Interim Decision #1771 

MATTER OF BECHER 

In Exclusion Proceedings 

A-13466018 

Decided by Board March, 03, 1965 

Decided by Attorney General August 1, 1967 

In the absence of substantial evidence that applicant, a dual national of the 

United States and Canada, "voluntarily relinquished" her United States citizenship (AfroViln v. Rusk, 387 U.S. 253 (1967)1, she did not lose her citizenship 

under the provisions of section 349(a) (4) (A) of the Immigration and Nationality Act, as a result of her employment as a public school teacher in Canada, 

while a national of that country. 

&UM:MAINZ: Act of 1952r--Section 212(a) (20) 18 U.S.O. 1182(a) (20)3—Immigrant without immigrant visa. 

BEFORE THE BOARD 

The applicant applied for admission as a United States citizen; she 

has no documents authorizing her admission as an immigrant. The 

special inquiry officer, finding that she had lost her citizenship by 

-working in Canada, excluded her and certified his order to the Board. 

Applicant contends she is a citizen of the United States. No change in 

the special inquiry officer's order will be made, but the case will be 

referred to the Attorney General for review. 

The applicant, born in the United States on December 11, 1919, 

married a native of Canada on February 13,1941; she was admitted to 

Canada for permanent residence on June 2, 1944. For a substantial 

part of the time from 1955 to 1962, the applicant was a public school 

teacher in the Province of Ontario, Canada. In January 1962, entering 

as a United States citizen, she resumed residence in the United States; 

her husband was admitted for permanent residence on June 17, 1964. 

Returning from a visit to Canada on August 23, 1963, applicant attempted to enter as a United States citizen; the fact of her employment 

in Canada was learned, and these proceedings arose. 

The special inquiry officer found that applicant had lost United 

380 
Interim Decision #1771 

States citizenship by reason of the provisions of section 349(a) (4) (A) 

of the Act (8 U.S.C. 1481 (a) (4) (A) ) which in pertinent part provide 

as follows : 

Section 349. (a) From and after the effective date of this chapter a person 

who is a national of the United States whether by birth or naturalization, shall 

lose his nationality by— 

(4) (A) accepting, serving in, or performing the duties of any ante, post, 

or employment under the government of a foreign sate or a political subdivision thereof, if he has or acquires the nationality of such foreign state; 

• 

The issues presented by the record are whether (1) applicant has 

Canadian nationality, (2) applicant has been employed under a political subdivision of Canada, and (3) applicant's employment as a 

teacher comes within the statute. 

The record establishes that applicant had Canadian as well as 

United. States nationality when she accepted employment in September 1905 as a school teacher. The special inquiry officer, setting forth 

the pertinent laws and correctly applying them, has shown that the 

applicant's husband was a British subject, but not a Canadian citizen 

at the time of his birth, that the applicant became a British subject by 

marriage on February 13, 1941 (Er. 3-R), that on January 1, 1947, the 

applicant's husband became a citizen of Canada (Er. 4-R, Canadian 

Citizenship Act of 1946 (R.S.C. 1EF.52, c. 33), Part I, sec. 4(1) (a) ), and 

that by operation of law, the applicant became a citizen of Canada as 

of June 2, 1944, the date of her lawful admission to Canada for permanent residence (Canadian Citizenship Act, eupra, Part II, subsections (1) (d) and (2) (d) of sec..9) ; this automatic naturalization did 

not result in her loss of United States citizenship (see Matter of TV—, 

3 I. a., N. Dec. 107). 

The question now is whether the applicant was employed by a foreign state or a political subdivision of Canada. In Matter of L—, 9 

I. & N. Dec. 313, we held employment as a public school teacher by the 

Public School Bo'ard of London, Ontario, Canada avas such employment; however, the answer to the question must be based upon the 

evidence of record before us (see. 236 of the Act, 8 U.S.C. 1226). 

Mr. A. W. Bishop, Assistant Superintendent, Registrar's Branch of 

the Department of Education, Ontario, Canada stated in an official 

letter dated August 7, 1964 (Er. 6-R) : 

We do not consider that a teacher in the Public Schools of Ontario is performing duties of any canoe, post, or employment under the Government or the 

Province of Ontario or the Dominion of Canada. 

Mr. Bishop's statement is not determinative of the question : Judgement as to the nature of the employment must be made by the United 

381 
Interim Decision *1771 

States authorities to whom Congress has entrusted the responsibility; 

the statement leaves open the question as to whether the applicant was 

employed by a political subdivision; and finally, it gives no convincing 

reason for the conclusion stated. 

While Congress has not defined the words "political subdivision" 

for the purpose of the immigration laws, in definitions for other purposes Congress gave the term a meaning broad enough to bring within 

its compass any instrumentality or organization of the state (26 U.S.C. 

3121(j) (4) (C) ; 43 U.S.C. 617k) ; and judicial interpretations bring 

within its compass "bureaus or corporations which are government 

owned and controlled" (Sawed& v. United States, 343 'U.S. 717, 729 

(1952) ) and divisions of a state, made by the state for the purpose of 

using public funds to carry out functions which are commonly regarded as public (Comenissicmer v. Shantherg's Estate, 144 F.2d 998, 

1004 (2d Cir. 1944) ; 30 Op. Atty. Gen. 252 (1914) ). 

These definitions are broad enough to require the finding that the 

applicant was working for a political subdivision of Canada. To teach 

in Ontario one must hold a certificate issued by the Department of Education of the Province of Ontario; applicant had such a certificate. 

Teaching positions are contracted directly with local school boards. 

Applicant's first (and major) employment was with The Public 

School Board of School Section No. 11 of the Township of Westminister in London, Ontario. This Board engaged her to teach in a 

rural public school, paid her salary, and had the power to terminate or 

continue her contract. Members of the board are elected ; they are 

constituted by the Public,Schools Act; they receive their money from 

local taxation and from grants made by the Ontario Department of 

Education. Public school teachers pay contributions to a, retirement 

fund (Teachers' Superannuation Fund)—a provincial fund administered by a Commission of the Province of Ontario; the teacher's 

payment is six percent of her salary; the Province of Ontario contributes six percent. Contracts with teachers cannot be broken without 

reasons being given, and every teacher has the right to appeal through 

an agency set up by the Province of Ontario. The teachers and school 

boards carry on under the Department of Education Act, and various 

school acts and regulations. We believe the record satisfactorily establishes that the .school board which is set up by the Province of 

Ontario and uses tax money for a public purpose is a political subdivision of the Province. 

To determine whether or not the occupation of a public school 

teacher is within the statute of expatriation, we must consider the 

meaning of the phrase "office, post or employment" and then determine 

whether the mere holding of an occupation coming within the phrase 

382 
Interim Decision #1771 

will result in expatriation or whether only the holding of an occupation, the duties of which exclude allegiance to the United States can 

result in expatriation. 

The combination of words "office, post or employment" commonly 

appear as classifications of occupations held by public employees; in 

this area, each word has gained a recognized meaning. "Office" covers 

occupations in which sovereign powers are exercised and the duties 

are prescribed by law; "post" covers occupations involving nonpolitical functions; and "employment" covers occupations of less importance, dignity or independence where the work is performed under 

close supervision, the duties can often be changed at will, and the 

employee is often subject to summary discharge (United States v. 

&Merit°lz, 137 F. 616, E.D. Ark (1905) ; Gain v. United State's, 73 

F. Supp. 1019, 1021-22, N.D. Ill. (1947) ). Congressional use here of the 

phrase "office, post or employment" indicates that the broadest description of occupations was intended: this description would include public 

school teaching. 

We may now consider whether taking or holding an occupation 

need be inconsistent with retention of allegiance to the United States 

to result in expatriation. It is our conclusion that such a requirement does not exist. An act performed with intent to give up allegiance 

would not result in loss of United States citizenship unless the act 

was one which Congress specifically made a ground of expatriation; on 

the other hand, the mere performance of an act specifically made a 

ground of expatriation, results in loss of citizenship regardless of 

intent (Perez v. Brownell, 856 U.S. 44 (1958) ). Since actual intent 

to give up allegiance is not material and since the range of occupations included under section 349(a) (4) (A) runs from the highest 

to the lowest, it would seem to follow that the mere doing by a dual 

national of what Congress specifically made a ground of expatriation—here, the taking of an occupation under the government of his 

foreign nationality, would result in expatriation. 

In a similar situation providing for loss of nationality by naturalized aliens residing abroad, the Court held that the Congressional 

plan provided that the mere doing of the act proscribed, regardless 

•of intent and regardless of whether it was inconsistent with retention 

of allegiance to the United States was to result in expatriation 

,(Sohneider v. Busk, 377 U.S. 163 (1964) (declaring section 352 of the 

Act (8 U.S.C. 1484) unconstitutional) ). 

Historically, the question of allegiance was not a factor in deciding 

cases involving loss of citizenship from employment. Without discussing the question of intent or the relation of the duties to the re383 
Interim Decision #1771 

tention of allegiance to the United States, the following occupations 

were expressly or by implication considered expatriating : 1 

postal employee (Mexico) 2 

member of agricultural guild (Italy) 3 

paymaster's assistant (Japan) 4 

engineer on ferry boats (Japan) 5 

policeman (Mexico) 6 

public school teacher (Japan) 7 

school board member (Canada) 8 

stenographer (Canada)° 

2d mate on merchant ship (Norway) '° 

pumpman municipal water system (Mexico) 11 

By way of dicta two cases opposed the tenor of the cases previously 

set forth: In Kenji Kamada v. Dulles, 145 F. Supp. 457 (N.D. Cal., 

1956), teaching from 1941 to 1949 in a primary school operated by a 

Japanese municipality was by way of dicta held not to be the type of 

occupation condemned, since performance of the duties was not inconsistent with retention of allegiance to the United States. Insogna v. 

Dulles, 113 F_ Supp. 473, D.C., D.C. (1953), involved the question of 

whether Insogna had been expatriated because of her employment by 

the Bureau of Vital Statistics in Italy. Insogna contended that the 

Most eases were decided under the predecessor section which was more restrictive in that it required the occupation to be open only to nationals of the 

foreign country (section 401(d), Nationality Act of 1940, 54 Stet. 1168). To 

"strengthen the law and make for a determination of citizenship and an elimination of dual citizenship" (S. Rep. No. 1515, 81st Gong., 2d Sess. 749-50 (Iwo), 

the predecessor section was revised to eliminate the requirement that the occupation be open only to nationals of the foreign state and to make it sufficient 

that the dual national had the nationality of the country which employed him. 

It would, therefore, appear that the same views would be taken today. 

°Fletes-Mora v. Rogers,160 F. Supp. 215 (S.D. Cal., 1958). 

9In re Torchia, 113 F. Supp. 192 (N.D. Pa., 1953). 

4 Teruo Naito v. Aaeson, 106 F. Supp. 770 (S.D. Cal., 1952). 

o Minoru Furuno v. Acheson,106 F. Supp. 775 (S.D. Cal., 1952). 

"Blizarraraz v. Brownell, 217 F.2d 829 (9th Cir., 1954) ; Matter of M—P--, 

2 I. & N. Dec. 363; Stiing, v. Dulles, 233 F.2d 551 (3d Cir., 1956) (auxiliary 

policeman, Italy). 

Dulles v. Katamoto, 256 F.2d 545 (9th Cir., 1958) ; Aki1lo Oye v. Acheson, 

110 F. Supp. 635 (N.D. Cal., 1935) ; Matter of Z—, 9 I. & N. Dec. 329 (Israel) ; 

Matter of L—, 9 I. & N. Dec. 313 (Canada): Matter of t7—, 4 L & N. Dec. 521 

(Italy): Matter of 2—P—, 2 I. & N. Dee. 57 (Mexico) ; Matter of 2—, 1 I. & N. 

Dee. 304 (Canada ). 

o Matter of .2—, 2 I. &. N. Dec. 60. 

°Matter of W—, 2I. &N. Dec. 231. 

"Matter of L—, 3 I. & N. Dec. 98. 

"Matter of Hernandez, Int. Dee. No. 1289. 

384 
Interim Decision #1771 

employment was not employment as is contemplated by the statute 

and that she had taken the job under duress. The court decided the 

case on the theory that duress was present; however, without specifying the reasons, the court did state that the case raised grave doubt 

as to whether Insogna had technically placed herself within the framework of the statute. 

In holding that section 849(a) (4) (A) does not call for inquiry into 

whether the requirements of an occupation are inconsistent with the 

retention of United States citizenship, we realize that a question as to 

its constitutionality will arise; however, matters of constitutionality 

are not within our jurisdiction. It is our function to interpret the 

intent of Congress; we can find nothing in the history of the Act 

which indicates that it was the intent of Congress that only an occupation whose duties are inconsistent with retention of allegiance to the 

United States was to result in expatriation.. We also realize, having 

been so informed by the Service representative on several occasions 

when similar cases were before us, that the Department of State has 

taken the position that teaching in a state-operated school system is 

not the holding of an occupation which will bring about loss of United 

States citizenship under section 849(a) (4) (A). We are, however, not 

aware of the basis for this conclusion.. 

The applicant contends that her employment was under duress of 

economic pressure since her husband's income was inadequate for the 

family's needs. The contention must be dismissed. First, we do not 

believe the defense of duress is available to the applicant. Section 

349 (b) of the Act (8 U.S.C. 1481 (b) ) provides a conclusive presumption that an act was voluntarily done, if at the time of its doing, the 

doer was a national of the state in which the act was done and had 

been physically present there for ten years or more immediately prior 

to the act. The section applies to the applicant: She was employed in 

Canada for periods from September 1955 to December 31, 1962; she 

lived in Canada for the greater part of the.period from 1988 to 1962; 

any employment she took or held after she had been physically present 

in Canada for ten years requires the application of section 349 (b) of 

the Act. The record is not clear as to the total physical presence in 

Canada from 1988, but it does show that in the more than 18 years 

between June 1944 and December 1962, even taking into consideration 

the fact that applicant spent up to six months in the United States 

when her children were born, she was physically present in Canada 

about three fourths of the time. In the period from June 1944, two 

children were born (about 1946 and 1947). Giving applicant credit 

for being physically present in Canada for four months in 1955, six 

months in 1046, six months in 1947, and nine months in each of the 

385 
Interim Decision #1771 

remaining years of the period, it can be seen that by the end of 1959, 

:applicant had over 130 months of physical presence in Canada, or 

well over the ten years of physical presence specified in section 349 (b) 

of the Act. Applicant was employed for ten months in 1960; clearly 

then, when applicant took employment in 1960 she called the provisions 

of section 319 (b) of the Act into operation. 

Furthermore, even if the defense of duress was available to applicant, we would 'hold that she had lost United States citizenship. The 

applicant's loss of nationality was put in issue when she applied 

'for admission on August 23, 1963; if the claim of duress could be 

litigated, the law would impose a presumption that applicant taught 

voluntarily, and place upon her the burden of showing by a preponderance of the evidence that she had not taught voluntarily (section 349(c) of the Act, 8 U.S.C. 1481(c) (Supp. IV) ; Matter of 

P-1?--, 9 L & N. Dec. 578). Applicant cannot satisfy this burden. She 

claims that she began to work in 1955, because her husband could not 

•adequately support the family whose needs were great, for they were 

buying a house, had small children, and had heavy medical bills. She 

also claimed that ther husband's income came irregularly and to 

prevent a "feast or famine" situation she went to work 50 that a steady 

income could be counted upon (p. 35). However, at that time her 

husband, a real estate salesman, had an income of from three to six 

thousand dollars a year (p. 36). It is true that the income was irregularly received,, however, we do not believe that this fact or the size 

of the income is sufficient to permit a finding that applicant has borne 

-her burden of establishing economic duress. 

The Service has established by a preponderance of evidence that 

applicant expatriated herself under section 349(a) (4) (A) of the Act 

by taking employment as a public school teacher in Canada. 

Since our interpretation of section 349 (a) (4) (A) is in conflict with 

the interpretation of the Department of State, we shall, in accordance 

with the provisions of 8 Ont 3.1(h) (1) (ii), refer the case to the Attorney General for review. 

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

-special inquiry officer. 

It is further ordered that in accordance with the provisions of 8 

CPR 3.1 ( h) (1) (ii) this case be referred to the Attorney General for 

review. 

BEFORE THE ATTORNEY GENERAL 

The Board of Immigration Appeals referred to the Attorney General for review, under 8 CFR § 3.1(h) (1) (ii), its order of March 23, 

1965, affirming an order of the special inquiry officer for exclusion on 

386 
Interim Decision #1771 

the ground' that the applicant is an alien who did not have an immigrant visa. The applicant, who was born in the United States, contends that she is a United States citizen. 

The special inquiry officer and the Board of Immigration Appeals 

found that she lost her United States citizenship by her employment 

as a public school teacher in Canada, while a dual national of that 

country, under section 849(a.) (4) (A) of the Act, 8 T.J.b.:C. §1481.(a) 

(4) (A), which provides in pertinent part: 

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- 

• • 

(4) (A) accepting, serving in, or performing the duties of any office, post, 

or employment unner tne government of a foreign state or a political subdivision thereof, if he has or acquires the nationality of such foreign state • • •. 

The particular question on which the Board sought review is whether 

public school teaching is a type of "employment under the government of a foreign state or political subdivision thereof" within the 

statute quoted above. The Board had answered this question in the 

affirmative, while the Department of State adhered to a contrary 

position. 

After consideration of this issue in my Office, resolution of it was 

deferred because of the pendency in the Supreme Court of a case 

which presented legal issues that might have a bearing on the particular question of statutory coverage raised by the Board. In its recent decision in that case, Afroyim v. Rude, 387 U.S. 253 (May 29, 

190), the Court held unconstitutional section 849(a) (5) of the Act, 

providing for expatriation of a citizen who votes in a foreign political 

election. The ground for the holding is that Congress lacks power 

under the Constitution to expatriate a citizen unless he "voluntarily 

relinquishes" his citizenship. This principle of Afroyim must obviously 

be taken into account in considering cases of possible expatriation 

under other provisions of section 349(a). Application of Afroyim 

makes it unnecessary at this time to answer the Board's question about 

the statutory coverage of school teaching, in view of the facts of the 

present case. 

These facts may be stated briefly. In addition to applicant's United 

States citizenship by birth, she had also acquired Canadian citizenship 

under the law of that country by virtue of her marriage to a Canadian 

followed by her admission to Canada for permanent residence, both 

of which events occurred before she began to work as a public school 

teacher in the Province of Ontario. However, the record is devoid of 

387 
Interim Decision #1771 

any substantial evidence that applicant at any time voluntarily relinquished her United States citizenship. 

In applying the newly-announced constitutional requirement of 

"voluntary relinquishment" to the present case, it is not necessary to 

determine what the full reach of Afroyim may be, either in terms of 

its effect on each of the provisions of the present statute, or in terms 

of what kinds of conduct might validly be held+ to constitute voluntary 

relinquishment of United States citizenship.* In this case it is clear 

that the record does not show a voluntary relinquishment of United 

States citizenship. 

Accordingly, the case is remanded to the Board of Immigration 

Appeals for disposition in conformity with this opinion. 

•see footnote 1 of the dissenting opinion in Ali-01am. 

388