« ÎnapoiContinuați »
another country are excluded by any rational construction of the phrase. Supra at 59, 60.
The Court was not concerned with a local election in Perez. A footnote to the majority opinion reflects that the petitioner did not object to the characterization of the election in which he voted as a “political election, and that in oral argument counsel for the petitioner expressed his understanding that the election was for Mexico's president. The scope intended by the Court in its expressions, "nonpolitical in the colloquial sense" and "as to which participation by Americans could not possibly have any effect on the relations of the United States with another country” is not entirely clear.
There is no indication that the court contemplated that all local elections should be excluded, thereby overruling the Bisceglia and Miranda cases. Neither the majority nor any of the minority opinions discussed or cited those cases.
The majority said the successful conduct of international relations may be jeopardized “when the citizen of one country chooses to participate in the political or governmental affairs of another country.” (Emphasis supplied) 356 U.S. at 59. The Court concluded that Congress had provided, without exceeding its Constitutional powers, that anyone who votes in a foreign election of significance politically in the life of another country shall lose his American citizenship. Supra at 62. There is no reason to suppose that the Court did not here use the term "significance politically” to encompass "governmental affairs," as it had previously indicated.
The Chief Justice, joined by Justices Black and Douglas, dissenting, referred to both Matter of P- and Matter of F-, supra. The reference to Matter of P—, appears to be unfavorable, although the opinion does not indicate whether the Chief Justice actually disagreed with the decision or merely considered it an extreme example of conduct which would result in loss of nationality. The dissenting Justices did not, however, appear disturbed by the fact that Matter of P, involved a local election for an alderman, noting, however, that that election was open only to British subjects.
The applicant is also a British subject, or at least she was at the time the voting in question took place. The evidence in this case does not indicate whether the elections in which the applicant voted required the possession of British or Canadian nationality. The special inquiry officer's decision, however, indicates that property owners and taxpayers were expected to vote.
The Scavone case contains an indication that at least one political party was involved in the particular election covered by the case, the administrative election of March 31, 1946, at Guardia Lombardia, Italy. Bisceglia and Tomasicchio also involved elections for mayor during March 1946 in other communities in Italy, but did not specifically indicate any activity by political parties. The opinion in Miranda v. Clark indicates there was a contest between parties. The candidates in the elections involved in the Brehm and Riedner cases appear to have represented political parties. None of these cases, however, indicates that the presence of political parties in the elections was at all determinative of the outcome of the case or that such presence is a necessary ingredient of the term “political election.”
Moreover, the limited reference to Matter of P- in one of the dissenting opinions in Perez is not an indication that the election must be open only to those possessing the nationality of the country in question, in order for expatriation to occur. In fact the legislative history indicates otherwise. A suggestion to so restrict section 401(e) was rejected. Hearings on H.R. 6127 before House Committee on Immigration and Naturalization, 76th Cong., 1st Sess., 398, 490, 491,
The majority and minority opinions in Perez contain numerous references to the effect that elections conforming to the statutory purpose should bear some connection with the relations between the United States and the other country, or that participation by United States nationals in the elections should otherwise be in derogation of their allegiance to the United States. These references present imprecise standards, however. The Department of State's reliance in its letter of January 11, 1960, on the lack of a campaign along political (presumably partisan) lines, the strictly municipal basis of the elections and the exclusively local municipal issues encounters the same difficulty.
Doubtless the consular officer relied on a similar test in the applicant's case, unless he considered that all muncipal elections are excluded from the operation of the statute.
It is not always apparent what local elections, or local issues, have political significance in the life of another country. The distinction certainly cannot be made on the basis that they are "local.” Local questions, or personalities today, may become national, or international, issues or figures tomorrow. An election for the mayor of West Berlin, for example, would without question have an immediate effect on our relations, not only with Germany but with other countries. Other situations may be much more subtle, however, and their effects only apparent over a long period of time. Moreover, the foreign relations of the United States do not not only involve high-level policy matters and headlines. They include the day to day negotiations between governments in behalf of individuals. The effect of individuals' actions in this area are even more elusive.
The Court itself in Perez recognized the vagueness of its suggested standards for determining “political” elections when it said that specific applications are open to judicial challenge, as are other general categories in the law, by a "gradual process of judicial inclusion and exclusion," citing Davidson v. New Orleans, 96 U.S. 97, 104 (1878). 356 U.S. at 60.
In the absence of any judicial decision defining more clearly a requirement that any election coming within the purview of the statute must be political in the sense that it is likely to affect the relations between this country and the country concerned, we do not feel called upon to make such a determination here. We believe, however, that participation in foreign elections of a purely local character may well be inconsistent with allegiance to this country, and that in many such elections the repercussions may be unfavorable to the United States. We doubt that Congress contemplated that each and every election be analyzed from the point of view of its effect on our foreign relations, especially since that effect may be extremely difficult, or impossible to ascertain at or about the time of the election. Cf. Bisceglia v. Acheson, supra.
Factors in elections such as the nature of the issues involved, their possible effect on the foreign relations of the United States, the administrative and controlling bodies, the presence or absence of support of certain issues or candidates by political parties, may be relevant and material, individually or in combination, in determining whether some elections are “political" for purposes of the statute. We do not attempt to rule here for all the different types of elections of a public nature.
We hold, however, the elections to choose representatives of the people for the conduct of the government of a geographical subdivision of a foreign state fall squarely within the purview of the statute. Therefore, the absence in this record of evidence delineating the factors set forth above is immaterial.
The Attorney General's ruling in Matter of F-, supra, occurred early in the history of the statutory provisions covering expatriation by voting in foreign elections, and was somewhat tentative. It is clear, however, that the meaning with respect to local elections which has been given to the term “political election” by the Attorney General, and subsequently by this Board, is also the meaning attributed to that phrase by the only courts which have directly considered the question. Our review of the law leads us only to the conclusion that the elections in which the applicant participated were “political" in the colloquial sense. We find nothing in Perez, even as dicta, which induces us to conclude otherwise. We consider that the decisions of the courts of appeals in Bisceglia v. Acheson, decided in this circuit, and in Miranda v. Clark are controlling in this situation.
The Service takes a firm position that the view of the Department of State is contrary to the law on the point considered here. The Service Representative in oral argument has referred us to Bisceglia V. Acheson and Kuwahara v. Acheson, as well as the prior precedents of this Board, and argues that Perez does not alter them. We strongly concur.
The difficulties in which this 74-year-old, ill widow finds herself stem solely from the conflicting interpretations which the two Government agencies place upon section 401(e) of the Nationality Act of 1940 and its successor, section 349(a) (5) of the Immigration and Nationality Act. The facts were made available equally to both agencies. There is little doubt that if the consular officer had considered the applicant expatriated, she would have qualified readily for an immigration visa and been found admissible by the Service.
While noting the many decisions relating to expatriation which indicate that factual doubts should be resolved in favor of the individual, and the law construed as far as is reasonably possible in his favor, we hold that the law and the facts in this case are clear and necessitate a ruling that the applicant has expatriated herself. The order of the special inquiry officer will be affirmed.
ORDER: It is directed that the order of the special inquiry officer be and is hereby affirmed.
MATTER OF DI FILIPPO
In DEPORTATION Proceedings
Decided by Board September 7, 1962
Respondent's conviction for making false statements in violation of section 106
A(a) of the Unemployment Insurance Act of Canada, as amended, is not a conviction of a crime involving moral turpitude.
Order: Act of 1952—Section 241 (a) (1) (8 U.S.C. 1251 (a)(1)]-Excludable
at entry-crime prior, to wit: making false statement in violation of section 106A of the Canadian Unemployment Insurance Act, and theft.
The examining officer has appealed from the order of the special inquiry officer terminating proceedings. The issue is whether respondent's conviction for violation of section 106A (a) of the Unemployment Insurance Act of Canada involves moral turpitude.
The case was before the Board on a previous occasion. On March 19, 1962, the Board ordered proceedings reopened in connection with the deportation charge for the purpose of obtaining additional information concerning the convictions, and, in connection with the application for relief, to enable respondent to refute derogatory information in the record concerning his character.
Respondent is a 30-year-old married male, a native and citizen of Italy who was admitted to the United States for permanent residence on January 31, 1961, to join his wife, a citizen of the United States. Respondent has been convicted of crime in Canada on two occasions. On October 22, 1959, he was convicted for theft under section 280(a) of the Criminal Code of Canada for stealing $60 on October 20, 1959. He was fined $100 and costs, and a jail sentence to a month was suspended. The American Consul has found that this crime was a petty offense and consequently its existence did not make respondent ineligible for the issuance of the visa.
After respondent's admission to the United States, an information in four counts was filed against him in Canada on February 8, 1961,