Matter of Kekich
| Decision Date | 16 November 1984 |
| Docket Number | A-23195764.,Interim Decision Number 2983 |
| Parties | MATTER OF KEKICH. In Visa Petition Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
The petitioner has applied for visa preference status on behalf of the beneficiary as the spouse of a United States citizen under section 201(b) of the Immigration and Nationality Act, 8 U.S.C. § 1151(b) (1982). In a decision dated February 24, 1983, the district director denied the petition. The petitioner has appealed. The appeal will be dismissed.
The petitioner, a naturalized citizen of Venezuela, is a native of the United States, having been born in Butte, Montana, on March 21, 1918. The beneficiary, also a naturalized citizen of Venezuela, was born on April 16, 1911, in Yugoslavia. They were married in Venezuela on May 12, 1962. Both currently reside in Michigan. The petition was filed on June 25, 1981. The district director denied the petition on the grounds that the petitioner had failed to satisfy her burden of proof regarding her status as a United States citizen by overcoming the evidence (obtained from State Department records) that, prior to the filing of the petition, she had voluntarily and intentionally expatriated herself on September 25, 1963, pursuant to section 349(a)(1) of the Act, 8 U.S.C. § 1481(a)(1) (1982), by becoming a naturalized citizen of Venezuela.1
In visa petition proceedings, the burden of proof to establish eligibility for the benefit sought rests upon the petitioner. Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The sole issue before us is whether the petitioner has carried that burden in regard to establishing that she is a United States citizen.
On appeal, the petitioner, through counsel, contends that the district director erred in his conclusion that she had freely relinquished her United States citizenship at the time of her naturalization in Venezuela. She urges that the district director failed to accord adequate weight to her affidavit of June 12, 1981. In that affidavit she recites that her husband was seriously ill in 1963 and that, based on information she had received from Venezuelan officials, she feared that if her husband died, she might forfeit inheriting her husband's property if she remained a non-citizen of Venezuela. Moreover, she feared, as an alien, that at some future time Venezuelan officials might not renew her permission to remain in that country. On the basis of these facts, she argues that her naturalization in Venezuela must be viewed as involuntary.
The petitioner also argues that under the restrictive guidelines for expatriation enunciated by the Supreme Court in Vance v. Terrazas, 444 U.S. 252 (1980), the evidence in the record does not justify the district director's conclusion that at the time of her naturalization in Venezuela she had the requisite intent to relinquish her United States citizenship. See also Afroyim v. Rusk, 387 U.S. 253 (1967); Matter of Wayne, 16 I&N Dec. 248 (BIA 1977). In support of this argument, the petitioner suggests that the State Department's form affidavit (relied upon by the district director) which she signed in 1976, is ambiguous as to her intent to relinquish her United States citizenship. Specifically, she urges that the manner in which it was typed leaves doubts as to the meaning of its contents. She also raises the possibility that she may not have understood "the words to which she was attesting." We find the petitioner's arguments unpersuasive.
In regard to the petitioner's first claim (that she did not voluntarily seek Venezuelan naturalization), we initially note that section 349 of the Act specifies that if any person commits any of the expatriating acts enumerated therein, there is a rebuttable presumption that such acts were committed voluntarily, and that the Supreme Court has not found such a presumption to be constitutionally infirm. See Vance v. Terrazas, supra, at 253. Secondly, the petitioner's argument in this regard appears to confuse the distinction between coercion and motivation. While it is clear that citizenship will not be lost when the citizen commits an expatriating act under circumstances involving duress, mistake, or incapacity negating a free choice,2 there is little support for the proposition that if the alternatives are painful, or a commendable motive is involved, an otherwise free choice may be viewed as an involuntary action, thereby exculpating the citizen from the consequence of his expatriating act or acts.3 While we understand the difficulty of the perceived alternatives confronting the petitioner in 1963,4 we nonetheless conclude that the petitioner's naturalization in Venezuela was not the result of coercion, but rather the result of personal choice, and consequently voluntary. See Jolley v. INS, 441 F.2d 1245 (5th Cir.), cert. denied, 404 U.S. 946 (1971).
We also find no merit in the petitioner's contention that she lacked the requisite intent to relinquish her United States citizenship at the time of her naturalization in Venezuela. We initially note that the Supreme Court has not withdrawn from its longstanding position that any of the acts specified in section 349(a) of the Act may be viewed as highly persuasive evidence of an intent to abandon United States citizenship. Vance v. Terrazas, supra, at 261; see also Nishikawa v. Dulles, supra, at 139 (Black, J., concurring). Secondly, the Court has held that the Government satisfies its evidentiary burden under section 349(c) of the Act by showing by a preponderance of the evidence that the citizen has committed an intentional expatriating act.5 Vance v. Terrazas, supra, at 265-66; see also Matter of Davis, 16 I&N Dec. 514, 521-22 (BIA 1978). Examining the evidence before us within these guidelines, we note that the record contains a Certificate of Loss of Nationality (Form FS-348), dated May 6, 1976, by the State Department, reciting that as a consequence of her naturalization in Venezuela upon her own application, the petitioner expatriated herself on September 25, 1963, pursuant to section 349(a)(1) of the Act. The record also includes an affidavit prepared pursuant to State Department regulations6 and executed by the petitioner on May 6, 1976, before a United States consul, which states that her naturalization in Venezuela was undertaken by her voluntarily, and not as a result of influence, compulsion, force, or duress. Additionally, her affidavit states that this act of naturalization was undertaken with the intention of relinquishing her United States citizenship.
In rebuttal of this evidence the petitioner has offered only self-serving sworn statements (drafted more than 5 years subsequent to the State Department affidavit) from her husband and herself describing the difficult circumstances surrounding her decision to obtain Venezuelan citizenship. These affidavits notwithstanding, we find no probative evidence in the record, either new or contemporaneous with the...
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