deportable under a section which has not been lodged. Due process requires that deportation be accomplished only on a ground provided by law, that the alien be notified of the ground so that he can make his defense, that a record be created, and that the record reveal that the Service has established in a fair hearing, by reasonable, substantial, and probative evidence, that the alien is within that ground.

An issue which may come up again at the reopened hearing is the contention of counsel that the provisions of a standard work contract (Ex. 7) which provide that the services of an agricultural worker may be utilized for a period of not more than 15 days after the expiration of his contract, constitutes an extension of legal stay for the 15 days if the option is exercised. While this contention appears to be arguable on the basis of what little there is in the record, we see no need for attempting to decide or for developing the issue since deportation is sought not for what occurred within the 15-day period following the termination of the contract, but for the failure to depart from the United States even after the 15-day period. (In respondent's particular case, we note that on December 28, 1962, before the expiration of the 15-day extension, he left the employer who had asked him to continue.) However, development of this matter is left to the discretion of the special inquiry officer.

We have reserved until now comment on the issues raised by counsel concerning respondent's attempt to change his status from an agricul tural worker to a nonimmigrant worker. The proceeding to obtain the change of status and the issues raised in the proceeding-the propriety of the denial of the application for the change of status, the necessity for filing a petition from the employer in connection with the application, the propriety of using state permission to employ agricultural workers made in collateral cases-are not within the jurisdiction of either the special inquiry officer or this Board. The initial decision on the application for a change of status is for the District Director (8 CFR 103.1 (f), 103.2-3, 214.4, Form I-129B (note instructions on Form); the appeal is to the Regional Commissioner (8 CFR 103.1(e)). Clearly, neither the special inquiry officer nor the Board has jurisdiction over the proceeding (8 CFR 3.1; see Matter of Malkiesman, Int. Dec. No. 1090). Since this is so, it follows that comment on the issues raised as to the change of status proceeding would be inappropriate.

'Counsel suggests that if the respondent is deportable at all, the proper charge would be under section 241(a)(2) of the Act (8 U.S.C. 1251(a)(2)) which requires the deportation of an alien who is in the United States in violation of the Immigration and Nationality Act or "any other law of the United States".

ORDER: It is ordered that the outstanding order of the special inquiry officer be and the same is hereby withdrawn.

It is further ordered that proceedings be reopened for purposes not inconsistent with those stated in our order and for such other purposes as the special inquiry officer may deem appropriate.

It is further ordered that the decision of the special inquiry officer be certified to this Board.

MATTER OF HERNANDEZ

In EXCLUSION Proceedings

A-13013528

Decided by Board June 18, 1963

In determining loss of citizenship under section 349(a) (4) (A), Immigration and Nationality Act, evidence of employment under the government of a foreign state or a political subdivision thereof should be established by properly authenticated documents which refer to the pertinent portion of the constitution, laws, and regulations of that foreign state.

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

This is an appeal from the order of the special inquiry officer excluding the applicant upon the ground stated above.

The applicant a 40-year-old married male, became a citizen of both the United States and Mexico at birth. Since 1935 he has lived in Mexico; he has been working for the Municipal Water System of Naco, Sonora, Mexico since 1961. The Service charges that this employment resulted in the applicant's loss of United citizenship under the provisions of section 349 (a) (4) (A) of the Act (8 U.S.C. 1481) which provides that a United States national shall lose his United States nationality by:

accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, if he has or acquires the nationality of such foreign state ***."

Loss of United States nationality occurs under this section when the employment is "under the government of a foreign state or a political subdivision" even though performance of the duties of the employment is not inconsistent with retention of United States nationality (Matter of Le Couteur, Int. Dec. No. 1146), and even though the employment is not restricted to nationals of the foreign state.1 We are thus faced with the sole issue as to whether applicant's employment is "under the government of a foreign state or a political subdivision.”

1This conclusion is founded on the fact that express language of the predecessor section (section 401(d) of the Nationality Act of 1940, 54 Stat. 1137)

The special inquiry officer's finding that the applicant's employment was under the government of a foreign state or a political subdivision thereof is based on information from applicant's employer Roberto Duarte Guerrero, Manager of the Potable Water System, Municipal Government of Naco, Sonora, Mexico, who on a paper without letterhead and without seal furnished the information, that applicant works for the system and receives his pay as a pumpman from the Federal Government of Mexico, that the system is an agency of the Federal Government of Mexico in the Department of Hydraulic Resources, and that the system is owned by the Government of Mexico. He also states that the employees must be Mexican citizens. No reference to the legal basis for the hearsay opinion given by the manager of the system is set forth.

We believe the record is deficient. Evidence that the applicant's employment is under the Government of Mexico or a political subdivision of Mexico should be established by reference to the constitution, laws, and regulations of Mexico by documents which are properly authenticated. Proceedings will be ordered reopened for this purpose (See Akiyo Oye v. Acheson, 110 F. Supp. 635 N.D. Cal. (1953); Teruo Naito v. Acheson, 106 F. Supp. 770 S.D. Cal. (1952)).

ORDER: It is ordered that the proceedings be reopened for the purpose stated in our opinion and for such further action as the special inquiry officer may deem appropriate.

It is further ordered that the order of the special inquiry officer be certified to the Board.

requiring the employment to be that "for which only nationals of such [foreign] state are eligible" does not appear in section 349 (a) (4) (A) of the Act. The natural inference of this omission is underlined by following comment made concerning the restriction, by the Senate committee on whose recommendations the present section was based:

This subdivision [section 401(d) of the Nationality Act of 1940] is highly technical and has been the subject of much discussion and interpretation. Generally, expatriation does not result where the restriction as to "nationals only" is not generally enforced. Likewise, if nonnationals are permitted to take such employment after an official of the foreign state has stated that no nationals are available, expatriation does not result. It does not apply to those who have merely applied for employment. where the position is open to nationals only, or to temporary employment thereafter made permanent, where permanent employment is restricted to nationals only. The fact that a person may be a national of the foreign state is irrelevant if the position is open to others than nationals. The subsection does not, therefore, in many cases, affect dual nationals, and therefore has been ineffective in making such persons elect American citizenship exclusively. The subcommittee is recommending changes in this subsection which, is felt, will strengthen the law and make for a determination of citizenship and an elimination of dual citizenship. * ** (Footnotes omitted.) (S. Rep. No. 1515, 81st Cong., 2d Sess. 749-750 (1950).)

Interim Decision #1290

MATTER OF PERALTA

In DEPORTATION Proceedings

A-11402870

Decided by Board June 19, 1963

(1) An applicant for suspension of deportation within the provisions of section 244 (b), Immigration and Nationality Act, as amended, is exempt from the requirement of any specified period of physical presence.

(2) While such an applicant is also exempt from the necessity of establishing good moral character for the period coextensive with the physical-presence period, he must establish good moral character between the date he filed his application and the date it is finally adjudicated. Conduct prior to date of filing can be considered in determining whether good moral character has been established during the period in question.

(3) In computing the 24-month period of active-duty status under section 244(b) of the Act, as amended, annual active training duty as a member of the Reserves can be credited to active-duty service but unused accrued leave cannot be so credited.

CHARGE:

Order: Act of 1952-Section 241 (a) (9) [8 U.S.C. 1251 (a) (9)]—Failed to comply with conditions of admission-student.

The special inquiry officer granted suspension of deportation and certified his order to the Board for final decision. The order will be approved.

The issue concerns the effect of military service in the United States on the necessity of an applicant for suspension of deportation establishing that he has seven years continuous physical presence in the United States.

Respondent, a 25-year-old, single, male alien, a native and citizen of the Philippines, was admitted to the United States as a student on October 5, 1957. He has not attended school since June 14, 1962; he is clearly deportable on the charge in the order to show cause.

On March 11, 1959, the respondent was inducted into the Army of the United States at Oakland, California; he was on active duty until February 28, 1961, when he received an honorable release to the Reserves. He is obligated to serve in the Reserves until March 10, 1965.