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Secretary of State and the Secretary of Defense to enter into or serve in the armed forces of a foreign state.
It is undisputed that the applicant served in the Royal Canadian Navy. No claim has been advanced that any authorization for such service was given by the Secretary of State and the Secretary of Defense. The final matter to consider in deciding whether the applicant expatriated under section 349(a) (3) is to determine if he "voluntarily relinquished” his citizenship as required under the doctrine set forth in Afroyim v. Rusk, 387 U.S. 253 (1967). The court stated in that case that the Congress lacks power under the Constitution to expatriate a citizen unless the citizen voluntarily relinquishes his citizenship. Although the Afroyim case concerned expatriation under section 349 (a) (5), Immigration and Nationality Act, by voting in a foreign political election, the principle stated in Afroyim is to be taken into account in considering expatriation under other sections of law.
On January 18, 1969 the Attorney General of the United States issued a Statement of Interpretation ? to serve as a guide to both the Department of State and the Immigration and Naturalization Service in the performance of their functions insofar as they involve questions of loss of citizenship. He stated :
Under any reading of Afroyim, however, it is clear that an act which does not reasonably manifest an individual's transfer or abandonment of allegiance to the United States cannot be made a basis for expatriation.
For administrative purposes, and until the Courts have clarified the scope of Afroyim, I have concluded that it is the duty of executive officials to apply the act on the following basis. “Voluntary relinquishment” of citizenship is not confined to a written renunciation ... It can also be manifested by other actions declared expatriative under the act, if such actions are in derogation of allegiance to this country. Yet even in those cases, Afroyim leaves it open to the individual to raise the issue of intent ... The voluntary performance of some acts can be highly persuasive evidence in the particular case of a purpose to abandon citizenship. Yet some kinds of conduct, though within the proscription of the statute, simply will not be sufficient to support a finding of voluntary expatriation.
For instance, it is obviously not enough to establish a voluntary relinquishment of citizenship that an individual accepts employment as a public school teacher in a foreign country. This I have already decided in the case of a dual national, Matter of Sally Ann Becher, 12 I. & N. 380; Interim Decision No. 1771 (August 21, 1967).
A similar approach may be taken with respect to service in a foreign army, depending upon the particular circumstances involved . . . In each case the administrative authorities must make a judgment, based on all the
1 Opinion of the Attorney General of the United States, Vol. 42, Op. 34 (1969).
2 Opinion of the Attorney General of the United States, supra.
evidence, whether the individual comes within the terms of an expatriation provision and has in fact voluntarily relinquished his citizenship.
There is no dispute that the applicant in the case before us did voluntarily serve in the armed forces of a foreign state. We think that the evidence of record is abundantly persuasive that this applicant, with the clear and subjective intent to transfer and abandon his allegiance to the United States, voluntarily relinquished his citizenship by entering and serving in the Royal Canadian Navy. He testified that he desired by this means to transfer his citizenship and he believed that this result was accomplished by his service.
We hold that expatriation did take place under section 349 (a) (3) of the Act. Having so determined, it is unnecessary to consider whether applicant also expatriated under section 349 (a) (2) as one who took an oath of allegiance to a foreign state, or under section 349(a) (6) as one who made a formal renunciation of nationality before a consular officer of the United States in a foreign state.
The record indicates that if this Board finds that the applicant is excludable, the Immigration and Naturalization Service plans to parole him into the United States to serve further time in prison as a parole violator, after which he will be deported to Canada (Tr. of hearing, pp. 22, 23). Canada has gone on record that they will accept him as a deportee under the terms of a reciprocal agreement between the United States and Canada (Ex. 4).
We will thus affirm the decision of the special inquiry officer that the applicant be excluded and deported from the United States as an immigrant without an immigrant visa.
ORDER: It is ordered that no change be made in the order of the special inquiry officer that the applicant be excluded and deported from the United States.
MATTER OF ARAI
In Deportation Proceedings
Decided by Board March 4, 1970
Where adverse factors are present in a given application for adjustment of
status under section 245, Immigration and Nationality Act, as amended, it may be necessary for the applicant to offset these by a showing of unusual or even outstanding equities. Generally, favorable factors such as family ties, hardship, length of residence in the United States, etc., will be considered as countervailing factors meriting favorable exercise of administrative discretion. In the absence of adverse factors, adjustment will ordinarily be granted, still as a matter of discretion. [Matter of Ortiz
Prieto, 11 I. & N. Dec. 317, superseded.] CHARGE:
Order: Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251 (a) (2) ]—Visitor,
remained longer. ON BEHALF OF RESPONDENT:
ON BEHALF OF SERVICE: Donald L. Ungar, Esquire
R. A. Vielhaber 517 Washington Street
Appellate Trial Attorney San Francisco, California 94111 (Brief submitted)
In our decision of February 6, 1970, we sustained the respondent's appeal, withdrew the order of the special inquiry officer, and granted respondent adjustment of status under section 245 of the Immigration and Nationality Act. At that time we stated that an opinion in greater detail would be forthcoming in the near future. In sustaining the respondent's appeal we have, in effect, exercised discretionary power contrary to the manner in which the special inquiry officer exercised it. In so doing, we did not conclude that the special inquiry officer was either arbitrary or capricious in his action or that he abused his discretion in any manner.
The special inquiry officer after finding the respondent to be eligible for the relief, nevertheless, concluded that such should not be granted as a matter of discretion. He based his denial on the criteria set forth in Matter of Ortiz-Prieto, 11 I. & N. Dec. 317 (BIA, 1965). We there stated that the extraordinary relief described in section 245 can only be granted in meritorious cases. Having found no outstanding equities in that case, we dismissed the appeal from the special inquiry officer's denial of the relief as a matter of discretion.
We are now of the opinion that the language set forth in Matter of Ortiz-Prieto, supra, should be clarified and modified because it is too broad in its impact and probably more demanding than necessary. Accordingly, the language of the instant decision will supersede that contained in Ortiz-Prieto.
The respondent is now over 27 years of age. He is single and was admitted to the United States on March 25, 1968, as a visitor for a period of time to expire on April 26, 1968. On April 25, 1968, he filed an application for staus as a temporary worker or trainee. That application was denied on October 4, 1968, and he was thereafter granted voluntary departure to expire on November 28, 1968. He remained beyond that date and is concededly deportable on the charge contained in the order to show cause.
The special inquiry officer in considering the respondent's application for adjustment of status under section 245 was aware that the respondent is a specialty cook in Japanese cuisine and had been accorded a labor certification for such employment. No finding was made by the special inquiry officer that the respondent was other than a bona fide visitor when he first arrived in the United States. Apparently the special inquiry officer considered the respondent's taking of employment before his trainee status had been acted upon as an adverse factor. He then found that the respondent's case presented no unusual equities and based his denial of the application on the ruling contained in Ortiz-Prieto.
Section 245 of the Immigration and Nationality Act reposes with the Attorney General and his delegates the discretionary power to grant adjustment of status. Therefore it follows that mere eligibility for that privilege will not automatically result in a grant of the application.
The record in the instant case presents no adverse factors affecting respondent's application. He is a young man, in good health and of good moral character. His employment is such that a labor certification has been issued. The employment could be of potential benefit to this country. The respondent has no dependents.
It is difficult and probably inadvisable to set up restrictive guide lines for the exercise of discretion. Problems which may arise in applications for adjustment must of necessity be resolved on an individual basis. Where adverse factors are present in a given application, it may be necessary for the applicant to offset these by a showing of unusual or even outstanding equities. Generally, favorable factors such as family ties, hardship, length of residence in the United States, etc., will be considered as countervailing factors meriting favorable exercise of administrative discretion. In the absence of adverse factors, adjustment will ordinarily be granted, still as a matter of discretion.