making of this motion, the Immigration Service offered to effect the respondent's deportation to Hong Kong. The offer was refused and the respondent elected to proceed with this motion.

Under the circumstances there is no substance to respondent's motion. The alternate country to which an alien may be deported is solely within the discretion of the Attorney General and there are no limitations as to the priority or preference because of the order named in the statute. The wide discretion given the Attorney General by subparagraph (7) of section 243 (a) is obviously intended to avoid arbitrary restrictions on the places to which a deportable alien may be sent. Chan Chuen v. Esperdy, 285 F. 2d 353, 354 (C.A. 2, 1960). Counsel's argument that this Board should set up certain standards for the exercise of the authority granted the Attorney General by section 243 (a) is not in accord with the intent and purpose of the

statute.

The respondent in the instant case did not avail himself of the opportunity granted him as a matter of right. He is in no position to ask for relief at this time. The appeal will be dismissed.

ORDER: It is directed that the appeal be and the same is hereby dismissed.

MATTER OF GONZALEZ-HERNANDEZ

In DEPORTATION Proceedings

A-7225688

Decided by Board February 18, 1964

(1) A naturalized United States citizen's employment with the Cuban armed forces from February 1959 to January 1961 in connection with which he was scheduled to take the oath of allegiance, was paid by the Cuban army, gave orders to members of the army, wore the army uniform except for a period from March to June 1959, and received a dishonorable discharge from the army in January 1961, constitutes entering the armed forces of Cuba within the meaning of section 349(a)(3), Immigration and Nationality Act. (2) Respondent lost his United States citizenship under section 349(a)(3) of the Act, having failed to establish that his entry into the armed forces of Cuba was involuntary, since he did not avail himself of the opportunity to protest the wearing of the Cuban army uniform to the United States consul, and following a visit to the United States in March 1959 he returned voluntarily to Cuba and to his employment there, taking his family with him.

CHARGE:

Order: Act of 1952-Section 241 (a) (1) [8 U.S.C. 1251 (a) (1) ]—Immigrant, no visa.

The special inquiry officer, finding respondent to be a United States citizen at time of his last entry, terminated proceedings and certified the case to the Board. The trial attorney asks that the special inquiry officer be reversed and that the respondent be ordered deported on the charge stated above. We find that respondent was an alien at the time of his entry and shall reopen proceedings so that the special inquiry officer may consider the charge.

The issues are whether respondent entered the armed forces of Cuba; and if he did, whether his conduct was voluntary.

Respondent, a 43-year-old married male, a native of Cuba, was admitted to the United States for permanent residence with his wife and daughter on May 18, 1949. He became a citizen by naturalization on April 25, 1958. The Service contends that respondent lost United States citizenship by entering the armed forces of Cuba, and therefore needed a visa on the occasion of his last entry (June 16, 1961) when

he was admitted as a United States citizen. The Service relies upon section 349 (a) (3) of the Act (8 U.S.C. 1481(a)(3) (1958)) which in pertinent part divests a United States citizen of his nationality forentering, or serving in, the armed forces of a foreign state unless, prior to such entry or service, such entry or service is specifically authorized in writing by the Secretary of State and the Secretary of Defense: ***1

Respondent admits that he wore the uniform of and worked with the Cuban armed forces, but claims (1) that he did not "enter" its armed forces, and (2) that his employment was under duress. The special inquiry officer divided respondent's employment into two separate periods. The special inquiry officer found that the first period did not constitute entering the armed forces, and that while the second period did, it did not result in expatriation because it was under duress. The trial attorney contends that the second period was voluntary; in this, the Service representative concurs, and contends in addition, that the first period constituted entering and resulted in expatriation.

Except for a memorandum from the State Department concerning a conversation with the respondent in February 1959, the facts of record concerning respondent's service are derived from his sworn statement made before the Service on June 8, 1962, and his testimony at the deportation hearing on August 21, 1963.

Three returns by respondent to Cuba must be considered. The first return was on January 3, 1959. The record is not clear about the motivation for this return; it appears to have been occasioned by the fact that respondent, a radio technician who had been a supporter of Castro, was approached by Cuban revolutionaries shortly after Castro's successful revolution and asked to contribute his technical skill. Respondent stayed until January 14 when he came back to his family in the United States (p. 6). The second return to Cuba was on January 19, 1959. Respondent's mother-in-law, an employee of the Cuban Government who was in the United States to assist her daughter, a recent mother, received word that she had been fired from her job. Respondent returned to Cuba to help her get her job back (pp. 6-8); while so engaged, he was approached by Comandante Fernandez, Cuban Chief of the Communications Agency (Red Oficial de Communicaciones por Microndas (ROCMIC)) who asked him to help for a period of three or four weeks. Respondent agreed to stay for about a week and a half, but at the request of his superior repeatedly extended the time for short periods (pp. 8-9). Finally, in March 1959, being quite willing to remain in Cuba (pp. 30-31), respondent decided to set up his business in Cuba, reasoning that he would help the Cuban Government and at the same time make a lot

1

1 We are concerned only with "entering" the armed forces of Cuba.

of money for himself. He went to the United States to get his family and on March 23, 1959, returned with them to Cuba where he remained until June 16, 1961, when he and his family came to the United States. (During this period at a time not disclosed in the record, respondent's wife came to the United States; she returned to Cuba to be with her husband.)

The issue as to entering the armed forces of Cuba is raised by respondent's insistence that he was not officially a member of the armed forces because he had never taken an oath of allegiance to Cuba, and because he wore an army uniform for a limited purpose only; i.e., to enable him to give orders to military personnel.

A uniform was not worn when respondent started his employment (the inspection of radio communications stations in the island and the maintenance of these facilities); however, in January 1959 while engaged in his employment, some source, not designated in the record (p. 9), either denied him use of army facilities or asked why he had not joined the army (p. 9). As a result of this incident, respondent was told by his superior that although he did not have to join the army, he had to wear the army uniform so that the soldiers would take orders from him, for they would not take orders from one in civilian clothing (pp. 9, 26-7). On about February 14, 1959, respondent was given the uniform of a second lieutenant. A day or two later (pp. 1, 26), respondent called at the United States Embassy in Havana and asked what effect wearing of the uniform would have upon his United States citizenship (p. 11; exh. 2, p. 6). His recollection is that he was informed that if he did not take the oath of allegiance to the Cuban flag, he would not lose United States citizenship by his army work, and that the effect of his wearing the uniform was not known to the Embassy official who, however, promised to make inquiry concerning this issue and inform respondent (pp. 11-12). This call at the Embassy is the subject of a memorandum made on February 16, 1959, by the Embassy employee who interviewed respondent (exh. 3). The memorandum reveals that the Embassy employee told the respondent that service in the revolutionary forces was not itself expatriatory, but that if respondent wished to retain his United States citizenship, he should not continue in the service of the revolutionary forces upon their integration into the regular Cuban Army (an event the respondent had told the writer of the memorandum would begin on February 20, 1959). The memorandum further reveals that respondent asked about permission to serve so that he would be exempt from loss of United States citizenship even if he served in the Cuban Army, and

2 The Rebel Army of Cuba after January 1, 1959, the date on which Castro came to power, is considered the armed forces of a foreign state as that term is used in section 349(a) (3) of the Act (Matter of M—, 9 I. & N. Dec. 402).

that this permission was denied. The memorandum was presented to respondent at the hearing; he stated it was "almost exactly" what he had explained to the Embassy employee (p. 12).

Respondent continued to wear his uniform until sometime in March (the special inquiry officer believes it was in the first half but the record is actually not clear as to whether it happened before or after he brought his family to Cuba (pp. 9-10, 26)) when charges that he was plotting against the Cuban Government were brought against him, and by written order "like a regular order from the army" (p. 10) he was told he could no longer wear the uniform (pp. 9-10). The period of employment coincident with the wearing of the uniform (February 14, 1959, to March 1959) is termed by the special inquiry officer the first period of possible army service.

The second period of possible service began in July 1959. The respondent, then working out of uniform in the radio shop (p. 26), was told by his superior that a decision on the accusations had been made in his favor and that he was now free to wear the uniform (p. 11). Respondent protested but was required to wear the uniform (pp. 11, 26-8, 34-5). He wore the military uniform from July 1959 until January 15, 1961, when he was apparently detained under house arrest (p. 13). On January 23, 1961, he was given a dishonorable discharge (p. 13).

Pertinent to the issue as to whether respondent entered the armed forces are these additional facts. The wearing of the uniform authorized respondent to give orders to others in the Cuban Army who were working as half-civilian and half-army people, and to give orders to Cuban military personnel, both those of lower in rank than a second lieutenant and those higher (exh. 2, p. 5). In the beginning respondent had an identification card which did not show him in uniform; this card was replaced by one showing him in his army uniform, but he could not recall whether it identified him as a member of the Cuban Army (p. 7, exh. 2). Whatever papers he signed in the performance of his duties, he signed as a member of the Cuban Army with the rank of a second lieutenant (p. 7, exh. 2). Respondent was paid by the Cuban Government, even during the period he was not permitted to wear his uniform (p. 6, exh. 2). Respondent received the pay of a captain although he had the rank of a lieutenant (p. 28). He never

* Respondent testified that in March or April 1959 he was no longer in sympathy with Castro (p. 10, exh. 2). (At the hearing he said it was in August 1959 that he became disillusioned (p. 31).) He implied that he had worked against Castro by giving information to an individual whose wife worked in the United States Embassy in Cuba, and he revealed that during an undisclosed period, apparently for sabotage, he had replaced communications equipment in the amount of about $2,000,000 although it was still satisfactory (p. 12, exh. 2).