Matter of C-A-

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IN THE MATTER OF C

In EXCLUSION Proceedings 56196/686

Decided by Central Office October 16, 1945

Decided by Board December 4, 1945 Memorandum of Central Office January 24, 1946 Decided by Board March 15, 1946 Ruling by Attorney General March 25, 1946

Citizenship-Expatriation-Remained out of the United States to avoid United States military service-Section 401 (j) of the Nationality Act of 1940, as amended-Evidence.

A native born citizen of the United States, who resided here from birth until about 4 days after notification in 1942 of his classification under United States Selective Service as a potential class 1-A, who then departed to Mexico without telling his family ( who resided here) where he was going and without notifying his local draft board, who was later classified as "delinquent" and who could furnish no satisfactory reason for remaining in Mexico since 1942 after going for a "visit" is deemed to have expatriated himself under the provisions of section 401 (j) of the Nationality Act of 1940, as amended, by remaining in Mexico on or after September 27, 1944, for the purpose of avoiding or evading training and service in the armed forces of the United States, notwithstanding his failure to admit that such was his purpose.

EXCLUDED BY BOARD OF SPECIAL INQUIRY : Act of 1924-Immigrant without immigration visa. Act of 1918, as amended-No passport. and Executive Order, No. 8766.

BEFORE THE COMMISSIONER

(Oct. 16, 1945)

Discussion : The appellant, a single male, 22 years of age, applied for admission into the United States as a citizen of the United States at Calexico, Calif., on May 9, 1945. The Board of Special Inquiry disallowed his claim to United States citizenship and excluded him on the grounds stated above. From this action he has appealed. The appellant was born in Oxnard, Calif. , on December 5, 1922 and was thereby a United States citizen at birth. He resided in the United States continuously until November 29, 1942 when he departed to Mexico. He has since resided in Mexico and now seeks admission into the United States to reside here permanently. He is not in possession of an immigration visa and a passport or document in lieu thereof.

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The Board of Special Inquiry has found the appellant to have ex- patriated under section 401 (j) of the Nationality Act of 1940 which provides that United States nationality shall be lost by- (j)Departing from or remaining outside of 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 .

Section 401 was amended to include subsection (j ) , supra, by the act approved September 27, 1944. The provisions of the act are not retroactive and as the appellant has made no departures from the United States subsequent to September 27, 1944, any loss of citizenship must necessarily result from his having remained outside of the United States for the purpose of avoiding or evading military service. This record is somewhat confusing in view of the fact that there are two M- C— (A ) registered in that name in the same local board in Oxnard, Calif. The Selective Service records pertaining to the appellant contain some material relating to the other registrant. The appellant was registered for selective service at Local Board No. 147 in Oxnard, Calif. on June 30, 1942. The local board's records reveal that he was notified on November 25, 1942 that he was a potential 1-A and eligible for the draft unless his employer submitted a request for his deferment for occupational reasons. They further reveal that his sister called at the local board on December 3, and advised that the appellant had left Sunday (November 29, 1942) and had not returned. His father advised the local board on December 16, 1942 that the appellant had left on November 29 and that he had no idea of his whereabouts. The appellant's former employer also advised the local board that his employment had terminated on November 17, 1942. Since January 4, 1943 the appellant has been classified as a delinquent by the local board. Before the Board of Special Inquiry the appellant testified that he left his home on November 29, 1942, and went to a dance and later departed to Mexico without advising his father or sister where he was going. He denies ever having received a letter from the local board dated November 25, 1942 regarding his possible reclassification and also denies having left the United States or remained outside the United States to avoid induction into the armed forces of this country. The factual evidence contained in this record justifies a conclusion that the appellant did depart from the United States to avoid possible induction in the armed forces of the United States. The appellant had terminated his employment which might have possibly deferred his induction. It is not plausible that he did not receive the aforementioned letter from his local board within 3 days of the date it was mailed in the same locality. Although his father states the letter had

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not been received before he departed, his sister states that she found the opened letter in the home subsequent to the appellant's departure. Further, the appellant has presented no justifiable reason for his having left the United States without advising his father or sister with whom he resided. He has stated his only reason for departing to Mexico was for a visit. He had never previously been in Mexico and his only relative there is a cousin. Since his departure he has resided for short periods in various localities in Mexico and has not had any steady employment there. The appellant failed to notify his local board of his departure to Mexico and has made no effort to inform them of his whereabout since his departure. He must of necessity have known that his actions were in violation of law and that he would be classified as a delinquent by his local board. He now states that it is his desire to volunteer for service in the armed forces of the United States. It is significant that this application was made soon after the termination of hostilities in the European theater of war. The appellant has testified that he resided in Mexicali, which is situated near the United States border, since March 1945 yet he has given no reason for his not having previously sought admission into the United States . In consideration of the entire record, it must necessarily be concluded that the appellant remained outside the United States for the express purpose of avoiding service in the armed forces of the United States. By so doing he has lost United States citizenship under the provisions of section 401 (j) supra, and is required to present an immigration visa and a passport or document in lieu thereof for admission into the United States. Findings of Fact : Upon the basis of all the evidence presented, it is found :

(1) That the appellant was born December 5, 1922 in Oxnard, Calif.;

(2) That on November 25, 1942 the appellant was notified by his local board of possible reclassification under the Selective Service regulations ;

(3) That the appellant departed to Mexico on November 29, 1942;

(4) That the appellant failed to advise his local board of his departure from the United States ;

(5) That the appellant is classified as a delinquent by his local board;

(6) That the appellant has remained in Mexico continuously since November 29, 1942 ;

(7) That the appellant has remained in Mexico to avoid induction into the armed forces of the United States ;

(8) That the appellant is not in possession of an immigration visa ;

(9) That the appellant is not in possession of a passport.

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Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded :

(1) That under the Fourteenth Amendment to the Constitution of the United States, the appellant was born a citizen of the United States ;

(2) That under section 401 (j) of the Nationality Act of 1940, as amended, the appellant lost United States citizenship by remaining outside of the jurisdiction of the United States in time of war for the purpose of evading or avoiding training and service in the land or naval forces of the United States ;

(3) That under the provisions of section 13 (a) (1) of the act of May 26, 1924, the appellant is inadmissible to the United States on the ground that he is an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder ;

(4) That under the Passport Act approved May 22, 1918 , as amended, and Executive Order 8766, the appellant is inadmissible to the United States as an immigrant who did not present a passport or other official travel document in lieu of passport issued by the government to which he owes allegiance, showing his origin and identity.¹ Recommendation : It is recommended 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. BEFORE THE BOARD

(December 4, 1945)

Discussion : The appellant has been excluded by the Board of Special Inquiry as an alien seeking to enter the United States for permanent residence but without presentation of an immigration visa and a passport. He was born at Oxnard, Calif. on December 5, 1922. He was registered under the Selective Service and Training Act and went to Mexico, apparently on November 29, 1942, and is now returning for the first time. The conclusion by the Board of Special Inquiry that he is an alien, with which the Commissioner agrees, is based upon the appellant having remained outside of the jurisdiction of the United States for the purpose of evading or avoiding training and service in the armed forces of the United States. Section 401 of the Nationality Act of 1940 provides : A person who is a national of the United States, whether by birth or natural- * * * ization, shall lose his nationality by (j ) Departing from or remain-

As corrected.

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ing outside of 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.

The record shows that the appellant's local board sent to him on November 25, 1942, notice that he was eligible for the draft unless his employer submitted a request for his deferment. The appellant asserts that he did not receive such notice. In any event, the provision of law quoted above was not then in force, but was enacted on September 27, 1944. The circumstances of his departure, therefore, are not material excepting as they may have a bearing upon his " remaining outside of the jurisdiction of the United States" after the date of such enactment. The appellant denied that he so remained abroad and testified in response to inquiries at some length concerning his whereabouts during the period he was abroad. While the circumstances raise a question as to the credibility of the appellant with respect to his testimony concerning the motive for his remaining abroad, we believe that a finding of expatriation should be based on more substantial evidence than is present in this instance. The Supreme Court said that in the absence of proof that one has denationalized himself his original citizenship is to be presumed to have continued (Hauenstein v. Lynham (1879) , 100 U. S. 482, 483, 484) . Accordingly, Findings of Fact : Upon the basis of all the evidence presented, it is found :

(1) That the appellant is applying for admission to the United States for permanent residence and claims to be a citizen of the United States ;

(2) That the appellant was born December 5, 1922, in Oxnard, Calif.;

(3) That on November 25, 1942, the appellant's local board sent to him notice of classification under Selective Service regulations ;

(4) That the appellant departed to Mexico on November 29, 1942 ;

(5) That the evidence fails to establish that he remained outside the jurisdiction of the United States after September 27, 1944, for the purpose of evading or avoiding training and service in the land or naval forces of the United States ;

(6) That the appellant is not in possession of an immigration visa or passport. Conclusions of Law : Upon the basis of the foregoing findings of fact, it is concluded :

(1) That under the Fourteenth Amendment to the Constitution of the United States, the appellant was born a citizen of the United States ;

(2) That under section 401 (j) of the Nationality Act of 1940 as

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amended, the appellant has not lost citizenship in the United States by remaining outside of the jurisdiction of the United States in time of war for the purpose of evading or avoiding training and service in the land or naval forces of the United States;

(3) That under the provisions of section 13 (a) (1) of the act of May 26, 1924, the appellant is not inadmissible to the United States on the ground that he is an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder ;

(4) That under the Passport Act approved May 22, 1918, as amended, and Executive Order No. 8766, the appellant is not inadmissible to the United States on the ground that he did not present an unexpired passport or official document in the nature of a passport issued by the government of the country to which he owes allegiance, or other travel document showing his origin and identity as required by Executive Order 8766. Order : It is ordered that the appeal be sustained and the appellant be permitted to enter the United States as a citizen thereof. MEMORANDUM OF CENTRAL OFFICE

(January 24, 1946)

The appellant, a 22-year-old male, native of the United States, was excluded by a Board of Special Inquiry at the port of Calexico, Calif., who found him to have lost his United States citizenship under the provisions of section 401 ( j ) of the Nationality Act of 1940.2 After due consideration of the subject's appeal, the action of the Board of Special Inquiry was affirmed. However, on December 4, 1945, the Board of Immigration Appeals sustained the appeal and directed the appellant's admission as a United States citizen. This Service does not agree with the Board's action in holding that the evidence of record did not justify a conclusion that the subject became expatriated under section 401 (j ) of the Nationality Act of 1940, as amended. The fact at issue is solely whether the appellant lost his United States citizenship thereunder by remaining outside the jurisdiction of the United States during a time of war for the purpose of evading or avoiding military service. The question is purely one of fact.

The appellant was born December 5, 1922, in Oxnard, Calif., and resided in the United States continuously until he departed to Mexico on November 29, 1942. Throughout the exclusion proceedings, he has denied having departed from or remained outside the United States for the purpose of avoiding or evading military service. The undis 2 EDITOR'S NOTE.-Read, "as amended" .

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puted facts established that he was registered for service in the armed forces of the United States in Oxnard, Calif., and on November 25, 1942, notice was sent to him by his local board that he was a potential 1-A and eligible for the draft unless his employer submitted a request for his deferment. No reply was ever received from that notice, and the appellant's employer notified the local board that his employment had terminated on November 17, 1942. Since January 4, 1943, he has been classified as a delinquent by his local board. The appellant has stated that he departed to Mexico on November 29, 1942, for a visit. He has not furnished any reason for such visit to Mexico, he has no close relatives in Mexico, had never previously been in that country, and he left his home and the United States without any notice to his father and sister with whom he resided. While in Mexico, the appellant traveled in various localities where he found employment, and has stated that from March, 1945, until his application for return to this country, he had resided in the border town of Mexicali, Mexico. The appellant's departure from the United States prior to the effective date of section 401 (j) of the Nationality Act, as amended would not be grounds for his expatriation. However, his departure during the critical period is a factor which may properly be taken into consideration in conjunction with other acts in determining the requisite purpose. The Board of Immigration Appeals concedes that the circumstances in this case raise a question of the appellant's credibility concerning his motives for remaining abroad, but believes that a finding of ex- patriation should be based on more substantial evidence than is present in this case. The appellant was born and always resided in the United States. He departed from this country on November 29, 1942, when 19 years of age, and within a few days after a notice had been sent to him that he was potentially subject to the draft. He departed to Mexico, a country he had never previously visited, and where he had no close relatives or connections of any kind. He has advanced no cogent reason for so departing and remaining outside the jurisdiction of the United States. Although residing in a locality where he could apply for admission into the United States at any moment, he has offered no explanation for not having sought admission into the United States until after termination of war hostilities in Europe. Ordinarily, uncontradicted evidence may be accepted as true, but not conclusive simply because it has not been contradicted, where in the very nature of things it is impossible to secure supporting testimony. However, more weight or importance may be given to a per- son's actions than to his declarations, and where they are inconsistent, the actions will control. This does not, of course, mean that words

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or declarations by a person are not entitled to be heard for what they are worth (Matter of I , 56172/758 (December 12, 1944) ) . The subject's bare and unsupported explanations are utterly irreconcilable with his actions manifesting, in the main, a clear purpose on his part in remaining out of the United States. In such a situation, the self-serving and exculpatory testimony must given way to accomplished actions pointing to the inescapable and conclusive purpose on the subject's part. It cannot be contended, with any force, that such clear acts on his part do not constitute substantial evidence. I do not therefore concur in the Board's conclusion.

Pursuant to section now 90.12 (c) of 8 C. F. R., it is requested that the case be certified to the Attorney General for final decision. BEFORE THE BOARD

(March 15, 1946)

Discussion : The subject applied for admission into the United States as a citizen on May 9, 1945, at the port of Calexico, Calif., without the documents required of aliens to enter this country. Following a hearing before a Board of Special Inquiry on that day, continued on May 29, June 12, and September 12, 1945, his claim to United States citizenship was disallowed and he was excluded as an immigrant not in possession of a valid immigration visa as required by the Immigration Act of 1924 and a passport or lieu document as required by the act of May 22, 1918, as amended, and Executive Order 8766 of June 3, 1941. He appealed and on October 16, 1945, the Commissioner of the Immigration and Naturalization Service recommended that the excluding decision of the Board of Special Inquiry be affirmed. After due consideration, however, this Board ordered on December 4, 1945, that the appeal be sustained and the appellant be permitted to enter the United States as a citizen thereof. Under date of January 24, 1946, the Acting Commissioner of the Immigration and Naturalization Service advised that he does not concur in this Board's conclusion and requested that the case be certified to the Attorney General for final decision in accordance with the provisions of title 8, Code of Federal Regulations (now section 90.12 (c) ) . The record establishes that the appellant was born at Oxnard, Calif., on December 5, 1922 and accordingly he was a citizen of the United States at birth. He testified that he resided in this country continuously from the time of his birth until his departure for Mexico on November 29, 1942, and that he has remained in that country until his present application for admission to the United States. The Board of Special Inquiry and the Central Office of the Immigration and Naturalization Service contend that the appellant lost his United

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States citizenship by virtue of section 401 (j) of the Nationality Act of 1940, as amended. This provision of law, which became effective on September 27, 1944, provides that a person who is a national of the United States either by birth or naturalization, shall lose his nationality by : Departing from or remaining outside of 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 ( 8 U. S. C. 801) . It is conceded that this statute is not retroactive in effect (Matter of V , 56175/93, May 29, 1945) and that, therefore, having departed from the United States prior to September 27, 1944, the only issue is whether the appellant lost his United States citizenship by remaining in Mexico from September 27, 1944, to the date of his application for admission on May 9, 1945. A determination of this issue depends solely upon a factual finding as to whether the appellant remained in Mexico after the specified date for the dominant purpose of evading or avoiding training and service in the land or naval forces of the United States ( Matter of V , supra) . Throughout these entire proceedings the appellant consistently denied that he either departed from the United States or remained outside its jurisdiction for the purpose of evading service in the armed forces of this country. The record establishes and the appellant admits that he registered under the Selective Training and Service Act of 1940 on June 30, 1942, and that in August 1942 he executed a questionnaire which he had received from his local draft board. The subject testified that he has received no notice from his draft board since the submission of said questionnaire nor has he communicated with his board or any other draft board since his departure to Mexico. The appellant's complete record with his local draft board in Oxnard was admitted in evidence indicating that he had communicated with that office under date of October 19, 1943, from Rleeyes, Calif., and that during the same month he had appeared at Local Board No. 124, Fresno, Calif., to ascertain his induction status. When confronted with this evidence, the appellant persistently denied that he was the party concerned, suggesting that it might have been a person of the same name who lived in his home town of Oxnard. In support of his claim he presented a letter from an organization in Cananea, Sonora, Mexico, dated June 6, 1945, stating that the appellant was employed by them from October 4, 1943, until February 28, 1944, and a receipt issued by the Tax Receiver's Office of Cananea dated November 18, 1943, covering the issuance of a driver's license to the subject. Further investigation by the Immigration and Naturalization Service established that the appellant had not written the letter from Rleeyes,

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Calif., and that he was not the same individual who appeared under his name at the Fresno Draft Board in October 1943. Exhibit 7 also establishes that on November 25, 1942, a notice of the reopening of the appellant's case for reclassification was mailed to him in Oxnard and that he was ordered to report for mass physical examination but the date of "December 4, 1942" beside this latter notation does not indicate whether the notice to report was mailed on that day or whether the appellant was required to report on that day. The subject denied that he ever received either the letter mailed on November 25, 1942, or any notice to report for physical examination. Sworn statements of the appellant's father and sister were admitted in evidence and the former testified that he knew no notice to appear for physical examination was received by his son prior to his departure from the United States on November 29, 1942. He further testified that his son had told him several times that he desired to enter the United States Army and so he could not explain the appellant's departure to Mexico. The sister testified that about December 10, 1942, she found a letter from the draft board to her brother under the tablecloth and that it had been opened but that her brother had not mentioned having received it up to the time he disappeared on November 29, 1942. Her testimony is rather confusing since the notice from the draft board is variously referred to as "letter," "notice for the draft" and "notice to appear for physical examination" and so it is not clear whether the notice she found was the notice of reopening for reclassification or the notice to report for physical examination which latter notice, as stated above, might have been mailed subsequent to the appellant's departure from the United States. She also testified that she received no mail from the draft board to her brother following his departure but later admitted that the notice of reclassification to 1-A was received after he left. The sister confirmed her father's statement, however, that her brother was glad over the prospects of joining the army. The appellant's testimony concerning why he stayed in Mexico for approximately 21½ years, and particularly after September 27, 1944, is not satisfactory but it appears that he moved from place to place working intermittently, and always with the intention of returning to the United States. He testified that "time just passed by" and it seems likely that the delay in his return was due to procrastination as some new employment or desire to see a place or person presented itself. This Board concedes that the evidence in this case is not all that could be desired to establish that the appellant did not remain out of the United States after September 27, 1944, for the purpose of evading service in the armed forces of this country but it is also of the opinion

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that the evidence fails to establish that he did. The subject's veracity was arduously attacked insofar as his presence in this country during 1943 was concerned and receipt by him of notices from his draft board but it was ultimately established that he had testified truthfully with respect to his continued absence from the United States since November 1942 and it was never established that he had actual knowledge of the imminence of his induction at the time of his departure to Mexico. The Acting Commissioner of the Immigration and Naturalization Service concluded that, The subject's bare and unsupported explanations are utterly irreconcilable with his actions manifesting, in the main, a clear purpose on his part in remaining out of the United States. In such a situation, the self-serving and exculpatory testimony must give way to accomplished actions pointing to the inescapable and conclusive purpose on the subject's part. It cannot be contended, with any force, that such clear acts on his part do not constitute substantial evidence.

Merely remaining outside of the jurisdiction of the United States is not sufficient to justify a declaration of expatriation under section 401 (j ) , supra, and this Board does not consider the appellant's conduct from September 27, 1944, to May 9, 1945, including his failure to return to the United States during this period, sufficient to establish the specific purpose required to find that the appellant has expatriated himself. Citizenship is a right not to be lightly denied and in the absence of convincing evidence of expatriation we must conclude that he is still a citizen of the United States. Accordingly, the appeal in this case will be sustained. Findings of Fact : Upon the basis of all the evidence presented, it is found :

(1) That the appellant was born on December 5, 1922, in Oxnard, Calif.;

(2) That on May 9, 1945, the appellant applied for admission into the United States as a citizen thereof;

(3) That the appellant departed from the jurisdiction of the United States on November 29, 1942, which was prior to the September 27, 1944, amendment to the Nationality Act of 1940 ;

(4) That it has not been established that the appellant remained outside of the jurisdiction of the United States from September 27, 1944, until May 9, 1945, for the purpose of evading or avoiding training and service in the armed forces of this country ;

(5) That the appellant is not in possession of an unexpired immigration visa;

(6) That the appellant is not in possession of a passport or document in lieu thereof.

*Hauenstein v. Lynham, 100 U. S. 482, 484 (1880) .

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Conclusions of Law : Upon the basis of the foregoing findings of fact, it is concluded :

(1) That under the 14th Amendment to the Constitution of the United States the appellant was born a citizen of this country ;

(2) That under section 401 (j) of the Nationality Act of 1940, as amended, the appellant has not expatriated himself ;

(3) That under the Passport Act approved May 22, 1918, as amended, and Executive Order 8766 the appellant is not inadmissible to the United States as an immigrant not in possession of an unexpired passport ;

(4) That under section 13 (a) of the Immigration Act of May 26, 1924, the appellant is not inadmissible to the United States as an immigrant not in possession of an unexpired immigration visa. Order : It is ordered that the appeal be sustained and the appellant be admitted to the United States as a citizen thereof.

In accordance with the provisions of title 8, Code of Federal Regulations, now section 90 12 (c) , this case is certified to the Attorney General for final decision upon the request of the Acting Commissioner of the Immigration and Naturalization Service. BEFORE THE ATTORNEY GENERAL

(March 25, 1946)

In re : M— C— A— or M— A— C. Before the Attorney General for review of an order sustaining appellant's admissibility to the United States as a citizen thereof. I agree with the reasons for exclusion in this case expressed in the opinion of the Commissioner of Immigration, dated October 16, 1945. Accordingly, the findings of fact, conclusions of law and order of the Board of Immigration Appeals sustaining appellant's admissibility to the United States as a citizen thereof are hereby set aside, and the findings of fact and conclusions of law of the Commissioner of Immigration, dated October 16, 1945, and the order of exclusion of the Board of Special Inquiry, dated September 13, 1945, are hereby approved.

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