A-8945550.
Decided by Board June 24, 1955.
Expatriation — Section 401 (b) and (c) of Nationali ty Act of 1940 — Executive Agreement between United States and Mexico.
(1) Provision for loss of nationality in section 401 (b) of the Nationality Act of 1940 has no application to one who served in the armed forces of a foreign state but who denies taking an oath of allegiance to a foreign state unless there is definite proof that he did, in fact, take such oath (citing Acheson v. Maenza, 202 F. (2d) 453 (C.A.D.C., 1953).
(2) Section 401 (c) of the Nationality Act of 1940 did not cause loss of nationality by United States nationals who were required to serve in the armed forces of Mexico during the period January 22, 1943 to October 28, 1952, because Executive Agreement No. 323 between the United States and Mexico authorizing such service had the force of law and provided exemption from loss of nationality under section 401 (c).
EXCLUDABLE:
Act of 1952: Section 212 (a) (20) — No visa or passport.
Section 212 (a) (22) — Remained outside the United States to avoid and evade military service.
BEFORE THE BOARD
Discussion: This case is before us on appeal from the decision of a special inquiry officer, dated February 15, 1955, holding appellant an expatriate under section 401 (b) of the Nationality Act of 1940 and excluding him on the above-stated grounds. Appellant sought admission to the United States as a citizen on November 15, 1954, at San Ysidro, California.
Appellant acquired United States citizenship at birth at Keeler, California, on August 1, 1932. He remained in this country until October 1940, when his mother took him and his four brothers and sisters to Mexico to visit the critically ill paternal grandmother of appellant. Shortly after arrival, the grandmother died and appellant's mother became ill, reportedly preventing the mother from returning to this country during the valid period of her reentry permit. For this reason and as a result of further illness in the family, it is alleged that only appellant's younger brother returned to this country to live with the father.
On March 10, 1950, appellant registered for Mexican military service at Arandas, Jal., Mexico, and he was declared liable for induction on October 9, 1950. Thereafter, he was required to give Sunday military service for one year. Mexican military training of this sort is known to have occurred once a week on Sundays and was required of young Mexican men by military regulations under the Mexican Constitution. According to the Mexican Government, men engaged in Sunday military service are considered as part of the active, regular army of Mexico during their year's service and subject to the military discipline during that period.
Circular of the Ministry of National Defense of Mexico, dated December 14, 1948. The State Department regards the circular as a statement of the status of persons involved in Sunday military service and, therefore, affects those who gave such service prior to 1948.
Since there is no evidence in the record that appellant actually took an oath or made an affirmation to support the Mexican Government while he was serving in the Mexican army, section 401 (b) has no application here for the Board has held that the decision in Acheson v. Maenza, 202 F. (2d) 453 (C.A.D.C., 1953), requires definite proof that an affirmation of allegiance to the Mexican flag was in fact taken by this citizen in question.
In the instant case, appellant denied that he took an oath of allegiance and the Government has not obtained any definite proof that he actually made the required affirmation of loyalty to the Mexican flag.
Section 401. A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:
(b) Taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state ( 8 U.S.C. 801 (b)).
While section 401 (c) makes service in a foreign army a self-operating act of expatriation, it has been held that Executive Agreement No. 323, between the United States and Mexico dated January 22, 1943, had the force of law. Hence, it provided an exemption from loss of citizenship through Mexican military service, as a result of the statutory phraseology of section 401 (c). Matter of K---- G----, 56158/676, 2 IN Dec. 243 (A.G., January 29, 1945).
Section 401. A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:
(c) Entering, or serving in, the armed forces of a foreign state unless expressly authorized by the laws of the United States, if he has or acquires the nationality of such foreign state.
Executive Agreement No. 323 provides, in part, that:
1. The nationals of either country resident within the territory of the other may be registered and inducted into the armed forces of the country of their residence on the same conditions as nationals thereof unless otherwise provided herein. (Executive Agreement No. 323 [State Department].)
On the basis of such authority as United States v. Curtiss-Wright Export Corp., ( 299 U.S. 304, 1936), United States v. Belmont ( 301 U.S. 324, 1937), and United States v. Pink ( 315 U.S. 203, 1942), it was held that Executive Agreement No. 323 "should be regarded as having the force of law, and since it expressly authorizes the drafting of our nationals, the appellant's military service in Mexico [in 1943] is to be regarded as `expressly authorized by the laws of the United States'." For that reason, no expatriation could occur under section 401 (c).
See also, Matter of V---- L----, 1603/21334, 5 IN Dec. 497 (B.I.A., October 23, 1953), in which the Board concluded that Executive Agreement No. 323 also served to forestall the effect of section 401 (b) on a person's status as a United States citizen.
Since this agreement was in effect until October 28, 1952, appellant's Mexican military service from October 1950 to October 1951 falls within the exempting provision of section 401 (c) and appellant did not lose his United States citizenship through Mexican military service. Thus, the question of whether appellant's induction or service was actually voluntary or involuntary is not reached in this instance, for appellant's case is removed from the area to which section 401 (c) applies by dint of Executive Agreement No. 323.
The expiration date of Executive Agreement No. 323 was set at six months after the termination of the Japanese war (World War II) or six months after April 28, 1952 (Pres. Procl. 2974; 17 Fed. Reg. 3813).
Cf., Matter of S----, A-6458448, 2 IN Dec. 783 (B.I.A., March 19, 1947), which determined that a similar Executive Agreement with Canada had no application to dual nationals.
However, even though section 401 (c) has no applicability to the instant situation, we must consider the relevancy of section 401 (j) of the Nationality Act of 1940 to the present case. Expatriation under section 401 (j) occurs when the evidence shows that the citizen had a desire to come to the United States after September 27, 1944, but was deterred in his resolve primarily by reluctance to serve in our armed forces ( Matter of M----, A-6690283, 2 IN Dec. 910 (B.I.A., 1947)). Hence, the final issue in the present case is whether appellant remained outside the United States to evade and avoid military service from Sptember 27, 1944, to April 28, 1952.
Appellant testified that his mother took him and the other five children in the family to Mexico in October 1940 to see her mother-in-law, who was ill. Appellant stated that he continued to live in Arandas, Jal., Mexico (the residence of his father's family). Appellant's father testified in this connection that "my mother died on October 21, 1940, and my wife became ill and she just had a permit to visit in Mexico for six months, and then one of the children was ill and they just stayed there."
Appellant stated: "At that time my father's mother was ill in Mexico and my mother had never known her so she took us to Mexico and my grandmother died there and my father, who had been working in Bartlett, moved to Wilmington, California."
Appellant's father said that his wife went to Mexico in 1940, "because I was married in Independence, California and I thought my mother would like to know my wife and children. She was ill."
Appellant has denied that his father and mother are legally separated or divorced, although his testimony reveals that they have actually been living apart since 1940 with his mother remaining in Mexico and his father continuing to live in California. His father reportedly made two or three visits to his family in Mexico, the last occurring about 1951 for a period of five months.
Appellant stated that he had had a desire to come back to the United States "since he got out of school" (the sixth grade in Arandas and part of the time he began working. Appellant noted that in 1951 he was crushed by a truck, while working as a mechanic, and was laid up for a number of months. Appellant's father said that his son remained in Mexico after September 27, 1944, because of illness (for two months in 1949 until the middle of 1950, appellant was being treated by a physician for an abdominal ailment and from February 14, to October 7, 1954, he received treatment for a gunshot wound) and because the father said that he had had no money to pay for appellant's transportation expenses to the United States.
Appellant has explained his failure to return to the United States in terms of illness and lack of funds; his father has also testified to this effect. While there is some indication that appellant may have been somewhat reluctant to serve in the United States military forces, the record contains no definite proof to justify our disbelief of the testimony of appellant and his father. Hence, because a finding of expatriation as one remaining outside the United States to evade and avoid military service cannot be founded on mere conjecture, we conclude that appellant did not expatriate himself under section 401 (j) of the Nationality Act of 1940. The appeal is accordingly sustained.
Order: It is hereby ordered that the appeal be sustained and that the applicant be admitted as a United States citizen.