A-6919342
Decided by Central Office October 1, 1948 (Decision omitted) Decided by Board December 15, 1948
Citizenship — Expatriation — Remaining out of United States to escape military service here — Section 401 (j) of the Nationality Act of 1940, as amended — Evidence.
In this case, the evidence was deemed insufficient to support a finding of expatriation under the provisions of section 401 (j) of the Nationality Act of 1940 as amended on the basis that the subject had remained out of the United States to escape United States military service, the burden being on the Government to establish by a preponderance of the evidence and a finding of such expatriation could only be supported if a series of unfavorable inferences were drawn from the appellant's conduct and by pyramiding one unfavorable inference upon another. (See 3 IN Dec. 141.)
EXCLUDED BY A BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Executive Order 8766 — No passport.
BEFORE THE BOARD
Discussion: This record is before us on appeal from an order entered by the Commissioner October 1, 1948, affirming the appellant's exclusion by a Board of Special Inquiry held at San Ysidro, Calif., on April 20, 1948. The Commissioner concludes that the appellant is subject to exclusion on the above-stated grounds as an alien for the reason that he forfeited his United States citizenship acquired by birth in this country, under the provisions of section 401 (j) of the Nationality Act of 1940, as amended, by remaining outside the jurisdiction of the United States from September 27, 1944 until July 23, 1945, for the purpose of evading or avoiding training and service in the Armed Forces of the United States during time of war or during a period declared by the President to be a period of national emergency.
The Commissioner finds, as a matter of fact, that the appellant was born at Long Beach, Calif., on May 13, 1924, and that, with the exception of approximately 7 years, he has lived either in the United States or in Mexican border towns adjacent to the United States all his life. The appellant testified that he was taken to Mexico by his parents in 1931, when 7 years of age, and that he finished primary school at Mexicali in June of 1940, and attended an agricultural college at Culican, Sinaloa, Mexico, from January 1941 to January 1943. We find no evidence of record that the appellant had his place of abode in the United States from 1931 to July 1945, the month he returned to the United States following his registration for military service.
The appellant, subsequent to his 18th birthday (May 13, 1942) and after he left the agricultural college (January 1943), crossed the border daily at San Ysidro, Calif., from July of 1943 until October or November of 1943 while working in a shipyard at National City, Calif., and residing with his parents in Mexico.
The appellant testified that during October or November of 1943, he was prevented from crossing the border to his work at the shipyards by Mexican army authorities; that he protested to the American Consul at Tijuana, Mexico, in November 1943, but he told him "he could not do anything for me" and that he (the appellant) knew he was supposed to register when he appeared at the American Consulate in November of 1943. He explained his failure to register at that time by testifying, "The Mexican authorities took away my papers the day they stopped me from coming here in October or November 1943 * * * They (the Consulate) wouldn't register me then because I didn't have my papers that I was a citizen of the United States, my papers had been taken away."
The appellant further testified that he obtained another record of his birth in the United States subsequent to his visit to the American Consul in November 1943; that this record was taken from him by Mexican authorities on another attempt to enter this country, and that he made no further attempts to either register or return to the United States between November 1943 and July 1945. He registered at the American Consulate, Tijuana, Mexico, July 23, 1945, and returned to the United States on July 24, 1945.
The uncontroverted testimony proffered by the appellant is to the effect that he was thwarted in his desire to return to the United States during the period in question by circumstances beyond his control. Opposed to the appellant's testimony we find no affirmative evidence proffered by the Government that the appellant remained in Mexico to evade or avoid military service. The Government has the burden of establishing appellant's expatriation under section 401 (j) of the Nationality Act of 1940, as amended. Matter of G---- R----, 6732816, A.G. September 29, 1948. The Commissioner's finding of expatriation can be supported only if we draw a series of unfavorable inferences from appellant's conduct and by pyramiding one unfavorable inference upon another. In the case before us there is not a preponderance of the evidence to support the finding of expatriation. We are of the opinion that the proof falls short of being strict and exact — a requisite for expatriation under the statute in question, as set forth in Matter of G---- R---- ( supra). We conclude that expatriation has not been established on this record.
Order: It is directed that the appeal be and the same is hereby sustained, the appellant herein to be permitted to enter as a citizen of the United States.