Matter of Becher
| Decision Date | 21 August 1967 |
| Docket Number | Interim Decision Number 1771,A-13466018. |
| Citation | 12 I&N Dec. 380 |
| Parties | MATTER OF BECHER. In Exclusion Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
The applicant applied for admission as a United States citizen; she has no documents authorizing her admission as an immigrant. The special inquiry officer, finding that she had lost her citizenship by working in Canada, excluded her and certified his order to the Board. Applicant contends she is a citizen of the United States. No change in the special inquiry officer's order will be made, but the case will be referred to the Attorney General for review.
The applicant, born in the United States on December 11, 1919, married a native of Canada on February 13, 1941; she was admitted to Canada for permanent residence on June 2, 1944. For a substantial part of the time from 1955 to 1962, the applicant was a public school teacher in the Province of Ontario, Canada. In January 1962, entering as a United States citizen, she resumed residence in the United States; her husband was admitted for permanent residence on June 17, 1964. Returning from a visit to Canada on August 23, 1963, applicant attempted to enter as a United States citizen; the fact of her employment in Canada was learned, and these proceedings arose.
The special inquiry officer found that applicant had lost United States citizenship by reason of the provisions of section 349(a)(4)(A) of the Act (8 U.S.C. 1481(a)(4)(A)) which in pertinent part provide as follows:
Section 349. (a) From and after the effective date of this chapter a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by —
(4)(A) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, if he has or acquires the nationality of such foreign state; ***
The issues presented by the record are whether (1) applicant has Canadian nationality, (2) applicant has been employed under a political subdivision of Canada, and (3) applicant's employment as a teacher comes within the statute.
The record establishes that applicant had Canadian as well as United States nationality when she accepted employment in September 1955 as a school teacher. The special inquiry officer, setting forth the pertinent laws and correctly applying them, has shown that the applicant's husband was a British subject, but not a Canadian citizen at the time of his birth, that the applicant became a British subject by marriage on February 13, 1941 (Ex. 3-R), that on January 1, 1947, the applicant's husband became a citizen of Canada (Ex. 4-R, Canadian Citizenship Act of 1946 (R.S.C.1952, c. 33), Part I, sec. 4(1)(a)), and that by operation of law, the applicant became a citizen of Canada as of June 2, 1944, the date of her lawful admission to Canada for permanent residence (Canadian Citizenship Act, supra, Part II, subsections (1)(d) and (2)(d) of sec. 9); this automatic naturalization did not result in her loss of United States citizenship (see Matter of W----, 3 I. & N. Dec. 107).
The question now is whether the applicant was employed by a foreign state or a political subdivision of Canada. In Matter of L----, 9 I. & N. Dec. 313, we held employment as a public school teacher by the Public School Board of London, Ontario, Canada was such employment; however, the answer to the question must be based upon the evidence of record before us (sec. 236 of the Act, 8 U.S.C. 1226).
Mr. A.W. Bishop, Assistant Superintendent, Registrar's Branch of the Department of Education, Ontario, Canada stated in an official letter dated August 7, 1964 (Ex. 6-R):
We do not consider that a teacher in the Public Schools of Ontario is performing duties of any office, post, or employment under the Government of the Province of Ontario or the Dominion of Canada.
Mr. Bishop's statement is not determinative of the question: Judgement as to the nature of the employment must be made by the United States authorities to whom Congress has entrusted the responsibility; the statement leaves open the question as to whether the applicant was employed by a political subdivision; and finally, it gives no convincing reason for the conclusion stated.
While Congress has not defined the words "political subdivision" for the purpose of the immigration laws, in definitions for other purposes Congress gave the term a meaning broad enough to bring within its compass any instrumentality or organization of the state (26 U.S.C. 3121(j)(4)(C); 43 U.S.C. 617k); and judicial interpretations bring within its compass "bureaus or corporations which are government owned and controlled" (Kawakits v. United States, 343 U.S. 717, 729 (1952)) and divisions of a state, made by the state for the purpose of using public funds to carry out functions which are commonly regarded as public (Commissioner v. Shamberg's Estate, 144 F.2d 998, 1004 (2d Cir.1944); 30 Op.Atty.Gen. 252 (1914)).
These definitions are broad enough to require the finding that the applicant was working for a political subdivision of Canada. To teach in Ontario one must hold a certificate issued by the Department of Education of the Province of Ontario; applicant had such a certificate. Teaching positions are contracted directly with local school boards. Applicant's first (and major) employment was with The Public School Board of School Section No. 11 of the Township of West-minister in London, Ontario. This Board engaged her to teach in a rural public school, paid her salary, and had the power to terminate or continue her contract. Members of the board are elected; they are constituted by the Public Schools Act; they receive their money from local taxation and from grants made by the Ontario Department of Education. Public school teachers pay contributions to a retirement fund (Teachers' Superannuation Fund) — a provincial fund administered by a Commission of the Province of Ontario; the teacher's payment is six percent of her salary; the Province of Ontario contributes six percent. Contracts with teachers cannot be broken without reasons being given, and every teacher has the right to appeal through an agency set up by the Province of Ontario. The teachers and school boards carry on under the Department of Education Act, and various school acts and regulations. We believe the record satisfactorily establishes that the school board which is set up by the Province of Ontario and uses tax money for a public purpose is a political subdivision of the Province.
To determine whether or not the occupation of a public school teacher is within the statute of expatriation, we must consider the meaning of the phrase "office, post or employment" and then determine whether the mere holding of an occupation coming within the phrase will result in expatriation or whether only the holding of an occupation, the duties of which exclude allegiance to the United States can result in expatriation.
The combination of words "office, post or employment" commonly appear as classifications of occupations held by public employees; in this area, each word has gained a recognized meaning. "Office" covers occupations in which sovereign powers are exercised and the duties are prescribed by law; "post" covers occupations involving nonpolitical functions; and "employment" covers occupations of less importance, dignity or independence where the work is performed under close supervision, the duties can often be changed at will, and the employee is often subject to summary discharge (United States v. Schlierholz, 137 F. 616, E.D.Ark (1905); Cain v. United States, 73 F.Supp. 1019, 1021-22, N.D.Ill. (1947)). Congressional use here of the phrase "office, post or employment" indicates that the broadest description of occupations was intended: this description would include public school teaching.
We may now consider whether taking or holding an occupation need be inconsistent with retention of allegiance to the United States to result in expatriation. It is our conclusion that such a requirement does not exist. An act performed with intent to give up allegiance would not result in loss of United States citizenship unless the act was one which Congress specifically made a ground of expatriation; on the other hand, the mere performance of an act specifically made a ground of expatriation, results in loss of citizenship regardless of intent (Perez v. Brownell, 356 U.S. 44 (1958)). Since actual intent to give up allegiance is not material and since the range of occupations included under section 349(a)(4)(A) runs from the highest to the lowest, it would seem to follow that the mere doing by a dual national of what Congress specifically made a ground of expatriation — here, the taking of an occupation under the government of his foreign nationality, would result in expatriation.
In a similar situation providing for loss of nationality by naturalized aliens residing abroad, the Court held that the Congressional plan provided that the mere doing of the act proscribed, regardless of intent and regardless of whether it was inconsistent with retention of allegiance to the United States was to result in expatriation (Schneider v. Rusk, 377 U.S. 163 (1964) ()).
Historically, the question of...
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