Matter of C---- a----

• Decision Date: 17 October 1961
• Docket Number: A-6284229.
• Citation: 9 I&N Dec. 482
• Parties: MATTER OF C---- A----. In EXCLUSION Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

9 I&N Dec. 482

MATTER OF C---- A----.

In EXCLUSION Proceedings.

A-6284229.

Board of Immigration Appeals.

Decided by Board October 17, 1961.

Expatriation — Dual national — Section 350, 1952 act — Accepting benefit of foreign nationality.

Where dual national had no knowledge that he had a claim to United States citizenship at the time he accepted the benefits of foreign nationality, his action was not "voluntary" and did not result in expatriation under section 350 of the Immigration and Nationality Act (Overrules contrary holdings in Matter of F---- G----, 4-528, and Matter of M----, 3-558.)

EXCLUDABLE: Act of 1952 — Sections 212(a)(20) [8 U.S.C. 1182(a)(20)] — Immigrant, no visa.

BEFORE THE BOARD

DISCUSSION: The Board found that the applicant is a citizen of of the United States who had not expatriated himself and ordered his admission as a citizen. The Service moves for reconsideration of the Board's order.

The applicant was born in Cuba on October 24, 1921. His father was born in the United States. There is nothing to indicate that the applicant's father lost United States citizenship before the birth of the applicant. We conclude, therefore, that the applicant became a United States citizen at birth under section 1993 of the Revised Statutes. Whether the applicant was also a citizen of Cuba at birth is also important because he could not have lost United States citizenship by the acts he performed unless he was a dual national at birth. Although there is some question as to this, we need not explore it since we find that the applicant would not have expatriated himself even if he had been a dual national at birth. We shall assume for the sake of this discussion that he was also a national of Cuba at birth.¹

The Service is of the opinion that the applicant has lost United States citizenship under section 350 of the Immigration and Nationality Act which provides for the expatriation of a dual national who accepted benefits of his foreign nationality. The benefit relied upon here is the use of a Cuban passport after December 24, 1952. The Board held that there had been no loss of United States citizenship because the applicant had used the passport without knowledge that he had a claim to United States citizenship. Decision of the Board was based upon Rogers v. Patokoski, 271 F.2d 858 (C.A. 9, 1959), and Nieto v. McGrath, 108 F. Supp. 150 (D.C. Tex., 1951). Patokoski was born in Finland to a United States citizen. He entered the United States as a visitor of Finnish nationality in 1947. Patokoski knew his father had become a United States citizen and, in fact, had brought his father's citizenship papers to the United States with him but did not know that he had a claim to United States citizenship through his father until so informed in deportation proceedings in 1949. He then sought a judgment declaring that he was a United States citizen. The Service contended that Patokoski had lost United States citizenship under section 401(e) of the Nationality Act of 1940 which provided for the loss of United States nationality by voting in a foreign political election. The appellate court, quoting from the lower court opinion, held that Patokoski had not voted voluntarily "because he did not know he was a citizen of the United States of America when he did those things [voting, taking an oath of allegiance, serving in a foreign army], and the plaintiff has not expatriated himself or lost or abandoned his United States of America citizenship by doing those things with such lack of knowledge." The Service is of the belief that it is improper to rely upon Patokoski because it concerned section 401(e) of the Nationality Act of 1940 and not section 350 of the Immigration and Nationality Act. We can see no difference, in essence, between a statute which provides for the loss of citizenship by one who votes and a statute which provides for loss of citizenship by a person who accepts the benefits of a foreign nationality. If knowledge of United States citizenship is necessary in the former case, we can see no basis for making a distinction in the latter case. The Service contends that Patokoski is distinguished from the instant case because Patokoski did not recognize the significance of his father's status as a United States citizen and did not know he was a citizen until after he committed the acts of expatriation, while in the instant case no such evidence exists. We find, however, that the record does establish the applicant's failure to recognize the significance of his father's status or the fact that he had a claim to citizenship until after he accepted the benefits of the foreign nationality. The record contains the uncontradicted testimony of the applicant that he had never claimed United States citizenship and was never aware that he might possibly have a claim to such citizenship prior to this exclusion hearing. A check with the State Department failed to reveal any record concerning the applicant. The applicant's credibility was not questioned by the special inquiry officer.

The Service is of the belief that Nieto v. McGrath, supra, cited by the Board, is no support for the rule that a United States citizen may not be expatriated if he had no knowledge that he had a claim to United States citizenship at the time he committed an otherwise expatriating act. We rely upon the following statement of the court found in footnote 5 on page 155:

I do not believe that it is fair, or within the purview of the statute, to presume that a man of plaintiff's type, living in the interior of Mexico, knew, in 1946, that the fact that he was born in the United States made him a citizen. The record shows plaintiff's mother told him he was born in the United States when he was eight or ten years old, but it would do violence to my experience to presume that either she or he realized that he was an American citizen because of his birth. Even had the idea occurred to him, however, he probably would have thought that he would have to have more evidence of the fact than his mother's word. He stumbled upon the old birth certificate when he was 22 or 23 years old (worn and torn when he later presented it to the Board of Special Inquiry in California). This was after the Mexican election,...