A-6690283.
Decided by Central Office July 8, 1947. Decided by Board August 8, 1947.
Citizenship — Expatriation — Remaining out of the United States to escape United States Military Service — Section 401 (j) of the Nationality Act of 1940, as amended — Evidence.
A person born in the United States in 1918, who resided in Mexico since 1920, is not considered to have become expatriated under the provisions of section 401 (j) of the Nationality Act of 1940, as amended by the act of September 27, 1944 (as one who remained out of the United States to escape military service) unless it appears that he intended to come to the United States but refrained from doing so because he wanted to escape United States Military Service; and his mere conclusory statement that he had continued living abroad to avoid United States Military Service is considered of little value where such statement is not supported by his preceding testimony.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Executive Order No. 8766 — No passport.
BEFORE THE CENTRAL OFFICE
Upon consideration of the entire record, the findings of fact and conclusions of law served on the applicant by the Chairman of the Board of Special Inquiry on June 9, 1947, are hereby adopted.
Discussion: The appellant, who acquired United States citizenship by virtue of birth herein on November 19, 1918, applied for admission as a United States citizen at the port of Laredo, Tex., on June 8, 1947. On June 9, 1947 a Board of Special Inquiry concluded that he had lost his American nationality under section 401 (j) of the Nationality Act of 1940, as amended September 27, 1944, by remaining outside of the jurisdiction of the United States to evade or avoid military service in time of war, and excluded him on the above-stated grounds. He appeals.
The appellant is 28 years of age, and married. He was taken to Mexico by his parents in 1920, where he has since maintained his residence. On March 23, 1936 he was issued a United States Citizen's Identification Card at the port of Laredo, Tex., but since December 7, 1941 he has not returned to or attempted to return to the United States until his present application. He now seeks admission for permanent residence.
The appellant testified that he was married in May 1947, but that prior thereto he had lived with this woman as man and wife, of which relationship two children were born. He admits to the knowledge that he should have registered for the draft before the nearest American Consul, which Consulate was situated in Mexico, D.F., Mexico, where he also resided. He finally registered before that official on August 20, 1946. He testified that he wilfully failed to register before that date because he had an obligation to his family, including the support of his mother. He voluntarily and unequivocally admits that he remained outside of the United States to avoid training and service in the armed forces of this country.
The appellant's registration for the draft before the American Consul on August 20, 1946, upon the facts and circumstances present in this case, does not nullify the application of section 401 (j), supra. It is held that he lost his American nationality by operation of that statute by remaining outside of the jurisdiction of the United States from September 27, 1944 until at least August 20, 1946 to evade or avoid military service. He is therefore an alien and must qualify for admission as such. Since he seeks admission for permanent residence, but is not in possession of an immigration visa, or a passport or document in lieu of a passport, the grounds of exclusion will be sustained.
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.
Appellant became a citizen of the United States by birth in this country in November 1918. His family took him to Mexico in 1920 and he has resided there since that time. He testifies that he knew that American citizens were liable for military service, but he did not register at a United States consulate until August 20, 1946. The record does not show whether he knew of the 1943 Presidential Proclamation requiring citizens abroad to register at an American consulate. The evidence in support of the finding of expatriation under section 401 (j) of the Nationality Act of 1940, as amended, is given below:
Q. Why did you defer your registration until August 19, 1946?
A. I had my obligation with my family.
Q. What was your obligation to your family?
A. My mother was sick — I had to support her and all.
Q. Why didn't you present yourself for service in the armed forces of the United States?
A. Because I was the only one to take care of my family.
Q. Didn't you realize that it was your obligation to present yourself for training and service in the armed forces of this country?
A. I didn't have my birth certificate and the baptismal certificate.
Q. Weren't you in possession of a U.S. Citizen's Identification Card which was issued at the port of Laredo, Tex., on March 23, 1936?
A. Yes, I had that but I didn't know it said U.S. Citizen.
* * * * * * *
Q. Then you have had proof of United States citizenship in your possession since March 23, 1936, until the present time, isn't that correct?
A. Yes, that is true.
Q. You stated that you had obligations to your family, is that the reason that you remained outside the United States to avoid military training and service in the armed forces of this country?
A. I had my mother and I had two children, and the woman I was living with and to whom I am now married, and I had to support them, and if I came to the United States I couldn't support them.
Q. Then you voluntarily remained outside the United States to avoid training and service in the armed forces of the United States-is that correct?
A. Yes.
On this evidence, we think that appellant was not expatriated. Appellant remained in Mexico because he was living in that country and because it was necessary for him to continue to support his family. The last question set forth above asked for a conclusion, and his reply is of little value because it is not supported by his preceding testimony.
Section 401 (j) was added to the Nationality Act by an amendment approved September 27, 1944. The legislative history shows that Congress was primarily intent on reaching citizens who departed from the United States during the war and expected to remain outside until the war was ended. (See 78th Cong., 2d sess., S. Rept. 1075, H. Rept. 1229.) However, in view of the board language, the section is applied even though the citizen has resided abroad for several years prior to the effective date of the Selective Service Act. Where these are the facts, we think section 401 (j) should not operate to expatriate unless the evidence clearly shows that the citizen remained outside the United States for the primary purpose of escaping military service. (See Matter of G---- M----, 6605457, May 15, 1947; Matter of D---- R----, 6489137, May 22, 1947; Matter of K---- S----, 6661544 (renumbered 56231/835), July 1, 1947.) In a case of this kind, a finding of expatriation under section 401 (j) for remaining outside the United States should not be made, except in unusual circumstances, unless the citizen had a desire or an intention to return to the United States, but refrained from doing so because he wished to escape military service. Where a person subject to military service departed from this country during the war, the facts may reasonably give rise to the inference that he was motivated by a desire to escape military service. And it also may be inferred that he remained abroad for the same purpose. However, where a person has resided abroad for a lengthy period, there are considerations other than the desire to escape military service which explain the fact that he continued to reside abroad. With possible exceptions which we need not here attempt to define, such a person should not be regarded as having remained abroad for the purpose of escaping military service unless it appears that he intended to come to the United States but refrained from doing so because he feared military service.
Appellant has resided in Mexico since 1920. His residence was in Mexico City, far from the border. There is no indication that he desired to come to the United States during the war. We think the evidence shows that he remained in Mexico in order to continue to support his family and not to escape military service.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That appellant was born in the United States in November 1918, but he has resided in Mexico since 1920;
(2) That appellant registered for military service at a Unted States consulate in August 1946 and he applied for admission for permanent residence in June 1947;
(3) That prior to his application for admission in June 1947 appellant remained in Mexico in order to continue to support his family and not for the purpose of escaping military service.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 did not become expatriated by remaining outside of the United States for the purpose of evading or avoiding training and service in the military forces of the United States, and the immigration laws relating to aliens do not apply to him.Order: It is ordered that the appeal be sustained and that appellant be admitted as a citizen of the United States.