IN THE MATTER OF N----, 3 IN Dec. 829 (BIA 1950)
IN THE MATTER OF N----. In DEPORTATION Proceedings.
A-6930351Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice
Decided by Central Office December 28, 1949Decided by Board February 6, 1950
Citizenship — Expatriation by voting in foreign political election (1946, Mexico) — Section 401 (e) of the Nationality Act of 1940 — Defense that subject was not of legal voting age in Mexico.
A native-born citizen of the United States expatriated himself under the provisions of section 401 (e) of the Nationality Act of 1940 by voluntarily voting in a political election in Mexico in 1946 when over 18 years of age and it is no defense that the subject was not then of legal voting age in Mexico (21).
CHARGES:
Warrant: Act of 1924 — No immigration visa.
Act of 1917 — Entered at other than a designated port.
Act of 1918 — No passport.
Act of 1917 — Excluded within 1 year-no permission to reapply.
BEFORE THE CENTRAL OFFICE
BEFORE THE CENTRAL OFFICE
Discussion: Upon consideration of the entire record, the findings of fact, and conclusions of law proposed by the presiding inspector and read to the alien and his attorney on November 3, 1949, are hereby adopted.
Exceptions to the proposed order of deportation were filed. The exceptions state that a finding that the applicant voted in a political election in Mexico was contrary to the preponderance of evidence; that such a voting, if it occurred, occurred during his minority and was not sufficient as a matter of law to expatriate him.
Expatriation of the subject is predicated upon his testimony under oath at a hearing before a Board of Special Inquiry on April 8, 1948, held at Calexico, Calif., to the effect that he had voluntarily voted in a political election in Mexico in July 1946 when he voted for a president and congressman. At that time the alien testified that he had gone from the ranch on which he was employed, to town in order to vote, and that he had voted in a small office adjacent to the mayor's office.
At a hearing held on October 26, 1949, on a warrant of arrest, the subject repudiated the testimony he had given at the Board of SpecialPage 830
Inquiry hearing. He stated he had never voted in Mexico and that he had not made the statements attributed to him at the Board of Special Inquiry hearing. The alien's attorney represents that the Government has failed to meet the burden of establishing expatriation since the subject now testifies he never voted, and this assertion appears to be a correct statement of the facts since the subject was not, in fact, eligible to vote in Mexico. This ineligibility is based on article 34 of the Mexican Constitution which provides that only single persons over 21 years of age and married persons under 18 years of age are eligible and legal voters in the Republic of Mexico. The subject is single and at the time of voting was 21 days short of being 21 years of age. As a corollary it is urged that a native-born citizen cannot during his minority renounce allegiance to the United States. The alien identified the record of the Board of Special Inquiry hearing of April 8, 1948, as relating to him and the record was introduced into evidence at the hearing on October 26, 1949. It was then the duty of the presiding inspector to determine whether the alien's statements against his interest were to be accepted or his self-serving statements made at a later date to the effect that he had not voted. The presiding inspector properly could base his recommendation for deportation on the alien's voluntary statements against interest, even though he was not then represented by counsel, and even though he now repudiates the admissions (Ung Bak Foon v. Prentis,
227 F. 406 (C.C.A. 7, 1915); Maita v. Haff, 116 F. 2d 337 (C.C.A. 9, 1940); Tsevdos v. Reimer, 108 F. 2d 860 (C.C.A. 2, 1940); NgKai Ben v. Weedin, 44 F. 2d 315 (C.C.A. 9, 1930)). The evidence of record, therefore, establishes that the alien voted in a political election in Mexico in July 1946. Although the record fails to establish as to what date a person is considered to be 21 under Mexican law, even conceding that the applicant voted illegally, it would appear that he had expatriated himself (Matter of A----, 56158/91 (1944, B.I.A.). For it is the taking of an active part in political affairs of a foreign state by voting in a political election which reveals a political attachment and practical allegiance to the foreign state which is inconsistent with continued allegiance to the United States (Matter of G----, 56172/393 (1944, B.I.A.)). The allegation that a minor native-born citizen of the United States cannot expatriate himself during minority is supported by citations, none of which have construed the Nationality Act of 1940 under which expatriation occurred. Section 401 of the Nationality Act of 1940 (8 U.S.C. 801) provides:
A person who is a national of the United States, either by birth or naturalization, shall lose his nationality by:
* * * * * * *
(c) Voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory; or
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Section 403 (b) of the Nationality Act of 1940 (8 U.S.C. 803) provides:
No national under 18 years of age can expatriate himself under subsection (b) to (g), inclusive, of section 401.
The record, therefore, contains sufficient evidence to justify a finding of expatriation; it is immaterial whether the alien's voting was legal or not; and he being over the age of 18 at the time he voted, must be held to have expatriated himself.
The alien's attorney states that the Government has failed to sustain the burden of proving the subject an alien. The subject's statements against his interest are relevant and competent evidence such as a reasonable mind might accept as adequate to support the conclusion reached by the presiding inspector. The subject testified in detail that he purposely came to the election office for the purpose of voting although he did not reside in that area; he named the candidates and those for whom he voted; he described the manner in which he voted. This is clear, unequivocal, and convincing evidence sustaining the finding of expatriation beyond a reasonable doubt. The exception will, therefore, be dismissed and the alien's deportation ordered.
Recommendation: It is recommended that the alien's application to remain in the United States as a citizen of the United States be denied.
It is further recommended, That the alien be deported to Mexico at Government expense on the charges stated in the warrant of arrest.
It is further recommended, That execution of the warrant of deportation be deferred pending conclusion of prosecution, and in the event of conviction and sentence, until the alien is released from imprisonment.
So ordered.
BEFORE THE BOARD
Discussion: This case is before us on appeal from an order entered by the Assistant Commissioner on December 28, 1949, denying the respondent's application to remain in the United States as a citizen thereof and directing that he be deported to Mexico at Government expense on the charges stated in the warrant of arrest, the execution of said warrant to be deferred pending conclusion of prosecution and, in the event of conviction and sentence, until the alien is released from imprisonment.
The respondent was born in California on July 28, 1925, and it is undisputed that he was a citizen of the United States by birth. The respondent's expatriation is predicated upon his testimony under oath at a hearing before a Board of Special Inquiry on April 8, 1948, held at Calexico, Calif., to the effect that he had voluntarily voted in aPage 832
political election in Mexico when he voted for a president and congressman. The only issue involved in the case is whether or not expatriation has been established.
The Assistant Commissioner in his opinion has fully covered the facts in the case, including the respondent's subsequent testimony before a Board of Special Inquiry on October 26, 1949, at which time he denied having voted in the Mexican election. The Assistant Commissioner's opinion fully covers the issues raised by counsel and sets forth the law applicable to the present situation. We have made a careful and complete study of the authorities cited by the Assistant Commissioner and have reached the conclusion that there would be no justification for any change in the opinion as rendered by him. Therefore, we will affirm the decision of the Assistant Commissioner and order that the appeal be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.Page 833