Matter of I-

Cite as 7 I&N Dec. 692

MATTER OF I

In DEPORTATION Proceedings A-10475038

Decided by Board March 24, 1958

Expatriation-Section 401 (d), Nationality Act-Employment as public school teacher in foreign state-Economic duress. The heavy burden upon the Government of proving expatriation is not sustained under section 401 (d) of the Nationality Act of 1940 in the case of a dual national of the United States and Japan who was employed as a teacher in the Japanese public schools 1942-51 when there is no evidence to contravene her claim that her employment was under economic duress and, hence, not voluntary.

CHARGE :

Order : Act of 1952-Section 241 (a) ( 9) [8 U. S. C. 1251 (a) (9) )-Failed to comply with conditions of nonimmigrant status.

BEFORE THE BOARD

Discussion : The case comes forward on appeal from the order of the special inquiry officer entered November 19, 1957, finding the respondent to be an alien, deportable on the charge stated in the order to show cause and granting her the privilege of voluntary departure in lieu of deportation. The record relates to a married female who was born in Los Angeles, California, on January 9, 1924, of Japanese citizen parents who were at the time of her birth permanent residents of the United States. She appears to have been a dual national of the United States and of Japan at birth. In 1928, when 4 years of age, following her father's death, she departed with her mother to Japan where she resided until she was admitted at the port of San Francisco, California, on October 13, 1952, as a nonimmigrant visitor. On April 10, 1953, her status was changed to that of a student valid to April 11, 1954; the last extension of such stay expired April 4, 1956, and she has not attended school since June 1955. The primary issue in the case is that of alienage. The record contains a Certificate of Loss of Nationality approved by the Department of State on May 6, 1952, which states that respondent who ac

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quired United States citizenship by birth in the United States on January 9, 1924, and who departed therefrom on June 20, 1928, ex- patriated herself under the provisions of section 401 (d) of the Nationality Act of 1940 by holding a position as a regular school teacher in specified Japanese high schools from April 1, 1946, to October 30, 1946 ; from October 31, 1946 to December 30, 1949 ; and from December 31, 1949, to January 11, 1949 (obviously should read January 11, 1950) , posts under the government of a political subdivision for which Japanese nationality was required after April 1, 1946. The Certificate of Loss of Nationality is supported by a copy of the re- spondent's Japanese family register and a memorandum from the Ministry of Foreign Affairs of the Japanese Government which sets forth that on the basis of information supplied by the Ministry of Education the respondent was employed at designated Japanese high schools from March 31, 1942, to September 29, 1942, as Kyoyu-Koko- roe (acting instructor) with status of Yatoi (employee) ; from September 30, 1942, to March 31, 1946, as Kyoyu (instructor) with status of Hanninkan Taigu (treated as a Hannin official) ; from April 1, 1946, to January 11, 1949, as Kyoyu (instructor) with status of Chiho-Kyokan (local instructor) ; and from January 12, 1949, to September 27, 1951, the date of the communication, as Kyoyu (instructor) with status of Chiho-Komuin (local public servant) . The report further sets forth that the position of Chiho-Kyokan (local instructor) conferred on the subject person was the status of government official under the old constitution. Counsel for the respondent offered in evidence a letter from the Japanese Consul General at Los Angeles also bearing information as to the educational staff of a Japanese public school. In the present junior and senior high schools and formerly in middle and girls' high schools the educational staff is divided into the following categories : a. Kohcho (principal), b. Kyohto (vice principal) , and c. Kyo-yu (instructor) , who are all regular members of the school. In addition, there are the following : d. Kyoyu-Kokoroe (acting instructor) , e. Koshi (lecturer), and Shokutaku (extra-instructor) . These last 3 are not required to have Japanese nationality nor is any member of the educational staff in a private school. The first 3 categories were, before May 2, 1947, when the old Constitution of Japan was terminated, required to have Japanese nationality. After May 3, 1947, when the new constitution became effective, no member of the educational staff is required to have Japanese nationality, provided his professional duties are limited to teaching duties. However, if his professional duties include participation in the powers vested in the government, then Japanese nationality is required. The respondent testified that when her father died in 1928 he left her mother between $7,000 and $8,000 and her mother remarried in

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Japan in 1931. Her second husband died about 6 years thereafter. The respondent's two older sisters are 6 and 4 years older than she. Between 1937, when her stepfather died, and 1942, when the respondent started teaching, the respondent's elder sister had returned to the United States while the eldest was teaching high school in Kagoshima, Japan. Prior to starting teaching in 1942 the oldest sister had contributed a small amount of money, and prior to 1942 the sister who had returned to the United States had also sent something but not after 1942. The respondent testified that the money which her mother had inherited had been dissipated by the time she graduated school, although her mother had defrayed the cost of her education from the money left by her father. She testified that while between 1942 and 1949 there were positions in Japan available to women through influential friends or relatives, such as sales and clerical work in private industry, those positions were not easy to obtain and she was qualified for teaching and not for these other positions which would have required the serving of an apprenticeship. She declared that she applied only for position as a teacher of physical education because she had confidence in herself, had been educated in and was qualified for a career in teaching. She further testified that it was her duty to take care of her dependent mother and pointed out that if she had not taken a teaching position she would have been forced to do some other job during the war such as war work which she was not willing to accept. The respondent testified that in Japan she resided with her mother and a half sister who were dependent upon her for support and as a teacher she received 50 yen per month. She stated that she never thought that teaching in Japan would result in loss of her United States citizenship. She asserted that she first thought of returning to the United States as soon as the war was over but could not do so because her mother was ill from time to time and first visited the American Consul about 1950 in an effort to obtain a passport. The expatriation of the respondent is predicated upon section 401 (d) of the Nationality Act of 1940 which provides : A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by : ... (d) Accepting, or performing the duties of, any office, post, or employment under the government of a foreign state or political subdivision thereof for which only nationals of such state are eligible (54 Stat. 1169 ; 8 U. S. C. 801) . In the instant case the respondent has established that she was a citizen of the United States at birth and the Service contends that she has expatriated herself and is no longer to be regarded as a citizen. On the issue of expatriation it is now well established that the burden of proof must be sustained not by a mere inference, hypothesis, sur

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mise, or a bare preponderance of proof. The burden is upon the Government to prove by clear, unequivocal, and convincing evidence the voluntary character of the alleged expatriative act and expatriation is not proved by evidence which leaves the issue in doubt. It is well settled that expatriation must be the result of a voluntary act and that an act done under duress precludes expatriation. Duress is not limited to physical duress or imprisonment but may include a threat of economic deprivation if the ability to secure the necessities of life is adversely affected thereby.³ The case of Stipa v. Dulles, 233 F. (2d) 551 (C. A. 3, 1956) , closely parallels the instant case. There the plaintiff, a native-born United States citizen, who also possessed Italian nationality, returned to Italy with his parents when 2 years old and subsequently accepted employment as an auxiliary with the police force of Italy. The plaintiff contended he was compelled to accept such employment by economic duress, that he could find no work in any factory or employment whatsoever and that he was in need of assistance. While this contention was rejected by the District Court on the ground that economic duress did not constitute such "legal duress" as would avoid the expatriating effect of such conduct, the Court of Appeals reversed, holding "in our opinion economic duress avoids the effect of an expatriating act." The court further held that factual doubts are to be resolved in favor of citizenship and the Government has the heavy burden of proving expatriation by clear, unequivocal, and convincing evidence and it is incumbent upon the Government to rebut the proof offered by the plaintiff as to the existence of economic duress. Even more closely analogous to the instant case is that of Tsume Sakamoto which was consolidated with the case of Kenji Kamada v. Dulles, 145 F. Supp. 457 ( 1956) . There, too, the plaintiff was born in the United States of Japanese parents and was employed as a teacher in the primary schools operated by a Japanese prefecture or municipality from 1941 through 1949. Upon the issue of economic duress the court found that the plaintiff's service as a school teacher was a matter of economic compulsion and, hence, was not her free and voluntary act, and the plaintiff had sustained the burden of showing such duress, and the Government had offered no contervailing evidence so that upon the entire case there was an absence of that clear and convincing rule of evidence which was required before ex- patriation could be effected.

Acheson v. Maenza, 202 F. (20) 453 ; Lehmann v. Acheson, 206 F. (2d) 592. *Bruni v. Dulles, 235 F. (2d) 855 ; Augello v. Dulles, 220 F. (20) 344; Gonzales v. Landon, 350 U. S. 920. * Stipa v. Dulles, 233 F. (2d) 551 ; Soccodato v. Dulles , 226 F. (2d) 243 ; Kenji Kamada v. Dulles, 145 F. Supp. 457; Bruni v. Dulles, 235 F. (2d) 855.

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In the instant case the respondent returned to Japan, when 4 years of age, with her mother after the death of her father and was educated in Japan qualifying in 1942 to teach physical education. The money that had been left by her father had been exhausted by this time and she was compelled to work in order to support her dependent mother and a half sister. Contributions received from 2 older sisters were insufficient to support the family. It is perhaps to the respond- ent's credit that during the years Japan was at war with the United States she declined to accept some other job such as war work but instead accepted employment for which by training and by certification she was qualified to perform. At no time did she believe that by thus earning her living by teaching and the only way readily available to her she was imperiling her United States citizenship. There is some judicial authority in support of the proposition that teaching in public schools is not an activity comprehended within the provisions of section 401 (d) of the Nationality Act of 1940.4 Nor are we fully persuaded, in view of the high standard of proof required in expatriation cases, that the employment or position occupied by the respondent is one for which only nationals of such foreign state are eligible as required by section 401 (d) in view of the failure to cite the pertinent provisions of Japanese law to establish that requirement.5 Upon a careful consideration of the evidence presented, we find that the respondent accepted teaching employment when faced with the necessity of supporting herself, her dependent mother and half sister. The employment she accepted was that for which by training she was qualified ; other jobs were difficult to come by and respondent did not wish to engage in war work during the period when Japan was at war with the United States. Under the circumstances, we are justified in finding that the employment was based upon economic duress and was, therefore, involuntary. No evidence has been produced to contravene her claim that such employment was under economic duress. The burden of proving expatriation is not merely "a fair preponderance" of clear, convincing, and unequivocal evidence, but by clear, convincing, and unequivocal evidence which leaves the issue free from doubt. It is concluded that expatriation under section 401 (d) of the Nationality Act of 1940 has not been established by the strict standard of proof required and that the respondent should be regarded as a citizen. Accordingly, the appeal will be sustained. Order: It is ordered that the appeal be sustained and the proceedings be terminated. Tsume Sakamoto v. Dulles, 145 F. Supp. 457 (N. D. Cal., 1956) ; Insogna v. Dulles, 116 F. Supp. 473 (D. C. 1953 ) ; Akiyo Oye v. Acheson, 110 F. Supp. 635 (N. D. Cal ., 1953) . * Akiyo Oye v . Acheson, 110 F. Supp 635 ; Teruo Naito v. Acheson, 106 F. Supp.

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