T-1879580.
Decided by Board November 23, 1954.
Expatriation — Section 349 (a) (10) of Immigration and Nationality Act — Prospective only.
Expatriation under paragraphs (1) through (10) of section 349 (a) of the Immigration and Nationality Act can only result through acts committed on or after December 24, 1952, as these provisions are prospective only. With respect to section 349 (a) (10) of the act, the phrase "any compulsory service laws" relates only to compulsory service laws which were in effect on December 24, 1952, and to similar laws which may be enacted thereafter.
EXCLUDED:
Act of 1952 — No immigrant visa or other entry document.
BEFORE THE BOARD
Discussion: This case is before this Board pursuant to the Acting Assistant Commissioner's order of September 15, 1954, certifying the matter to us under the provisions of 8 C.F.R. 6.1 (c).
The applicant is a 37-year-old male, native of the United States, who applied for admission to this country on January 22, 1953. After hearings before a special inquiry officer, he was excluded on March 24, 1953, as an alien who was not in possession of an immigrant visa or other valid entry document. No appeal was taken.
The special inquiry officer made findings that the applicant was born in Del Rio, Texas, on January 1, 1917; that he resided continuously in Mexico "from the time he was a small child to date," that is, until March 24, 1953; and that he remained out of the United States during a period of national emergency for the purpose of avoiding or evading training and service in the armed forces of the United States. He concluded that the applicant became expatriated under section 349 (a) (10) of the Immigration and Nationality Act.
The pertinent portion of section 349 (a) of the Immigration and Nationality Act is as follows:
Sec. 349. (a) From and after the effective date of this Act a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by —
* * * * * * *
(10) departing from or remaining outside of the jurisdiction of the United States in time of war or during a period declared by the President to be a period of national emergency for the purpose of evading or avoiding training and service in the military, air, or naval forces of the United States. For the purposes of this paragraph failure to comply with any provision of any compulsory service laws of the United States shall raise the presumption that the departure from or absence from the United States was for the purpose of evading or avoiding training and service in the military, air, or naval forces of the United States.
It is obvious, from the special inquiry officer's discussion of the case, that he was relying on the presumption contained in the last sentence quoted above, and he indicated that he was of the opinion that the sentence mentioned made the whole paragraph retroactive. We do not find anything in the language of that sentence which would warrant such a conclusion. The statement in section 349 (a), to the effect that a person shall lose his nationality by doing the acts mentioned in paragraphs (1) through (10), is preceded by the phrase "from and after the effective date of this Act." Hence, it is clear that expatriation under paragraphs (1) through (10) can only occur on or after December 24, 1952, and that these provisions are prospective only.
With respect to the question of whether the presumption in the last sentence of section 349 (a) (10) is prospective or retrospective, the future tense appearing in "shall raise" weights against giving retrospective effect to the presumption. In addition, that sentence provides, in part, "For the purposes of this paragraph * * *," and it follows that the presumption contained in that sentence applies only to cases within paragraph (10) of section 349 (a). We have concluded above that expatriation under that paragraph can only occur on or after December 24, 1952. Similarly, the presumption mentioned is limited to a "failure to comply" occurring on or after December 24, 1952. In reaching this conclusion, we have not overlooked the statement "any compulsory service laws," appearing in section 349 (a) (10). We hold that this relates only to compulsory service laws which were in effect on December 24, 1952, and to similar laws which may be enacted hereafter.
On the effective date of the Immigration and Nationality Act, the applicant was over 35 years of age and he was not liable for training and service in the armed forces of the United States. In view of our conclusions stated above, it is clear that he did not become expatriated under section 349 (a) (10) of the Immigration and Nationality Act. The remaining question in this case is whether expatriation occurred under section 401 (j) of the Nationality Act of 1940, as amended.
The applicant was not specifically questioned concerning his reasons for remaining outside this country. He testified that his parents took him to Mexico when he was a very small child and that it was not until recently that he learned that he had been born in the United States. The record does not show that the applicant was aware of the obligation of United States citizens residing abroad to register for military service, and there is nothing to indicate that he desired to return to this country and refrained from doing so because he wished to avoid military service. We think that his case presents a stronger factual situation in his favor than in Matter of G---- M----, A-6605457, 2 IN Dec. 861 (May 15, 1947), and Matter of M----, A-6690283, 2 IN Dec. 910 (August 8, 1947), in which we held that expatriation had not occurred under section 401 (j) of the Nationality Act of 1940. After careful review of the entire record, we find nothing therein which would support the special inquiry officer's finding of fact that the applicant's purpose in remaining outside the United States was to evade or avoid training and service in the armed forces of this country. Accordingly, the evidence does not establish that the respondent became expatriated and he must be considered a citizen of the United States. In view of the foregoing, we will authorize his admission as a citizen.
Order: It is ordered that the special inquiry officer's order of March 24, 1953, be and the same is hereby withdrawn.
It is further ordered that the applicant be admitted as a citizen of the United States.