56156/765
Decided by the Board March 11, 1944.
Expatriation — Employment by foreign government — Section 401 (d) of the Nationality Act of 1940.
United States citizenship is not deemed lost under the provisions of section 401 (d) of the Nationality Act of 1940 as a result of employment by the Mexican Government when such employment is not restricted to Mexican nationals only. (Alien held job as school teacher, after 18; also that of forest ranger before 18.)
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
BEFORE THE BOARD
Discussion: The appellant applied for admission to the United States for an indefinite period at Nogales, Ariz., on January 3, 1944. A Board of Special Inquiry has excluded him on the ground above specified and he appeals.
The appellant was born in San Gabriel, Calif., on March 18, 1924. In 1926 his parents took him to Mexico where he has lived since. The Board of Special Inquiry in excluding him has held that he lost his United States nationality under section 401 (d) of the Nationality Act of 1940.
The appellant testified that from February 1, 1942 to March 15, 1942, he was employed by the Mexican government as a forest ranger, and that from September 1943 to December 16, 1943, he was employed by that government as a school teacher.
The Nationality Act of 1940 ( 54 Stat. 1137) provides as follows:
SEC. 401. A person who is a national of the United States, whether by birth or naturalization, shall lose 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. * * * ( 8 U.S.C. 801)
SEC. 403 (b). No national under eighteen years of age can expatriate himself under subsections (b) to (g), inclusive of Section 401. (8 U.S.C. 803)
Inasmuch as the appellant was under 18 years of age throughout the period of his employment as forest ranger, his employment as such could not by reason of section 403 (b) have resulted in his expatriation. He was more than 18 years of age, however, during his employment as a school teacher and section 403 (b) has no application thereto, and the question presented is whether such employment resulted in his expatriation under section 401 (d).
Article 6 of the Judicial Code of Mexico provides that "All federal workers shall be of Mexican Nationality and may be substituted by foreign workers only in the absence of Mexican technicians necessary to efficiently develop the service in question. The substitution shall be decided by the Secretary or Department of the respective State, consulting beforehand the corresponding syndicate, and, in case of disagreement between the latter and the Secretary, it shall be agreed upon decision of the Arbitration Tribunal."
The Central Office states that since Article 6 permits the employment of non — Mexicans as federal workers under certain circumstances, the appellant's employment did not cause him to lose his United States Nationality under the provisions of section 401 (d).
The appellant testified that although he was born in California, his parents were natives and citizens of Mexico. The Mexican Constitution provides that persons born of Mexican parents are Mexican whether born "within or without the Republic" (Constitution of 1917, Article 30; Section 1, Nationality Laws by Flournoy and Hudson, p. 426). Thus it is apparent that the appellant satisfied the requirements of the Mexican statute without resort to the authorization for substitution of foreign workers. However, as is pointed out by the Central Office, persons other than nationals of Mexico are eligible, if authorized, for such employment.
As section 401 (d) operates to terminate citizenship, we believe that it should be narrowly applied, especially in a case where there was no attempted expatriation. Accordingly, we shall adopt the view of the Central Office and sustain the appeal.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the appellant was born in San Gabriel, California, on March 18, 1924;
(2) That the appellant has applied for admission to the United States as a citizen thereof for an indefinite period;
(3) That from February 1, 1942 to March 15, 1942, the appellant was employed as a forest ranger by the government of Mexico;
(4) That from September to December 1943, the appellant was employed by the government of Mexico as a school teacher, at which time he was over 18 years of age;
(5) That employment as federal workers of persons other than those of Mexican nationality may be authorized.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under the 14th Amendment of the Constitution and Section 1992 of the Revised Statutes, the appellant was a citizen of the United States at birth;
(2) That under section 401 (d) of the Nationality Act of 1940 the appellant did not lose his United States nationality by accepting and performing the duties of an office, post, or employment under the government of a foreign state for which only nationals of such state are eligible;
(3) That under the Immigration Act of May 26, 1924, the appellant is not inadmissible to the United States in that he is an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by said Act or regulations made thereunder.Other Factors: The appellant's mother and sister reside in Mexico. He has an uncle residing in the United States.
Order: It is ordered that the appeal be sustained and the appellant admitted as a citizen of the United States.