A-17303412
Decided by Board February 20, 1970
A dual national of the United States and Mexico at birth who, claiming Mexican nationality, purchased land in Mexico in an area where only Mexicans may acquire title, did not thereby lose his United States citizenship under section 350 of the Immigration and Nationality Act, since there is no evidence of an intent to relinquish United States citizenship nor of the commission of acts in derogation of allegiance to the United States. [ Matter of Prieto-Perez, 10 IN Dec. 740 (BIA, 1964), superseded.]
CHARGE:
Order: Act of 1952 — Section 241(a)(1) [ 8 U.S.C. 1251(a)(1)] — Excludable at time of entry under section 212(a)(20) — no immigrant visa
ON BEHALF OF SERVICE: Irving A. Appleman, Appellate Trial Attorney, (Memorandum submitted)
The question is whether respondent's ownership of land in Mexico resulted in his expatriation under section 350 of the Act ( 8 U.S.C. 1482).
The special inquiry officer terminated proceedings and certified the case to the Board. We held decision in abeyance pending a statement of interpretation by the Attorney General concerning expatriation. The statement was issued on January 23, 1969, 34 Fed. Reg. 1079 (1969). A Service memorandum of law dated June 27, 1969, asks the Board to affirm the special inquiry officer's order of termination. We shall do so.
The respondent, a 39-year-old married male, born in Mexico to United States citizen parents, was a citizen of both the United States and Mexico at birth. Since his parents lived in the United States prior to his birth, no question concerning acquisition and retention of United States citizenship exists because the birth was outside the United States.
Before 1953, respondent lived and worked in Mexico. In 1953, he came here as a United States citizen. Thereafter, he worked here, but until 1964 daily commuted to his home in Mexico, except when he worked too far away from home to commute — a period of about four months each year. In December 1964, he moved his home to the United States.
In 1960, respondent bought land in an area in Mexico where only Mexicans may acquire title. Respondent claimed Mexican nationality when he bought the property. Under such circumstances we have held that United States citizenship is lost under section 350 of the Act, Matter of Prieto-Perez, 10 IN Dec. 740 (BIA, 1964). Our ruling in such a case was made without consideration of whether the individual voluntarily abandoned United States citizenship. We thought it enough that he did an act which could be described by the provisions of an expatriatory statute. In other words, we did not think it material to determine whether he showed a desire to abandon United States citizenship or whether his act was in derogation of allegiance to the United States. However, the Attorney General's statement analyzing Afroyim v. Rusk, 387 U.S. 253 (1967), reveals that in a case such as this, expatriation will not result unless there is an intent to transfer or abandon allegiance, or the commission of an act which is in derogation of allegiance to the United States.
Applying the principles in the Attorney General's statement to the instant case we conclude that expatriation is not established. The record shows no more than that the respondent bought land in Mexico in an area where only Mexican nationals could hold title. There is no evidence of an intent to relinquish United States citizenship or the commission of acts in derogation of allegiance to the United States. We find the proceedings were properly terminated.
In view of the action we have taken, we find it unnecessary to determine whether the respondent's residence after December 25, 1952 was such that it would have brought him within the provisions of section 350. We do note for the record, however, the care taken, by both the special inquiry officer and the trial attorney, in creating a record which would fairly reflect the facts on this issue.
ORDER: No change is made in the order of the special inquiry officer.