IN THE MATTER OF M---- G

Expatriation — By voting in foreign political election, section 349 (a) (5) of 1952 act — Conclusive presumption of voluntariness under section 349 (b) of act regardless of factual situation.

Under provisions of section 349 (b) of the Immigration and Nationality Act, claim of duress or involuntariness, regardless of factual situation, is not available to dual national of United States and Mexico who voted in Mexican political election in 1954 or 1955 after having resided continuously in that country since 1931. Such person is conclusively presumed to have voted voluntarily and, hence, to have expatriated herself pursuant to section 349 (a) (5) of the act.

Act of 1952 — Section 212 (a) (20) ( 8 U.S.C. 1182 (a) (20)) — No immigrant visa or other entry document.

BEFORE THE BOARD

Discussion: On November 12, 1957, we sustained the applicant's appeal and ordered her admission to the United States as a citizen. The case is before us on motion of the Service requesting that our order be withdrawn and that the appeal be dismissed.

The applicant is a 28-year-old unmarried female who was born in the United States. Her parents took her to Mexico when she was 2 years of age and she has resided there continuously until her present application for admission to the United States on June 5, 1957. The special inquiry officer found that the applicant voted voluntarily in an election for the municipal president of Guadalajara, Mexico, in 1954 or 1955, and that she became expatriated under section 349 (a) (5) of the Immigration and Nationality Act ( 8 U.S.C. 1481 (a) (5)). He concluded that she was excludable as an immigrant alien who was not in possession of the necessary visa. In our order of November 12, 1957, we concluded that, since it had not been established by clear, unequivocal and convincing evidence that the applicant had become expatriated, she must be considered a citizen of the United States. The sole question to be determined is whether the motion of the Service should be granted.

Preliminarily, we may say that we are aware that the applicant has not yet received a copy of our decision of November 12, 1957, nor of the Service motion dated December 30, 1957. Since the applicant is not represented by counsel, Part 6 of Title 8, Code of Federal Regulations, requires that these papers be served upon her. However, they were mailed to the address furnished by the applicant which is the only address known to the Service or to this Board. Inasmuch as it appears to be impossible to serve the applicant with these papers, we will proceed to a determination of the question involved in the Service motion.

The Service disagrees with our conclusion that the applicant voted under circumstances amounting to duress and has also called attention to the provisions of 8 U.S.C. 1481 (b). That provision was not relied upon by the special inquiry officer. Although we are not persuaded that the applicant's act of voting in a Mexican election in 1954 or 1955 was voluntary as a matter of fact, we agree with the Service that she comes within the purview of 8 U.S.C. 1481 (b). That statutory provision specifically provides that any person who performs any act specified in 8 U.S.C. 1481 (a) "shall be conclusively presumed to have done so voluntarily and without having been subjected to duress of any kind, if such person at the time of the act was a national of the state in which the act was performed and had been physically present in such state for a period or periods totaling ten years or more immediately prior to such act."

The act of voting in a foreign political election is governed by subparagraph (5) of 8 U.S.C. 1481 (a). The applicant was a citizen of the United States by reason of birth in this country and was also at the time of birth a citizen of Mexico under the constitution and laws of that country since her parents were then citizens of Mexico. She had been physically present in Mexico from about 1931 until her present application for admission to the United States. Under the circumstances and in view of the provisions of 8 U.S.C. 1481 (b), we must hold that the applicant became expatriated under 8 U.S.C. 1481 (a) (5). It follows that she is an alien who is required to present an immigrant visa and that she was properly excluded under 8 U.S.C. 1182 (a) (20). Accordingly, we will grant the motion of the Service.

Order: It is ordered that the motion of the Service be granted.

It is further ordered that our order of November 12, 1957, be withdrawn and that the appeal of the applicant be dismissed.