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when coupled with the other evidence, they sustain the lodged charge, we wish here merely to point out that the finding of deportability is amply sustained on the original charge, even without the Selective Service records.
We must also reject respondent's thesis that, even if the Service's charges have been established, his marriage to a United States citizen saves him from deportation under section 241 (f) of the Act. He argues that his entry at Detroit must have involved fraud and that this brings him within the ambit of section 241 (f). Fraud is not an essential ingredient of the documentary charge on which he has been ordered deported. An alien may not pull himself up by his own bootstraps and claim he was guilty of fraud at entry and thereby eligible for the benefits of section 241 (f). See Ntovas v. Ahrens, 279 F.2d 483 (7 Cir., 1960), cert. denied 364 U.S. 826; Tsaconas v. INS, 397 F.2d 946 (7 Cir., 1968); Ferrante v. INS, 399 F.2d 98 (6 Cir., 1968). Congress did not intend to grant immunity from deportation to all aliens entering by fraud merely because they have the requisite family ties in this country, De Vargas v. INS, 409 F.2d 335 (5 Cir., 1969), cert. denied 396 U.S. 895.
Even if fraud were shown to be the basis for the documentary charge under section 212(a) (20), so as to bring into play the rationale of Muslemi v. INS, 408 F.2d 1196 (9 Cir., 1968), respondent would still not be entitled to the benefits of section 241 (f). That provision requires the alien to be "otherwise admissible at the time of entry." An alien who enters the United States without inspection by a knowingly false claim of citizenship, thereby completely circumventing the immigration visa system, is not otherwise admissible" within the meaning of section 241 (f), Matter of Lee, Interior Decision No. 1960 (A.G., 1969); Gambino v. INS, 419 F.2d 1355 (2 Cir., January 7, 1970) footnote 1.
We have carefully considered the other arguments raised on appeal and find them without merit. The same contentions were urged before the special inquiry officer and he disposed of them properly in his exhaustive opinion. To the cases cited at page 14 of his opinion, as to the admissibility of respondent's admissions to Investigator Coplen, there can now be added Lavoie v. INS, 418 F.2d 732 (9 Cir., 1969).
The running of the voluntary departure time authorized by the special inquiry officer has been stayed pending this appeal.
ORDER: It is ordered that the appeal be and it is hereby dismissed.
It is further ordered that, pursuant to the special inquiry
officer's order, the respondent be permitted to depart from the United States voluntarily within 90 days of this order or any extension beyond that date as may be granted by the District Director; and that, in the event of failure so to depart, the respondent shall be deported as provided in the special inquiry officer's order.
DISSENTING OPINION: Anthony L. Montaquila, Alternate Member
Since this record fails to establish by clear, unequivocal and convincing evidence that respondent voluntarily and meaningfully renounced his United States citizenship, acquired by reason of his birth here, I dissent from the majority opinion finding loss of American nationality.
The issue presented here is narrowly circumscribed: Did respondent voluntarily and meaningfully intend a renunciation of his citizenship? Do the circumstances leading to such renunciation dilute the oath of renunciation and, thus, render it involuntary and ineffective?
Respondent refused to testify at his deportation hearing other than to state his name, place of birth and recent marriage to a United States citizen.
The evidence presented by the Immigration and Naturalization Service to establish loss of United States citizenship is, in substance, documentary, with the exception of testimony concerning certain draft records relating to one, Thomas Glenn Jolley, the name of respondent; and the testimony of an Immigration inspector who testified that he interviewed respondent who admitted to him that he had renounced his American nationality before an American consul in Canada.
Respondent on May 16, 1967 made formal renunciation of his American nationality pursuant to section 349(a) (6) of the Immigration and Nationality Act, before an American consul in Toronto, Canada, and at the same time, and as part thereof, stated, “I do not wish to break the laws of the United States. These laws (Selective Service) conflict with my present beliefs" (Ex. 7).
Prior thereto, on March 5, 1967, respondent had attempted to secure reclassification of his draft status without success. He had been ordered to report for induction on June 13 and again on August 7, 1967, but failed to do so. He had already departed for Canada on March 31, 1967. He was classified I-A on April 18, 1967 and again on July 19, 1967. On April 7, 1967, while in
Canada, respondent wrote his draft board requesting a I–O classification (that of a conscientious objector available for civilian work contributory to the maintenance of the national health, safety or interest). On April 18, 1967 and again on July 19, 1967, as stated, he was classified I-A. Respondent returned to the United States sometime after May 17, 1967, the exact date not having been established.
It was after all efforts to secure a change in his draft status, that respondent executed the renunciation on May 16, 1967. So, in reality, the renunciation was to avoid regular army service. He so indicated in the oath of renunciation; and in his letter to the local draft board relative to his renunciation of American nationality.
Thus, as indicated, the issue narrows to whether respondent's renunciation constituted a voluntary and meaningful act.
There is no need here to discuss the effect of various provisions of the statute relating to loss of citizenship 1 or the several decisions of the Supreme Court of the United States relating to the constitutionality thereof, for we are here concerned with the right to renounce American nationality. Section 349(a) (6) of the Immigration and Nationality Act; Act of July 27, 1968, section 1999 of the Revised Statutes. Even in the absence of a statute, formal renunciation of nationality usually has been considered an act of expatriation. 14 Op. Atty. Gen. 295 (1873); Borchard, The Diplomatic Protection of Citizens Abroad, 552, 681. However, since 1940, our statutes have recognized the expatriative effect of a formal renunciation of nationality made before an American diplomatic or consular officer outside the United States. Section 401 (f), Nationality Act of 1940, 54 Stat. 1169; section 349 (a) (6), Immigration and Nationality Act, 8 U.S.C. 1481 (a) (6). In addition, a 1944 Act codified in 1952, sanctions renunciation of citizenship in the United States during time of war, if approved by the Attorney General. Section 401(i), Nationality Act of 1940, as amended, 58 Stat. 677; section 349 (a) (7), Immigration and Nationality Act, 8 U.S.C. 1481 (a) (7).
The Immigration and Naturalization Service receives communications from persons in the United States imprisoned for crime who wish to renounce their citizenship, and those who wish to avoid military service. It would appear that on the basis of the Afroyim ruling emphasizing a citizen's voluntary choice to re
1 Section 1481, Title 8, U.S.C.A.
2 Savorgnan v. United States, 338 U.S. 491 (1950); Kennedy v. MendozaMartinez, 372 U.S. 144 (1963); Schneider v. Rusk, 377 U.S. 163 (1964); Marks v. Esperdy, 377 U.S. 214 (1964).
nounce, that some doubt would exist if a statute attempted to circumscribe that choice. The exception would be where a state of war exists and by reason thereof prohibiting renunciation. However, there are no procedures in the present laws as was the case involving Japanese renunciants during World War II. See Kiyama v. Rusk, 291 F.2d 10 (9 Cir., 1961), cert. denied 368 U.S. 866; McGrath v. Abo, 186 F.2d 766 (9 Cir., 1951); Acheson v. Murakami, 176 F.2d 953 (9 Cir., 1949).
In Afroyim v. Rusk, 387 U.S. 253 (1967), which involved the constitutionality of section 401 (e), Nationality Act of 1940, relating to loss of American nationality by voting in a foreign election, the court questioned the power of Congress to expatriate without consent. However, there is unanimity in the right of voluntary renunciation or abandonment by the citizen himself. However, the court did not indicate what constitutes voluntary relinquishment of citizenship. As indicated in the Attorney General's interpretation of the Supreme Court's decision in Afroyim as to what constitutes voluntary renunciation, it is necessary to look to earlier decisions of the court. In Perez v. Brownell, 356 U.S. 44 (1958), overruled by Afroyim, the Chief Justice stated that it has long been recognized that citizenship may not only be voluntarily relinquished through exercise of the right of expatriation but also by other actions in derogation of undivided allegiance to this country; and in Nishikawa v. Dulles, 356 U.S. 129 (1958), Justice Black stated that, of course, a citizen has the right to abandon or renounce his citizenship and that Congress can enact measures to regulate and affirm such abjuration.
The Afroyim ruling apparently does not affect the right of renunciation of citizenship under section 349(a) (6) of the Immigration and Nationality Act upon which the respondent's act is based. Hence, for example, expatriation may result by naturalization in a foreign state or the taking of a meaningful oath of allegiance to a foreign state, and the like. But even in these situations the act must be voluntary and meaningful.
The rule should be no less here. It would seem that in all such cases, including renunciation, the person involved should be given, to the extent possible, an opportunity to state fully all the facts and circumstances, and the motives and purposes surrounding the expatriative act, with emphasis on ascertaining the intent in performing such act. While respondent gave very limited testimony, the other evidence of record appears clear on this important aspect of the case.
Whatever else may emanate from respondent's conduct in violating the draft laws, criminal proceedings or otherwise, his continued attempts at reclassifications, both before and after he left the United States, his stated reasons at the time of renunciation and his letter to the draft board the following day, all concerned with his prospective status in the military, evince a clear intent that his act was involuntary. While renunciation cannot be used as “on again, off again” to justify a change of mind, respondent's act was not a normal act of renunciation. He did not acquire a new nationality but became a "man without a country.” The possibility of deportation is remote, if not indeed, improbable.
The circumstances of this case bring it squarely within the ruling of this Board in the matter of Susan B. Anthony, A-8823447 (June 26, 1969), that the taking of an oath of allegiance to the British Crown was, because of surrounding circumstances, involuntary, and, hence, not expatriative. And in the case of Baker v. Rusk, decided by a Federal District Court in California in March 1969, it was held that an oath of allegiance to King George V was not meaningful. The renunciation must involve duress, whether economic or otherwise. Stipa v. Dulles, 233 F.2d 551 (3 Cir., 1956). Where the renunciant's intent is clear, as here, that renunciation is the result of factors not consonant with a normal desire to abandon or change citizenship, then the burden on the sovereign is a heavy one. The loss must be established by clear, unequivocal and convincing evidence. Nishikawa v. Dulles, 356 U.S. 129; Gonzales v. Landon, 350 U.S. 926 (1955); cf. Matter of Jacuzzi, A-16841893, approved by Attorney General Rogers February 2, 1959. In the absence thereof, retention of citizenship is favored. Schneiderman v. United States, 320 U.S. 118 (1943); Chin Chuck Ming v. Dulles, 225 F.2d 849 (9 Cir., 1955); Yee Mee v. Dulles, 136 F. Supp. 199 (U.S.D.C., W.D. Pa., 1955); Fletes-Mora v. Rogers, 160 F. Supp. 215 (U.S.D.C., S.D., Cal., 1958).
Because of the conclusion reached herein, it is unnecessary to reach other issues presented by this record.
I would hold that respondent retains his American citizenship acquired at birth.