Jolley v. Immigration and Naturalization Service

• Decision Date: 12 April 1971
• Docket Number: No. 29987.,29987.
• Citation: 441 F.2d 1245
• Parties: Thomas Glenn JOLLEY, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

441 F.2d 1245 (1971)

Thomas Glenn JOLLEY, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 29987.

United States Court of Appeals, Fifth Circuit.

April 12, 1971.

COPYRIGHT MATERIAL OMITTED

Peter E. Rindskopf, Howard Moore, Jr., Atlanta, Ga., for petitioner.

R. William Foley, District Director, U. S. Immigration and Naturalization Service, John W. Stokes, Jr., U. S. Atty., Beverly B. Bates, Asst. U. S. Atty., Atlanta, Ga., for respondent.

Before RIVES, GOLDBERG, and MORGAN, Circuit Judges.

GOLDBERG, Circuit Judge:

A renunciant of United States citizenship, who took refuge in Canada to avoid the Selective Service System, resists deportation after his unannounced, unheralded, and surreptitious reentry to this country. Though some of the pieces in the mosaic of our immigation and nationality laws permit beneficent toleration in their exceptions, we find no piece that fits the contours of petitioner's flight. The Board of Immigration Appeals ordered deportation, and we affirm.

I.

Petitioner, Thomas Glenn Jolley, was born in Greensboro, North Carolina, on January 26, 1944. Upon reaching the age of eighteen he registered with Selective Service System Local Board 75 in Bremen, Georgia, and subsequently was placed in category II-S (student deferment) by reason of his attendance at the University of Georgia. In January or February, 1967, Jolley left school and went to Canada. From Toronto, on March 5, 1967, Jolley wrote his Local Board informing it of his change in status and residence, and requesting that he be placed in category I-O (conscientious objector). On April 17, 1967, he was placed in class I-A (available for induction). Thereafter, on May 16, 1967, Jolley went before the United States Consul in Toronto and stated: "I do not wish to break the laws of the United States. These laws (Selective Service) conflict with my beliefs." Jolley then formally executed an Oath of Renunciation of United States citizenship. On May 17, 1967, he returned to his Local Board his Selective Service Registration Certificate and Notice of Classification, together with the following statement:

"The enclosed cards are yours. I have no further use for them. Yesterday, May 16, I renounced my United States citizenship, thus terminating all obligations to the United States. I say `obligations\' with tongue in cheek because my concept of an obligation and yours are miles apart, several hundred in fact."

On June 13, 1967, and again on August 7, 1967, Jolley was ordered to report for induction, but he failed to do so on both occasions. Thereafter, some time prior to March 19, 1968, Jolley returned to the United States without a visa. The record does not reveal his method of reentry.

Deportation proceedings were commenced against Jolley on March 20, 1968, under Immigration and Nationality Act § 241(a) (1), 8 U.S.C.A. § 1251(a) (1),¹ as an alien excludable at the time of entry. Supporting this charge the Government contended that Jolley, having renounced his United States citizenship, was an alien who was excludable because (1) he entered the United States without an immigrant visa,² and (2) he was a person who departed from or remained outside the United States to avoid or evade training in the armed services in time of war or national emergency.³

A hearing was held before a Special Inquiry Officer pursuant to Immigration and Nationality Act § 242(b), 8 U.S.C.A. § 1252(b). That officer found that petitioner was an alien excludable for entering the country without an immigrant visa and for remaining outside the country to avoid military service. Petitioner was ordered to depart voluntarily within 90 days or be deported to Canada. Jolley then appealed to the Board of Immigration Appeals pursuant to 8 C.F.R. § 242.21, challenging the findings of alienage and of excludability. The Board, following oral argument, affirmed the decision and order of the Special Inquiry Officer. Jolley now petitions for review in this court under Immigration and Nationality Act § 106(a), 8 U.S.C.A. § 1105a.⁴

II.

In order for petitioner, a United States citizen by virtue of his birth, to be subject to deportation the Government must demonstrate that he has lost his United States citizenship through expatriation and assumed the status of an alien. Moreover, because of the precious nature of citizenship, it can be relinquished only voluntarily, and not by legislative fiat. Afroyim v. Rusk, 1967, 387 U.S. 253, 87 S.Ct. 1660, 18 L.Ed. 757; see United States v. Wong Kim Ark, 1898, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890; Kennedy v. Mendoza-Martinez, 1963, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644. It is precisely this point to which petitioner directs his main argument, for he contends that his expatriating act was involuntary.⁵ While admitting that he executed a formal, unequivocal renunciation of citizenship before a United States Consul in Canada,⁶ Jolley argues that his renunciation was made under duress. The coercion, according to petitioner, was his desire to avoid breaking the Selective Service laws of the United States.

Most of the cases concerning duress have involved those sections of the Immigration and Nationality Act which have declared that the loss of United States citizenship shall result from specified conduct,⁷ such as voting in a foreign election or serving in a foreign army. Prior to the decision in Afroyim v. Rusk, supra, which held that expatriation could be accomplished only by voluntarily relinquishing citizenship and not simply by engaging in proscribed conduct,⁸ the Supreme Court had ruled that the legislatively-defined conduct set forth in the Act could result in expatriation only if the actor engaged in the conduct voluntarily. Since the instant case involves an explicit renunciation, not a renunciation by inference or by legislative command, we face the precise question raised in those earlier cases: whether or not Jolley's expatriating act was voluntary. In such an inquiry, therefore, those earlier cases remain instructive.⁹

In Nishikawa v. Dulles, supra, the Court held that conscription of a dual national into the Japanese Army during World War II did not automatically result in expatriation despite explicit statutory language, see 8 U.S.C.A. § 1481 (a) (3), for Japanese penal sanctions to which the national was subject rendered the service in the foreign army involuntary. See also Takehara v. Dulles, 9 Cir. 1953, 205 F.2d 560; Takano v. Dulles, D. Hawaii 1953, 116 F.Supp. 307 voting in foreign election motivated by fear of loss of ration cards involuntary and not expatriating under 8 U.S.C.A. § 1481(a) (5); Acheson v. Murakami, 9 Cir. 1949, 176 F.2d 953; Inouye v. Clark, S.D.Cal. 1947, 73 F.Supp. 1000, rev'd on other grounds, 9 Cir. 1949, 175 F.2d 740 decisions to renounce United States citizenship by Japanese-Americans confined at Tule Lake detention center during World War II held not the product of sober choice but rather the result of force and violence, conditions characteristic of detention center.

Petitioner, of course, points out the surface similarity of Nishikawa to the instant case, for it is petitioner's contention that his expatriating act was also the product of a conscription law with penal sanctions. We disagree with the force of this analogy. Nishikawa was faced with the choice of either subjecting himself to Japanese penal sanctions or relinquishing his United States citizenship. The conflicting laws of the United States and Japan created a Hobson's choice which rendered either alternative involuntary. The same dilemma did not confront Jolley. While we accept the assertion that Jolley's abhorrence of the Selective Service laws caused him to apostatize himself, he cannot equate that abhorrence with coercion sufficient to render his renunciation involuntary as a matter of law. Dislike for the law does not in and of itself compose coercion; subjective detestation cannot be metamorphosed into duress. Jolley's Hobson's choice, if it be deemed such, was self-generated. The compulsion he felt to renounce his citizenship was of his own design. But opportunity to make a decision based upon personal choice is the essence of voluntariness. Such a choice was unavailable to Nishikawa, for he was forced by Japanese penal law to engage in what was then termed an expatriating act. The duress he felt was not of his own making. Jolley's expatriating act, on the other hand, was not compelled by law. He had the alternative to obey the dictates of the Selective Service System, an alternative he found impossible solely because of his own moral code. His renunciation was therefore the product of personal choice and consequently voluntary.¹⁰

Implicit in Jolley's argument is the proposition that a detrimental result, such as the loss of citizenship, should not flow from an act dictated by conscience. In our society, however, commands of conscience, absent statutory or constitutional recognition, cannot be accorded para-legal status.¹¹ While we comprehend Jolley's argument and contention concerning his plight, so long as the draft remains a valid obligation of citizenship, it cannot constitute legal duress. Jolley chose to avoid what he considered a nefarious burden of citizenship. Having exercised this choice, Jolley may not be relieved of the consequences flowing from it. We therefore hold that petitioner's renunciation of his United States citizenship was voluntary and that he must be treated as an alien for purposes of judging the validity of the deportation order.

III.

Petitioner next argues that even if he be deemed to have voluntarily renounced his citizenship, thus becoming an alien, he may not be deported because of Immigration and Nationality Act § 241(f), 8 U.S.C.A. § 1251(f). That section provides that an alien married to a United States citizen and "otherwise admissible at time of entry" shall not be deported for gaining entry to this country by misrepresentation or fraud:

"The provisions

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