1603/21334.
Decided by the Board October 23, 1953
Citizenship — Expatriation — Oath of allegiance in connection with foreign military service, Mexico — Section 401 (b) of the Nationality Act of 1940.
A United States citizen did not become expatriated under section 401 (b) of the Nationality Act of 1940 by taking an oath of allegiance to Mexico in connection with his induction into the armed forces of Mexico in 1945, since the taking of such oath was but a concomitant of his conscription into the armed forces of that country. It has been held previously, Matter of K---- G----, 56158/676, 2, I N. 243 (1945), that Executive Agreement Series, No. 323, entered into between the United States and Mexico under date of January 22, 1943, has the force of law and that the Government of the United States, after consenting to the drafting of its nationals in Mexico by virtue of such agreement, should be estopped from holding that one so drafted was expatriated.
EXCLUDABLE:
Act of 1952 — section 212(a) (20) — No visa, no passport.
BEFORE THE BOARD
Discussion: The appellant, a 27-year-old married male arrived in the United States at Calexico, Calif., on July 2, 1953, and applied for admission thereto as a citizen thereof. After a hearing conducted at Calexico, Calif., on August 26, 1953, a special inquiry officer found the appellant inadmissible to the United States on the ground designated above. The special inquiry officer concluded that the appellant, a citizen of the United States at birth, became expatriated under the provisions of section 401 (b) of the Nationality Act of 1940, as amended, by reason of his having taken an oath of allegiance to Mexico in connection with his service in the armed forces of that country from June 15, 1945, until July 1, 1946. The case is now before us on appeal from the aforementioned excluding decision of the special inquiry officer.
The record reflects that the appellant was born at Placencia, Calif., on November 17, 1926, of parents, both of whom were natives and citizens of Mexico. The appellant went to Mexico when about 5 years of age in the company of other members of his family. He had residered continuously in Mexico since departing from the United States in 1931 and 1932. The record shows that the appellant is a person of little or no education. He was married to a native and citizen of Mexico, in that country in 1946 and three children have been born of this union. The appellant was required to register for service in the armed forces of Mexico on August 26, 1944, when he was not quite 18 years of age. He was approximately 18 ½ years of age when he was inducted into the Mexican armed forces. He seeks to enter the United States at this time for the purpose of obtaining employment in this country and to register for military service as required by the laws of this country. The special inquiry officer concedes and concludes that by reason of Executive Agreement Series, No. 323, entered into between the United States and Mexico under date of January 22, 1943, that the appellant did not lose his United States nationality under the provisions of section 401 (c) of the Nationality Act of 1940, as amended. The principal provision of the aforementioned executive agreement is as follows:
The nationals of either country resident within the territory of the other may be registered and inducted into the armed forces of the country of their residence on the same conditions as nationals thereof unless otherwise provided herein.
In the Matter of K---- G----, 56158/676, 2 IN Dec. 243, approved by the Attorney General on January 29, 1945, it was determined that the aforementioned executive agreement between this country and Mexico should be regarded as having the force of law; since it expressly authorized the drafting of our nationals, the alien's service in the cited case was to be regarded as expressly authorized by the laws of the United States and under section 401 (c) of the Nationality Act, service in the armed forces of Mexico would not result in his expatriation. Because of the appellant's birth in the United States, his Mexican parentage, his residence in Mexico from early childhood, he possessed dual nationality and citizenship. As a Mexican national, he was subject to be called up for military service, and he registered for it on August 26, 1944, as required by Mexican law. The appellant's testimony indicated that he did not register for United States military service because he was drafted into the Mexican Army, but that he was willing to register now if permitted to enter the United States. He further testified that he did not remain in Mexico during World War II for the purpose of evading military service in this country, but only because he was living in that country and registered for military service there and because he was inducted into the Army by the Government of Mexico.
The special inquiry officer has concluded that the appellant became an expatriate of the United States by reason of the fact that he took the oath of allegiance to the Government of Mexico as required by all inductees. According to the appellant's testimony, the oath of allegiance was required and was administered "en masse" to all recruits or inductees. The appellant took such oath with his fellow inductees on June 15, 1945. The taking of the oath of allegiance to Mexico was but a concomitant of the appellant's conscription into the armed forces of Mexico; as a Mexican citizen, he was required to submit to its conscription laws and apart from that factor, would have been subjected to punishment had he done otherwise. Likewise, as determined in the Matter of K---- G---- ( supra), the Government of the United States after consenting to the drafting of its nationals in Mexico by virtue of the aforementioned executive agreement dated January 22, 1943, should be estopped from holding that one so drafted was expatriated. It was concluded that military service under these circumstances was not the type contemplated to result in expatriation under section 401 (c). It is to be noted that the appellant did not voluntarily enter or serve in the Mexican Army. He was required to register for military service and as a consequence of such registration, he was inducted into the Mexican Army in June of 1945.
After carefully considering all the evidence of record, it is our considered opinion that the appellant has not expatriated himself under section 401 (b) of the Nationality Act of 1940 and there is nothing in the record to show that he has expatriated himself under any other provision of law. As a result thereof, we will direct that he be admitted to the United States as a citizen.
Order: It is ordered that the appeal be sustained.
It is further ordered that the appellant be admitted to the United States as a citizen by virtue of his birth in California on November 17, 1926.