Matter of P---- R----

• Citation: 9 I&N Dec. 578
• Decision Date: 13 March 1962
• Docket Number: A-11445387.
• Parties: MATTER OF P---- R----. In DEPORTATION Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

9 I&N Dec. 578

MATTER OF P---- R----.

In DEPORTATION Proceedings.

A-11445387.

Board of Immigration Appeals.

Decided by Board March 13, 1962.

Expatriation — Evidence — Uncorroborated statements against interest, now recanted, not sufficient proof in proceedings commenced prior to September 26, 1961.

(1) Respondent's uncorroborated admissions against interest concerning voting in a foreign election, which he now denies, fail to satisfy the government's heavy burden of establishing expatriation by "clear, unequivocal, and convincing evidence" in proceedings commenced in January 1959 (Gonzalez-Jasso v. Rogers, 264 F.2d 584 (C.A.D.C., 1959)).

(2) By its own terms, section 349(c) of the Act, providing that the one raising the defense that nationality was lost involuntarily has the burden of establishing such defense, is limited to proceedings commenced on or after its enactment on September 26, 1961.

CHARGE:

Order: Act of 1952 — Section 241(a)(1) [8 U.S.C. 1251(a)(1)] — Excludable as immigrant without visa.

BEFORE THE BOARD

DISCUSSION: Respondent, a 50-year-old married male, was born in the United States. On May 16, 1949, a board of special inquiry found that the respondent had lost his United States citizenship on January 13, 1941, as result of employment as a carpenter and handy man with an agency of the Government of Mexico under section 401(d) of the Nationality Act of 1940, and that if he had not so lost, that he had become expatriated on July 7, 1946, under section 401(e) of the Nationality Act of 1940 by voluntarily voting in a presidential election in Mexico on that date. The respondent who was returning to the United States after a short visit to Mexico was excluded at that time. Respondent reentered the United States in September 1951 as an agricultural laborer. On January 15, 1959, an order to show cause was served upon the respondent charging him with having been excludable at the time of his last entry as an immigrant without a visa. The special inquiry officer concluded that the respondent had lost United States nationality either by employment with the Mexican Government after January 13, 1941 until 1948, or that if he had not lost for this reason, he had become expatriated by voting in Mexico on July 7, 1946 in a presidential election. At the hearing before the board of special inquiry the respondent stated that he had voted for President Aleman on July 7, 1946, and had voted in presidential elections on two other occasions. However, at a deportation hearing held on March 17, 1959, respondent denied that he had voted for Aleman on any occasion. He testified that he had voted for Cardenas in a year he could not recall, and that had been the only time he voted.

Upon appeal to the Board, proceedings were reopened. The Board pointed out that the burden is upon the Government to prove an act of expatriation and it must do so by proof that does not leave the issue with doubt; that the record did not establish definitely that only persons of Mexican nationality were employed in the work respondent did for the Mexican Government; and that since the testimony concerning voting in Mexico was in conflict, some corroborating evidence should be obtained if possible.

At the reopened hearing, the...