A-7670382 A-7670697
Decided by Board August 2, 1957
Deportation hearing in absentia — Reasonable cause within meaning of section 242 (b) — Refusal of naturalized citizen to appear for hearing.
(1) A deportation hearing may proceed and a determination made despite the absence of the respondent when it is shown that he has been served with an order to show cause and duly notified to appear but has refused to appear without reasonable cause (sections 242 (b) and 287 (b) of the act).
(2) Where respondent is alleged to have lost U.S. citizenship by operation of law based on his own voluntary acts prior to issuance of the order to show cause, his refusal to appear for hearing on the ground that his naturalization has not been judicially revoked under section 340 of the act does not constitute "reasonable cause."
CHARGES:
Orders To Show Cause: Act of 1952 — Section 241 (a) (1) ( 8 U.S.C. 1251 (a) (1)) — Immigrants, no visas.
BEFORE THE BOARD
Discussion: The above-captioned case has been certified for final decision pursuant to the provisions of 8 CFR 6.1 (c). The special inquiry officer on April 5, 1957, entered orders directing the deportation of the female respondent on the charge set forth above and terminating the proceedings as to the male respondent. The examining officer urges error in the finding by the special inquiry officer that alienage has not been established in the case of the male respondent. Counsel on oral argument urges procedural error in that alienage has not been established with respect to both respondents as these proceedings do not comply with section 340 (a) of the Immigration and Nationality Act ( 8 U.S.C. 1451 (a)).
The respondents, a husband and wife, were naturalized citizens of the United States in the United States District Court at Detroit, Michigan, on May 17, 1948. Orders to show cause in deportation proceedings under section 242 of the Immigration and Nationality Act ( 8 U.S.C. 1252) were served upon the respondents by registered mail on January 24, 1957. The orders, inter alia, alleged loss of nationality under section 352 (a) (1) of the Immigration and Nationality Act ( 8 U.S.C. 1484 (a) (1)) and deportability under section 241 (a) (1) of the same act ( 8 U.S.C. 1251 (a) (1)). Deportability is predicated upon an allegation that the respondents were excludable at the time of their last entry at Detroit, Michigan, on or about December 16, 1954, for the reason that they were immigrants not in possession of valid unexpired immigrant visas or other valid entry documents required by section 212 (a) (20) of the said act ( 8 U.S.C. 1182 (a) (20)).
Prior to the date set for the hearing the respondents through counsel answered that they would not appear as directed by the orders to show cause. Counsel takes the position that as naturalized citizens, the Immigration and Naturalization Service does not have jurisdiction to proceed against the respondents as aliens under section 242 of the Immigration and Nationality Act, supra, since their citizenship has not been revoked in accordance with the procedure set forth in section 340 of the immigration and Nationality Act ( 8 U.S.C. 1451). A hearing in absentia was held at Miami, Florida, on March 12, 1957, under authority granted by that portion of section 242 (b) of the Immigration and Nationality Act ( 8 U.S.C. 1252 (b)) which reads:
* * * If any alien has been given a reasonable opportunity to be present at a proceeding under this section, and without reasonable cause fails or refuses to attend or remain in attendance at such proceeding, the special inquiry officer may proceed to a determination in like manner as if the alien were present. * * *
We have carefully considered the jurisdictional issue raised by counsel. The Government alleges that the respondents have lost their United States nationality by operation of law as distinguished from an allegation that they procured their naturalization through fraud or willful misrepresentation. Under these circumstances, the Government is not required to resort to the judicial procedure set forth in section 340 of the Immigration and Nationality Act, supra, since the respondents' status is alleged to have reverted to that of aliens by their own voluntary acts prior to the institution of proceedings under the order to show cause. Cf. Lapides v. Clark, 176 F. (2d) 619 (C.A.D.C., 1949), cert. den. 338 U.S. 860.
Section 242 of the Immigration and Nationality Act, supra, and regulations promulgated pursuant thereto (8 CFR 242) provide the authority and set forth the procedure to be followed in the apprehension and deportation of aliens. Section 287 (b) of the same act ( 8 U.S.C. 1357 (b)) provides, inter alia, that any officer of the Immigration Service so designated by the Attorney General shall have authority "to administer oaths and to take and consider evidence concerning the privilege of any person (as distinguished from aliens) to * * * reside in the United States, or concerning any matter which is material or relevant to the enforcement of this Act and the administration of the (Immigration) Service * * *.") The respondents cannot be permitted to defeat the clear mandate of sections 242 and 287 (b) of the Immigration and Nationality Act by refusing to attend a proceeding initiated by an order to show cause on the ground that there has not been a judicial revocation of their citizenship and, therefore, no jurisdiction under the Immigration and Nationality Act. It is well established that Immigration authorities have the power to initially determine the jurisdictional issue of alienage.
United States v. Sing Tuck, 194 U.S. 161; Lee Fong Fook v. Wixon, 170 F. (2d) 245.
We find no merit to the jurisdictional exceptions urged by counsel. The respondents were given a reasonable opportunity to be present at the deportation proceeding initiated pursuant to an order to show cause. We agree with the special inquiry officer that their refusal to attend was "without reasonable cause." We conclude that there was ample jurisdiction under the statute (sections 242 (b) and 287 (b), supra, for a hearing in absentia and that the facts of the case fully warranted this action.
We next turn to the assignment of error by the examining officer that the male respondent did not expatriate himself by residing in Canada from April 1950 until December of 1954. Basically, this issue depends upon whether the male respondent, a native of Great Britain, acquired Canadian nationality while residing in Canada from 1903 until his entry for permanent residence in 1942. The special inquiry officer has analyzed the Canadian statutes on this subject at great length and we see no need for repetition.
Canadian Nationality Act of 1921; the Canadian Immigration Act of 1910; the Canadian Naturalization Act of 1914.
Briefly, the male respondent's status as a Canadian national is controlled by section 2 of the Canadian Nationality Act of 1921 which reads: "The following persons are Canadian nationals, vis. (a) any British subject who is a Canadian citizen within the meaning of the Immigration Act"-referring to the Canadian Immigration Act of 1910.
The Canadian Immigration Act of 1910 defines a "Canadian citizen" as a British subject who has Canadian domicile, and that before Canadian domicile can be acquired the British subject must first have been landed in Canada within the meaning of that act.
The Government in a deportation proceeding must carry the burden of proving expatriation under the statute ( Bauer v. Clark, 161 F. (2d) 397 (C.C.A. 7, 1947)). This Board has held that the Government's proof must be strict and exacting; it must be by more than a mere preponderance of the evidence ( Matter of G---- R----, A-6732816, 3 IN Dec. 141, 148). We agree with the special inquiry officer that those elements are lacking here.
We note that the Government has submitted no proof that the male respondent "landed in Canada" within the meaning of the Canadian Immigration Act of 1910, a necessary element for the acquisition of Canadian nationality under section 2 of the Canadian Nationality Act of 1921, supra. In fact, there is substantial evidence of record that he retained British nationality during his residence in Canada prior to his entry into the United States for permanent residence in 1942. We refer to the fact that the United States consul so found when he issued the male respondent the visa entered in evidence as exhibit 14. We are of the opinion that this factor should be given considerable weight in light of section 104 (a) of the 1952 act (8 U.S.A. 1104 (a)) which charges a consul abroad with the responsibility of determining the "nationality of a person not in the United States," when issuing an immigrant visa.
The consul who issued the male respondent his visa in 1942 was charged with a similar responsibility under section 2 (a) of the 1924 act (8 U.S.C. 202 (a)). It is noted that the female respondent's visa (issued the same date, March 16, 1942, by the same consul) shows that she was found to be a "Canadian citizen." If we indulged in the presumption that the male respondent was landed in Canada within the meaning of the Canadian Immigration Act of 1910, we would in effect rule that the consul erred in his determination of the male respondent's nationality in 1942. We are unable to justify such a presumption on this record in light of the mandate set forth in the 1924 act.
The findings of fact and conclusions of law with respect to the expatriation and deportability of the female respondent are hereby affirmed. The order entered by the special inquiry officer terminating the proceedings with respect to the male respondent is also affirmed. An appropriate order will be entered.
Order: It is ordered that the order entered in the above-captioned case by the special inquiry officer on April 5, 1957, be and the same is hereby affirmed.