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 theSecretary 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 UnitedStates 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 atiult 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 hecame a landed immigrant in Canada on January 4, 1953. Thereter, on September 15, 1953 he enlisted in the Royal Canadiantvy 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 thentry and was always able to obtain suitable employment dur

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ing the several periods he resided there. He further testified thatwhen 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 statedthat 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 hiscitizenship (Tr. of hearing, p. 3). He did not terminate his service at that time. The record also shows that recently, in 1968, heapplied 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 onOctober 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 policeturned him over to the Canadian immigration authorities for deportation to the United States to be remanded to the MichiganState 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 Immigrationand 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



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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 authorizationfor 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 todetermine 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 NaturalizationService 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 topply 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, Afroyimayes 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

3Opinion of the Attorney General of the United States, Vol. 42, Op. 34 969).

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

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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 thinkthat 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 foreignstate, 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 recordthat 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 ofthe special inquiry officer that the applicant be excluded and deported from the United States.



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