlier date. The finding of expatriation by the Board of Special Inquiry is supported by the record evidence. The appellant must qualify for admission as an alien. He is entering to remain permanently and is not in possession of an immigration visa and passport. The excluding decision of the Board of Special Inquiry will be affirmed.
Order: It is ordered that the excluding decision of the Board of Special Inquiry be affirmed.
In accordance with 8 C.F.R. 90.3 the case is referred to the Board of Immigration Appeals for consideration.
Discussion: Appellant acquired United States citizenship by birth in this country in July 1925. He desires admission for the purpose of residing in this country, and if the board of special inquiry correctly found that he has lost his United States citizenship, he is inadmissible on the ground that he does not possess a passport or an immigration visa.
Appellant has resided in Mexico since 1931. He testifies that he has known for 2 years that the United States was at war. His family informed him of this fact. They also informed him that United States citizens in Mexico should register for military service at an American consulate. Appellant testified that he did not register because he did not wish to leave his family. According to his testimony, he felt that he should remain in Mexico and continue to support his two sisters. He applied for admission in the company of his sisters, and the sisters were admitted to this country. Appellant was asked why he did not bring his sisters to the United States 2 years before, and replied that he did not know. He was employed in Mexico as a farmer laborer with earnings of 2 pesos a day, approximately 42 cents. He was asked why he did not return to the United States where he could earn many times more than 2 pesos a day as a farm laborer, and he replied that he did not know anything about the work in the United States. He denies that he remained outside of this country for the purpose of escaping military service.
We think the evidence does not establish that appellant remained in Mexico for the purpose of avoiding military service. The evidence affirmatively shows that he stayed in Mexico for the purpose of supporting his sisters. There is no evidence proving that he previously desired to come to the United States, but decided not to do so because he feared military service. We think this case is similar to Matter of H---- M----, 6603877, May 1947, where we found that appellant remained in Mexico not for the purpose of evading military service but because he wished to continue supporting his family.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That appellant was born in the United States in July 1925;
(2) That appellant desires admission for permanent residence but he does not possess an immigration visa or a passport;
(3) That appellant has resided in Mexico since 1931, and his purpose in remaining in that country since September 27, 1944 was to support his sisters and not to avoid military service in the United States.Conclusions of Law: Upon the basis of the foregoing findings of fact it is concluded:
(1) That under the Fourteenth Amendment to the Constitution appellant acquired United States citizenship by birth in this country;
(2) That under section 401 (j) of the Nationality Act of 1940, as amended, appellant has not become expatriated by remaining outside of the United States in time of war or during a period declared by the President to be a period of national emergency for the purpose of evading or avoiding training and service in the land or naval forces of the United States.Order: It is ordered that the appeal be sustained and that appellant be admitted to the United States as a citizen.