A-6732816
Memorandum by Central Office January 9, 1948 Decided by Board April 7, 1948 Decided by Board September 29, 1948
Citizenship — Expatriation — Departure from or remaining out of the United States to avoid United States military service — Section 401 (j) of the Nationality Act of 1940, as amended — Burden of proof — Quantium of evidence.
1. A person seeking admission to the United States as a citizen thereof has the burden of proving citizenship.
2. Once he establishes that he was once a citizen and the Government asserts that he lost that status, then the Government, aided by such presumptions as are provided by law, must carry the burden of proving expatriation.
3. As to the quantum of evidence required to carry the burden as to expatriation, the Government's proof must be strict and exact and must be by more than a mere preponderance of evidence.
4. A native-born citizen residing in Mexico since he was 3 years old (1930), as to whom the record is silent why and for how long he came here in 1945 (a month before his eighteenth birthday) and in 1946, and as to why he departed in 1945, is not shown to have become expatriated under the provisions of section 401 (j) of the Nationality Act of 1940, as amended, since his motives in departing in 1945 and remaining out from 1945 to 1946 had to be inferred from conduct from which favorable as well as unfavorable inferences could be drawn.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Executive Order 8766 — No passport.
MEMORANDUM BY CENTRAL OFFICE
Motion to Board of Immigration Appeals that it reconsider and withdraw its order of November 28, 1947, or in the alternative, that the Board certify the question to the Attorney General for decision.
The issue presented in this case is whether the appellant lost United States nationality under the provisions of section 401 (j) of the Nationality Act of 1940, as amended. As in the C---- — A---- case referred to the Attorney General (56196/686, Mar. 25, 1946, Atty. Gen.), the issue involves a question as to the sufficiency or quantum of evidence required for a finding of such expatriation.
Section 401. A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:
( j) Departing from or remaining outside the jurisdiction 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. ( 54 Stat. 1168, as amended by 58 Stat. 746; subsection (j) added by Act of Sept. 27, 1944.)
In this case, the appellant has denied that he was at any time motivated by the purpose described in this statute. However, it is believed that the exculpatory effect of such denials is conclusively countervailed and outweighed by the unmistakable implications which arise from the conduct and which may be reasonably deduced from the rest of his testimony.
As appeared in the above case of C---- — A----, and otherwise, an outright admission of the proscribed motive specified in this statute is not required. The statements of the individual on this point are weighed together with all the evidence in the case and are accepted only if found to be worthy of credence. From the evidence of record in this case it is believed reasonable to conclude that the appellant expatriated himself unuder the provisions of section 401 (j), ( supra).
Letter dated February 12, 1946, from Board of Immigration Appeals to Senator Russell.
The data of record speaks for itself and no dispute has been raised as to the following: This individual was born in the United States on March 24, 1927. He took up residence in Mexico with his Mexican parents in 1930. He entered the United States in February 1945, about a month before be became 18. He was apprehended by this Service almost at once, claimed nativity in Mexico and denied nativity in the United States, whereupon he was allowed to depart voluntarily as an alien. He reentered the United States in May 1946, after he had become 18. He was again apprehended almost at once by this Service, claimed nativity in Mexico and denied nativity in the United States, whereupon he was allowed to depart voluntarily as an alien. On July 1, 1947, he applied for admission into the United States to work here claiming United States citizenship by birth in the United States. He was aware of the requirement of registering for United States military service since 1945, even though living in Mexico.
He willfully failed to register for such service from March 24, 1945 (when he became 18 years of age), until the "end of the Selective Service program in March 1947."
The question is not whether we are dealing with a draft delinquent subject to prosecution for violation of the "draft" act, which this individual appear to be. The question for determination is whether this alien's conduct was motivated by the proscribed purpose specified in the expatriation statute. The difference between the conclusion reached in this case by this Service and the Board of Immigration Appeals arises from the manner of assaying the pertinent evidence.
It is to be noted that under the Selective Training and Service Act of 1940, Congress stated that every person was "deemed to have notice" of this act's requirements "upon publication by the President of a proclamation or other public notice fixing a time for any registration", under section 2 of that act. On December 26, 1943, the President issued a proclamation calling on citizens who were outside continental United States, Alaska, Hawaii, and Puerto Rico, to register for United States military service with the United States Consulate or Embassy while abroad within a specified time.
Proclamation No. 2597 ( 8 F.R. 14596) required persons born after December 31, 1898, and before January 1, 1926, to register between November 16, 1943, and March 31, 1944, and those born after January 1, 1926, when they became 18 years of age. Previous proclamations regarding registration for United States military service in the United States or in Territories or possessions were made in 1940, in 1941 and in 1942. (Proclamations Nos. 2425, 2430, 2431, 2486, 2535, 2541, and 2572.)
This individual claims he never knew of the Presidential proclamation of December 26, 1943. However, as noted, he was charged with "notice" thereof, by Congress. The expatriation statute we are considering went into effect on September 27, 1944, which was after this proclamation was published on December 26, 1943.
We are not told where this individual lived before May 1944. He stated that he lived in Chihuahua, Mexico, from May 1944 until about June 1945 and this city is of considerable size and population. Thus, there is some question as to his credibility on his claim of complete ignorance of such Presidential proclamation of December 26, 1943, or its requirements, especially since he has lived on the border since May 1946. Moreover, he has admitted he knew of his obligation to register for United States military service, since 1945.
The record does not establish just when in 1945 he learned of such obligation, but he has admitted he did not register in 1945 because he was not living here. He also stated he did not come here in 1945 to register, upon reaching his 18th birthday, because he had not decided to come to live here.
However, the appellant admitted he did come here in February 1945, just about a month before reaching his 18th birthday. He was apprehended and on February 8, 1945, was permitted to depart voluntarily, when he claimed alienage by birth in Mexico, whereas he knew he was born in the United States. His day for registration was then imminent, that is, he would be 18 years of age in about 1 month or so. He did not then claim citizenship nor did he elect to remain here as a citizen and register when he became 18 years of age, but rather chose to claim alienage.
His explanation that he did not then claim birth in the United States, because he did not have proof thereof, is a tax on credulity Certainly, he was in the United States in February 1945, and like everyone else here, was deemed by Congress to have notice of his obligation to register when he became 18 years of age, in view of the Presidential proclamations then in effect. He was not liable in February 1945, to "prosecution" for failure to register. The dubiety as to this "explanation" increases when it is considered he had nothing to lose then by claiming United States citizenship. It may also be observed in passing, that if he had presented himself for regular inspection when he entered the United States as he claimed in February 1945, the likelihood would have been that the immigrant inspector would have, in regular course, inquired of him as to his citizenship status and documentary proofs thereof or as to his alienage and his right to enter the United States. However, the record is silent as to how or in what manner he effected entry in February 1945. Accordingly, his explanation of his conduct, in claiming alienage in February 1945, cannot be accepted because it is not deemed worthy of credence.
His departure on February 8, 1945 was in no sense involuntary. Indeed, it has been held that where a citizen permitted his deportation in warrant proceedings, from this country, in the guise of an alien and thereby caused his own departure to be effected by his own fraudulent contrivance, to wit, his claim to alienage, that such a departure was not involuntary. ( Matter of C----, A-6070986, Mar. 14, 1947, B.I.A.). In this instance he had claimed alienage in February 1945, and was permitted to depart voluntarily, without the institution of deportation proceedings.
The mere fact that his departure on February 8, 1945, took place before he reached his 18th birthday (Mar. 24, 1945), does not necessarily constitute a bar to a conclusion that such departure could have resulted in loss of citizenship under this statute. In a case where a citizen of the United States departed in 1945, about 4 days before reaching his 18th birthday (when he would have become liable to existing draft requirements), the mere fact that he was 4 days under 18 years of age when he departed, did not bar a conclusion that his departure for the proscribed purpose set forth in section 401 (j) ( supra) resulted in loss of citizenship. ( Matter of G---- G----, A-6450222, Jan. 27, 1947, B.I.A.). His departure on February 8, 1945, must be noted as having taken place after September 27, 1944, when this expatriation statute took effect.
The appellant admits he did come here in February 1945, and there is nothing to show that he came here involuntarily. We must conclude that he wanted to come here when he did come here in February 1945. The mere fact that he had resided in Mexico for a considerable period prior to his coming here in February 1945, is not considered a bar to the conclusion that he expatriated himself by his voluntary departure on February 8, 1945. Such was the holding in a case where an individual came here in 1945 (when he was already 18 years of age and thus liable for the draft), and departed from the United States the very next day, to escape military service here ( Matter of C---- R----, 56197/939, Aug. 15, 1946).
The conclusion is inescapable, from the evidence of record and in the absence of affirmative credible evidence to the contrary, that this individual did depart from the United States on February 8, 1945, for the proscribed motive specified in section 401 (j), ( supra), and consequently comes within the purview of its expatriative provisions.
Having reached the conclusion that the appellant departed on February 8, 1945, during wartime, for the purpose of avoiding training and service in the armed forces of the United States subsequent to September 26, 1944, the appellant may be deemed to have been immediately upon arrival in Mexico on February 8, 1945, an individual who was remaining out of the United States for the proscribed purpose specified in section 401 (j), ( supra). Consequently, it is appropriate to affirm the previous conclusion reached by the Commissioner as to the basis of expatriation and no useful purpose is deemed served to shift the emphasis as to which factoral situation resulted in expatriation. However, such expatriation could be equally supported on the basis of his departure on February 8, 1945. What is important is that the record does support a conclusion that the appellant expatriated himself under the provisions of section 401 (j), ( supra), and that the Board of Special Inquiry properly excluded him on the above documentary grounds, as an alien.
This individual's subsequent conduct is revealing and supports the finding as to expatriation. In May 1946, when the "draft" act was about to expire by virtue of its own provisions, and after Germany and Japan had surrendered, and when the prospect of his having to serve in the armed forces of the United States now seemed more remote, this individual came to the border town of Juarez, Mexico, where his brother resided while working in the United States.
Germany had surrendered unconditionally on May 6, 1945 and Japan did likewise on August 14, 1945.
The appellant testified that his brother and he came to the United States in May 1946, on a Thursday and that his brother advised him to register for United States military service the following Monday; that in the interim he was apprehended by this Service and was allowed voluntary departure on May 25, 1946, upon his claim of alienage. In connection with this voluntary departure, he stated that although he had his baptismal certificate with him, he made his claim of nativity in Mexico, because he was afraid he would be punished for not having registered for United States military service. Such conduct indicates draft dodging. He has not explained how he expected to avoid inquiry upon his intended delayed registration in May 1946. It does not appear that anyone was dependent upon him for support or that he was without means to come to the United States or to register abroad. He had stated that he just did not get around to register in 1946 and that upon reaching his 18th birthday in March 1945, he had not yet decided to come to live in the United States. The Board of Immigration Appeals, however, noted that he in all likelihood would have remained here in February 1945, and in May 1946, were it not that he was "required" to depart by this Service, upon his claim of alienage. The entire record points to the conclusion of expatriation as indicated above.
If the Board of Immigration Appeals decides not to withdraw its order of November 28, 1947, this case should be certified to the Attorney General for decision. Many cases of this kind have arisen where difficulty involved was a matter of assaying evidence and determining the reasonable implications arising from conduct and testimony, especially where the individual has made exculpatory denial as to the proscribed motive specified in this statute dealing with the expatriation of draft dodgers and delinquents.
Motion is hereby made that the Board of Immigration Appeals reconsider and withdraw its order of November 28, 1947, and that it enter an order affirming the excluding decision of the Board of Special Inquiry in this case.
It is further moved, that, in the event the Board of Immigration Appeals does not grant the foregoing motion, it certify the case to the Attorney General for decision pursuant to the provisions of 8 C.F.R. 90.12 (c).
Discussion: This case is before us on the Service's motion requesting reconsideration of our decision of November 28, 1947. In that decision we found that appellant had not lost his citizenship under section 401 (j) of the Nationality Act of 1940, as amended, and directed his admission as an American citizen. The Service does not ask that the hearing be reopened to take additional evidence. It takes the position that on the record made before the Board of Special Inquiry the only reasonable conclusion is that appellant expatriated himself under section 401 (j) of the Nationality Act of 1940, as amended.
Before taking up the merits of the Service's motion, we think it important first to decide who has the burden of proof in expatriation cases and the quantum of evidence necessary to carry the burden. It is clear that where a person seeks admission to the United States as a citizen, the burden of proving citizenship is on the applicant for admission. Mah Ying Og v. Wixon, 124 F. (2d) 1015 (C.C.A. 9, 1942); Lum Mon Sing v. United States, 124 F. (2d) 21 (C.C.A. 9, 1941); Tillinghast v. Flynn ex rel. Chin King, 38 F. (2d) 5 (C.C.A. 1, 1930). For example, an applicant who claims citizenship through birth in the United States must prove his birth here. Again, a woman claiming citizenship through marriage, prior to September 22, 1922, to an American citizen must prove her marriage and the citizenship of her husband. As a final example, an applicant claiming citizenship through his father's naturalization during his minority must establish relationship, his father's naturalization and his lawful residence during minority. The applicant for admission cannot remain silent and require the Government to come forward and prove that he is not a citizen.
But, once the applicant for admission establishes that he was once a citizen and the Government asserts that he lost that status because of his subsequent conduct, then the Government, aided by such presumptions as are provided by law, must carry the burden of proving expatriation. Bauer v. Clark, 161 F. (2d) 397 (C.C.A. 7, 1947). In this case, the Government admits that appellant, through birth, acquired American citizenship under the Constitution of the United States. It contends, however, that he lost his citizenship under section 401 (j) of the Nationality Act of 1940, as amended, by departing from or remaining outside the jurisdiction of the United States subsequent to September 27, 1944, for the purpose of escaping military service. The Government has the burden of establishing appellant's expatriation under this statutory provision.
E.g., section 402 of Nationality Act of 1940.
In administrative and judicial proceedings where there are formal pleadings, the general rule is that the burden of proof is on the party asserting the affirmative of an issue. In exclusion proceedings there are, of course, no formal pleadings. Nevertheless, we think the general rule as to fixing the burden of proof can be applied. When the Government admits that a person was a citizen and then contends that he lost that status because of subsequent conduct, the Government is asserting the affirmative of the issue. The analogous situation in formal pleadings is a plea of confession and avoidance.
The next question is the quantum of evidence required to carry the burden. In this connection it must be remembered that we are here concerned with American citizenship, a most important right. As the Supreme Court has said, "It would be difficult to exaggerate its value and importance." Schneiderman v. United States, 320 U.S. 118, 322 (1943). To deprive a person of his status as a citizen can have unfortunate consequences, consequences that are "more serious than taking of one's property, or the imposition of a fine or other penalty." Schneiderman v. United States, supra, 122.
In judicial denaturalization proceedings brought under the Naturalization Act of 1906 or the Nationality Act of 1940, the Government must establish its case by "clear, unequivocal, and convincing proof" which does not leave "the issue in doubt." Schneiderman v. United States, supra, 125. Or, to quote again from the Supreme Court, the Government's case must contain "that solidity of proof which leaves no troubling doubt in deciding a question of such gravity as is implied in an attempt to reduce a person to the status of alien from that of citizen." Baumgartner v. United States, 322 U.S. 665, 670 (1944). Moreover, the burden on the Government is not met by showing that the conclusion reached is a reasonable one. Schneiderman v. United States, supra, 153, 154. The conclusion must be more than reasonable; it must leave no room for doubt in the deciding tribunal's mind.
There is a distinction between a denaturalization proceeding, where the Government seeks to attack a formal judgment of a court entered after full and open hearing, and an expatriation case where the Government asserts that the individual concerned lost his citizenship status because of his subsequent conduct. Because of this distinction, we do not think that the "clear, unequivocal and convincing" evidence test, as applied in denaturalization cases, is necessarily the proper rule in expatriation cases. Yet we must remember that to the individual concerned the stakes involved in a finding of expatriation are just as high as a finding of illegality or fraud in a denaturalization case. The Board therefore thinks that the Government's proof must be strict and exact; it must be by more than a mere preponderance of evidence.
However, see Bauer v. Clark, supra, where the 7th Circuit Court of Appeals expressly held that the Government did carry the same heavy burden in both types of cases.
We do not think the fact that the issue of expatriation is raised in an administrative rather than in a judicial proceeding is important. Under section 503 of the Nationality Act of 1940 a person claiming citizenship who is denied a right or privilege as a citizen can, even if outside the United States, institute an action in an appropriate district court of the United States for a judgment declaring him to be a national of the United States. Thus, in this very case, if appellant were unsuccessful in his claim of citizenship, he could proceed judicially under section 503 of the Nationality Act of 1940. In that event, there would be formal pleadings, and the burden of proving expatriation would be upon the Government.
We turn now to the Service's motion and to a reexamination of the evidence to see if the Government has met the burden of proof to which we have referred. The record shows that appellant was born in California on March 24, 1927. His parents took him to Mexico to live in 1930, when he was about 3 years old. His home has been in Mexico since that time. Appellant has been in the United States on only two occasions since being taken to Mexico to live in 1930. The first time was in the early part of February 1945, when he was not yet 18 years of age. Apparently the day after his entry — and the record does not show how he gained entry into the United States — he was apprehended by the immigration authorities. He told them that he was born in Mexico. That claim was advanced because, as appellant testified, he had no documents with him to prove birth in the United States. The immigration authorities granted him permission to depart voluntarily from the United States in lieu of instituting deportation proceedings. Appellant did leave the United States on February 8. The record is silent as to why he came to the United States on that occasion, how long he intended to remain, and what he intended to do.
From the time of his departure until May 24, 1946, appellant lived and worked in Mexico. On May 24, 1946, he again came to the United States. It appears that at that time he gained admission as an American citizen by presenting his baptismal certificate. The day after he entered he was again apprehended by the immigration authorities. Once again he claimed birth in Mexico. He also disclaimed ownership of the baptismal certificate in his possession. His false statements at that time were motivated, according to his testimony, by his fear of prosecution as a draft delinquent. He was again granted permission to depart voluntarily from the United States at his own expense and again he departed. The record is again silent as to why the appellant came to the United States in May 1946, how long he intended to remain, and what he intended to do. His present application for admission was made on July 1, 1947.
The evidence as to appellant's intentions with respect to the Selective Training and Service Act of 1940, evidence which comes from his own testimony, is that he had no knowledge of the 1943 Presidential proclamation requiring American citizens living abroad to register for military service at the nearest American Consulate. But he did testify that from some time in 1945 he had known that he was subject to the Selective Service laws and that he should have come to the United States to register for military service. He categorically denied that he had remained in Mexico to escape military service or that he had departed from the United States in May 1946 for that purpose. The Board of Special Inquiry did not question him as to his reasons for departing from the United States in February 1945.
In its decision the Service would charge appellant with actual knowledge of this proclamation, notwithstanding that there is no evidence in the record to support such a finding. The theory is that Congress, in enacting the Selective Training and Service Act of 1940, provided that every person was to be deemed to have notice of the act's requirements. While we agree that appellant, as a matter of law, was presumed to have knowledge of the requirements of the Selective Training and Service Act of 1940, we do not think that he, or any other applicant, can be charged with such knowledge for the purpose of determining whether or not he had lost his American citizenship under section 401 (j) of the Nationality Act of 1940, as amended.
In this connection we note that appellant was under no obligation to come to the United States to register. He only had to register at the nearest American Consulate in Mexico.
The Service, in its motion requesting reconsideration, found, on the basis of the foregoing evidence, that appellant lost his American citizenship under section 401 (j) of the Nationality Act of 1940, as amended, either by departing from the jurisdiction of the United States on February 8, 1945, to escape military service or by remaining outside the United States from February 8, 1945, until May 24, 1946, for the same purpose. Under the Service's first alternative conclusion, appellant's expatriation occurred on February 8, 1945, when he had not yet reached 18 years of age. We think that Matter of A---- H----, 56196/251 (A.G. 5/15/46), stands for the proposition that persons under 18 years of age are legally incapable of losing citizenship under section 401 (j) of the Nationality Act of 1940, as amended. That being the case, appellant could not have lost his citizenship when he left the United States in February 1945, regardless of his motive. His conduct prior to reaching his 18th birthday may still be used, however, for whatever it is worth, as evidence in connection with his conduct after attaining 18 to show that the latter conduct brought him within the expatriating provisions of section 401 (j).
Apparently the Service has abandoned its theory that appellant could have lost his American citizenship on May 25, 1946, on the ground that he then departed from the United States to escape military service. With respect to this point, we rest on what we said in our prior opinion.
The Board there held that section 401 (j) did not apply to minors. The Service seems to have taken the position that there was no age limit. The individual involved in that case, we note, was over 18 and under 20 when the conduct, on the basis of which his expatriation was sought, occurred. Furthermore, the Selective Service Act then made citizens, 18 and over, liable for military service. The Attorney General held that a person under 21 could lose his citizenship under section 401 (j). He did not expressly say that 18 was the age limit. But, in the light of all the opinions rendered in that case, we think it fair to conclude that an age limit of 18 was intended. Cf. section 403 (b) of the Nationality Act.
But apart from this legal question, and assuming that section 401 (j) applies regardless of age, we still do not think the Government has proved on this record that appellant left the United States on February 8, 1945, to escape military service. As we see it, such a finding cannot be made unless we first know why appellant came to the United States and how long he intended to stay. To illustrate, it is perfectly possible that he came here only temporarily to do some shopping, to attend a movie, or to visit a friend or relative, with the intention of returning to his home in Mexico after accomplishing his mission. If that were so, and if appellant had not changed his mind up to the time he was apprehended by the immigration authorities, we could not then find that his departure, while perhaps accelerated by the immigration authorities, was motivated by a desire to escape military service. It seems to us that we would then have to find, regardless of why he claimed alienage and regardless of what he thought with respect to his obligations under the Selective Training and Service Act, that he left the United States to return to his home in Mexico.
Then again, it may be that appellant intended to remain here indefinitely or permanently. In that event, and in order to make a finding as to why he left on February 8, 1945, we would have to know his state of mind with respect to his obligations under the Selective Training and Service Act of 1940. We know that under that act Mexican nationals residing in the United States, lawfully or unlawfully, were subject to military service. If appellant knew that, then, so far as military service was concerned, he must necessarily have known that he had nothing to gain under the selective service laws by continuing to live in the United States as an alien. Under that hypothesis, it would be unreasonable for us to find either that he posed as an alien to escape military service or that he left as an alien for that purpose. On the other hand, if appellant thought that he could escape military service by living in the United States as an alien or, if at the time of his apprehension by the immigration authorities on February 8, 1945, he knew or thought that he had not yet become liable for military service because of his short residence in the United States, we would have some basis for finding that he deliberately assumed the guise of an alien to escape military service and that his departure as an alien was for the same purpose.
We can, of course, assume other equally as reasonable possibilities and from that proceed to make other guesses as to why he posed as an alien.
The difficulty in this case, as we indicated above, is that there is no direct or even circumstantial evidence in the record with respect to these matters. The board of special inquiry made no effort to interrogate appellant along these lines and the record is so barren of evidence that we find it almost impossible to draw a conclusive inference from appellant's course of conduct. In fact, if we had to make a finding as to why appellant came to the United States in February 1945 and how long he intended to stay, we think the more reasonable inference is that he came here temporarily. In this regard we point to the fact that appellant's home had been in Mexico for the prior 15 years and that is where he continued to live and work after leaving the United States. Mexico, not the United States, was his place of abode.
Furthermore, if we had to make a finding as to appellant's state of mind with respect to his obligations under the Selective Training and Service Act of 1940, we think his explanation of why he posed as an alien is the most reasonable one. The Service did find that appellant claimed alienage to escape military service, apparently implying that he did so because he thought he could thereby avoid the consequences of the Selective Training and Service Act. Its theory seems to be that had appellant claimed citizenship, his claim, unsupported by any documentary evidence, would have been accepted and he would not have been required to leave the United States. It has been our observation that unsupported claims of citizenship advanced by recent border crossers from Mexico are rarely, if ever, accepted. This, of course, is a perfectly proper and sound practice. But it is a practice that we are sure is well known along the Mexican border. It is for that reason we think appellant's explanation as to why he claimed alienage has an air of plausibility. And, furthermore, even if we refuse to accept appellant's explanation, we cannot employ our disbelief as affirmative evidence that he thought that by posing as an alien he could escape military service.
To sum up, we cannot, on the record before us, make reasonable findings as to why appellant came to the United States in February 1945, how long he intended to stay and why he posed as an alien when apprehended by the immigration authorities. Consequently, we cannot say that he departed on February 8, 1945, to escape military service. Finally, in this connection, we point out that, ostensibly at least, he left the United States because he was required to do so by the immigration authorities and not because he wanted to. And expatriation, of course, cannot be based on an involuntary act. Dos Reis ex rel. Camara v. Nicolls, 161 F. (2d) 860 (C.C.A. 1, 1947).
The Service's second alternative conclusion that appellant remained outside the jurisdiction of the United States to escape military service is based on the following reasoning, and we quote:
Having reached the conclusion that the appellant departed on February 8, 1945, during wartime, for the purpose of avoiding training and service in the armed forces of the United States subsequent to September 26, 1944, the appellant may be deemed to have been, immediately upon arrival in Mexico on February 8, 1945, an individual who was remaining out of the United States for the proscribed purpose specified in section 401 (j) ( supra).
This conclusion depends on the Service's prior finding that appellant departed from the United States in February 1945 for the purpose of escaping military service. We have pointed out the weakness inherent in this prior finding. The reasoning of the Service that appellant remained in Mexico to escape military service is necessarily subject to the same weaknesses.
Aside from this argument, we do not think the record establishes that appellant remained in Mexico to evade or avoid military service. We have repeatedly held that a person cannot be expatriated on this ground unless it is shown that but for the Selective Training and Service Act of 1940 the person would have come to the United States. Matter of M----, 6603877 (June 12, 1947); Matter of M----, 6690283 (Mar. 8, 1947); Matter of V---- A----, 6763916 (Dec. 19, 1947); Matter of R----, 6732827 (Nov. 18, 1947); Matter of G---- L----, 6728033 (Nov. 20, 1947); Matter of C----, 6721983 (Oct. 9, 1947). There is no evidence that appellant had any desire to come to the United States during the period from February 1945 to May 1946. And even assuming he did then want to come to the United States, there is no evidence that his desire was thwarted by a motive to escape military service. The affirmative evidence in the record shows that appellant was working in Mexico during most of that time. Mexico was where his home was located and where he had lived with his parents since 1930. As we said in our prior decision, if we knew definitely why he came to the United States in February 1945 and May 1946, some light might have been thrown on his reasons for remaining in Mexico. The board of special inquiry did not interrogate him in regard to this aspect of the case.
As we analyze this case, the Service's finding of expatriation can be supported only if we draw a series of unfavorable inferences from appellant's conduct, and if we pyramid one unfavorable inference upon another. This type of proof, we think, falls far short of being strict and exact. In fact, as we have tried to indicate, there is not even a preponderance of evidence to support the Service's findings. We conclude that the Government has not established expatriation.
In reaffirming our former holding, we wish to say that we recognize the difficulties inherent in establishing a person's motive in leaving or remaining outside the United States. As the Supreme Court has said, "Intent is a subjective state, illusory and difficult to establish in absence of voluntary confession." Knauer v. United States, 328 U.S. 654, 659 (1946). But the fact that proof is difficult does not justify administration findings of expatriation that depend for the most part on nothing but conjecture. And because of this difficulty it becomes all the more imperative for the immigration authorities to develop complete records in cases involving section 401 (j) of the Nationality Act of 1940, as amended, thus leaving as little as possible to inference and conjecture.
Finally, we wish to make it clear that we do not take the position that in expatriation cases unfavorable inferences cannot be drawn from a person's conduct. There are undoubtedly situations where a person's conduct is susceptible of only one reasonable inference and that unfavorable to the applicant for admission. Inferences drawn from such conduct would certainly support a finding of expatriation. But where the person's conduct permits of two or more reasonable inferences, one unfavorable and the other or others favorable, we ought not to expatriate that person through a process of reasoning that gives no weight to the favorable inferences and that reaches its result by pyramiding one unfavorable inference upon another.
For example, a citizen, residing in Mexico during the war, adopts the guise of an alien in order to qualify for temporary employment here as an agricultural worker or a railroad track laborer. He chooses to do this rather than come here as a citizen because, as an agricultural or track laborer, he knows that he is exempted from the operation of the Selective Training and Service Act of 1940. At the termination of his contract and in accordance with its provisions he chooses to leave the United States under that guise. He would have preferred to remain and work in the United States.
Order: The Service's motion, in all respects, is denied.
In accordance with section 90.12, title 8, Code of Federal Regulations, the Board certifies its decision and order to the Attorney General for review.
Discussion: This case arises in an excluding proceeding. It concerns an applicant who sought admission at El Paso, Tex., on July 1, 1947, claiming to be a citizen of the United States. The evidence established that he was born in the United States on March 24, 1927, and was taken to Mexico in 1930. He remained abroad until February 1945. On being apprehended by the immigration authorities, he was permitted to depart from the United States without the institution of deportation proceedings. He reentered the United States on May 24, 1946, and was again apprehended and again permitted to depart, which he did on May 25, 1946. He now seeks readmission.
The issue presented is whether he has remained outside the jurisdiction of the United States in time of war for the purpose of evading or avoiding training and service in the Armed Forces of the United States. If he has, he is an expatriate under section 401 (j) of the Nationality Act of 1940, as amended (8 U.S.C. 801-j).
The Board of Special Inquiry concluded that expatriation had occurred and inasmuch as the applicant sought admission in order to secure work, he was held to be an immigrant and was excluded for want of a passport and for want of an immigration visa. From that decision he appealed, but his appeal was dismissed by the Commissioner. He then noted an appeal to the Board and the Board on November 28, 1947, sustained his appeal on a finding that the record did not warrant a conclusion that expatriation had occurred. The Commissioner moved for reconsideration and requested that if the Board did not sustain a finding of expatriation the case be referred to the Attorney General for review. The Board on April 7, 1948, affirmed its prior holding, but referred the case to the Attorney General in compliance with the Commissioner's request.
The case is now back from the Attorney General "as one involving a question primarily of fact within the jurisdiction of the Board to determine." The Board has heretofore concluded that in its opinion a finding of expatriation is not warranted.
It is ordered that denial of the motion for reconsideration be and is hereby affirmed.