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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.
*Computed on the basis of eight hours of employment and 4 hours travel and punch time.
APPENDIX B Computation of the Applicant's Physical Presence in Mexico for the 4-Month
Period Prior to His 23d Birthday on Jan. 2, 1961
Employed Auto Center
Mondays off, 4.
Sept. 1, 1960,
*634 pp. 6 and 7.
Car Wash, El Paso, Tex.
through Jan. 1, 1961.
*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
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 those elections were not “political elections” within the meaning assigned to that term by the Department of State.
This Board has previously ruled that voting for an alderman in a municipal election in Ontario, Canada, was voting in a political election within the meaning of section 401(e) of the Nationality Act of 1940, Matter of P-, 1 1.&N. Dec. 267. In that case we concluded that the term “political” is used in that section in the broad sense of "governmental” or “public,” as distinguished from "private."
We later considered whether a local election in Canada to determine whether the sale of beer and wine should be under the provisions of the Liquor Control Act was a political election within the meaning of that same provision of law, Matter of F-, 2 1.&N. Dec. 427. The majority of the Board indicated its belief that Congress employed the word “political” in its sense of that which is done pursuant to political affiliation, but decided that the election was a referendum or plebiscite and not an “election,” political or otherwise, as the term is employed in section 401 (e) of the Nationality Act of 1940.
In that case there was also a communication from the Department of State. Richard W. Flournoy, Assistant Legal Adviser, commented to the Board, "in my opinion a local election of the kind mentioned does not come within the statutory provisions in question and is not to be regarded as a 'political election. I have discussed the matter with other members of the office, and this appears to represent the consensus of opinion.”
The case also referred to a prior ruling of the Department of State that the test whether American nationals who voted in municipal elections in Chile lost their American nationality depended upon whether the elections were properly to be denominated political elections, that is, whether political issues were involved or the campaigns waged along political lines between candidates of opposing political parties.
The Chairman and one member of the Board dissented, arguing in favor of a broader interpretation of the word “political,” and the case was certified to the Attorney General. That officer, noting the conflicting opinions, the majority of the Board and the Legal Adviser of the Department of State on one side and the Commissioner of Immigration and Naturalization and a minority of the Board on the other, reversed the Board's decision.
We have subsequently in considering local elections given a broad interpretation to the term “political election," in line with the Attorney General's opinion. Matter of R-R—, 3 I. & N. Dec. 890; Matter of M-G-, 7 1. & N. Dec. 665; Matter of M—C—, Int. Dec. 1182, Nov. 20, 1961. Matter of M—C— involved prior voting in a national election as well as voting in a municipal election in Mexico, but we considered both expatriating in nature.
It appears the Department of State has until recent years interpreted the term “political election” broadly, modifying the view which it expressed in Matter of F—, supra, possibly due to the Attorney General's opinion in that case. The letter of January 11, 1960, referred to above and certain judicial decisions involving local elections so indicate. In at least three cases the Department of State held that voting for a mayor in Italy resulted in expatriation. The Circuit Court of Appeals for the District of Columbia upheld the Government stating, “There can be no serious dispute that a mayoralty election is a 'political election' in any ordinary and reasonable meaning of the phrase, and we must assume-nothing to the contrary appearingthat Congress used the language in its usual sense.” The court further said that if the election is “political,” its scope, local or national, is immaterial and cited Matter of P-, supra, with approval. Bisceglia V. Acheson, 196 F. 2d 865 (C.A.D.C., 1952). One of the other cases was decided adversely to the Department of State on the issue of voluntariness of the voting, but did not question whether the election was a “political election” within the meaning of the statute. Tomasicchio v. Acheson, 98 F. Supp. 166 (1951). The third case upheld the Department of State's decision that expatriation had occurred. Scavone v. Acheson, 103 F. Supp. 59 (1952).
Voting in a local primary election for mayor of a city in Mexico has also been held to be expatriating. Miranda v. Clark, 180 F. 2d 257 (C.A. 9, 1950). A person who voted first in local elections and then in national elections held in 1946 in Italy was expatriated on the authority of Bisceglia v. Acheson, Longobardi v. Dulles, 204 F. 2d 407 (C.A. D.C., 1953).
Other cases involving local elections held in occupied Germany following World War II have gone off on the question whether they took place in a “foreign state” within the meaning of the statute, but did not question whether the elections were “political.” Brehm v. Acheson, 90 F. Supp. 662 (1950) and In re Riedner, 94 F. Supp. 289 (1950).
The term “political election” for the purposes of section 401(e) of the Nationality Act of 1940 has been defined judicially as the Act of choosing by vote a person to fill an office, which office pertains to the conduct of government, Kuwahara v. Acheson, 96 F. Supp. 38 (1951); Moldoveanu v.Dulles, 168 F. Supp. 1 (1958).
The current position of the State Department appears to be based upon dicta with reference to the term “political election” in the decision by the Supreme Court in Perez v. Brownell, 356 U.S. 44 (1958). The Court said that that description carries with it the scope and meaning of its context and purpose; and that classes of elections-nonpolitical in the colloquial sense—as to which participation by Americans could not possibly have any effect on relations of the United States with