MA ILEX OF S-- 

In SECTION 341 Proceedings 

A-12030644 

Decided by Assistant Commissioner June 14, 1962 

Loss of citizenship—Residence in country of former nationality—Voting in 

foreign election—Presumption of voluntariness. 

(1) Lengthy residence of naturalized United States citizen In the country In 

which her place of birth is situated must be voluntary in order to cause 

expatriation under section 404(b), Nationality Act of 1940, or section 

352(a) (1), immigration ana Nationality Act. This applicant has established by uncontroverted evidence that her presence In Lithuania at least 

since 1942 has not been voluntarily continued on her part. 

(2) Where the individual concerned was acting under duress and not as a 

free agent, voting in political elections in a foreign state did not cause loss 

of United States nationality under section 401(e) of the Nationality Act of 

1940. 

(3) Notwithstanding the conclusive presumption of voluntariness In section 

349(0) of the Immigration and Nationality Act, the defense of duress remains available and effective to preserve nationality if the prolonged physical presence in the foreign state has been Involuntary by reason of inability 

to obtain required official permission to depart. 

BEFORE THE ASSISTANT COMMISSIONER 

DISCUSSION: The applicant is a 71-year-old married female, a 

a native of Lithuania, who was admitted to the United States on 

May 10, 1960, on a nonquota immigrant visa as the spouse of a citizen of the United States. On March 30, 1961, she submitted an 

application for a certificate of citizenship under section 341 of the 

Immigration and Nationality Act. The District Director recommends that the application be granted. The Regional Commissioner to whom the case was certified agrees with the District Director's conclusion, and this office concurs. 

Applicant's claim to United States citizenship arises out of her 

marriage in Newark, New Jersey, to 1V—S— on April 23, 1913, 

and his naturalization in the Common Pleas Court of Hudson 

County, Jersey City, New Jersey, on October 3, 1921. The fact 

that she derived United States citizenship upon his naturalization 

is not contested, the only issue being with regard to whether sub711 
-sequent to such derivation she has lost her United States citizenship by residence in Lithuania or by voting in political elections 

in that country. 

The applicant has testified that she went to Lithuania in August 

1938 with her husband for a visit; that while there, because of illness on her part and inability to rent rooms, her husband purchased 

a small two-family dwelling in December 1938; that in 1939 he 

returned to Newark to the home which they had continued to own 

in the United States; that her health at that time and until about 

1942 would not permit her to travel; and that she herself was not 

ermitted to return to the United States until 1960. 

Concerning her prolonged residence in Lithuania, the applicant 

has further testified that occupation of the country by Russian or 

German authorities during the war years made it impossible for 

her to leave; that during all her residence there she continued to 

live in the same house; that she wrote to her husband many times 

requesting his help in leaving Lithuania ; that she received no 

letters from him until about 1956; and that it was not until 1960 

that she could obtain permission to depart and documentation to 

return to the United States. 

The record substantiates applicant's testimony regarding her inability to make an earlier return to the United States. It shows 

that her husband wrote to her many times, but received no answer, 

and that since 1940 several attempts were made through the State 

Department to bring her back to the United States. An approved 

petition for issuance of an immigrant visa grating her nonquota 

status as of December 4, 1940, was on file in the American Embassy 

in Moscow. Inquiry was also made of that Department in May 

1946 by the applicant's daughter concerning the procedure to be 

followed in order that applicant might return to the United States. 

The applicant's husband further exhibited a letter from the State 

Department dated December 31, 1941, stating it had not been possible to contact her. She eventually succeeded in re-establishing 

contact with him, and in 1956 executed an application for registration a Atizen of the United States through the Embassy at 

Moscow. The application was approved and the Embassy was 

authorized to issue a 'passport to her upon her application therefor, but no passport was issued as she was unable then and until 

1960 to secure permission to depart. 

Section 404(b) of the Nationality Act of 1940, prior to its repeal 

on December 24, 1952, and current section 352 ( a) (1 ) of the Immigration and Nationality Act provide for the loss of United States 

nationality by a naturalized citizen of the United States—that is, 

by a person who acquired United States nationality subsequent to 

birth—:through three years' continuous residence in the country of 

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nativity or former nationality. The residence cont. 11 -Tinted, however, is voluntary residence (31 (:(ter of C (1947) ). Inasmuch as the applicant has established that site derived citizenship 

flu-ough the naturalization of her husband and has injected the issue 

of voluntarines in con nection with her lengthy residence in Lithuania, 

the burden is upon the Government to show that she voluntarily 

resided in Lithuania (Nisfilkawa. v. Dulles, 356 U.S. 129 (1958)). 

The weiht of the uneontroverted evidence of record is t,o the effect 

that her presence in Lithuania since at least 1942 has not been voluntarily continued on her part. On the contrary, it has been enforced 

by circumstances beyond her control, including inability to communicate with her family and the State Department and to se.cure an exit 

permit.. A conclusion, therefore, that she has lost nationality under 

section 40-1(b) or 352(a) (1) cannot be sustained_ 

The applicant has further testified that she voted in elections in 

Lithuania approximately 10 times between February 194-4 and February 1959. She alleges, however, that such voting was under 

duress and that if one did not vote "they put you in jail." A resume 

of the laws relating to voting in Lithuania, received from the 

Library of Congress, points out that these laws are patterned on 

Soviet electoral laws and that duty to vote is emphasized by threats 

in newspapers and statements of public officials. 

Section 401(e) of the Nationality Act of 1940, prior to its repeal 

on December 24, 1952, provided for loss of United States nationality 

by voting in a political election in a foreign state. Again, the issue 

of voluntariness having been raised by the applicant in connection 

with her voting during the effective period of section 401(e), the 

burden is upon the Government to show that when she voted she 

was acting as a free agent, without force from outside pressures 

(Mauer of G 3 817 (1059)). There is no such evidence of voluntariness, and consequently the record -cannot sustain a conclusion 

that her voting prior to December 24, 1952, resulted in loss of 

nationality under section 401 (e) of the Nationality Act of 1940. 

Section 349(a) (5) of the Immigration and Nationality Act, 

which became effective on December 24, 1952, contains provisions 

identical to those of section 401(e). This later Act, however, contains an additional provision—section 349(b)—which raises a conclusive presumption that voting on or after December 24, 1952, has 

been performed voluntarily and without duress of any kind if the 

person involved is a national of the state in which the voting occurs 

and has been physically present in that state for a period or periods 

totaling 10 years immediately prior to voting. The applicant's nationality at. the time of this subsequent voting and the length of her 

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physical presence in Lithuania are material, therefore, in considering 

the efficacy of the defense of duress which has been advanced and 

whether the conclusive presumption in section 349(b) operates 

against her. In this connection, the question of her status as a national of the foreign state where the voting occurred is not clear, 

but clarification thereof is not deemed necessary in 'view of the 

conclusion reached below that her presence in Lithuania did not 

•constitute physical presence within the meaning of that section. 

Section 349(b) introduces a new concept into the field of expatriation law. It removes from consideration by direct legislative action 

a defense hitherto firmly entrenched in the law, voluntariness in the 

performance of an expatriatory act having been traditionally essential to cause a loss of United States nationality. As such, the provisions of this section require a narrow interpretation and more than 

ever in its administration "the law should be construed as far as is 

-reasonably possible in favor of the citizen" (Nishikawa v. Dulles, 

supra, and Schneiderman v. United States, 320 U.S. 118, 122). So 

construed, the section is regarded as effective to raise a conclusive 

presumption that the expatriatory act was voluntarily performed 

only if the physical presence in the foreign state was voluntary. It 

does not operate with that effect when, as in the instant case, the 

record establishes continuing unavailing efforts to depart from the 

-foreign state and that, the prolonged physical presence there is the 

result of official prevention of departure. When freedom of egress 

is shown to be so restricted, it is the view of the Service that physical 

presence within the meaning of section 349 (b) does not accrue and 

that duress in the performance of an expatriatory act remains available as a defense. 

In the instant case, the applicant has fully established the involuntary nature of her presence abroad. The defense of duress in 

connection with her voting on or after December 24, 1952, may, therefore, be given effect, and on the entire showing made a finding of 

expatriation under section 349(a) (5) cannot be sustained. 

ORDER: It is ordered that the decision of the District Director and 

the Regional Commissioner, finding that the applicant deriVed citizenship through the naturalization of her husband on October 3, 

1921, and that she has not subsequently been expatritaed, be and 

hereby is approved. 

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