MATTER OF Z— 

In DEPORTATION Proceedings 

A-8866185 

Decided by Board June 9, 1961 

Expatriation—Section 349(a)(4)(A), 1952 act—Economic duress. 

Where the record falls to rerute respondent's testimony that his employment 

as a music teacher in the Israeli school system for a period of about one 

year (1956-57) was a matter of economic compulsion, the Government has 

failed to sustain its heavy burden of proving that his conduct was voluntary. Accordingly, a native-bona United Staten citizen who under Israeli 

law acquired Israeli citizenship upon his arrival there as a Jewish immigrant 

in 1950, is held not to have expatriated himself under section 349(a) (4) (A) 

of the 1952 Act by reason of such employment. 

CHARGE : 

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

BEFORE THE BOARD 

DISCUSSION: The case comes forward upon certification by the 

special inquiry officer of his order dated February 13, 1961, directing 

that the deportation proceedings be terminated. 

The respondent was born at Detroit, Michigan, on October 19, 1928. 

He went to Israel in October 1950, and last entered the United States 

at the port of New York on September 2, 1958, and was admitted as a 

transit nonimmigrant, authorized to remain in the United States for 

one day, upon presentation of an Israeli passport visaed for transit 

to Mexico. However, he has remained in the United States, claiming 

United States citizenship. The order to show cause charges that the 

respondent, although a native of the United States, became a citizen 

of Israel on July 14, 1952, and that he expatriated himself in 1956 

under the provisions of section 349(a) (4) of the Immigration and 

Nationality Act by accepting employment as a teacher under the 

Israeli Ministry of Education and that he is subject to deportation 

as charged in the order to chow cause. The primary issue is the 

alienage of the respondent. 

The respondent was born a citizen of the United States in Detroit, 

Michigan. He is of the Jewish faith. He testified he left college 

after completing his first year to earn enough money to get married 

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and was married in August 1950. He stated he and his wife had been 

considering going to Israel to help in the development of the new 

state and in October 1950 the respondent went to Israel, his wife 

following in January 1951. His wife became pregnant in 1952 and 

their child was born in Israel in 1953. 

The respondent testified that he went to Israel to see what it was 

like because it was a newly formed state, and perhaps to give them 

a helping hand in its formation, if possible, but that he did not go 

with the intention of remaining there permanently. He further 

stated that in 1952 he and his wife had decided to return to the 

United States but financial difficulties arose because of the illness 

of the child and of the respondent so that they remained on a cooperative farm where at least their immediate needs were supplied. 

The respondent's mother corroborated her son's testimony stating 

that he went to Israel to see what the country was like; that he had 

planned to go for several months before he did; that he remained 

there for a number of reasons, including illness, the pregnancy of 

his wife, the illness of his child and the lack of money to return; 

that she took a loan to help bring the respondent's wife and child 

home and the respondent remained there to earn money for his passage home. 

The respondent testified that the employment situation in Israel 

was critical and jobs there were hard to find. After leaving the 

communal farm he obtained a job with the Haifa Port Authority in 

September 1959 as a laborer and a crane operator. He testified that 

in order to obtain the job with the Haifa Port Authority he was 

required to participate in the Port orchestra and in rehearsals two 

or three times a week. He testified that if it had not been for his 

musical background he would not have gotten a job and that his 

participation in the orchestra was a condition of his employment. 

Through a friend who knew about his musical background he obtained a job as a music teacher for seven or eight months for which 

he received about 170 Israeli pounds a month. The Israeli Ministry 

for Foreign Affairs states that the respondent was employed by the 

Ministry of Education and Culture as a music teacher from September 5, 1955, to August 31, 1956; that Israeli law does not require 

teachers to he Israeli citizens and allegiance to Tsrael is not required. 

The respondent testified it was necessary for him to obtain work 

in order to support his wife and child; that he had no funds and 

did not want to appeal to his parents for financial assistance. This 

claim of employment under economic compulsion is not refuted by 

the record. 

The Service's case for expatriation is predicated upon section 349 

(a) (4) (A) of the Immigration and Nationality Act (8 U.S.C. 

1481(a) (4) (A)) which provides in pertinent part: 

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• • • a person who la a national of the United States whether by birth or 

naturalization, shall lose his nationality by— • • accepting, serving in, or 

performing the duties of any office, post, or employment under the government 

of a foreign state or a political subdivision thereof, if he has or acquires the 

nationality of such foreign state • • •. 

According to a communication dated February 10, 1960, addressed 

to the American Vice Consul at Haifa, Israel, by the District Office 

for Immigration and Registration for Haifa, the respondent, immigrated to Israel on October 16, 1950, on which date he was granted 

Israeli citizenship in accordance with section 2(b) (2) of the Israeli 

Nationality Law which states, "citizenship by return' is acquired 

by a person having come to Israel as an 'oleh' (a Jewish immigrant) 

after the establishment of the State with effect from the date of 

his immigration"; that, since then, the respondent is an Israeli 

citizen, and on April 22, 1956, lie received an Israeli passport 

valid until April 22, 1958. For the purpose of discussion of possible 

expatriation under section 349(a) (4) (A) of the Immigration and 

Nationality Act, it will he assumed that the respondent had or 

acquired Israeli nationality at least from the viewpoint of the 

Israeli Government. Inasmuch as the respondent has established 

citizenship by birth in the United States, the burden of proof is 

upon the Government to prove that the respondent subsequently expatriated himself. That burden is a heavy one; the proof to establish 

loss of citizenship must be clear, unequivocal and convincing, not by 

a bare preponderance of evidence which leaves the issue in doubt? 

The burden is upon the Government to establish that the expatriatory 

act was performed voluntarily.' 

If the expatriating act is performed under duress, it follows that 

the act was not done voluntarily and will not result in loss of citizenship. The duress may take various forms and the law does not 

exact a crown of martyrdom as a condition of retaining citizenship.' 

"Economic duress" is a valid defense to expatriating conduct. 5In 

the case of Kenji Kamada et al. v. Dulles, 145 F. Supp. 457, in which 

one of the plaintiffs (Tsume Sakamoto) was employed as a teacher 

The Law of Return of July 6, .1950 (the Hebrew year 5710) provides: 

1. Every Jew has the right to come to this country as an "oleh" (a Jew 

immigrating to Israel permanently) ; 2 (a) "Aliyah" (the immigration of a 

Jew lulu the Land of Israel) shall be by olch'© visa; 9(a) A. Jew who conies 

to Israel and subsequent to his arrival expresses his desire to settle in Israel 

is entitled, while in Israel, to receive an oleh's certificate. Laws Concerning 

Nationality, United Nations Legislative Series (1954), page 263. 

.:`,7,6114;lca, uva,v. Dullao, 956 U.S. 120; Baumgartner v. United State& R22 

U.S. 665; Schneiderman v. United States, 320 U.S. 118. 

3 Nishikawa v. Dulles, Myra; Perez v. Brownell, 356 U.S. 44 ; Matter of G---, 

8-31T. 

4 Aohoson v. Maenza, 202 F.2d 453 (C A, D.C., 1959). 

Stipa v. Dulles, 233 F.2d 551 (C.A. 3, 1956). 

331 
in Japan from 1941 to 1949 in primary schools operated by a Japanese 

municipality, it was held upon the facts than the plaintiff's service 

as a school teacher was a matter of economic compulsion and, hence, 

was not her free and voluntary act and did not constitute a cause of 

expatriation .° 

Upon careful consideration of the evidence in the present case 

surrounding the circumstances of employment as a music teacher in 

Haifa, Israel, we find that the respondent was required to take such 

employment under the necessity of supporting himself, his wife and 

infant child, and that such employment as a school teacher was a 

matter of economic compulsion or economic duress such as would 

vitiate the expatriating effect of such an act. It, therefore, follows 

that expatriation under section 349(a) (4) (A) of the Immigration 

and Nationality Act has not been proved by the Government. Inasmuch as alienage has not been established, the proceedings must 

be terminated. 

In view of the conclusion reached that alienage has not been established, we find it unnecessary to discuss other possible grounds of 

expatriation which have not been urged by the Government. We, 

however, find ourselves in general agreement with the conclusion of 

the special inquiry officer that expatriation has not been established 

under section 349(a) (1) or section 349(a) (10) of the Immigration 

and Nationality Act and we note that the Government does not urge 

expatriation on either of these grounds. As to the use of a passport, 

the respondent testified that this was the only way he could obtain 

a visa and also testified that his wife, although issued a United 

States passport, was also required to obtain an Israeli passport before she could depart from Israel. The respondent testified he was 

not required to take an oath of allegiance to Israel to obtain an 

Israeli passport, and the mere use of such a passport does not establish expatriation.? The order of the special inquiry officer terminating proceedings will be approved. 

ORDER: It is ordered that the order of the special inquiry 

officer dated February 13, 1961, terminating proceedings be and the 

same is hereby approved. 

6We find it unnecessary to rely upon the dictum in Kenji Kameda v. Dulles, 

supra, to the effect that teaching in a pubic school system operated by a foreign government or a political subdivision thereof was not the type of employment by a foreign government which was contemplated by the similar 

predecessor statute, section 401(d) of the Nationality Act of 1940. 

Jaibuena v. Dulles, 254 F.2d 379; Baer, v. Brownell, 116 F. Supp. 298. 

832