Interim Decision -#1471 

Mamma or Simon= 

In Exclusion Proceedings 

A-14267096 

Decided by Board June 8,1985 

Anuellee. a United States citizen who believes she voted in an election in Mexico in 1904, did not expatriate under section 349(a) (5), Immigration and 

Nationality Act, since under section 849(c) of the Act, as amended, the government has the burden of proof of citizenship loss by a preponderance of the 

evidence and the burden has not been met when a certification by the Municipal President of the•City of Huanusco, Mexico, states that a search of the. 

1964 voters' records fails to reveal any evidence that appellee voted in any 

of the 1964 elections. 

MCCILT/DABLE : Act of 1952—Section 212(a) (20) (8 U.S.C. 1182(a) ( 20)1—Immlgrant without visa. 

The appellee is a 09-year-old married female, born in the United. 

States on January 3, 1926. The issue is that of loss of United. 

States citizenship under section 349(a) (5) of the Immigration and 

Nationality Act' The special inquiry dicer found that she has not 

lost her United States citizenship and ordered that she be admitted_ 

to the United States. The trial attorney appeals from this decision.. 

The appeal will be dismissed. 

Appellee lived in the United States from the time of her birth in 

1926 until she returned to Mexico with her parents in 1938. She was 

one of 12 children, and testified that the eight oldest were born. in 

mother d. 

the United States. ,She was married at the age of 15, and is the 

in ten children. She is, apparently, barely able to read an 

write in Spanish. She stated that she went to school in the United 

'Immigration and Nationality Act, sec. 349(a) From and after the effective. 

date of this Act a person who is a national of the United States whether by 

birth or naturalization, shall lose his nationality by . . . (5) voting in a political election in a foreign state or participating in an election or plebiscite to. 

determine the sovereignty over foreign territory. 

186 
Interim Decision 4t1471 

States as a child, and when she left this country had some fluency 

in the English language. She has been living on a small farm with 

her husband and children many miles from Huanusco. She had 

never voted in Mexico until last yeax, but she stated that In July 

1964, shortly before the election here in question, the "commissar" 

visited their village and told the women of the town that they must 

vote, that it was their duty and obligation to vote. She said that 

they were told also that in order to travel to the United States they 

would all have to vote. She testified that he came to her house, but 

that she was sick in bed, and he delivered the inc,c.age through one 

of her children. She testified. that one of her children was seriously 

ill, and she traveled on. the voting day to the town with her child 

by mule back, took the child to the doctor, presented her voter's 

registration at the voting booth, voted, and immediately returned to 

her home. She testified on several-occasions that she voted on that 

day, and that it was the 'only time she voted. She testified 'atio 

(p. 11) that there was "a lot of commotion going on around that the 

election was crooked." Appellee is articulate and her responses were 

complete. 

Apparently appellee sent for her Mexican voter's certificate but 

did not receive it. In lieu of this document she presented (Ex. 6) 

a letter from the Municipal President of Huanusco certifying that 

this official had searched the voter's records for 1964 and had been 

unable to find any evidence of her having voted in any of the 1964 

elections. Exhibit 6 is signed. by "the presiding official" of the City 

of Huanusco, Zacatetas, Mexico, and states, "That having searched 

the voting registrations, Federal, State and City, the name of Maria 

Dolores Garcia Viramontes' de Sanchez, a resident of rancho Guatemala of this city does not appear. These voting records cover the 

Presidential, State Gubernatorial and City elections." Appellee 

stated that she has known all her life that she was a United States 

citizen (Ex. 5, p. 2, sworn statement, January 13, 1965), and also 

that everyone in the community knew that she was a 'United States 

citizen (p. 10, record.). 

The special inquiry officer found that the proof of appellee's 

foreign voting is too ambiguous to sustain a conclusion of her expatriation under section 349(a) (5) of the Immigration and Nationality Act.. He stated that the evidence that she voted in. a political 

election in Mexico must be clear, convincing and unequivocal, citing 

cases, and that the Government carries the heavy burden of proof of 

establishing a knowing, complete and voluntary act of expatriatiOn. 

187 
Interim Decision #1471 

The Board believes that the special inquiry officer applied the 

wrong standard of proof in the light of se,ction .319(c) 2 added to 

the Immigration and Nationality Act by the Act of September 26, 

1961, but that his conclusion was correct that the record does not 

establish expatriation. The special inquiry officer cites GonzalezJane v. Rogers, •264 F. 2d 584 (D.C. Cir. 1959), which held that 

uncorroborated admissions, later repudiated, are insufficient to de- . 

 prive a person of his citizenship. The court placed on the Government the burden of proving the act' of expatriation by '"clear, unequivocal and convincing" proof, the same standard of proof required for revocation of naturalisation. Reacting to Gonsaboo-jasso, 

Congress criticized the application of this standard of proof in proceedings affecting loss of citizenship, as distinguished from proceedings for revocation of naturalization. Congress indicated that the 

burden of prod in loss of citizenship cases should be merely "the 

preponderance of the evidence" and, accordingly, added section 

349(e) to the Immigration and Nationality Act. House of Representatives Report No. 1086, 8Ttb. Cong., 1st Bess., pp. 40 and 41, to 

accompany S-2237. Therefore, when it is claimed that a dual national lost United States nationality, the Government must establish 

this claim by a preponderance of the evidence only. However, we 

believe that even under this amended burden of proof, the Government has not established the alienage of this appellee and that she is, 

therefore, not excludable as charged. Appellee stated that she was 

incorrectly informed by a loc;I politician that it was her duty to 

rote, and she had to vote in order to protect her United States citizenship. She believed that she voted, but Exhibit 6, the voters' 

record, declares that appellee's name -was not on the list of voters. 

Thus, there is no preponderance of the evidence. 

There is no reason on this record to disturb the order of the special 

'Immigration and Nationality Act, sec. 349(c), added by sec. 19 of the Act of 

September 26, 1961 (75 Stet. 858) : Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after the 

enactment of this subsection under, or by virtue of, the provisions of this or 

any other Act, 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 

eerforms. or who has committed or performed, any act of expatriation under 

the pro:visions of this or any other Act shall be presumed to have done so 

voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were 

not done voluntarily. 

188 
Interith Decision #1471 

inquiry officer that appellee be admitted to the United States as a 

citizen thereof. The appeal of the Immigration and Naturalization 

Servile will be dismissed. 

ORDER; It is ordered that the appeal be and is hereby dismissed. 

It is further ordered that the order of the special inquiry officer 

of February 15, 1965 be and is hereby affirmed. 

189