MATTER or C—S--- 

In DEPORTATION Proceedings 

A-12269404 

Board Dociaione Dcocrnbeir 26, 1961, and March. 7, 1969 

Decided by Attorney General May 24, 1962 

Expatriation—Section 349(a)(5)—Voting in foreign election while unaware of 

United States citizenship. 

(1) A native of Cuba who acquired United States citizenship at birth in 1933 

through his father and who resided in Cuba until 1960 did not become expatriated when he voted in a Cuban political election in 1958 while unaware 

of his United States Citizenship. 

(2) The presumption contained in section 349(b) of the 1952 Act is addressed 

only to the question whether the asserted act of expatriation was committed voluntarily or under duress, and has no application to acts which were 

performed voluntarily but without knowledge of United States citizenship. 

CHARGE : 

Order : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable 

at time of entry—No valid visa. 

BEFORE THE BOARD 

(December 26, 1961) 

DISCUSSION: The special inquiry officer terminated proceedings 

and ordered the case certified to the Board for final decision. Brief 

has been submitted by the examining officer requesting that the respondent be ordered deported. 

The issue is one of alienage. The respondent claims that he was a 

United States citizen at birth. The Service does not contest the 

possibility but argues that citizenship was lost when the respondent 

voted in a political election in Cuba. The respondent was born on 

May 31, 1933, in Cuba. His father was born in the United States. 

The respondent's mother was born in Cuba. The respondent's father lived in the United States for about a year after birth and then 

was taken to Cuba. He died when the respondent was four years 

of age. There is no evidence that he had lost United States nationality prior to the birth of the respondent. It appears that the respondent had a colorable claim to United States citizenship at birth 

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under section 1993 of the Revised Statutes (see, Matter of L—G--J-- 

and C—I—P—, 3--206). 

The respondent's uncontradicted testimony, accepted by the special inquiry officer, was that he voted in an election in Cuba on November 3, 1958, when his father-in-law, the mayor of the city, was 

running for the national senate of Cuba ; that prior to October 1959, 

he had made an application for a visa to come to the United States 

for permanent residence; that he received a letter with instructions 

telling him that if he considered himself an American citizen he 

should not apply for a visa ; that in October 1959, in connection with 

an application he had made for a visa, he learned for the first time 

that he had a possible claim to American citizenship by birth. The 

special inquiry officer was of the belief that Rogers v. Patokoski, 271 

F.2d 858 (C.A. 9,'1959), required a decision in favor of the respondent because the respondent had no knowledge that he had a - claim 

to United States citizenship when he voted. The examining officer, 

in a capable brief, raises a question as to the applicability of Patokoski because of his belief that section 349(b) of the Immigration 

and Nationality Act (8 U.S.C. 1481) raises a conclusive presumption 

that the act of expatriation was voluntary. 

In Matter of C—A—, 9 182 (Oct. 17, 1961), which was decided 

subsequent to the decision of the special inquiry offier in the instant 

case, we held, on the basis of Patokos1i and other cases there mentioned, that a citizen of the United States could not lose United States 

citizenship by committing an act which would otherwise he, the basis 

for a loss of citizenship, if, at the time the act was committed, he had 

no knowledge that he had a claim to United States citizenship. 

The respondent's expatriation is alleged to have occurred under 

section 349(a) (5) of the Immigration and Nationality Act (8 U.S.C. 

1481) which provides for loss of citizenship by voting in a political 

election in a foreign state. Section 349(b) of the Immigration and 

Nationality Act (8 U.S.C. 1481) provides as follows: 

Any person who commits or performs any act specified in subsection (a) of 

this section shall be conclusively -presumed to have done so voluntarily and 

without having been subjected to duress of any kind, if such person at the 

time of the act was a national of the state in which the act was performed 

and had been physically present in such state for a period or periods totaling 

ten years or more immediately prior to such act. 

Despite the existence of section 349(b), we have found that an act 

which would otherwise accomplish expatriation will not do so if the 

act was done in the belief that a claim to United States citizenship 

does not exist and such belief is based on the claim of a responsible 

United States official (Matter of 8—, 8-266 ; Matter of S—, 8-221). 

Here too where action was taken without knowledge that United 

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States citizenship existed, the circumstances under which the presumption was intended to operate do not exist. The record fails to establish 

that the respondent is an alien. Termination of proceedings is proper. 

ORDER: It is ordered that proceedings be and the same are hereby 

terminated. 

BEFORE THE BOARD 

(March 7, 1962) 

DISCUSSION: On December 26, 1961, the Board ordered proceedings terminated. The Service now moves that the Board withdraw 

its order and enter one of deportation on the charge stated above. 

Respondent has submitted a letter asking that no change be made 

in the Board's order. The motion will be denied. 

The facts have been fully stated in the Board's previous order. 

Respondent, a native of Cuba, became a United States citizen at 

birth. He was physically present in Cuba for a period of ten years 

or more prior to voting there in a political election in 1958. At the 

time he voted, he did not know that he was a citizen of the United 

States. The issue is whether he lost United States citizenship under section 349(a) (5) of the Act, 8 U.S.C. 1481(a) (5). 1 

The Board's order of termination is based upon Matter of C--A—, 

9 482, holding that a United St; tes citizen did not expatriate himself by committing an act which would normally result in loss of 

United States citizenship, if, at the time the act was committed, he 

did not know that he was a United States citizen. Matter of C—A, 

supra, is based upon Rogers v. Patokoski, 271 F.2d 858 (C. A. 9, 

1959), which holds that one who committed acts of an expatriating 

nature without knowledge of his United States citizenship did so 

involuntarily. As we read the motion, it does not take issue with 

Matter of C—A-- or Patokoski, but attempts to distinguish each from 

the case before us on the ground that section 340(b) of the Act did 

not apply to either but does here and establishes a conclusive presmnption tha,, the voting was voluntary. We agree that section 

349(b) of t'te Act could not have been applied in either Patokoski or 

Matter of c -A—; however, we find that'the section does not apply 

to the instant situation. 2Therefore, the rule stated in the two precedents controls here. 

'Section 349(a) (5) of the Act provides that "a person who is a national of 

the United States whether by birth or naturalization, shall lose his nationality by • • • voting in a political election in a foreign state or participating 

in an elertIon or plehieeite to determine the sovereignty over foreign territory." 

2Section 349(b) of the Act is prospective only and therefore did not apply 

to Patokoski's conduct which occurred prior to the effective date of the Act 

(foreign army service 1941-14, voting 1949). C—A—'s conduct is made a 

ground for loss of citizenship under section 350 of the Act, whereas section 

349(b) by its terms applies only to conduct found in section 349(a) of the 

Act. 

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Section 349(b) of the Act (8 U.S.C. 1481 (b) ) provides: 

Any persop who commits or performs any act specified in subsection 

shall be conclusively presumed to have done so voluntarily and without having 

been subjected to duress of any kind, if such person at the time of the act 

was a national of the state in which the act was performed and had been 

physically present in such state for a period or periods totaling ten years or 

more immediately prior to such act. 

We have held that where section 349(b) of the Act is applicable, 

it prevents inquiry into the voluntariness of an act of expatriation 

(Matter of M—G—, 7-065) ? However, we have concluded that section :.;49(b) of the Act was not meant to apply where the act of expatriation followed erroneous advice of a United States official (Matter of 

8-221; Matter of 5—, 8-226). 'lie Service has not contested 

this distinction in the past (Matter of 1"—, 8-307), nor do we understand the present motion to take issue with the distinction. While it is 

clear that respondent's conduct was not based on erroneous official advice, his situation and that where action was based on erroneous official 

advice are similar in that duress is not an element in either instance. 

It appears to us that-section 319(b) of the Act requires a distinction to be made between situations in which duress can be offered as 

a defense and situat ions in which duress is not an element and that 

section 349(h) of the Act has no application to the latter situations. 

The pertinent words in section 349(b) of the Act are "to have done 

so voluntarily and without having been subjected to duress of any 

kind." The general words "to have done so voluntarily," in our 

opinion, are limited and qualified by the special words following 

(2 Sutherland, Statutory Construction, sec. 4908 (3d ed., 1943)). 

We believe this is so because there is no legislative expression of an 

intent that an act of expatriatory force performed by a dual national with the necessary residence should be considered a voluntary 

act under all circumstances, and that the fact that Congress made 

express provision fur the loss of nationality by dual nationals in 

section 350 of the Act, 8 U.S.C. 1482, expressly providing that loss 

of citizenship could not result except by voluntary action' Further 

3The nature of the duress is not shown in Matter of M—G----, supra; however, the order of November 12, 1957, reZerred to in the case, revealed that 

duress was found in the fact that believed she was required to vote 

under the laws of Mexico. 

4 Examinationof the legislative history fails to reveal any clue as to the 

Congressional intent in regard to section 349(b) of the Act. The Senate Committee which investigated the immigration system and made conclusions upon 

which the Act is based, recommended only that there be a conclusive presumption that one who took an oath to bold employment with a foreign government, did take such an oath, and that there should be a presumption that 

an alien who departed from the United States and failed to comply with the 

provision of the compulsory service law departed for the purpose of avoiding 

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•054377 63 44 
factors considered are the unusual nature of the presumption and 

the fact that ambiguity should be resolved in favor of retention of 

United States citizenship. We conclude that section 349(b) of the 

Act is applicable only in situations where duress could have been 

offered as a defense. In the instant case, duress, is not involved; 

section 349(b) is, therefore, not applicable. 

It is the Service view that section 349(b) of the Act became law 

with Congressional knowledge of decisions of the courts which allegedly preclude the possibility of exempting a person who committed an act of expatriation without knowing that he was a United 

Vtes citizen. Cases cited express the view that an intent to expatriate is not necessary to bring about expatriation. 5However, 

these cases" unlike the one before us, involve action by persons who 

knew they were citizens of the United States when the action took 

place, and the latest court to consider the type of situation before 

us stated that knowledge of the existence of United States citizenship must exist before a person can voluntarily expatriate himself 

(Rogers v. Patokosie,i, supra). We believe we are bound to follow 

this ruling. 

It is the Service belief that Congressional expressions of desire 

to be relieved of problems arising out of dual nationality require 

the finding that section 349 (b) of the Act applies here. We believe 

the Service reads too much in the fact that Congress s:xpressed its 

'concern with problems arising out of dual nationality. As we have 

service in the armed forces (S. Rept. No. 1515, 81st Cong., 2d Sess., pp. 749-

52, 7664)9). The Committee report which accompanied S.2550 restates the 

second recommendation (S. Rept. No. 1137, 82d Cong., 2d Sees., pp. 46-47, 49). 

The conference report on the bill which became the Immigration and Nationality Act offers no help (H. Rept. No. 2096, 82d Cong., 2d Sees., pp. 127-29). 

We are unaware that debate on the bills which became the Immigration and 

Nationality Act sheds any light upon the intent of Congress in providing for 

the conclusive presumption (for history of law see Besterman, Commentary, 

S. U.S.C.A., p. 4). 

5Section 349(b) of the Act had no counterpart in previous legislation. Section 401(31) of the Act of 1940 did establish the presumption that a United 

States citizen who acquired foreign nationality through the naturalization of 

his parents and who failed to return to the United States by January 13, 

1045, would be deemed to have elected to discontinue his status as a United 

States citizen. In interpreting section 401(a) of the Act of 1940, the courts 

found no expatriation had occurred where the individual's failure to come to 

the-United States was due to circumstances beyond his control (Perri v. Dulles, 

220 P.2d 250 (C.6. 3, 1056)) or where the failure to come in time was the 

result of mistake which stemmed from erroneous information supplied by 

officials of the United States (Reef v. Brownell, 116 F. Supp. 298 (D.C. N.J., 

1953)). And, the court held that the period Which one had to return to the 

United States did not begin until the individual learned that he had a right 

to United States citizenship (Petition of Acchione, 213 F.2d 845 (C.A. 3, 

1954)). 

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pointed out, Congre ss provided aroundc of expatriation for dual 

nationals which are not applicable to a United States citizen without dual nationality (section 350 of the Act, 8 U.S.C. 1482) and by 

a conclusive presumption prevented certain dual nationals from raising a defense available to other dual nationals and to United States 

citizens without dual nationality. However, Congress made no effort to eliminate the concept of dual nationality. It would be highly 

improper to deprive the respondent of a possible defense merely 

because he is a dual national. 

The Service expresses the belief that section 349(c) of the Act, 

8 U.S.C. 1481(c), which places the burden of proof in expatriation 

cases on the one who raises the involuntary nature of conduct as a 

defense, is pertinent in determining the Congressional purpose in 

establishing section 349(b) of the Act. Section 349(c) of the Act 

merely relates to burden of proof and is applicable only when action has been started after September 26, 1961. We fail to see its 

relation to the problem before us or how it assists in determining 

Congressional intent in enacting eection 349(b) (H. Rept. No. 1086, 

87th Cong., 1st Sess., pp. 40-41). 

Finding that section 349(b) of the Act does not prevent establishing that an act of expatriation was committed without knowledge of 

the existence of United States citizenship, and finding that the establishment of such a fact precludes the conclusion that expatriation 

resulted, we believe that proceedings are properly terminated. 

ORDER: It is ordered that the motion be and the same is hereby 

denied. 

BEFORE THE ATTORNEY GENERAL 

(May 24, 1962) 

The Board of Immigration Appeals, pursuant to 8 CFR 3.1(h) (1) 

(iii), has, at the request of the Commissioner of Tmmigration and 

Naturalization, referred its decision in this case to me for review. 

The issue is one of expatriation. The Board, in agreement with the 

special inquiry officer, ordered termination of the proceedings to deport the respondent on the ground that he did not have a visa at 

the time he entered the United States in October 1960, holding that 

the record failed to establish that he is an alien. The Board's view 

is that an act of expatriation has no effect if at the time the act took 

place the individual did not know he was a citizen of the United 

States. The Commissioner disagrees and points out that the view 

of the Department of State is likewise contrary to that expressed by 

the Board. 

The facts are not in dispute. The respondent who was born in 

Cuba on May 31, 1933, acquired United States citizenship upon his 

birth through the citizenship of his father. R.S. § 1993. The father 

675 
died when respondent was 4 years old and respondent did not know 

of his citizenship until many years later, in 1959. He had resided in 

Cuba continuously until he entered the United States in October 

1960. On November 3, 1958, while unaware of his United States 

citizenship, respondent voted in a Cuban political election. 

Under the provisions of section 349(a) (5) of the Immigration and 

Nationality Act of 1052 (8 U.S.C. 1481(a) (5)), a person "who is a 

national of the United States whether by birth or naturalization, 

shall lose his nationality by . . . voting in a political election in a 

foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory . . ." Section 349(b) 

provides that a person who commits any act specified in subsection 

(a) "shall be conclusively presumed to have done so voluntarily and 

v,ithout having been subjedted to duress of any kind, if such person 

at the time.of the act was a national of the state in which the act 

was performed and had been physically present in such state for a 

period or periods totaling ten years or more immediately prior to 

such act." 

The Board of Immigration Appeals relied on Rogers v. Patolcoski, 

271 F.2d 858 (C.A. 9, 1959), which holds, on facts closely similar to 

those of the present case, that voluntary acts abroad of voting and 

serving in the armed forces of a foreign country did not result in 

expatriation where the individual was unaware of his United States 

'citizenship. The same rule was applied by the Board in Matter of 

C—A—, 9 182 (1961). Compare, Perri v. Dulles, 206 F. 2d 586, 

591 (C.A. 3, 1953), and Petitio.n of Acchione, 213 F.2d 845 (C.A. 3, 

1954), holding that the two-year period established by section 401(a) 

of the Nationality Act of 1940, 54 Stat. 1168, during which a dual 

national must return to the United States or forfeit his American 

citizenship, did not begin to run until he became aware of his United 

States citizenship. 

The Patokoski case arose under the expatriation provisions of 

section 401(a) of the. Nationality Act of 1940, which did not contain the statutory presumption established by section 349(b) of the 

1952 Act quoted above. That presumption is in terms addressed 

only to the question whether the asserted act of expatriation was 

committed voluntarily or under duress. Hence, it has no application to a case such as the present in which the acts were performed 

voluntarily but without knowledge of the individual's United States 

citizenship 

The Supreme Court has emphasized that, where deprivation of 

the "precious right of citizenship" is involved, "the facts and the 

law should bo construed as far as is reasonably possible in favor of 

the citizen." Nishikawa v. Dulles, 356 U.S. 129, 134 (1958). In the 

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fibspnas of clear and compelling statutory language, I am unwilling 

to attribute to Congress an intention that the United States citizenship of an individual should be forfeited by reason of actions taken 

at a time when he was unaware of his citizenship. 

The decision of the Board of Immigration Appeals is approved. 

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