BEFORE THE BOARD
Discussion: This case is before us on appeal from the decision of a special inquiry officer dated March 28, 1955, holding appellant an expatriate under section 401 (j) of the Nationality Act of 1940 and excluding him on the above-stated grounds. Appellant sought admission to the United States at San Ysidro, California, on February 16, 1955, in order to live with his brother in California.
Appellant acquired United States citizenship at birth at Riverside, California, on November 22, 1923. In 1929 or 1930, appellant and his two brothers were taken to Mexico by their parents, via Nogales, Arizona, and began living in Santiago, Conguipo, Michoacan, Mexico. Appellant's family continued to live in that locale up to the present time, except in about 1938 or 1939, when appellant lived in Mexico City. Appellant reached his 18th birthday on November 22, 1941, and in July 1943, he entered this country at El Paso, Texas, as a contract laborer, alleging Mexican birth. In January 1944, he departed to Mexico in accordance with his contract, but reentered surreptitiously in October 1944 near Calexico, California. Four days later, he was apprehended by the Immigration Service at Colton, California, and he again claimed Mexican birth.
Appellant was granted voluntary departure at San Ysidro, California, on November 9, 1944. Later that month, he enlisted in the Mexican navy and reenlisted in 1947, 1950, and 1953. In 1954, he was discharged upon his own request.
Expatriation under section 401 (j) of the Nationality Act of 1940 occurs when the evidence shows that the citizen had a desire to come to the United States, but was deterred in his resolve primarily by reluctance to serve in our armed forces ( Matter of M----, A-6690283, 2 IN Dec. 910 (B.I.A., 1947)). Expatriation under this section may also occur if it is shown that the citizen's main intention in departing from the United States was to evade and avoid military service. Hence, the issue in the present case is whether appellant departed from the United States to evade and avoid military service on November 9, 1944.
While appellant admits concealing his United States birth in connection with his admission as a bracero in 1943 and his reentry, followed by his apprehension by the Immigration Service which culminated in voluntary departure, he denies knowing of his obligation to register either in this country or at an American consulate in Mexico and the statutory requirement that he serve in our armed forces. Since the finding of expatriation cannot be founded on mere conjecture and because there is no justification for disbelieving appellant's testimony, we conclude that he did not expatriate himself under section 401 (j) by departing from the United States to evade and avoid military service on November 9, 1944.
Since the burden of proof of expatriation is on the Government to establish that the citizen departed from the United States for the reasons set out in the statute, the evidence of record must be clear and convincing on this point in order to support a finding of expatriation ( Acheson v. Maenza, 202 F. (2d) 453 (C.A.D.C., 1953)).
However, even though appellant is not expatriated under section 401 (j), section 401 (c) of the Nationality Act of 1940 is also pertinent here. While section 401 (c) makes service in a foreign army a self-operating act of expatriation, it has been held that the Executive Agreement No. 323, between the United States and Mexico dated January 22, 1943, had the force of law. Hence, it provided an exemption from loss of citizenship through Mexican military service, as a result of the statutory phraseology of section 401 (c) ( Matter of K---- G----, 56158/676, 2 IN Dec. 243 (A.G., January 29, 1945)).
Section 401. A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: * * *
(c) Entering, or serving in, the armed forces of a foreign state unless expressly authorized by the laws of the United States, if he has or acquires the nationality of such foreign state.
Executive Agreement No. 323 provides, in part, that:
1. The nationals of either country resident within the territory of the other may be registered and inducted into the armed forces of the country of their residence on the same conditions as nationals thereof unless otherwise provided herein. (Executive Agreement No. 323 [State Department].)
On the basis of such authority as United States v. Curtiss-Wright Export Corp., ( 299 U.S. 304, 1936), United States v. Belmont ( 301 U.S. 324, 1937), and United States v. Pink ( 315 U.S. 203, 1942), it was held that Executive Agreement No. 323 "should be regarded as having the force of law, and since it expressly authorizes the drafting of our nationals, the appellant's military service in Mexico [in 1943] is to be regarded as `expressly authorized by the laws of the United States'." For that reason, no expatriation could occur under section 401 (c).
See also, Matter of V---- L----, 1603/21334, 5 IN Dec. 497 (B.I.A., October 23, 1953), in which the Board concluded that Executive Agreement No. 323 also served to forestall the effect of section 401 (b) on a person's status as a United States citizen.
While this agreement was in effect in November 1944, when appellant voluntarily enlisted in the Mexican navy, it did not relieve him of the consequences of his admittedly voluntary act. Since paragraph one of Executive Agreement No. 323 covered nationals resident within the territory of the other country, who may be registered and inducted into the armed forces of the country of their residence, appellant as a person voluntarily enlisting in the Mexican navy was not included by its very terms, for the agreement was not designed to limit the freedom of the individual, but rather as a working arrangement between governments relating to draft registration and consequent military service.
The expiration date of Executive Agreement No. 323 was set at six months after the termination of the Japanese war (World War II) or six months after April 28, 1952 (Pres. Procl. 2974; 17 Fed. Reg. 3813). Matter of L---- C----, 1611-10434, B.I.A., March 23, 1955 (unreported).
Since appellant testified that he enlisted voluntarily in the Mexican navy in 1944, he clearly expatriated himself under section 401 (c). Moreover, because appellant was an alien at the time of his last application for admission and was not in possession of the required visa or passport, the ground of exclusion under section 212 (a) (20) is supported.
However, with regard to the ground of exclusion under section 212 (a) (22), on the basis of our conclusion that appellant did not realize that he was obligated to register and serve in the United States armed forces, it is concluded that appellant did not depart from or remain outside the United States to evade and avoid military service within the meaning of section 212 (a) (22). Hence, this latter ground of exclusion is not sustained, and the appeal must be dismissed solely with regard to the ground of exclusion under section 212 (a) (20).
Order: It is hereby ordered that the appeal be dismissed, solely with regard to the ground of exclusion under section 212 (a) (20).