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months of physical presence in the United States during the eightmonth period, January 1, 1960, to September 1, 1960, as we have accounted for absences which aggregate approximately eight months for the 17-month period, September 1, 1960, to February 4, 1962.

The applicant testified that "during the slow part of the season” (January to September) when he was not employed as an agricultural worker he would obtain employment in “the restaurant and construction business” for periods of “one day, three days, maybe a week” (pp. 13 and 14). The applicant also testified he was employed on a ranch at Columbus, New Mexico, from September 1, 1959, through December 31, 1959 (pp. 12 and 13). He would work on the ranch for a period of 15 to 22 days and then returned to Mexico for a few days up to a week” after which he would again return to the ranch and that this kept up during the whole season (pp. 12 and 13).

We are unable to compute on the basis of the foregoing testimony whether the applicant has sufficient physicial presence in the United States during the period January 2, 1960, to September 1, 1960, which when added to his actual and potential physical presence of four years, eight months, as of the date he sought to enter (February 4, 1962) would make it mathematically possible for him to have a continuity of actual and potential physicial presence totaling five years prior to his 28th birthday (January 2, 1966).

By the same token we are unable to compute on the basis of the record as it now stands whether it is mathematically possible for the applicant to acquire a continuity of five years of physical presence running from a date certain while employed at Columbus, New Mexico, in the fall of 1959 to a date certain in 1965. There is the possibility that the applicant during the period September 1959 to February 4, 1962, a span of some two years, five months, has been physically present in the United States for periods which total more than one year, five months, with absences which aggregate less than 12 months.

Here we are concerned with loss of nationality acquired at birth. Every effort should be made to establish compliance with section 301 (b) as amended by section 16 of Public Law 85–316 (8 U.S.C. 1401(b) and 1401b). We are mindful of the fact that the burden is upon the applicant to establish his admissibility as a citizen of the United States. We note, however, that the only evidence with regard to the applicant's physical presence in the United States for the period January 1, 1960, to September 1, 1960, is his testimony that he was intermittently employed in restaurants and in the construction business for periods of “one day, three days, maybe a week.”

We will, under the circumstances, remand the case to the special inquiry officer for additional evidence of the applicant's physical presence in the United States during the period January 1, 1960, to Sep

tember 1, 1960. Evidence should also be developed as to whether it is mathematically possible to establish the applicant's physical presence in the United States from a date certain in the fall of 1959 to a date certain in 1965 which has a continuity of five years and which is not interrupted by total absences which aggregate 12 months or more.

ORDER: It is directed that the hearing in this case be reopened for the purposes stated in the foregoing opinion.

It is further directed that the case be certified to the Board of Immigration Appeals for final decision pursuant to 8 CFR 3.1(c).

APPENDIX A

Computation of the Applicant's Physical Presence in Mexico Between Jan. 2,

1961. His 23d Birthday and Feb. 4, 1962, the Date He Applied for Admission at El Paso, Tex.

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*Computed on the basis of eight hours of employment and 4 hours travel and lunch time.

APPENDIX B Computation of the Applicant's Physical Presence in Mexico for the 4-Month

Period Prior to His 230 Birthday on Jan. 2, 1961

Period

Total days in period

Activity

Days off

Total days in Mexico

Record page

123 Employed Auto Center

Car Wash, El Paso, Tex.

Mondays off, 4.

Sept. 1, 1960,

through Jan.

1961.

*63!4 pp. 6 and 7.

*Computed on the basis of 12 hours' employment, travel and lunch time in the United States and allow. ing 4 Mondays as time off spent in Mexico out of a total of 17 Mondays in this period.

MATTER OF LYONS

In EXCLUSION Proceedings

A-12737518

Decided by Board September 5, 1962

A native-born citizen who voluntarily voted in municipal elections in Canada,

choosing mayors and other city officials, from about 1938 until about 1954 or 1955, lost her United States citizenship under section 401 (e) of the Nationality Act of 1940 by voting in political elections, since elections to choose representatives of the people for the conduct of the government of a geographical sub

division of a foreign state falls squarely within the purview of the statute. EXCLUDABLE: Act of 1952—Section 212(a) (20) [8 U.S.C. 1251 (a) (20)]-Immi

grant, no visa.

The special inquiry officer has certified the case of the applicant to this Board because of an apparent conflict in rulings by the Department of State and the Immigration and Naturalization Service on the issue of loss of citizenship by voting in a local election in a foreign country. The point of controversy is the scope of the term “political election” as used in section 401(e) of the Nationality Act of 1940 and section 349(a) (5) of the Immigration and Nationality Act.

The applicant was born in Presque Isle, Maine, and is now a widow, 74 years old. She resided in the United States from birth until 1937 in which year she married a Canadian citizen and took up residence with him in Canada. Her husband died there in the fall of 1961. She subsequently applied for admission as a United States citizen destined to live with her daughter in New Hampshire. She is not in possession of an immigrant visa or other valid travel document.

The applicant's testimony indicates that she has performed no act of an expatriating nature other than her several acts of voting in municipal elections in Canada. She states that she did not vote in any national or provincial elections because her husband never voted in those elections. She stopped voting in municipal elections when her husband became disabled. The elections in which she participated chose mayors and other city officials.

Prior to her application for admission to the United States, the applicant inquired at the American Consulate at St. John, New Brunswick, about her United States citizenship. She informed the Consulate that she intended to come to the United States to live with her daughter. In connection with her inquiry, she completed a questionnaire in which she admitted that she had voted at Fredericton, New Brunswick, in municipal elections.

The applicant's documents were returned to her in an envelope of the American Consulate, St. John, New Brunswick, along with an unsigned note stating that it appeared from the information presented that she is a citizen of the United States and suggesting that she communicate with the Immigration and Naturalization Service for requirements to prove her United States citizenship.

During the hearing before the special inquiry officer the applicant admitted that she voted in municipal elections at Fredericton, New Brunswick, from about 1938 until about 1954 or 1955. She further admitted that she voted voluntarily. The special inquiry officer concluded that she has expatriated herself under the provisions of section 401 (e) of the Nationality Act of 1940 and therefore, as an immigrant not in possession of proper documentation, is excludable from the United States.

The Service Representative during oral argument before this Board submitted a letter dated January 11, 1960 from the Passport Office of the Department of State to the Commissioner in another case. The letter requested the Service to disregard two certificates of loss of nationality which the Department of State had approved under the provisions of section 401(e) of the Nationality Act of 1940, based upon acts of voting in a municipal election in Saskatchewan, Canada.

The letter states that in view of the comments of the Supreme Court in the case of Perez v. Brownell, the Department of State requested the American Consulate at Winnipeg to make a further investigation of that election. The Consulate's report showed that the Canadian authorities had stated the municipal election in question was not of a political nature in any sense, since it was not campaigned along any political line and was conducted on a strictly municipal basis involving only local municipal issues. On these further facts the Department of State reversed its decision of expatriation.

As the Service Representative has noted, the record in the instant case does not reflect whether the facts pertaining to the elections in which the applicant participated would cause the officials of the Department of State in Washington to support the action of the consular officer at St. John, New Brunswick, or whether that officer acted independently in the matter. Apparently, however, the unsigned communication to the applicant from the consulate indicating that she still possessed United States citizenship was based upon a conclusion that months of physical presence in the United States during the eightmonth period, January 1, 1960, to September 1, 1960, as we have accounted for absences which aggregate approximately eight months for the 17-month period, September 1, 1960, to February 4, 1962.

The applicant testified that “during the slow part of the season” (January to September) when he was not employed as an agricultural worker he would obtain employment in “the restaurant and construction business” for periods of "one day, three days, maybe a week” (pp. 13 and 14). The applicant also testified he was employed on a ranch at Columbus, New Mexico, from September 1, 1959, through December 31, 1959 (pp. 12 and 13). He would work on the ranch for a period of 15 to 22 days and then returned to Mexico for “a few days up to a week” after which he would again return to the ranch and that this kept up during the whole season (pp. 12 and 13).

We are unable to compute on the basis of the foregoing testimony whether the applicant has sufficient physicial presence in the United States during the period January 2, 1960, to September 1, 1960, which when added to his actual and potential physical presence of four years, eight months, as of the date he sought to enter (February 4, 1962) would make it mathematically possible for him to have a continuity of actual and potential physicial presence totaling five years prior to his 28th birthday (January 2, 1966).

By the same token we are unable to compute on the basis of the record as it now stands whether it is mathematically possible for the applicant to acquire a continuity of five years of physical presence running from a date certain while employed at Columbus, New Mexico, in the fall of 1959 to a date certain in 1965. There is the possibility that the applicant during the period September 1959 to February 4, 1962, a span of some two years, five months, has been physically present in the United States for periods which total more than one year, five months, with absences which aggregate less than 12 months.

Here we are concerned with loss of nationality acquired at birth. Every effort should be made to establish compliance with section 301 (b) as amended by section 16 of Public Law 85–316 (8 U.S.C. 1401 (b) and 1401b). We are mindful of the fact that the burden is upon the applicant to establish his admissibility as a citizen of the United States. We note, however, that the only evidence with regard to the applicant's physical presence in the United States for the period January 1, 1960, to September 1, 1960, is his testimony that he was intermittently employed in restaurants and in the construction business for periods of "one day, three days, maybe a week.”

We will, under the circumstances, remand the case to the special inquiry officer for additional evidence of the applicant's physical presence in the United States during the period January 1, 1960, to Sep

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