IN THE MATTER OF F G— In EXCLUSION Proceedings A-7985780 Decided by Board October 26, 1951 Citizenship-Native born-Expatriation-Voting in foreign political election (Mexico, 1947)-Section 401 (e) of the Nationality Act of 1940-DefenseIgnorance of status as United States citizen when voting-Lack of intent to expatriate. A native born citizen of the United States, by voluntarily voting in a political election in Mexico in 1947 performed the objective, overt act set forth in section 401 (e) of the Nationality Act of 1940 and thereby expatriated himself; and such performance results in expatriation without regard to the knowledge of the subject as to his citizenship status at that time, and irrespective of this intent at the time he voted or of his ignorance of the consequences of his act of so voting. EXCLUDED BY BOARD OF SPECIAL INQUIRY: Act of 1924-No immigration visa. BEFORE THE BOARD Discussion: The case presents an appeal from an order dated July 17, 1951, of the Assistant Commissioner confirming the appellant's exclusion by a board of special inquiry at the port of Del Rio, Tex., on April 6, 1951, on the grounds stated above. The appellant was born at D'Hanis, Tex., on September 5, 1924, of Mexican citizen parents, thereby possessing United States and Mexican nationality at birth. He resided in Mexico from November 8, 1928, until 1947 when he entered the United States by wading the river. He stated that at the time he was not aware that he was born in the United States, but subsequently received a birth certificate from his mother showing his birth in this country. He had previously been informed by his stepmother that he had been born in Mexico. Since 1947 the appellant has continued to reside in the United States except for brief visits to Mexico and is presently seeking admission as a citizen after a brief absence to Mexico. During the course of the hearing the appellant testified that he had voted in 1947 in an election for the President of Mexico, and before he had voted for Benencio Lopez-Padilla for governor of Coahuila. The board of special inquiry found that although the appellant had been a citizen of the United States at birth, he had expatriated himself by voting in a political election in 1947 under the provisions of section 401 (e) of the Nationality Act of 1940 (8 U. S. C. 801 (e)), and was inadmissible on the grounds stated above. The Assistant Commissioner affirmed the excluding decision of the board of special inquiry but a brief filed by counsel takes issue with the finding of expatriation. Counsel's contention is that although it is conceded that the appellant's act of voting in 1947 was voluntary it could not result in the expatriation of the appellant in the absence of knowledge on the part of the appellant that he was a citizen of the United States. In passing, it may be noted that it is not disputed that the appellant had no knowledge of his birth in the United States and of his United States citizenship at the time he voted in Mexico sometime in 1947 or prior thereto. The question squarely presented is whether the act of the appellant in voting in a political election in Mexico in 1947 constitutes an act of expatriation under the provisions of section 401 (e) of the Nationality Act of 1940 in the absence of knowledge at that time on the part of the appellant that he was a native-born citizen of the United States. In his brief counsel has cited the case of Cantoni v. Acheson, 88 F. Supp. 576 (N. D. Calif. S. D., 1950), which counsel alleges stands for the proposition that if the court in that case had been satisfied that the plaintiff acted without knowledge that he was entitled to American citizenship it would have entitled him to a judgment that he had not lost citizenship so far as the question of forfeiture under section 401 (c) of the Nationality Act of 1940 was concerned. We do not, however, so construe that decision. In the Cantoni case, the plaintiff contended that at the time he served in the Italian Army and took an oath of allegiance to Italy, and also at the time he voted in the Italian election he acted without knowledge that he was entitled to American citizenship; hence, he claimed, such acts were not freely or intelligently done, and since a full and intelligent choice was essential to effectuate renunciation (cited Dos Reis ex rel. Camara v. Nicolls, 161 F. (2d) 860 (1 Cir., 1947), and other cases), such acts had no expatriative effect. The court, while expressing disbelief regarding the claimed lack of knowledge of citizenship on the part of the plaintiff, stated that even assuming the verity of plaintiff's allegation regarding his citizenship, it did not constitute evidence legally sufficient to sustain his contention that he did not freely and intelligently perform the acts that, under the law, constitute renunciation of American citizenship. The court further went on to say that it is now settled law in cases arising under 8 U. S. C. 903 that undisclosed intent is not legally relevant in determining the validity of an overt act of renun ciation; and quoted with approval from Savorgnan v. U. S., 338 U. S. 491, 94 L. Ed. 287 (1950): There is no suggestion in the statutory language (8 U. S. C. A, 801) that the effect of the specified overt acts, when voluntarily done, is conditioned upon the undisclosed intent of the person doing them. The court in the Cantoni case then went on to point out that the facts did not disclose the kind of duress or involuntariness present in such cases as Dos Reis ex rel. Camera v. Nicolls (supra), and concluded that the plaintiff had lost citizenship. Counsel further sets forth that the intent of the person concerned is a required element or expatriation and that the intent must be shown by some express act or some other act from which it can be gathered, citing Perkins v. Elg, 307 U. S. 325 (1939). The Elg case was not concerned with either the factual or legal issues presented in this case. It must be remembered that at the time of the decision in the Elg case in 1939, voting did not constitute a statutory means of expatriation. As was stated in the case of Miranda v. Clark, 180 F. (2d) 257 (C. A. 9, 1950), involving the case of voting by a person of 20 years of age, the Nationality Act of 1940 was designed to clarify the then existing law by clearly specifying a definite method of terminating dual citizenship and of electing United States nationality. Commenting on the Elg case (supra), the court stated that the holding in the Elg case must be appraised in the light of the subsequent enactment of the 1940 Nationality Act which carefully reduced to specific statutory form a description of the various acts which of themselves amounted to voluntary expatriation; that voting in a political election in a foreign state was one of these acts; and such an act amounted to a voluntary expatriation under the 1940 law. Section 401 (e) of the Nationality Act of 1940 (8 U. S. C. 801 (e) ) provides that: A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by * ** voting in a political election in a foreign state ***. The Joint Departmental Committee Report on the Revision and Codification of the Nationality Laws (House Committee on Immigration and Naturalization, 1939, pt. 1, p. 67), in discussing this section stated: Taking an active part in the political affairs of a foreign state by voting in a political election therein is believed to involve a political attachment and prac tical allegiance thereto which is inconsistent with continued allegiance to the United States, whether or not the person in question has or acquires the na tionality of the foreign state. In any event it is not believed that an American national should be permitted to participate in the political affairs of a foreign state and at the same time retain his American nationality. The two facts would seem to be inconsistent with each other. The observation of the court in Acheson v. Mariko Kuniyuki, 189 F. (2d) 741 (C. A. 9, June 14, 1951) is appropriate at this point. The court stated: It is clear that appellee, by voting in the Japanese election of 1946 and 1947, lost her United States nationality. The fact, if it is a fact, that she did not intend to lose her nationality and did not know that she would lose it if she voted in these elections is immaterial. The same contention urged by counsel in this case was previously considered by us in Matter of M -, A-6961564 (1949) (3, I. & N. Dec. 558) involving loss of nationality under section 401 (c) of the Nationality Act of 1940 by service in the armed forces of Italy in 1943. It was there contended that at the time of the alleged act of expatriation the appellant was unaware that he had acquired United States citizenship at the time of his birth and hence, was not in a position to elect between Italian and United States citizenship, and therefore his Italian army service could not constitute an act of expatriation. We held that expatriation is voluntary when the performance of the act which Congress says results in expatriation is voluntary and that the subject's ignorance of his acquisition of United States citizenship could not excuse him from the normal result flowing from his voluntary act. We referred to the observation made by the court in Schaufus v. Attorney General, 45 F. Supp. 61, 65 (U. S. D. C. Md., 1942) to the effect that "mere ignorance of the petitioner's status at birth would not alone preclude him from still asserting it, provided he had not lost it by what he had done meanwhile." [Italics supplied.] We accordingly hold that the instant appellant by voluntarily voting in a political election in Mexico in 1947 performed the objective, overt act set forth in section 401 (e) of the Nationality Act of 1940 (8 U. S. C. 801 (e) ), and that performance of such act constituted expatriation pursuant to the provisions thereof. We further hold that the performance, voluntarily and without duress or coercion, of the specific act described in the statute, results in expatriation without regard to the knowledge of the appellant as to his citizenship status at that time, and irrespective of the intent of the appellant at the time he voted or of his ignorance of the consequences of the act of voting. We conclude that the appellant has expatriated himself under the provisions of section 401 (e) of the Nationality Act of 1940; that he is an alien, and that as an immigrant for permanent admission to the United States he must present an unexpired immigration visa and a valid passport or other document in lieu thereof. Order: It is ordered that the appeal from the decision of the Assistant Commissioner be and the same is hereby dismissed. IN THE MATTER OF M In DEPORTATION Proceedings A-7099059 Decided by Board October 31, 1951 Decided by Attorney General October 2, 1952 Reconsidered by Board October 10, 1952 Visa-Authority of Attorney General in deportation proceedings to review de novo the factual sufficiency upon which an alien was issued an immigration visa by a consular officer in absence of any fraud or misrepresentation on the part of the alien. (1) When nonquota visa was obtained from United States consul without fraud or misrepresentation but under circumstances indicating an error of Judgment on the part of the consul in issuing the document, the Service is not bound by the consular determination and has the authority in deportation proceedings to review de novo the facts relevant to whether the alien was entitled to issuance of the visa and thereafter entitled to admission to the United States. (2) An alien issued a section 4 (d) immigration visa (Immigration Act of 1924) as a "professor" found not to have been entitled to the issuance thereof, although all the facts were before the consul, there was no misrepresentation of fraud, and the consul had some evidence to support his determination. Based upon such finding, the alien is deportable on charges that at time of entry he was a quota immigrant not in possession of a quota immigration visa and that he was not a nonquota immigrant as specified in his visa. BEFORE THE BOARD (October 31, 1951) Discussion: The facts presented by the appeal in this case are these: Respondent was born in Czechoslovakia on September 28, 1923. He arrived in the United States at the port of New York on January 15, 1949, and was admitted upon presentation of nonquota immigration visa No. 145 issued to him by the American consul at Copenhagen, Denmark, on December 29, 1948, under the provisions of section 4 (d), Immigration Act of 1924 (8 U. S. C. 204) which provides as follows: When used in this act the term "nonquota immigrant" means-(d) an immigrant who continuously for at least 2 years immediately preceding the time of his application for admission to the United States has been, and who seeks |