56156/190
Decided by Board September 12, 1945.
Citizenship — Expatriation — Employment by foreign government — Section 401 (d) of the Nationality Act of 1940.
A native-born citizen who was also a Mexican national at birth expatriated himself under the provisions of section 401 (d) of the Nationality Act of 1940, by accepting employment of and working for the Mexican Government as a policeman, after appointment as a Mexican national over 18, in peacetime while only Mexican nationals were eligible for such office (Constitution of United States of Mexico, article 32).
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Immigrant without immigration visa.
Act of 1940 — No visa, reentry permit, or border crossing card.
Executive Order No. 8766 — No passport.
BEFORE THE BOARD
Discussion: This case was last considered on December 2, 1944. We then directed that it be reopened to obtain further evidence relating to the appellant's claim to United States citizenship. We had previously directed a reopening on June 3, 1944. The appellant had applied for admission as a United States citizen at Calexico, Calif., on September 16, 1943. After several hearings before a Board of Special Inquiry he was excluded on the above grounds, and he has appealed.
The record establishes that the appellant was born in the United States, in Los Alamitos, Calif., on May 6, 1919, of Mexican parents. According to the manifest data furnished by him, he resided in this country from the time of his birth until 1933 and from 1939 until March 1941.
The question here involved is whether during his residence in Mexico the appellant has become expatriated under the Nationality Act of 1940. Section 401 of that act provides that a national of the United States loses 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; * * *.
The matter concerning which we directed that the case be reopened was the appellant's service as a policeman for the Government of the Northern Territory of Lower California in Mexico. The appellant had testified that in January or February 1942 he was appointed to the post of policeman in Mexicali and that he was so employed until May 1943.
At the outset it may be observed that the appellant, having been born in May 1919, was over 18 in 1942 when, according to his testimony, he commenced this work. Accordingly, section 403 (b) of the Nationality Act, pursuant to which persons under 18 cannot expatriate themselves under subdivision (b) to (g) of section 401, would not prevent the operation of section 401 (d) in this case, if it is determined that the appellant's post was one for which only nationals of Mexico were eligible.
The record contains the following excerpt from the Constitution of the United States of Mexico.
ART. 32. Mexicans shall be preferred to foreigners, under equal circumstances, for all classes of concessions and for all employments, posts or commissions of the Government in which the qualification of citizen is not indispensable. In time of peace no foreigner shall be able to serve in the Army nor in the forces of police or public safety.
It will be observed that under this provision only Mexican nationals are eligible to serve in the force of police during peace time. The Mexican vice consul at Calexico, Calif., advised that Mexico declared war on the Axis Powers on May 22, 1942. Accordingly, we had to ascertain with certainty when the appellant was first appointed to his post as policeman. At the first reopened hearing there was introduced in evidence a certified copy and English translation of the appellant's appointment on March 16, 1942, by the government of the Northern District of the Territory of Lower California to the post of agent of the urban police for the city of Mexicali. He was reappointed to that post on January 21, 1943. Since his original appointment antedates Mexico's declaration of war by two months, it is clear that he held his post while Mexico was at peace. The government of the Northern District of the Territory of Lower California is obviously a political subdivision of a foreign government within the terms of section 401 (d) of the Nationality Act. Because of an administrative precedent discussed in our opinion of December 2, 1944, however ( Matter of R----, 56158/346, Nov. 1, 1944), we felt obliged again to reopen the case to ascertain whether the appellant was, in fact, appointed as a Mexican national.
At the latest hearing the appellant testified that when he was appointed he did not tell the Mexican officials that he was also a United States citizen, and that they assumed he was a Mexican citizen. Communication from the secretary general of the government of the Northern District of the Territory of Lower California states that the appellant was believed to be of Mexican nationality when he was appointed a member of the police force. The facts here are thus distinguishable from those in the R---- case. There a young woman was appointed to a position in Mexica which under state law is open only to Mexican nationals. The records show, however, that she had not been questioned as to her nationality when she was appointed, and the appropriate Mexican officals stated in writing that the particular law involved was generally not strictly enforced. In the present case it is clear that the appellant was appointed as a Mexican national, which would be in keeping with the cited provision of the Mexican Constitution. Since he held the position at a time when only Mexican nationals were eligible therefor, he is expatriated under section 401 (d) of the Nationality Act of 1940.
The appellant testified that he wishes to come to the United States to remain permanently and to serve in the Armed Forces of the United States. As an expatriate he would be required to have the same documents as any other alien. He does not present a passport nor has he an immigration visa or any other permit to enter. He is therefore inadmissible under the Passport Act and Executive Order 8766 and also under the Immigration Act of 1924 as an immigrant not in possession of an immigration visa. Since he is inadmissible under the 1924 act, on the ground that he is not in possession of an immigration visa, it is not necessary also to sustain the ground of inadmissibility based upon his not having a visa, reentry permit or bordercrossing card as required by the Alien Registration Act, 1940.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the appellant was born in California on May 6, 1919, of Mexican parents;
(2) That from March 1942 until May 1943 the appellant was a member of the police force in Mexicali, appointed by the government of the Northern District of Lower California of Mexico, as a Mexican citizen;
(3) That under the Mexican Constitution only nationals of Mexico may hold a post as member of a police force in peace time;
(4) That for the first 2 months of the appellant's incumbency, Mexico was at peace;
(5) That the appellant is not in possession of an immigration visa;
(6) That the appellant is coming to the United States for permanent residence;
(7) That the appellant does not present a passport or other document in the nature of a passport.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 401 (d) of the Nationality Act of 1940, the appellant has become expatriated by having accepted and performed the duties of a post under a political subdivision of a foreign government for which only nationals of that state were eligible;
(2) That under section 13 (a) of the Immigration Act of 1924, the appellant is inadmissible on the ground that he is an immigrant not in possession of an immigration visa;
(3) That under the Passport Act and Executive Order 8766, the appellant is inadmissible on the ground that he does not present a passport or other document in the nature of a passport issued by the government of the country to which he owes allegiance or other travel document showing his origin and identity;
(4) That under section 30 of the Alien Registration Act, 1940, the appellant is not inadmissible on the ground that he does not present a visa, reentry permit or border-crossing card, this documentary ground of inadmissibility being governed by the 1924 act charge.Other Factors: The appellant's parents, sisters, and brothers all reside in Mexicali, Mexico.
Order: The excluding decision of the Board of Special Inquiry is affirmed without prejudice to the alien's reapplication for admission when in possession of the proper documents.