A-7138106
Decided by Board October 23, 1951
Citizenship — Acquisition by birth here — Expatriation — Accepting employment under foreign government (1944) — Section 401 (d) of the Nationality Act of 1940 — Defenses — Evidence.
A person born in the United States on March 31, 1924, of natives and citizens of Italy (who resided in Italy from 1934 to October 1948), accepted employment as a teacher in the elementary schools of Gildone, Campobasso, Italy, for a short period in 1944, which position could not be filled by a foreigner (according to information received from the superintendent of schools for the province of Campobasso, Italy, in 1950), was held to have expatriated herself thereby under the provisions of section 401 (d) of the Nationality Act of 1940 in 1944 when she was over 18. The period of time that the employment continued, the amount of compensation received, and incidental difficulties endured, such as length of travel are not elements involved in the application of the statute. The schools were not supervised by the military government (allied); she accepted the position under the Ministry of National Education (Italian); Italy had declared war on Germany on October 13, 1943; the existence of the allied military government in Italy at the time does not admit of a conclusion that the employment was otherwise than under the government of "a foreign state or political subdivision."
CHARGE:
Warrant: Act of 1924 — Remained longer — visitor.
BEFORE THE BOARD
(Majority opinion)
Discussion: The Assistant Commissioner has ordered the respondent deported on the charge stated in the caption hereof from which decision appeal has been taken to us and we have heard oral argument by counsel.
Respondent is a native of the United States having been born at Cleveland, Ohio, on March 31, 1924. Her parents are natives and citizens of Italy. She resided in Italy from 1934 to October 18, 1948. She last entered the United States with a section 3 (2) visa and an Italian passport as the fiancee of an honorably discharged member of the United States Armed Forces The contemplated marriage did not occur.
The issue presented is whether the respondent has retained her citizenship in the United States. The record shows that for a short period in 1944 she accepted employment as a teacher in the elementary schools of the city of Gildone, Province of Campobasso, Italy.
Section 401 of the Nationality Act of 1940 provides as follows:
A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:
(d) Accepting or performing the duties of, any office, post, or employment under the government of a foreign state or political subdivision thereof for which only nationals of such state are eligible; * * * ( 8 U.S.C., 801).
In opposition to a finding of expatriation counsel, during oral argument, directed attention to the fact that the respondent was but 20 years of age when employed as a schoolteacher, that the employment continued for only a 2-month period, that her compensation totaled only about $4, and that it necessitated her walking about 6 miles daily; also that the military authorities were in control in Italy at the time and required procurement of a pass issued by the military authorities to travel to her place of employment. He cites our decision in Matter of R----, File 56158/346, November 1, 1944, Moser v. United States, 341 U.S. 41, 1951, and certain Japanese cases reported in 94 F. Supp., as opposed to the conclusion that the respondent has lost citizenship.
As to her age, section 403 (b) provides that "No national under 18 years of age can expatriate himself under section 401 (d). The fact, therefore, that she was under the age of 21, and a minor, affords no relief, ( Miranda v. Clark, 180 F. (2d) 257, 1950).
The period of time that the employment continued, the amount of compensation received, and incidental difficulties endured, such as length of travel, are not elements involved in the application of the statute.
Respecting control by military authorities, we note that the respondent's employment as a teacher involved a request by the provost of the purveyor's office, Campobasso, on May 11, 1944, of the educator officer, of the allied military government, for a pass permit. The request read as follows:
Whereas your office has authorized the reopening of the elementary schools of the city of Gildone, it is hereby respectfully requested to consider issuing pass permit to * * * who must reach that seat * * *.
Also there is included in the record copy of pass issued to the respondent authorizing travel from Campobasso to Gildone for the purpose of schoolteacher, the pass being dated May 15, 1944, and valid for a period of 5 days.
We note that the Japanese cases cited by counsel as also the case of Arikawa v. Acheson, 83 F. Supp. 473, S.C. Calif. 1949, held that voting in a Japanese election, ordered and conducted under the supervision of the United States in 1946, did not participate in the type of election contemplated by section 401 (e) of the Nationality Act, as not being a political election in a "foreign state." That case, however, we think distinguishable from the case before us. The election was ordered and conducted by the occupying power. Here the schools were not supervised by the military government. The request for pass permit shows that the military authorities authorized the "reopening" of the schools; furthermore, a certificate of loss of nationality, issued by the American vice consul on March 20, 1945, states that the evidence of loss consists of:
Haruko Furuno v. Acheson, 94 F. Supp. 381 (S.D. Calif., 1950); Mitsue Masuko Kai v. Acheson, 94 F. Supp. 383 (S.D. Calif., 1950); and Fumi Rokui v. Acheson, 94 F. Supp. 439 (S.D. Calif., 1950).
A statement made under oath by the expatriated person * * * to the effect that in July 1944 she accepted a position under the Ministry of National Education * * *.
Furthermore, as pointed out by the hearing officer in his decision, Italy declared war on Germany October 13, 1943.
The existence of the allied military government in Italy at the time does not, we believe, admit of a conclusion that the employment was otherwise than under the government of "a foreign state or political subdivision." Obviously the military government maintained certain controls, as evidenced by the grant of authority to reopen the schools and the permit to travel; but the evidence is clear that the maintenance and operation of the schools was under the Italian authorities.
The R---- case ( supra), concerned a native of the United States who taught school in Mexico. The evidence showed that the law required Mexican nationality as a requirement for eligibility for such employment, but that such requirement was not enforced or even considered; on the contrary, only competency and morality were the determining factors in the selection of applicants. It was determined that the practice followed, rather than the unenforced statutory requirement, should be the test in determining whether expatriation occurred.
The Moser case ( supra), concerned an alien who filed a claim for exemption from liability to military service as a neutral alien. He did so on the advice of the Swiss Legation, the country of his nationality, that he would not thereby waive his right to apply for naturalization. The Supreme Court commented:
Petitioner had sought information and guidance from the highest authority to which he could turn, and was advised to sign revised Form 301. He was led to believe that he would not thereby lose his rights to citizenship. If he had known otherwise he would not have claimed exemption. In justifiable reliance on this advice he signed the papers sent to him by the Legation.
We fail to see the application of this case to the issue presented here.
It does not appear that the respondent sought or obtained advice from any source as to the requirements of a schoolteacher, or concerning the consequences which would result to her if she engaged in such employment. On the other hand a communication from the first secretary of the Embassy at Rome, dated January 16, 1950, states —
* * * the Embassy has been informed by the Superintendent of Schools for the Province of Campobasso, Italy, that the position held by M---- L---- G---- could not be filled by a foreigner * * *.
Counsel stated, evidently relying upon our decision in the R---- case that he has written to the Italian Embassy for information as to the practice in the selection of schoolteachers, but he had not received a response; that he believed it was then the practice to take anyone as a teacher; that confusion existed at that time and the girl was misled into taking the position.
We are very sympathetic with the position in which the respondent is placed, but we are at loss for law or precedent to find support for a conclusion that would relieve her. Her position is not unlike that which existed in Mackenzie v. Hare, 239 U.S. 299, 1915, which involved an American woman who married an alien in California in 1909 and thereafter sought to vote. The law then provided that an American woman who married an alien should take the nationality of her husband. It was contended that the statute did not apply to her, but the court said that the statute "deals with a condition voluntarily entered into, with notice of the consequences."
Accordingly, the finding of expatriation will not be disturbed. While the respondent has not made application for discretionary relief, but has rested her appeal to us solely on the issue of her claim of citizenship in the United States which has been resolved unfavorably to her claim, inasmuch as she appears to be a person of good moral character and fully qualified for relief, we will withdraw the order of deportation entered by the Assistant Commissioner and authorize her departure from the United States without an order of deportation.
Order: It is ordered that the outstanding order and warrant of deportation be withdrawn.
It is further ordered that an order of deportation be not entered at this time but that the alien be required to depart from the United States, without expense to the Government, to any country of her choice within 90 days after notification of decision, and conditioned upon arrangements being made with the local immigration office for verification of departure.
Discussion: The issue in this case is whether the respondent is a citizen of the United States or whether she lost her citizenship, acquired by birth at Cleveland, Ohio, on March 31, 1924, by reason of her acceptance of employment as a teacher in Italy for approximately 2 months during May and June of 1944. It is my opinion that on this record the respondent has not become expatriated and that she is a citizen of the United States for reasons hereinafter set forth. I do not agree with the majority in this regard. The majority concedes that the burden of establishing alienage in a deportation case is upon the Government and that the presumption found in section 402 of the Nationality Act of 1940 is a rebuttable one. It is their opinion that the respondent has not overcome the presumption of expatriation arising from evidence presented by the Government to the effect that she did accept employment and that only nationals of Italy are eligible for such employment. The majority also concedes that the question of whether Italy was a "foreign state," as that term is used in the statute, presents a close issue but then chooses to rely on two district court cases, whereas the weight of authority is just the opposite.
Sec. 402 provides that a national of the United States who was born in the United States "shall be presumed to have expatriated himself under subsecs. (c) or (d) of sec. 401 when he shall remain for 6 months or longer within any foreign state of which he or either of his parents shall have been a national according to the laws of such foreign state" (8 U.S.C. 802).
Expatriation, being a voluntary act under section 401 of the Nationality Act of 1940, involves serious legal consequences and should not be destroyed by the character of evidence relied upon by the Government. Cf. Perkins. v. Elg, 307 U.S. 325, 83 L.Ed. 1320 (1939). The great weight of authority is that evidence that the act was committed intentionally with notice of the consequences must be clear, unequivocal, and convincing, ( MacKenzie v. Hare, 329 U.S. 311; Savorgnan v. U.S., 338 U.S. 491; Furusho v. Acheson, 94 F. Supp. 1021, U.S.D.C. Hawaii, January 1951; Ouve v. Acheson, D.C. Hawaii, 91 F. Supp. 129 and cases cited therein.) We have held in a case closely paralleling the case before us that since section 401 (d) of the Nationality Act operates to terminate citizenship, its terms should be narrowly construed, especially in cases wherein there was no attempted expatriation as in this one, ( Matter of S---- P----, 56156/765, 2 IN Dec. 57, B.I.A. March 11, 1944).
An unsupported ex parte statement, not under oath, made approximately 5 years subsequent to the issue of the certificate of loss of nationality to the vice consul at Rome by one purported to be the superintendent of schools for a province in Italy, in my judgment does not meet the tests referred to above. It is hearsay in its worst form.
There is no showing by the Government that an Italian law was in force, during the period that respondent taught school, which provided that only a subject of Italy was eligible to be a public school-teacher. A Federal court has commented that it would be incumbent upon the Government to make such a showing when citizenship is questioned under section 401 (d) of the Nationality Act, ( Furusho v. Acheson ( supra)). I think the respondent's testimony under oath that the superintendent of schools "was under the allied forces," supported as it is by documentary evidence which reads in part, "whereas your office (military government) has authorized the reopening of the elementary schools of the city of Gildone," does controvert the facts stated both in the certificate of loss of nationality and the document issued approximately 5 years later to support the certificate. In my opinion; this type of evidence is entitled to far more weight than the unsupported ex parte hearsay statement relied upon by the Government.
The majority concedes that the issue is somewhat close on the question of whether Italy was a "foreign state" under military occupation as that term is used in the statute. They rely on two district court cases one of which, the Gyeno case ( supra), presents conflict of opinion within the same district. There is no question that Italy is "foreign" to the United States in the sense that it is opposed to the meaning of the word "domestic," which includes territories of the United States. The controversial issue with which we are here concerned is whether Italy was a "state" during May and June of 1944 while the respondent taught there. Judge Hall in the Kunivuki case ( supra), relying on a former opinion of his and two Supreme Court cases, defines a state as follows: "A state comprehends a body of people living in a territory, who are not subject to any external rule, but who have the power within themselves to have any form of government which they choose and have the power to deal with other states." In other words, the first essential in a state is sovereignty. Judge Yankwich in the Gyeno case ( supra), makes no mention of the opinion of his colleague of the same district, but states that he disagrees with cases outside of his own district, namely, the Arikawa and Furusho cases ( supra). He admits that an occupation by force of arms might effectively destroy the sovereignty of a foreign state, but distinguishes our occupation of Japan by saying that it was a "mild type of occupation" wherein "the Emperor of Japan was allowed to remain as the titular head of the state" (p. 516, Gyeno opinion).
Kuwahara v. Acheson, 96 F. Supp. 38 (U.S.D.C., S.D. Calif., C.D., March 5, 1951); Gyeno v. Acheson, 96 F. Supp. 510 (U.S.D.C., W.D. Wash., N.D., March 23, 1951).
Kuniyuki v. Acheson, 94 F. Supp. 358, an opinion by Judge Hall of the U.S. District Court, Western District of Washington, Northern Division, dated August 24, 1950, holds that occupied Japan, during the elections of 1946 and 1947, was not a "foreign state" within the statute providing for loss of nationality (sec. 401 of the Nationality Act of 1940). Judge Yankwich, of the same district, in a case with similar facts holds that Japan is a "foreign state" within the meaning of the statute, ( Gyeno v. Acheson, 96 F. Supp. 510, March 23, 1951.)
U.S. v. Kusche, D.C. Wash., 56 F. Supp. 201.
Jones v. U.S., 137 U.S., 202, 34 L. Ed. 691; Oetjen v. Central Leather Co., 246 U.S. 297, 62 L. Ed. 726.
The circumstances surrounding the occupation of Italy, in my judgement, do not meet the qualifications set forth by Judge Yankwich. During the period the respondent taught, her province had been conquered and was then occupied by an enemy army. The remainder of Italy, as we so well know, was under the domination of the Germans. These are historical facts of sufficient moment to warrant judicial notice and are opposed to conditions which existed in the past and are still subsisting with regard to the sovereignty of Italy. To say, as does the majority, that the respondent must submit affirmative evidence of the nonsovereignty of Italy during the crucial period simply begs a question wherein there are two opposing views as yet undecided by an appellate court.
The Supreme Court in a frequently cited case has stated the rule that a determination by immigration authorities regarding the citizenship of a native-born "must be after a hearing in good faith and it must find adequate support in the evidence." The evidence relied upon by the majority in this case, in my judgment, is not adequate to support a finding of expatriation. Accordingly, I find that the respondent has overcome the presumption of expatriation arising from the facts stated in the certificate of loss of nationality and the ex parte statement supporting it and that the Government has not met the burden of proving alienage.
Kwock Jan Fat v. White, 253 U.S. 454, 458, 64 L. Ed. 1010, 1012, June 1920.