Interim Decision #2389 

MATTER OF SINCLITICO 

In Deportation Proceedings 

A-19155548 

Decided by Board June 2, 1975 

The respondent, a native of the United States, became a naturalized citizen of Canada and 

thereafter entered the United States as a visitor, and having remained longer than 

authorized, was found deportable under the provisions of section 241(a)(2) of the 

Immigration and Nationality Act. On appeal the proceedings are terminated upon the 

respondent's establishing by a preponderance of the evidence that before and after his 

Canadian naturalization, he did not have the mental capacity to expatriate himself 

under the provisions of section 349(c) of the Act. Under these circumstances the burden 

was on the Go ferzunent to show that respondent had sufficient mental capacity to 

understand in a reasonable manner, the nature and effect of his act. The Service failed 

to prove, by a preponderance of the evidence, that respondent had expatriated himself 

and was an alien. The appeal is sustained. 

emsnr.r.: 

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant visitor—

remained longer 

ON BEHALF OF :RESPONDENT: Gordon C. Dale, Esquire 

1815 N. Broadway 

Santa Ana, California 92706 

In a decision of an immigration judge dated September 21, 1970, the 

respondent was found deportable on the above-stated charge, but was 

granted the privilege of voluntary departure. In that decision, the 

immigration judge found that the respondent had expatriated himself as 

a result of his naturalization as a citizen of Canada on December 8, 1961. 

A reopened hearing was held on November 15, 1971 for the purpose of 

affording the respondent an opportunity to present additional medical 

evidence concerning his mental condition at the time of his naturalization in Canaea in 1961. In an oral decision of the same date, the 

immigration judge found the respondent has been expatriated and is not 

a citizen of the United States, found him deportable as charged, and 

granted him voluntary departure. This is an appeal from this decision. 

The appeal will be sustained. 

The respondent is an unmarried male, who was born at Lawrence, 

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Massachusetts, on June 30, 1921, to United States citizen parents. He 

was admitted to Canada as a landed immigrant on June 16, 1953 and on 

December 8, 1961, took an oath of allegiance rand was granted Canadian 

citizenship. He was admitted to the United States as a nonimmigrant 

visitor at Niagara-Falls, New York, in October 1968, for a temporary 

period not to extend beyond March 1969. He was granted a temporary 

stay until February 8, 1970, but failed to depart from the United States 

within the time specified. , 

The issue is whether the applicant's naturalization in Canada caused 

him to lose United States citizenship. The immigration judge found that 

the respondent iwas mentally competent and was aware of what he was 

doing when the decision was made to become a citizen of Canada. That 

is, he found that the respondent voluntarily became naturalized, has 

expatriated himself, and is not a citizen of the United States. It is 

counsel's contention that expatriation did not result because the respondent was not mentally competent to intelligently and intentionally surrender his United States citizenship and assume Canadian citizenship. 

Prior to the enactment of section 349(c) of the Immigration and 

Nationality Act on September 26, 1961, the burden was on the Government to establish -expatriation by clear, convincing and unequivocal 

evidence. See Gonzales-Jasso v. Rogers, 264 F.2d 584 (D.C. Cir.. 1959); 

Nishikawa v. Dulles, 356 U.S. 120 (1958). . 

The Supreme Court held in Woodby v. INS, 385 U.S. 276 (1966) that 

the test for burden of proof io a deportation proceeding is as follows: 

"No deportation order may be entered unless it is found by clear,. 

unequivocal and convincing evidence that the facts alleged as grounds 

for deportation are true." However, this is not the situation in reference 

to a, case involving loss of„citizenship. Section 349(c) of .the Act 1was, 

specifically enacted by Congress to change the degree of proof required 

in loss of citizenship cases from clear, unequivocal and convincing evidence to that of a preponderance of the evidence. This purpose is clearly 

shown in the legislative history of the statute (see House Report 1086, 

August 30, 1961, to accompany S.,2237). In Matter of Gonzalez-Gomez, 

12 L & N. Dec. 344 (BI A,1907), we held that the United States Supreme 

Court considered that the degree of proof provision of section 349(c) was 

Section 849(c) of the In and Nationality Act reads as follows: 

"Whenever the loss of United States nationality is put in issue in any action or 

proceeding commenced on or after the enactment of this Subsectiim under, or by virtue of, 

the provisions of this or any other. A'et, the burden shall be upon the person or party 

claiming that such .loss occurred, to establish such claim by a preponderance of the 

evidence. Except as otherwise provided in Subsection (b), any person who commits or 

periormi, or has committed or performed, any act of expatriation under the provisions of 

this or any other Act shall be presumed to have done so voluntarily, but such presumption 

may be rebutted upon a shiming, by a preponderance of the evidence, that the act or acts 

committed or performed were not done voluntarily." 

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an exception to the rules the Court was enunciating in the Woodby case. 

A medical diagnosis from a psychiatrist was submitted in evidence 

(Exh. R-1). The psychiatrist's diagnosis was "Schizophrenia with 

paranoid features" and it was his opinion that "it would be justifiable to 

claim that he was not well enough to make a rational decision when he 

surrendered his United States citizenship. This diagnosis and medical 

opinion was based upon the psychiatrist's personal observation of the 

respondent from when he first saw him in July 1941 at various intervals 

up to March :1950 and upon letters received from the respondent from 

1950 through 1960. In the record there is a diagnosis made in 1954 of the 

respondent by a psychiatrist and by a psychologist from the Ontario 

Mental Health Clinic, in which the respondent was diagnosed as presenting a "paranoid picture" (Exh. R-3) and reflecting "the distortion of 

ideational processes seen in schizophrenia" (Exh. R-4). A diagnostic 

report dated June 20, 1963, less than two years after the respondent 

became a Canadian citizen, was provided by a psychiatrist which was 

based on medical visits on five Occasions prior to the date of the report. 

The psychiatrist's diagnosis of the respondent Was "Paranoid Schizophrenia." 

In addition to the medical evidence, the respondent's brother, the 

Dean of the University of Sari Diego Law School, was a witness at the 

reopened dep Drtation hearing. He testified as to his knowledge that his 

brother had been diagnosed as a schizophrenic as early as 1940 (Tr. pp. 

28 and 20; that his brother was treated for schizophrenia; and he related 

examples of his brother's poor judgment, mental incompetence and 

strange behavior for the period from 1958 to 1968 (Tr. pp. 79, 81, 88, 94 

and 95). The respondent coroborated by his own testimony that he made 

contributions to religious missions and purchased about 70 medical 

books for his medical library, despite his financial problems (Tr. pp. 

92-96). In response to questions on his application for voluntary departure, the respondent did not seem to understand the questions and 

actually his answers were not responsive. (Tr. pp. 98 and 99). 

"Schizophrenia" is defined as "Bleuler's term for dementia praecox. A 

psychosis characterized by lack of effect, inappropriate mood, unpredictable behavior, and disintegration..Frequently terminates in mental 

regression, total withdrawal from reality into phantasies and paranoid 

formulations." (Blackiston's—New Gould Medical Dictionary,' p. 910); 

Becker v. Becker, 138 N.Y.S. 2d 397, 399, 207 Misc. 17 (1954). "SchizoThrenia, paramid" is a disintegration of the mind and personality of the 

individual characterized by disturbances of thinking, hallucinations, and 

similar manifestations. In re Meyers, 189 A. 2d 852, 858, 410 Pa. 455 

(1963); Am. jar., Proof of Facts, Medical Glossary, p. 215. 

The question to be resolved is not,that of voluntariness, but whether 

the respondent had the mental capacity or competence to expatriate 

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himself by Canadian naturalization. The whole pattern of the respondent's life, including his poor judgment, strange behavior and medical 

diagnosis of schizophrenia from childhood, shows mental incompetence 

to make an intelligent decision regarding voluntarily surrendering his 

United States citizenship. We are satisfied that the respondent has 

successfully rebutted any presumption that he voluntarily expatriated 

himself as a result of Canadian naturalization in 1961. Under these 

circumstances, the burden was on the Government to show that at the 

time of his naturalization as a citizen of Canada, the respondent was 

experiencing a lucid interval when he had sufficient capacity to understand in a reasonable manner the nature and effect of the act which he 

was doing. We conclude that the Service has not sustained its burden of 

proving by a preponderance of the evidence that the respondent was 

expatriated and was an alien. The deportation proceedings will be 

terminated. 

ORDER: The appeal is sustained and the deportation proceedings are 

terminated. 

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