Interim Decision #2026 

MATTER OF DUGGAN 

In Exclusion Proceedings 

A-18558057 

Decided by Board February 20, 1970 

the absence of a specific authorization by the Secretary of State and the 

Secretary of Defense to enter into or serve in the Armed Forces of Canada, applicant's service in the Royal Canadian Navy with the intention of 

voluntarily relinquishing his citizenship resulted in the loss of his United 

States citizenship under section 399(a) (3) of the Immigration and Nationality Act. 

EXCLUDABLE: Act of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20) ]—Immigrant without immigrant visa. 

These exclusion proceedings have been certified to us by the 

pecial inquiry officer for final decision. In the proceedings, the 

Decial inquiry officer held that the applicant, formerly a United 

tates citizen, had expatriated himself under section, 349 (a) (3) 

the Immigration and Nationality Act and he was ordered exuded and deported from the United States as an immigrant 

ithout an immigrant visa. 

The applicant is a 36-year-old divorced male who was born at 

iult Ste. Marie, Michigan on September 1, 1933 and who acired United States citizenship by reason of his birth in the 

sited States under section 1 of the Fourteenth Amendment to 

e United States Constitution. After several visits to Canada he 

came a landed immigrant in Canada on January 4, 1953. Thereter, on September 15, 1953 he enlisted in the Royal Canadian 

tvy and served therein until March 2, 1954 when he was disnorably discharged for misconduct (Ex. 6). On the day of his 

ning the Canadian Armed Forces he took an oath of allegiance 

Her Majesty Queen Elizabeth II. 

Applicant testified that ever since 1946 he has desired to make 

permanent home in Canada and to become a citizen of that 

ntry because he has many relatives there and he liked the 

ntry and was always able to obtain suitable employment dur490 
Interim Decision #2026 

ing the several periods he resided there. He further testified that 

when he joined the Royal Canadian Navy and took the oath of allegiance to the Queen he thought that this would result in the loss 

of his United States citizenship, a result he desired. He stated 

that after he had joined, he was informed by United States immigration officials that since he did not have the written permission 

of the Secretary of State and the Secretary of Defense he should 

immediately terminate his service or he would face a loss of his 

citizenship (Tr. of hearing, p. 3). He did not terminate his service at that time. The record also shows that recently, in 1968, he 

applied to the United States consul at Halifax, Nova Scotia, Canada for a certificate of loss of United States citizenship and filed 

an affidavit with the consul relative thereto (Ex. 5). 

These exclusion proceedings arose in the following manner. 

From November 14, 1955 until March 1966 the applicant was imprisoned in a Michigan State penitentiary for the crimes of kidnapping and gross indecency. He was released on parole, but on 

October 4, 1968 he was arrested by the police in Pontiac, Michigan on the charge of disorderly molesting, which arrest resulted 

in the violation of his parole status. Two days after the arrest he 

entered Canada where, on December 13, 1968, he was arrested by 

the Halifax police on suspicion of violating their firearms laws, 

but no charges were filed. The arrest, however, did reveal his 

criminal record in the United States. Accordingly, the police 

turned him over to the Canadian immigration authorities for deportation to the United States to be remanded to the Michigan 

State Bureau of Pardons and Paroles as a parole violator. Exclusion proceedings were instituted when he was brought to Detroit 

for entry into the United States. 

Let us first.examine the claim that applicant's United States 

citizenship was lost under section 349(a) (3) of the Immigration 

and Nationality Act by reason of his service in the Royal Canadian Navy in 1953 and 1954. Section 349(a) (3) provides as follows: 

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— * ** 

(3) entering, or serving in, the armed forces of a foreign state unless, 

prior to such entry or service, such entry ur service is specifically authorized 

in writing by the Secretary of State and the Secretary of Defense. 

The constitutionality of this provision was upheld in Marks v. 

Esperdy, 377 U.S. 214 (1964), and this Board held in Matter of 

D—, 5 I. & N. Dec. 674 (BIA, 1954), that expatriation under this 

section is avoided only when there is specific authorization by the 

491 
Interim Decision #2026 

Secretary of State and the Secretary of Defense to enter into or 

serve in the armed forces of a foreign state. 

It is undisputed that the applicant served in the Royal Canadian Navy. No claim has been advanced that any authorization 

for such service was given by the Secretary of State and the Secretary of Defense. The final matter to consider in deciding 

whether the applicant expatriated under section 349(a) (3) is to 

determine if he "voluntarily relinquished" his citizenship as required under the doctrine set forth in A froyim v. Rusk, 387 U.S. 

253 (1967). The court stated in that case that the Congress lacks 

power under the Constitution to expatriate a citizen unless the 

citizen voluntarily relinquishes his citizenship. Although the Afroyim case concerned expatriation under section 349(a) (5), Immigration and Nationality Act, by voting in a foreign political 

election, the principle stated in Afroyim is to be taken into account in considering expatriation under other sections of law.' 

On January 18, 1969 the Attorney General of the United States 

issued a Statement of Interpretation = to serve as a guide to both 

the Department of State and the Immigration and Naturalization 

Service in the performance of their functions insofar as they involve questions of loss of citizenship. He stated : 

Under any reading of Afroyim., however, it is clear that an act which does 

lot reasonably manifest an individual's transfer or abandonment of alle-

;iance to the United States cannot be made a basis for expatriation. 

For administrative purposes, and until the Courts have clarified the scope 

'f Afroyim, I have concluded that it is the duty of executive officials to 

pply the act on the following basis. "Voluntary relinquishment" of citizenhip is not confined to a written renunciation . . . It can also be manifested 

y other actions declared expatriative under the act, if such actions are in 

erogation of allegiance to this country. Yet even in those cases, Afroyim 

ayes it open to the individual to raise the issue of intent . . . The voluntry performance of some acts can be highly persuasive evidence in the parcular case of a purpose to abandon citizenship. Yet some kinds of conduct, 

tough within the proscription of the statute, simply will not be sufficient to 

Ipport a finding of voluntary expatriation. 

For instance, it is obviously not enough to establish a voluntary relintishment of citizenship that an individual accepts employment as a public 

hool teacher in a foreign country. This I have already decided in the case 

a dual national, Matter •of Sally Ann Becher, 12 I. & N. 380; Interim Desion No. 1771 (August 21, 1967). 

A similar approach may be taken with respect to service in a foreign 

my, depending upon the particular circumstances involved . . . In each 

se the administrative authorities must make a judgment, based on all the 

3 Opinion of the Attorney General of the United States, Vol. 42, Op. 34 

969). 

2 Opinion of the Attorney General of the United States, supra. 

492 
Interim Decision #2026 

evidence, whether the individual comes within the terms of an expatriation 

provision and has in fact voluntarily relinquished his citizenship. 

There is no dispute that the applicant in the case before us did 

voluntarily serve in the armed forces of a foreign state. We think 

that the evidence of record is abundantly persuasive that this applicant, with the clear and subjective intent to transfer and abandon his allegiance to the United States, voluntarily relinquished 

his citizenship by entering and serving in the Royal Canadian 

Navy. He testified that he desired by this means to transfer his 

citizenship and he believed that this result was accomplished by 

his service. 

We hold that expatriation did take place under section 

349(a) (3) of the Act. Having so determined, it is unnecessary to 

consider whether applicant also expatriated under section 

349(a) (2) as one who took an oath of allegiance to a foreign 

state, or under section 349 (a) (6) as one who made a formal renunciation of nationality before a consular officer of the United 

States in a foreign state. 

The record indicates that if this Board finds that the applicant 

is excludable, the Immigration and Naturalization Service plans 

to parole him into the United States to serve further time in 

prison as a parole violator, after which he will be deported to 

Canada (Tr. of hearing, pp. 22, 23). Canada has gone on record 

that they will accept him as a deportee under the terms of a reciprocal agreement between the United States and Canada (Ex. 

4) 

We will thus affirm the decision of the special inquiry officer 

that the applicant be excluded and deported from the United 

States as an immigrant without an immigrant visa. 

ORDER: It is ordered that no change be made in the order of 

the special inquiry officer that the applicant be excluded and deported from the United States. 

493