Matter of R-S-

Cite as 7 I&N Dec. 718

MATTER OF R S

In EXCLUSION Proceedings A-8993287

Decided by Board May 26, and June 10, 1958

Loss of citizenship-Section 350 of the 1952 act-Benefit sought by dual national must be substantial.

Dual national is not expatriated under section 350 of the Immigration and Nationality Act merely by assertion of a claim to Mexican nationality to gain admission to the United States as an agricultural worker. To effect expatriation, the benefit sought under the claim to foreign nationality should be substantial and indicative of a preference for the foreign country to a degree inconsistent with United States citizenship. EXCLUDABLE :

Act of 1952-Section 212 (a) (20) [8 U. S. C. 1182 (a) (20) ]-Immigrant without visa or passport.

BEFORE THE BOARD (May 26, 1958)

Discussion : The case comes forward pursuant to certification of the order of the special inquiry officer dated March 11, 1958, finding the applicant to be an alien and inadmissible on the ground stated above. The applicant appeared at the port of Presidio, Texas, on February 27, 1958, and applied for entry into the United States as a United States citizen and was referred to a special inquiry officer for hearing on his claim of citizenship. The applicant was born August 8, 1923, in Sierra Blanca, Texas. His parents are natives and citizens of Mexico who have never become citizens of the United States. The applicant was, therefore, a dual national of the United States and of Mexico at birth. In 1925 he was taken by his parents to Mexico where he has since resided. He maintains a home for his wife and 3 children, all natives and nationals of Mexico, in Coyame, Chihuahua, Mexico. The applicant has entered the United States twice as an agricultural worker. With the first such entry in 1947 we need not concern ourselves. The applicant entered the United States the second time as an agricultural worker in August 1954, when he was contracted as a "bracero" in his own name in Piedras Negras, Coahuila, Mexico.

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Cite as 7 I&N Dec. 718

In connection with obtaining his "bracero" card to enter the United States as an agricultural worker, he testified that he told the United States immigration officer that he was born in Coyame, Mexico, and was a Mexican citizen. He stated that if he had told the immigration officer that he was born in the United States and was a citizen of this country he would not have obtained the "bracero" card. He entered the United States as an agricultural worker about August 1954 and worked in Texas for a period of about 9 months, and then returned to Mexico in May 1955. During this period of time the applicant maintained his residence in Mexico where his wife and 3 children resided. It is apparent, therefore, that during the entire period his residence or principal place of abode was continuously in Coyame, Mexico (Matter of C— E—, A-11361319, Int. Dec. No. 893, B. I. A.-Nov. 1, 1957) . Expatriation is predicated upon section 350 of the Immigration and Nationality Act which provides that a person who acquires at birth both the nationality of the United States and of a foreign state and who has voluntarily sought or claimed benefits of the nationality of any foreign state shall lose his United States nationality by hereafter having continuous residence of 3 years in the foreign state of which he is a national by birth at any time after attaining the age of 22 years. Section 350 also sets out 2 conditions which a person must meet in order to avoid loss of nationality thereunder which are not pertinent in this case. In the instant case, section 350 is applicable insofar as the requirement of foreign residence for 3 years after the effective date of the Immigration and Nationality Act and after his 22d birthday is concerned (Matter of GQ , A-8949245, Int. Dec. No. 786, B. I. A.-May 7, 1956) . There remains to be considered the question of whether gaining admission to the United States as an agricultural worker or "bracero" by a person who possessed dual United States and Mexican nationality is the seeking or claiming of a "benefit" of the nationality of the foreign state. The term "benefit" is not defined in the Immigration and Nationality Act. Recourse to Webster's Dictionary discloses that it means whatever promotes welfare ; advantage; profit ; specifically, pecuniary advantage or profit. Black's Law Dictionary defines the term "benefit" as meaning advantage ; profit ; fruit ; privilege. In the instant case, the applicant was at the time he sought admission to the United States as an agricultural worker a national of the United States. He was, therefore, free to enter as he pleased and to seek work in this country. It is probably a safe assumption that as a United States citizen he could have obtained employment at a higher wage than that granted the Mexican migrant workers admitted under Title V of the Agricultural Act of October 31, 1949, as

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amended. He, therefore, obtained no pecuniary benefit which was peculiarly due to the fact that he also possessed Mexican nationality. Such advantage as may have inured to the applicant by coming to the United States as an agricultural worker instead of as a citizen would appear too remote to effect a divesture of citizenship under section 350. It is to be remembered that the final form of section 350 was a result of action by a conference committee of the House and Senate which modify the language of the section so as to remove any doubt that the loss of United States citizenship could occur by any other than affirmative action taken by the dual national, and that loss of nationality would occur in the case of a dual national at birth who resided in the country of his foreign nationality only if he had voluntarily sought or claimed the benefits of the nationality of a foreign state. It is apparent that the benefit under section 350 might consist of an act less substantial than that required for loss of nationality under section 349, where the nature and circumstances of the allegedly expatriating conduct must be such as to indicate some flouting of obligations inherent in American citizenship, if not an implied renunciation of the tie. Nevertheless, it is believed that the benefit voluntarily sought or claimed by the dual national should be substantial and indicative of an intention to express some elements of preference to another country in a measure inconsistent with American citizenship. Citizenship is not something to be forfeited lightly in connection with some trivial matter and the benefit sought by the dual national should be of a nature inconsistent with a claim of United States citizenship. It may be noted in passing that there is no proof in the record as to whether only Mexican nationals could be contracted as agricultural workers. The regulations, 8 CFR 214k.1, are not dispositive of this point. We conclude that the act of the applicant in obtaining admission as an agricultural worker did not constitute seeking or claiming a benefit sufficient to accomplish expatriation under the provisions of section 350 of the Immigration and Nationality Act. Order : It is ordered that the appeal be sustained and that the applicant be admitted as a United States citizen. BEFORE THE BOARD (June 10, 1958)

The order entered in this case by the Board on May 26, 1958, is amended to read as follows : Order: It is ordered that the applicant be admitted as a citizen of the United States.

1952 United States Code Congressional and Administrative News, p. 1756. *Jalbuena v. Dulles, 254 F. ( 20) 379 ( C. A. 3, 1958) . * Cf. Perez v. Brownell, 356 U. S. 44 ; Trop v. Dulles, 356 U. S. 86 ; Nishikawa v. Dulles, 356 U. S. 129.

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