Expatriation — Section 401 (j) of Nationality Act of 1940, as amended — Motive of parents' refusal to permit child's return to United States.
United States citizenship was lost under section 401 (j) of the Nationality Act of 1940, as amended, where the individual had a desire to return to the United States on and after September 27, 1944, but voluntarily assented to the wishes of his parents that he remain in Mexico because they were unwilling to have him serve in the Armed Forces of the United States. The motive of the parents for refusing him permission to return to the United States is imputed to the child because he voluntarily assented to their wishes.
EXCLUDABLE:
Act of 1952 — Section 212 (a) (22) — Remained outside the United States to evade military service.
BEFORE THE BOARD
Discussion: This case is before us on appeal from the decision of a special inquiry officer dated August 18, 1954, holding appellant an expatriate under section 401 (j) of the Nationality Act of 1940 and excluding him under section 212 (a) (22). Appellant acquired United States citizenship at birth in Dyer, California, on July 12, 1926. He lived in this country until 1929. From 1929 to 1951, appellant lived on his father's land in Mexico and helped farm it, although he received no wages from his father. Appellant's most recent application for admission occurred at San Ysidro, California, on May 24, 1954, when he requested permission to enter as a United States citizen.
On July 27, 1951, appellant applied for admission at San Ysidro, California, and testified before a board of special inquiry. On that occasion, appellant admitted voting in elections of officers of the government controlled farming settlement in which his family lived. He stated that he took his father's place in voting in 1949. Appellant also admitted voting in the Mexican presidential election of 1946 and that on both occasions he voted voluntarily. Appellant testified that he had a desire to return to the United States between September 27, 1944, and July 27, 1951, but that his parents did not want him to come, because an aunt had advised them that he would be obligated to serve in the United States military forces if he came to this country. Appellant admitted assenting to their wishes and only recently decided to persuade his father to loan him the travel money. On July 28, 1951, appellant was held an expatriate under section 401 (j) as a citizen who remained outside the United States to evade and avoid military service and was excluded as an alien seeking to enter without the required visa (section 13 (a), act of 1924) or passport (Executive Order 8766).
Shortly thereafter, appellant entered the United States surreptitiously and registered for the draft on July 29, 1951, at Santa Ana, California. He was classified I-A on September 14, 1951, with classification being changed to IV-F on November 13, 1951. During the present exclusion hearing on June 29, 1954, appellant affirmed his testimony of 1951 that although he had a desire to come to this country during the crucial period, he assented to the wishes of his parents, who were unwilling that he serve in the United States Armed Forces.
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)).
In the past, the Board has held that the motive for parental insistence on departure from this country to escape military service obligations or for parental refusal of permission for the citizen child to return to the United States to assume his required military obligations may be imputed to the child. However, such a motive may not be imputed to the child unless the child voluntarily adopted the parental view.
In the present case, appellant has admitted that he had a desire to return to the United States between September 27, 1944, and July 27, 1951, but that his parents refused to give him permission to come, because they were unwilling that he should serve in the United States military forces. In addition, appellant admittedly assented to the parental view. Hence, the parental motive for refusing permission (unwillingness that the child should serve in the United States armed service) must be imputed to appellant, rendering him an expatriate under section 401 (j) of the Nationality Act of 1940.
Since appellant was an alien at the time of his last application for admission, it is necessary to consider the question of whether he was excludable at that time. In view of our conclusion that appellant lost his United States citizenship under section 401 (j) by remaining abroad to evade and avoid military service, the ground of exclusion under section 212 (a) (22) is definitely sustained. The appeal is accordingly dismissed.
Order: It is hereby ordered that the appeal be dismissed.