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the Canadian Army. While in the army he maintained a United States mailing address at the home of his father and brother, where he resided both prior and subsequent to his service in the army.
There is no evidence that the applicant ever intended to abandon his residence in the United States and since it appears that he is otherwise eligible, it is concluded that his absence during service in the Armed Forces of Canada should be considered temporary and the application approved as requested.
ORDER: It is ordered that the application for creation of record of lawful admission for permanent residence under the provisions of section 249 of the Immigration and Nationality Act, as amended, be granted.
MATTER OF JOLLEY
In Deportation Proceedings
Decided by Board March 19, 1970
Respondent, by formal renunciation of U.S. nationality before an American
Consul at Toronto, Ontario, Canada, on May 16, 1967, thereby lost United States citizenship under section 349 (a) (6) of the Immigration and Nationality Act, he being presumed under section 349 (c) of the Act to have voluntarily performed the expatriating act since he has not testified or offered any evidence to support a conclusion that his renunciation was other than voluntary.*
Order: Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251 (a) (1)]—Exclud
able at time of entry, to wit, immigrant, no visa
(section 212 (a) (20); 8 U.S.C. 1182 (a) (20)). Lodged: Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251 (a) (1)]—Exclud
able at time of entry, to wit, person who departed from or remained outside United States to avoid or evade training or service in the armed forces in time of war or national emergency (section 212(a) (22); 8 U.S.C. 1182 (a) (22)).
ON BEHALF OF RESPONDENT:
Peter E. Rindskopf, Esquire
ON BEHALF OF SERVICE:
Irving A. Appleman
This is an appeal from an order of a special inquiry officer dated November 25, 1968, finding the respondent deportable on both charges above stated and granting voluntary departure within 90 days, with an alternate order for his deportation to
* Reaffirmed, 441 F.2d 1245 (C.A. 5, 1971).
Canada if he fails to depart when and as required. The appeal will be dismissed.
The facts have been fully stated and the evidence has been critically examined in the special inquiry officer's exhaustive and able opinion, and need not be repeated here at length. The special inquiry officer concluded that the evidence had been properly admitted into the record and that it established clearly, convincingly, and unequivocally that the respondent is an alien and that he is deportable as charged. We concur in those conclusions.
At the hearing, the respondent denied that he is an alien and that he is deportable. Indeed, he refused to concede that he is the person to whom much of the documentary proof related. Consequently, the threshhold question presented is one of identity.
The order to show cause, dated March 20, 1968, charges that Thomas Glenn Jolley, the respondent, is not a citizen or national of the United States; that he is a native of the United States and of undetermined citizenship; that he renounced his United States citizenship before an American consul at Toronto, Ontario, Canada on May 16, 1967; that he entered the United States at Detroit, Michigan on an unknown date subsequent to May 16, 1967, for the purpose of resuming his residence; and that at the time of entry he was not in possession of a valid immigrant visa. Deportability was charged under section 241 (a) (1) of the Immigration and Nationality Act on the ground that he was inadmissible at entry under section 212 (a) (20) of the Act for lack of the required visa.
At the deportation hearing, respondent was represented by counsel, who conceded that respondent is the Thomas Glenn Jolley named in the order to show cause (Tr. p. 10). Called as the Service's first witness over his attorney's objection, respondent on advice of counsel refused to answer most of the questions on self-incrimination grounds. He did testify that he is 24 years old (Tr. p. 26) and that he is married (Tr. p. 27); that he is Thomas Glenn Jolley, married to Margaret Elizabeth Townsend, aged 20, a citizen of the United States born in Atlanta, Georgia (Tr. p. 80); and that he had lived in Canada (Tr. p. 93).
Admitted into evidence over respondent's objection was a certified copy of a birth certificate (Ex. 6) attesting to the birth of Thomas Glenn Jolley on January 26, 1944 in Greensboro, North Carolina. Also admitted over objection were certified copies (Ex. 7) of the following: (1) an oath of renunciation of allegiance under section 349 (a) (6) of the Act, signed and sworn to on May 16, 1967 before the American consul at Toronto, Ontario, Canada by Thomas Glenn Jolley, born at Greensboro, North Carolina on January 26, 1944; (2) a supporting affidavit, executed by Thomas Glenn Jolley on the same day before the same American consul; and (3) a Consular Certificate executed May 31, 1967 and approved by the State Department on June 16, 1967, reciting that Thomas Glenn Jolley, born at Greensboro, North Carolina on January 26, 1944, had expatriated himself on May 16, 1967 under section 349(a) (6) of the Act.
James R. Coplen, a Service investigator, testified over objection that he had interviewed the respondent at the latter's home on March 19, 1968, during the course of an investigation into the respondent's immigration status. Mr. Coplen testified that he had then asked the respondent whether he was the Thomas Glenn Jolley who had renounced his citizenship in Canada and he said he was; that respondent stated he had last entered the United States through the port of Detroit, Michigan, but he refused to state what name he had used or what he told the officials when he entered (Tr. p. 60).
We agree with the special inquiry officer that the foregoing evidence was properly received and that it establishes clearly, convincingly, and unequivocally that respondent is the Thomas Glenn Jolley who executed the renunciation forms at Toronto on May 16, 1967. In our view, the Service has amply met its burden of establishing that the respondent is an alien.
The dissenting opinion strongly contends, however, that on this record it cannot be said that respondent's act of renunciation was voluntary. Even though the respondent did not testify as to the circumstances which led him to execute the renunciation, we agree that it is clearly inferable that respondent's action was motivated by his desire to avoid induction in our armed forces. That this desire may have been based on conscientious scruples does not, in our view, make his act of renunciation any the less deliberate or voluntary. There is no evidence that, confronted with the choice of facing liability to induction or renouncing his citizenship, the respondent was subjected to influences which overbore his free will in making his election.
Our unreported decision of June 26, 1969 in Matter of Susan B. Anthony (A-8823447), cited in the dissenting opinion, is readily distinguishable. The expatriating act in that case (an oath of allegiance) took place in 1954 and the deportation proceedings were started in 1961, before the enactment of section 349 (c) of the Act. Consequently, under the rule then applicable, as enunciated in Nishikawa v. Dulles, 356 U.S. 129 (1958), the burden was on
the Service to prove not only the expatriating act, but also that it was voluntarily performed; and this burden could be met only by clear, convincing and unequivocal evidence. The respondent in the Anthony case testified in the deportation proceedings as to the circumstances surrounding her decision to take the oath of allegiance. We concluded, on the basis of her testimony, which we believed, that the Service had not borne its burden of establishing by clear, convincing, and unequivocal evidence that her act was voluntary.
The case now before us is not only factually different but is governed by a different rule. Under section 349 (c) of the Act, which now applies, there is a presumption that respondent acted voluntarily in performing the expatriating act; and the burden is on him to rebut that presumption. This he has not done. He has not testified, or offered any evidence, to support a conclusion that his renunciation of allegiance was other than his voluntary and considered choice.
We must also reject respondent's challenge to section 349 (a) (6) of the Act. Although the Board may not pass on the constitutionality of the statutes we administer, Matter of , 4 I. & N. Dec. 556 (BIA, 1951), the Attorney General has laid down guide lines for the application of the principles set forth in Afroyim v. Rusk, 387 U.S. 253 (1967). If anything emerges with crystal clarity from the diverse views expressed in Afroyim, it is the unchallenged proposition that an articulated renunciation of allegiance is a constitutionally permissible means of expatriation.
Respondent's alienage having thus been satisfactorily established, under section 291 of the Act the burden is upon him to prove the time, place, and manner of his entry into the United States. The respondent has presented no evidence on this issue. Having failed to sustain his burden, under the specific terms of section 291 respondent is presumed to be in the United States in violation of law. There is no evidence to show that at the time of his entry at Detroit at an unspecified date he was in possession of an immigrant visa or any document in lieu thereof. The charge stated in the order to show cause is clearly sustained.
We have reached the foregoing conclusion without . !ying on the portions of respondent's Selective Service record (Ex. 9) received in evidence over his objection. While we agree with the special inquiry officer that these were properly received and that,
1 Attorney General's Statement of Interpretation Concerning Expatriation of United States Citizens, 42 Op. Atty. Gen. No. 34 (January 18, 1969); 34 Fed. Reg. 1079.