Interim Decision #2669

MATTER OF ANDERSON
In Deportation

Proceedings

A-22154419
Decided by Board August 31, 1978
(1) Criteria discussed in the Rouse Judiciary Committee report to H.R. 8713 (94th
Congress) with reference to the extreme hardship requirement of section 244(a)(1) of
the Immigration and Nationality Act, 8 U.S.C. 1254(a)(1), are not inconsistent with the
prevailing interpretation of that requirement as articulated by the courts and the
Board.
(2) While political and economic conditions in an alien's humeland are relevant factors In
determining extreme hardship under section 244(a)(1), they do not justify a grant of
relief unless other factors such as advanced age, severe illness, family ties, etc. combine
with economic detriment to make deportation extremely hard on the alien or the citizen
or permanent resident members of hie family.
CHARGE:
Orden Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)j—Nonimmigrant visitor—
remained longer than permitted
ON BEHALF OF RESPONDENT:
Howard Rosengarten, Esquire
853 Broadway
New York, New York 10003

ON BEHALF OF SERVICE:
George Masterton
Appellate Trial Attorney

BY; Milhollan, Chairman; Appleman, Maguire, and Farb, Board Members

In a decision dated November 4, 1977, an immigration judge found the
respondent deportable as charged, denied his application for suspension
of deportation under section 244(a) of the Immigration and Nationality
Act, 8 U.S.C. 1254(a), but granted him the privilege of voluntary
departure in lieu of deportation. The respondent has appealed. The
appeal will be dismissed.
The respondent, a 55-year-old native and citizen of the Dominica-11
Republic, entered the United States on August 3, 1969, as a nonimmi grant visitor. He has conceded deportability as a visitor who has remained here beyond the period authorized. The finding we are asked tc
zeview on appeal concerns the denial of suspension of deportation.

596

Interim Decision #2669
In order to establish eligibility for section 244(a)(1) relief, an alien
must prove that he has been physically present in the United States for
the last seven years, that he has been a person of good moral character
for the same period, and that his deportation will result in extreme
hardship to himself or to his United States citizen or permanent resident
spouse, children, or parents.
The immigration judge appears to have found that the respondent
failed to establish two of the three statutory criteria, continuous physical presence and extreme hardship. The issue of the respondent's good
moral character was not challenged by the Immmigration and Naturalization Service. In view of our conclusions on the hardship issue, we
find it unnecessary to reach the question of continuous physical presence.
In testimony given at the hearing, the respondent contended that the
economy of the Dominican Republic is so severely depressed that he will
find it difficult to support himself and his wife, who is also in the United
States illegally. Medical treatment for her psychological maladjustments could not be afforded, according to the respondent. The immigration judge concluded that the thrust of the respondent's argument was
that he would suffer economic detriment if deported. The judge correctly noted that under the prevailing interpretation of the extreme
hardship requirement, financial hardship in the absence of substantial
additional equities has not been a persuasive factor. See Mutter of Uy,
111. & N. Dec. 159 (BIA 1965); Matter of Sangster, 11 I. & N. Dec. 309
(BIA 1965); Matter of Gibson, Interim Decision 2541 (BIA 1976).
At oral argument, counsel for the respondent directed our attention
to recent comments by the House Judiciary Committee on the issue of
extreme hardship. Counsel was referring to a report by the committee
in the 94th Congress on §4 of H.R. 8713, a bill which provided for
discretionary adjustment of status for certain aliens whose deportation
would result in "unusual hardship". The committee report contains the
following discussion:
With respect to determining hardship under section 4 of this bill the Attorney General
is expected to apply similar criteria to that which is currently utilized in granting
suspension of deportation and consider the following facts and circumstances among
others: age of the subject; family ties in the United States and abroad; length of
residence in the United States; condition of health; conditions in the country to which
the alien is returnable—economic and political; financial status—business and occupation; the possibility of other means of adjustment of status; whether of special assistance
to the United States or community; immigration history; position in the community.
' H.R. 8713 was reported out of Committee to the full House; however, no action was
taken on the measure by the House prior to the adjournment of the 94th Congress. For a
cllscussion of the limited significance of legislative committee statements in the wet" of
administrative discretion, see Matter of Riccio, Interim Decision 2463 (BIA 1976).

597

Interim Decision #2669
In light of these statements, counsel contends that the impoverished
economy of the Dominican Republic should be a dispositive factor in this
suspension application. 2
Conditions in an alien's homeland are relevant in determining hardship, as the. Committee pointed out. It is obvious, however, that laying
critical emphasis on the economic and political situation would mandate

a grant of relief in most cases for it is a demonstrable fact that despite
the beleaguered state of our own economy, the United States enjoys a
standard of living higher than that in most of the other countries of the
world. For this reason, most deported aliens will likely suffer some
degree of financial hardship. Nonetheless, we do not believe that Congress intended to remedy this situation by suspending the deportation
of all those who will be unable to maintain the standard of living at home
which they have managed to achieve in this country. Clearly, it is only
when other factors such as advanced age, severe illness, family ties, etc.
combine with economic detriment to make deportation extremely hard
on the alien or the citizen or permanent resident members of his family
that Congress has authorized suspension of the deportation order.
We do not dispute the respondent's characterization of the Dominican
economy. However, we cannot find a sufficient number of other adverse
factors to conclude that deportation will result in the degree of hardship
that section 244(a)(1) was designed to alleviate. The respondent has
spent most of his eight yearn in the United States as a self-employed

carpenter. Prior to his arrival, he also worked as a carpenter for the
Dominican Government where his ability was apparently highly - regarded. While he has several cousins who live in the United States, his
brothers, sisters, and ten children all live in the Dominican Republic_
Treatmentof his wife's emotional difficulties can surely be obtained at
home, albeit with economic sacrifices. Despite the sympathetic factors
in this case, we are not persuaded that the respondent warrants the
extraordinary relief authorized in section 244(a)(1) of the Act.
The respondent's original voluntary departure time was three
months. That period has expired. In keeping with our decision in Matter
of Chouliaris, Interim Decision 2572 (BIA 1977), we will grant the
respondent thirty days from the date of this order in which to voluntarily depart from the United States.
ORDER: The appeal is dismissed.
FURTHER ORDER: The respondent is permitted to depart frona
the United States voluntarily within 30 days from the date of this order
We are aware of the fact that the respondent has requested that he be sent to
'Venezuela, rather than the Dominican Republic, if deportation becomes necessary. FaX
Une purposea of assessing the grcatcot degree of potential hardship, however, we mill

assume that the respondent's request cannot be honored.

598

Interim Decision #2669
and under such conditions as the District Director deems appropriate;
and in the event of failure so to depart, the respondent shall be deported
as provided in the immigration judge's order.

599


Interim Decision #2929

MATTER OF VALDOVINOS
In

Deportation Proceedings
A-21630640

'

Decided by Board November 41982
(I) Pre-sentence confinement is credited in determining the date of release from custody
under section 2900.5 of the California Penal Code and such pre-sentence confinement
is counted in determining whether a respondent is a person of good moral character
under section 101(0(1) of the Immigration and Nationality Al, 8 U.S.C. 1101(0(7).
(2) Where a respondent's confinement for 59 days for his first conviction is added to his
incarceration for 132 days in a California minimum security penal institution as a result
of his, second conviction, he Ia precluded from eatabliohing good moral character, and
thus is statutorily ineligible for voluntary departure under section 244(e) of the Act,
8 U.S.C. 1254(e).
(3) Deportation from the United States is not considered punishment or a criminal process
and, therefore, the constitutional protection against doable jeopardy which is applicable
in criminal proceedings is not applicable in deportation proceedings.
CHARGE:
Order. Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Entry without inspection

ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:
Elizabeth Williams, Esquire
San Francisco Neighborhood Legal
Annintnnes Foundation
250 Columbus Avenue, Suite 200
San Francisco, California 94133

Ronald E. LeFevre
General Attorney

Br =Italian, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

. In a decision dated May 29, 1981, the immigration judge found the
respondent deportable as charged and ordered him deported from the
United States. The appeal will be dismissed.
The respondent is a native and citizen of Mexico, who admitted hayindlast entered the United States in September of 1980 without inspection neat- San Ysidro, California (Tr. p. 3). Consequently, deportability
under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C.
1251(a)(2), has been established by clear, convincing, and unequivocal
evidence as required by Woodby v. INS, 385 U.S. 276 (1966), and 8
C.F.R. 242.14(a). The only issue on appeal is the immigration judge's
denial of the respondent's application for voluntary departure in lieu of
343

Interim Decision #2929
deportation pursuant to section 244(e) of the Act, 8 U.S.C. 1254(e).
Section 244(e) requires that an applicant for voluntary departure establish that he has been a person of good moral character for at least 5
years immediately preceding the voluntary departure application. The
immigration judge, concluded that the respondent was precluded from
establishing the requisite 5 years of good moral character by section
10107) of the Act, 8 U.S.C. 1101(0(7), which states;
(f) For the purposes of this Aet—No person shall be regarded as, or found to be, a
person of good moral character who, during the period for which good moral character is
required to be established, is, or was—
(7) one who during such period has been confined, as a result of conviction, to a penal
institution for an aggregate period of 180 days or more, regardless of whether the
offense, or offenses, for which he has been confined were committed within or without
such period. (Emphasis supplied.)
It is undisputed that the respondent has two felony convictions for
burglary in violation of section 459 of the California Penal Code, during
the 5-year period immediately preceding the application for voluntary

departure (Ex. 2, 3, 4). It is also undisputed that the second conviction

on November 12, 1980, resulted in his being incarcerated for 132 days
(Resp. brief pp. 4-5). The respondent also admits that he was arrested on
May 22, 1980, when he was charged with his first violation of section 459
of the California Penal Code (Rev. brief p. 4). On June 12, 1980, he was
convicted and. on July 1, 1980, he was sentenced to one year in the
county jail with all but 90 days suspended (Ex. 2). He was given credit
for time already served since his arrest and was released from custody
on July 18, 1980 (Resp. brief p. 4). Thus, the time of incarceration easily
exceeds 180 days. He spent 59 days incarcerated for the first offense
and 132 days incarcerated for the second offense.
However, the respondent contends that the 41 days he spent incarcerated prior to his first conviction sholild not count in estimating the

amount of time he spent incarcerated for purposes of the section 101(0(7)
preclusion of good moral character. He asserts that since a criminal
defendant is presumed innocent until proven guilty, the time spent
incarcerated prior to his conviction should not count as confinement "as
a result of a conviction," under section 101(0(7) of the Act (Brief p. 10).
We disagree with the respondent's contention. He was convicted pursuant to the California Penal Code. Section 2900.5(a) of the California

Penal Code (Appendix A) specifies that a criminal defendant is given
credit for pre-conviction confinement when determining the date of his
release from custody. See People v. Helton, 91 Cal. App. 3d 987,154 Cal.
Rptr, 482 (1979). Consequently, the time the respondent spent incarcerated prior to his July 1, 1980, conviction is considered time served as a
result of his subsequent conviction tinder California law In fact, pursuant to section 2900.5 the trial judge is prohibited from adjusting the
244:

Interim Decision #2929
sentence upward to cancel out the credit for pre-sentence confinement.
In re Chamberlain, 78 Cal. App. 3d '712, 144 Cal. Rptr. 326 (1978).
Moreover, such pre-sentence confinement also results in the accruing of
good behavior credit for early release from incarceration. See People v.
McMillan, 110 Cal. App. 3d 682,167 Cal. Rptr. 924 (1980). The record
further indicates that this respondent was given such credit for time
served and good behavior/work time accumulated prior to his July 1,
1980, sentencing (Ex. 3). Therefore, we find without merit his contention that the time he spent incarcerated prior to his July 1, 1980, sentencing should not be counted in determining the time he was incarcerated
as a result of his first conviction.
The respondent also contends that the time he spent incarcerated
after his second conviction should not count as time incarcerated in a
penal institution because he was placed in the Men's correctional Facility at La Honda, California, which is a minimum security area with a
work furlough facility. This contention is clearly, without merit since
such a prison facility is clearly a 'penal institution. We also note that
section Z900.5 of the California Penal Code does not draw any such
distinctions when it lists such work camps among the penal institutions
covered by that section.
Finally, the respondent challenges the constitutionality of the section
101(f)(7) preclusion of good moral character on two constitutional grounds.
First, he claims that its effect constitutes double jeopardy since it imposes
double punishment for the same offenses. That argument has been consistently rejected by the courts.' See Le Tourneur v. INS, 538 F.2d
1368 (9 Cir. 1976); Oliver v. United States Dept. of Justiee, 517 17.2d 426
(2 Cir. 1975). Deportation from the United States has never been
regarded as criminal punishment. Bscgajeuiitz v. Adams, 228 U.S. 585
(1913); Mahler v. Eby, 204 U.S. 32 (1924). It is civil in nature and
therefore the procedural safeguards prescribed for criminal cases are
not applicable. Carlson v. Landon, 342 U.S. 524 (1952); Bilokumsky v.
Tax 263 U.S. 149 (1923); Chavez Rays v. INS, 519 F.2d 397 (7 Cir.
19'15).
Moreover, as the relporident concedes, claims as to the unconstitutionality of the statutes and regulations administered by this Board are
outside the scope of our jurisdiction. See section 103 of the Act, 8 V. S.C.
1103; 8 C.F.R. 3.1; Matter of Bogart, 15 I&.N Dec. 552 (BIA 1975, 1976;
A.G. 1976); Matter of Chery and Hasan, 15 I&N Dec. 380 (BIA 1975);
Matter of Santana, 13 I&N Dec. 362 (BLA. 1969); Matter of L-, 4 I&N
-

According to the respondent's_ position, all grounds of deportability for criminal aliens
would entail double jeopardy since they would mete out double punishment for the same
offenses. See sections 241(a)(4), (11), (14), (15), (16), (1?), and (18), 8 U.S.C. 1251(ax4),

(11), (14), (15), (16), (17), and (18).
345

Interim Decision #2929
Dec. 556 (BIA 1951). Consequently, his last contention, that section
101(0(7) is unconstitutionally overbroad, is outside of our jurisdiction to
determine. The appeal will be dismissed.
ORDER The appeal is dismissed.
APPENDIX A

California Penal Code
§2900.5 (1981)
• Credit for time in custody prior to commencement of sentence
(a) In all felony and misderheanor convictions, either 'by plea or by
verdict, when the defendant has been in custody, including but not
limited to any time spent in a jail, camp, work furlough facility, halfway
house, rehabilitation facility, hospital, prison, juvenile detention facility,
or similar residential institution, all days of custody of the defendant,
including days served as a condition of probation in compliance with a
court order, and including days credited to the period of confinement
pursuant to Section 4019, shall be credited upon his term of imprisonment,
or credited to any fine which may be imposed, at the rate of, ot less than
thirty dollars ($80) per day, or more, in the discretion of the court
imposing the sentence. If the total number of days in custody exceeds
the number of days of the term of imprisonment to be imposed, the
entire term of imprisonment shall be deemed to have been served. In
any case where the court has imposed both a prison - or jail term of
imprisonment and a fine, any days to be credited to the defendant shall
first be applied to the term of imprisonment imposed, and thereafter
such remaining days, if any, shall be applied to the fme..
(b) For the purposes of this section, credit shall be given only where

the custody to be credited is attributable to proceedings related to the
same conduct for which the defendant has been ennvietctd. Credit shall
be given only once for a single period of custody attributable to multiple
offenses for which a consecutive sentence is imposed.
(c) For the purposes'
urposes nf this section, "term of imprisonment" includes
any period of imprisonment imposed as a condition of probatio • or other-

wise ordered by a court in imposing or suspending the imposition of any

sentence, and also includes any term of imprisonment, including any
period of imprisonment prior to release on parole and any period of
imprisonment and parole, prior to discharge, whether established or
fixedby statute, by any court, or by any duly authorized administrative
agency.
(d) It shall be the duty of the court imposing the sentence to determine the date or dates of any admission to * * * and release from cus846

Interim Decision #2929
tody prior to sentencing, and the total number of days to be credited
pursuant to the provisions of this section. The total number of days to be
credited shall be contained in the abstract of judgment provided for in
Section 1213.
(e) It shall be the duty of any agency to which a person is committed
to apply the credit provided for in this section for the period between the

date of sentencing and the date the person is delivered to such agency.

(Added by Stats.1971, c. 1732, p. 3686, § 2. AMended by Stats. 1976,
c. 1045, p. 4665, § 2; Stats.1978, c. 304, p. 632, § 1, urgency, eff. June 28,
1978; Stats.1980, c. 297, p.

1, urgency, eff. July 1, 1980.).

347


Interim Decision #1971

MATTER OF WONG
In Deportation Proceedings
A-15878180
Decided by Board May 2, 1969
(1) The Board of Immigration Appeals has no jurisdiction to extend the
time for voluntary departure, such authority being vested in the District
Director (8 CFR 244.2).
(2) Motion to reopen deportation proceedings to permit application for an
extension of voluntary departure time is denied where such motion does
not recite any new facts, the motion fails to set forth prior judicial litigation in the case in compliance with 8 CFR 3.8, and the alien, after admission as a crewman, has remained unlawfully in the United States, an
order of deportation having been outstanding more than three and onehalf years, during which time his justified deportation has been delayed by
numerous administrative and judicial reviews, the latest being March
1969.
DEPORTABLE:

Act of 1952—Section 241(a) (2) 18 U.S.C. 1251(a) (2))—Admated as nonimmigrant crewman under section 101(a) (15).

The respondent, a native of China and a citizen of the Republic
of China on Formosa, moves for a reopening of the deportation

proceeding to permit application for an extension of time within
which to depart voluntarily. The motion alleges that the respondent is employed as a "specialty cook" and that his employer has
agreed to submit in his behalf a visa petition for sixth preference
classification.
The resiondent last entered the United States as a nonimmigrant 'crewman on May 5, 1965. Deportation proceedings have
been pending since the issuance of an order to show cause on October 4, 1965. The original decision of the special inquiry officer,
dated October 5, 1965, found the respondent deportable but
granted him voluntary departure in lieu of deportation. When the
respondent failed to depart as required, a. warrant of deportation
was issued on August 26, 1966 and is outstanding. During the

-

258

Interim Decision # 1971
more than three and a half years which have intervened since the
issuance of the order to show cause, the case has been before this
Board on two occasions and before the federal courts in New
York on three occasions'
The motion now before us has been submitted by counsel other
than the one who originally represented the respondent before

this Board and during his litigation before the courts. Present
counsel entered his appearance on April 23, 1969. His motion
seeks a reopening of the proceeding to permit application for an
extension of time within which to depart voluntarily. The authority to extend the time within which to depart voluntarily is
within the sole jurisdiction of the District Director (8 CFR
244.2) . Furthermore, according to the record before us, the privilege of voluntary departure is no longer available to the respondent as a warrant of deportation has been outstanding since August of 1966. Counsel's motion does not recite any new facts
which warrant our reopening the proceedings (8 CFR 3.8).
The record in this case has another aspect in addition to the
fact that this Board has no jurisdiction to extend the time for

voluntary departure. We note that counsel, an experienced immigration lawyer, who has recently entered the case, has overlooked
the provisions of 8 CFR 3.8, the pertinent part of which reads:
Motions to reopen or reconsider shall state whether the validity of the deportation order has been or is the subject of any judicial proceeding and, if
so, the nature and date thereof, the court in which such proceeding took
place or is pending, and its result or status.

The motion submitted by counsel makes no reference to prior
litigation in the respondent's case notwithstanding the fact that
the respondent challenged this Board's decision of April 26, 1968,
by a petition filed in the Court of Appeals for the Second Circuit

in May of 1968. The Court of Appeals dismissed the petition on
March 7, 1969 and directed that its mandate issue forthwith so
that the respondent may "be deported to Hong Kong without further delay," Wong Kam Cheung v. INS (supra') .
We call counsel's attention to this provision of the regulations
because the respondent's original counsel of record also failed to
mention prior litigation in a motion considered by this Board on
appeal in February of 1968. This fact caused the Board to enter
an order overruling the special inquiry officer, which we withdrew on our own motion on February 23, 1968, when it was
I See Wong Kara Cheung v. Eeperdy, 66 Civ. 3969 (S.D.N.Y., unreported);
Wong Kam Cheung v. Esperdy, 274F. app. 485 (S.D.N.Y., 1967) Wong
Kam Cheung v. INS, 408 F.2d 35, Docket No. 32346 (2 Cir., March 7, 1969).

259

Interim Decision #1971
brought to our attention that the United States District Court for
the Southern District of New York had ruled adversely on the
same issue then before the Board on appeal. 274 F. Supp. 485.
The failure of counsel now of record to refer to prior litigation
has additional significance in light of the decision by the Court of
Appeals for the Second Circuit as recently as March 7, 1969. The

court in its decision referred to the fact that this Board had
withdrawn its decision of February 9, 1968 because of the failure
of alien's counsel "to advise the Board that the respondent
[alien] had been in court in this case." The court also referred to
the "many previous attempts at delay and the frivolous reasons
advanced for the belated motion to withdraw [the order deporting the respondent to Hong Kong]."

We realize the counsel now of record has the obligation to
apply for any administrative relief for which he believes his
client may be eligible. This case, however, is a prime example of

the type of litigation referred to in House Report No. 1086, supporting the enactment of Public Law 87-301, which created a
separate statutory form of judicial review for deportation and
exclusion cases. The Committee on the Judiciary stated that it
had been disturbed in recent years by the "growing frequency" of
judicial actions instituted by aliens whose • cases "have no legal
basis or merit" and are brought solely for the purpose of "preventing or delaying indefinitely their deportation from this
country." 2
The respondent has now resided unlawfully in the United

States for four years. During this time, he has resorted to numerous administrative and judicial reviews for the sole purpose of
delaying his justified deportation as an alien crewman who remained in the United States beyond the time for which he was
admitted. He is now detained pending completion of travel arrangements for his deportation to Hong Kong. Assuming that
present counsel is familiar with both the administrative and judicial reviews that preceded his representation of the respondent,
we can only conclude that the motion now before us was brought
solely for the purpose of further delay. Under the circumstances,
we will deny the motion.
ORDER: It is directed that the motion be and the same is
hereby denied.

2

See page 2967, volume 2, U.S. Code Cong. and Admin. News, 1961.

260


Interim Decision #2810

MATTER OF LASIKE

In Deportation Proceedings
A-21316510
A-21316512
A-21317207
Decided by Board July 30, 1980
(I) To be eligible for permanent residence as a special immigrant minister under section
101(a)(27)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(27)(C)(i), the
alien must establish that he is an immigrant who> continuously for at least 2 years
immediately preceding the time of his application for admission to the. United States
was a minister and who seeks to enter the United States solely for the purpose of
carrying on the vocation of minister of a religious denomination, and whose services
are needed by such religious denomination having a bona fide organization in the
United States.
(2) A "renewed" application for adjustment of status in deportation.proceedings will be
treated as a new application if the alien was statutorily ineligible for adjustment of
status based on the circumstances as they existed when, the application was originally
denied by the District Director and if the present application is based on circumstances which have occurred since the denial. Matter of Huang, Interim Decision 2616
(BIA 1978), reaffirmed.
(3) Where the documents submitted in support of an application for adjustment of
status established that the respondent entered the United States with a preconceived
intent to remain, his application can be denied in the exercise of discretion.
CHARGE:

Order. Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrants—remained
longer than permitted
By:

Milhollan, Chairman, Maniatis, Appleman, Maguire, and Farb, Board Members

In a decision dated July 13, 1978, an immigration judge found the
respondents deportable as charged, denied the respondents' applications for adjustment of status pursuant to section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255, but granted them the privilege
of voluntary departure in lieu of deportation. The respondents have
appealed. The appeals will be dismissed.'
' The applications of the two children are based on the application for adjustment of

Interim Decision #2810
The principal respondent is a 48-year-old married male alien, a
native and citizen of Tonga. He was admitted to the United States on
July 11, 1974, as a nonimmigrant visitor authorized to remain until
October 10, 1974. On October 8, 1974, the respondent filed an application To Extend Time of Temporary Stay, Form 1-539. On the application, the respondent stated that the reason for the requested extension
was "fflo continue in visitor status, to mingle with friends and church
members from Tonga living here [in the United States]." He further

indicated that he had not been employed or engaged in business in the
United States.
On May 15, 1975, the respondent submitted his application for adjustment of status to the District Director. To be eligible for
permanent resident status as a special immigrant, as a minister under
section 101(a)(27)(C)(i) of the Act, 8 U.S.C. 1101(a)(27)(C)(i), the alien
must establish that he is an immigrant who continuously for at least
two years immediately preceding the time of his application for admission to the United States has been, and who seeks to enter the United
States solely for the purpose of carrying on the vocation of minister of

a religious denomination, and whose services are needed by such
religious denomination having a bona Me organization in the United
States. .
On September 18, 1976, the application was denied. The District
Director denied the respondent's application for adjustment of status
on the ground that he did not meet the 2-year requirement and that
when he entered the United States as a visitor he had a preconceived
intent to remain permanently. The respondent was granted voluntary
departure on or before October 1, 1976, without the issuance of an
Order to Show Cause. He failed to depart. An Order to Show Cause was

issued November 15, 1977. At the deportation proceedings the respondent renewed his application for adjustment of status. In support of his
application, the respondent submitted the following documents:
1) A letter dated March 2, 1974, from Tonga which recommended the respondent "for
ministry and practical observations of Gospel ministries overseas." (Emphasis
added.)
2) A letter dated April 12, 1975, which stated that the respondent had been a member
of the Assemblies of Tonga since 1970, that he became a lay preacher in 1971, that he
served as a deacon and that in 1973 he served as a pastor of the church be built.
3) A Christian Worker's Certificate which authorized him to exhort and conduct
religious services.
4) A license to preach issued October 30, 1975, issued at Santa Cruz, California.
5) A letter dated November 13, 1974, from the Tonga tradition department stating the
income of the respondent.
0) A letter dated October 30, 1974, signed by Robert Pirtle, Assistant District Superstatus filed by their father, the principal respondent. Therefore, this appeal will concern
itself with the qualification of the father for the benefits sought.

446

Interim Decision #2810
intendent, written to Roy Lange, stating that the salary of the respondent is $700 a
month.
7) A letter dated May 8, 1975, signed by Robert Pirtle stating that the respondent was
appointed pastor of the church in Redwood City 071 October 7. 1974.
8) A letter dated November 17, 1975, signed by Robert Pirtle which states that the
respondent and his wife have pastored the Tongan Assemblies of God church, first in
Belmont and then in Redwood City since their arrival. (Emphasis added.)

The immigration judge found that the District Director correctly
denied the respondent's application for adjustment of status filed on
May 15, 1975. None of the evidence presented to the District Director
established that the respondent had been carrying on the vocation of
minister of a religious denomination for 2 years prior to the denial of
his application by the District Director. Based on this, the immigration judge found that since the respondent was statutorily ineligible
for adjustment of status when he originally filed the application with
the District Director that he would treat the renewed application in
the deportation proceedings as a new application. The immigration
judge explained his reason for doing this as follows:
[Elver since immigration judge's [sic] were given the authority in 1962 to pass on
applications for permanent resident status, where an alien's application was denied by
a District Director and the ease came before me, his decision has, in effect, been
reviewed by me. If on the same evidence I thought that the application had been
erroneously denied by the District. Director, I granted the application, nunc pro tune,
the same as a United States District Court would have done if prior to 1952 it had come
before the Court as a consequence of a declaratory judgment action. However, if the

respondent became eligible for relief only after the District Director denied his
application, I treated the application as a new application. It seemed to me that this
was a fair way to handle such applications because an alien should not be penalized by
reason of any errors of the District Director. On the other hand he should not gain an
advantage merely because he had filed an application for relief for which he was not
then eligible.

Based on the immigration judge's determination that the renewed
application filed January 10, 1978, would be treated as a new application, he found the respondent statutorily ineligible for adjustment of
status because he continued in unauthorized employment after January 1, 1977 2, and prior to the filing of the new application for adjustment of status.
On appeal, the respondent, through counsel, contends that the immigration judge erred in finding that he was not a minister of a
religious denomination prior to his submission of the application for
adjustment of status and that the immigration judge erred in finding
him ineligible for adjustment of status under section 245(c) of the Act.
Based on the evidence above, we find that the respondent's applicaThe respondent made no showing that his employment as a minister was authorized
by the Service.

•

Interim Decision #2810
tion for adjustment of status should be denied because he was
statutorily ineligible for adjustment of status at the time he originally
filed the application in that he did not establish at least 2 years of
experience as a minister prior to filing the application, and as a matter

of discretion based on a preconceived intent to remain permanently in
the United States.
We concur in the decision of the immigration judge that the respondent was statutorily ineligible for adjustment of status as a
special immigrant as a minister because he was not for the 2 years
preceding the time of his original application for admission as a
minister of a religious denomination. The evidence presented indicates
that the respondent was a lay preacher who worked with the ministry
of the youth prior to his entrance in the United States on July 11, 1974.
On July 25, 1974, 14 days after his arrival, he applied for "ministerial
recognition" and on December 17, 1974, he was granted a "Christian
Worker's Certificate" which entitled him to exhort and conduct religious services. On October 30, 1975, the respondent was issued a
"license to preach." In December of 1977, the respondent became an
ordained minister of the church. Further, we concur in the immigration judge's analysis that since the District Director correctly denied
the respondent's adjustment of status application filed on May 15,

1975, that the renewed application in the deportation proceedings held
on January 10, 1978, should be treated as a new application. We further
agree that this analysis is consistent with our decision in Matter of

Huang, supra, we stated that an application for adjustment of status
which had been denied by the District Director and later renewed in
the deportation proceedings based on the same facts would be reviewed
according to the circumstances as they existed when the application

was originally filed with the District Director. In the present case, it is
the qualifications of the respondent as a minister which are the bases
of the immigration judge's affirmance of the District Director's denial
of his adjustment of status application. 3
Even if the respondent was statutorily eligible for adjustment of
status under section 245 of the Act, the application would be denied as
a matter of discretion. The granting of adjustment of status is a form
of discretionary relief, which is not an automatic act conditioned solely
upon a showing of statutory eligibility. It is a privilege and a matter of

grace, accorded to a person where that person has established that he
is worthy of it. Matter of Tureotte,12I&N Dee. 206 (BIA 1967). It is the
' We do not find it necessary to reach the question of whether the applicant is
presently barred by section 245(c) of the Act for adjustment of status, since adjustment
of status will still be denied as a matter of discretion based on the respondent's
preconceived intent to remain permanently in the United States even though it now
appears he has the requisite 2 years experience.

448

Interim Decision #2810
respondent's burden to establish that he is not only eligible for any
requested benefit or privilege, but also that it should be granted in the
exercise of discretion.
In a letter dated March 2, 1974, which was prior to the respondent's
entry into the United States, the writer recommends the respondent
"for ministry and practical observations of Gospel ministries overseas." This letter in conjunction with the filing by the applicant of an
application for "ministerial recognition" only 11 days after his arrival
indicates a preconceived intent on the part of the respondent to remain
permanently in the United States. Further, in a letter from the Assistant District Superintendent for the Assemblies of God, he states that
the respondent was appointed pastor of the Tongan Assembly of God
Church in Redwood City on October 7, 1974. On October 8, 1974, the
respondent in his "Application to Extend Time of Temporary Stay"
makes no mention of the fact that he was employed asr a pastor at $700
a month nor did he mention that he had pastored in Belmont since his
arrival in the United States. The respondent stated that his reasons for
requesting an extension were "to continue in visitor status, to mingle
with friends and church members from Tonga living here."
Based on the above, we find that the respondent's application for
adjustment of status should be denied due to statutory ineligibility

and as a matter of discretion based on his preconceived intent to
remain in the United States. Accordingly, the appeal of the respondent
will be dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the immigration judge's order,
the respondent is permitted to depart from the United States voluntarily within 30 days from the date of this order; and in the event of
failure so to depart, the respondent shall be deported as provided in the
immigration judge's order.


MATFER OF H—

In EXCLUSION Proceedings
A-11679631

Decided by Board August 28, 1961
Expatriation—Dual national—Section 401, Nationality Act of 19411.—Effect of
action to retain Canadian nationality—Section 350, Immigration and Nationality Act—Benefits of foreign nationality—Canadian passport—Readmission to Canada as Canadian citizen.
(1)

Dual national (at birth) of United Stales aua Canada who acted to preserve Canadian nationality upon reaching his majority did not suffer loss or

United States citizenship under section 401 of the Nationality Act of 1940
by renouncing United States citizenship before Canadian notary public, executing declaration of retention of Canadian nationality, and applying for
Canadian certificate of citizenship. Performance of these acts was not the
equivalent of a foreign naturalization, nor the equivalent of an oath of allegiance to Canada.
(2)

Subject did not expatriate under doctrine that he elected Canadian nationality upon attaining his majority. Doctrine of election is inapplicable

to person who is a dual national at birth.
(3) Benefit sought or claimed by subject in obtaining Canadian passport in
1959 did not cause expatriation under section 350 of the Immigration and
Nationality Act when not followed by continuous three years' residence in
Canada.
(4) Where subject would have been entitled to readmission to Canada as a
long - term resident, even if he did not possess the citizenship of that country, benefits of Canadian nationality which he may have claimed upon his

return to Canada after temporary visits to the United States were not sufficiently substantial to cause expatriation under section 350 of the Act.
EXCLUDABLE

•

Act of 1952—Section 212(a) (20) [8 U.S.C. 1182 (a) (20)7—No
immigrant visa.

BEFORE THE BOARD

DISCUSSION: On January 15, 1960, a special inquiry officer ordered the applicant admitted as a citizen of the United States. At
the request of the Service, we reopened the proceeding on Septem

ber 23, 1960. On January 10, 1961, a special inquiry officer again
ordereci that the applicant be admitted to the United States at
which time the case was certified to this Board for final action. In
our decision dated March 14, 1961, we approved the special inquiry
411

officer's order. The case is now before us pursuant to the motion
for reconsideration filed by the Service on April 7, 1961.
The applicant is a 30-year-old married male who was born at
Detroit, Michigan, on March 23, 1931. At the age of about six
months, his parents took him to Canada and he resided there until
October 26, 1959, at which time he applied for admission to this country as a United States citizen, indicating his desire to take up permanent residence here. The applicant's parents were born in Canada
and never became citizens of the United States. At birth, this
applicant was a dual citizen of the United States and Canada. On
August 1, 1952, a certificate of Canadian citizenship was issued to
him.
We have carefully reviewed the entire record. The sole issue
ii.volved is whether the applicant is an alien who requires an immigrant visa or whether he is still a citizen of the United States. The
question resolves itself into whether he became expatriated: (1) under section 401 of the Nationality Act of 1940 [8 U.S.C. 801, 1946
ed.], or (2) under section 350 of the Immigration and Nationality
Act of 1952 [8 U.S.C. 1482].
We will first consider whether the applicant became expatriated
under section 401 of the Nationality Act of 1940. Prior to the repeal of that statutory provision on December 24, 1952, the only
possible expatriating acts performed by the applicant were those
occurring in July 1952 in connection with his efforts to retain his
Canadian nationality. Exhibit. R-3 shows that under section 6(1)
of the Canadian Citizenship Act, effective July 20, 1950, a person
who was a Canadian citizen by•virtue of having been born abroad
to a natural-born Canadian citizen father ceased to be a Canadian
citizen upon the expiration of one year after reaching the age of
21, unless he made a declaration of retention of Canadian citizenship. If he was a citizen of a country other than Canada, he was
required to file a declaration renouncing the nationality of that
country. Exhibits 2 and R-3 contain letters of the Canadian Citizenship Registration Branch dated November 24, 1959, and July 8,
1960, showing that this applicant was not required under Canadian
law to take an oath of allegiance to Canada. Exhibit R-1 estabhellos that the applicant executed a renunciation of his United States
citizenship before a Canadian notary public and commissioner on
July 23, 1952; that on the following day he executed a declaration
of retention of C,anadian citizenship; and that. on A ugnst 1, 1952,
a certificate of Canadian citizenship was issued to him.
Section 401 of the Nationality Act of 1940, as amended, sets
forth in paragraphs (a) through (j) certain acts which resulted
in the loss of United States nationality. Only paragraphs (a), (b)
and (f) have any pertinence to the applicant's case. The appli412

cant's renunciation of United States citizenship in July 1952 did
not cause his expatriation under section 401(f) of the Nationality
Act of 1940 because that statutory provision required the making
of a formal renunciation "before a diplomatic or consular officer of
the United States in a foreign state." The record before us contains no evidence that the applicant obtained naturalization in a
foreign state, nor that he took an oath of allegiance to Canada, nor

that he made a formal declaration of allegiance to Canada, which
acts would have caused expatriation under section 401(a) or (b) of
the Nationality Act of 1940. Section 408 of that Act provided that
the loss of nationality under the Act "shall result solely from the
performance by a national of the acts or fulfillment of the conditions
specified in this Act." In view of what we have said, it would seem
that the applicant, did not become expatriated under section 401

of the Nationality Act of, 1940. However, the Service contends that
the applicant did become expatriated under section 401(a) or (b).
Tt, relies on certain language which appears in Kawakita, v. United
Slates, 343 U.S. '717 (1952), and states that we misconstrued that
decision although we had not even mentioned the case in our previous orders concerning the applicant.
We have carefully examined the Kawakita decision in the light
of the argument of the Service. The Service asserted (motion, p. 2)
that Kawakita "holds that a dual national, by affirming or reaffirming his foreign nationality by acts inconsistent, with United States
citizenship constitute a renunciation of United States citizenship
and result in expatriation under section 401(a) and/or (b)." This
assertion is not supported by the language (principally dictum)
which the Service quoted from the Kawakita decision, nor was this
the Court's ruling. What the Court actually held with respect to
the issue of citizenship, was that the evidence was sufficient to support the finding of the jury that Kawakita had not renounced or
lost his United States citizenship at the time he committed the acts
referred to in the indictment (p. 727). At page 731 of the decision,
the Court said: "* * * the major factual problem on the issue of
expatriation revolved around the entry of petitioner's name in the
Koseki." (The Koseki was a family census register.) Hence, the
facts in Kawakita differ from those in this applicant's case. In
any event, the ruling to the effect that Kawakita retained his
United States citizenship does not appear to be of assistance to the
view of the Service that this applicant did not.
In quoting from the Ka•ctiviat decision, the Service consistently
underscored the words "renounced" and "renunciation" and aparently attributes some unusual significance to the Supreme Court's
use of those words. Kawakita did not, claim that ha had renounced
his United States citizenship under section 401(f) of the Nationality
413

Act, and the Supreme Court obviously used the word "renunciation"
in its usual meaning of giving up or surrendering. In other
words, a citizen could have renounced or surrendered his United
States citizenship under section 401(a) of the Nationality Act by obtaining naturalization in a foreign state, or he could have done so
under section 401(b) by taking an oath of allegiance to a foreign
state.
Apparently the Service believes that the Eawakita decision enlarged section 401(a) and (b) of the Nationality Act to encompass
some cases which were not actually included within its purview.
The language of section 401(a) and (b) is clear and unambiguous,
and the Supreme Court has referred to the recognized rule that
when the words of a statute are free from doubt they are not to be
added to or subtracted from by considerations drawn from any
extraneous source. Camisetti v. United States, 242 U.S. 470, 490
(1917). This would be particularly true in a case such as that of

this applicant where the attempted enlargement of the statute would
extinguish the applicant's United States citizenship. The Supreme
Court has said: "Rights of citizenship are not to be destroyed by
an ambiguity." Nishikawa v. Dulles, 356 U.S. 129 (1958) ; Kawakita
v. United States, supra., at page 728; and Perkins v. Elg, 307 U.S.
325, 337 (1939).
When the Supreme Court's discussion of whether Kawakita had
become expatriated is considered in its entirety, we believe that the
most that can be said for the theory of the Service is that, under
other circumstances, Kawakita's signing of the Koseki might conceivably be the equivalent of -naturalization within the meaning of
section 401(a), or a declaration of allegiance to Japan within section
401(b). The Supreme Court did not suggest what circumstances
would warrant a conclusion differing from the Kawakita decision,
and we do not consider the Kawakita case to be of value in reaching a determination concerning the applicant. In connection with
the statements in the motion as to what the Service believes was
the ruling of the Supreme Court in the Kawakita case, we find no
support in that decision for these statements of the Service.
In its motion, the Service raicad two questions. The first is
whether the acts performed, by the applicant in July 1952 were
the equivalent of a foreign naturalization or oath of allegiance, and
the second is whether the applicant made an election between Canadian and United States citizenship.
With respect to the first matter, Ja,lbuena v. Dulles, 254 F.2d
379 (C.A. 3, 1958), has relevance although the Service says (motion,
pp. 6-8) that it is lacking in precedent value because it fails to recite
all facts and circumstances and does not distinguish Savorgnan v.
United States, 338 U.S. 491 (1950). If the Savorgnan case had
414

discussed
by the court. In connection with the question of whether the facts
were stated in the Jalbuena case, that decision shows that he was
born in the United States: that his parents took him to the Philippines as an infant; that he became a citizen of the Philippines by
operation of law when that country became independent in 1946;
and that in 1952 he made a declaration under oath that he would
had any applie.ahility, it, undoubtedly would "have been

support and defend the Constitution of the Philippine Islands and

bear true faith and allegiance to the same, this being part of his
application for a Philippine passport. The Court of Appeals held
that Jalbuena had done nothing which could be viewed as a renunciation of the United States citizenship which he enjoyed simultaneously with his Philippine citizenship, and that section 401(b)
of the Nationality Act of 1940 could not properly be read as applying to his conduct. The Court of Appeals had considered the
Kawakita decision and, assuming the correctness of the Service view
as to the holding in Kawakita, it would seem that the Court of
Appeals ern whirled that. Jalhnena's ant was also not the equivalent, of
-

a foreign oath of allegiance.
We will now consider whether the acts performed by the applicant in July 1952 were the equivalent of a foreign naturalization
or oath of allegiance. The word "equivalent" has been defined as
alike in significance or import, equal in value, and virtually, or in
effect, identical. If the acts performed by the applicant were actually the equivalent of a naturalization in Canada or an oath of
allegiance to Canada, it would seem that, in contemplation of law,
expatriation would have occurred under section 401(a) or (b) of the
Nationality Act by reason of the performance of the specific acts
mentioned in these statutory provisions. With the exception, however, of a general statement that these acts of the applicant were
the equivalent of a foreign naturalization or oath of allegiance,
there is little in the motion of the Service to substantiate this

assertion.
Insofar as

concerns the question of whether the acts performed
by the applicant in July 1952 were the equivalent of a foreign
naturalization, this applicant has at all times been a citizen of
Canada, and we do not believe it can be successfully urged that he
could have obtained naturalization in a country of which he was
already a citizen. With respect to the question of whether the acts
were the equivalent of a foreign oath of allegiance, we have carefully examined the three pertinent documents contained in exhibit
R-1. Obviously, the renunciation of United States citizenship
dated July 23, 1952, and the petition for a certificate showing his
Canadian citizenship cannot be considered the equivalent of an
oath of allegiance to Canada. The third document merely sets forth
415

the applicant's desire to retain Canadian citizenship. It is clear
from the record that there was a specific provision of Canadian
law requiring a person who acquired Canadian citizenship by naturalization to take an oath of allegiance. On the other hand, the
above-mentioned letters from the Canadian Citizenship Registration
Branch dated November 24, 1959, and July 8, 1960, show that the

applicant was not required to take an oath of allegiance to Canada.
We conclude that the acts performed by the applicant in July 1952
were not the equivalent of a foreign naturalization nor the equivalent of an oath or other formal declaration of allegiance to Canada.
As we have indicated above, the second question raised by the
Service was whether the applicant made an election between Canadian and United States citizenship. The important consideration
in this connection is that this applicant, having acquired dual nationality at birth, was under no obligation to make an election
between United States and Canadian nationality. This has been

the settled administrative view since Matte?, of R , 1-389 (1943),
which involved a woman who was born in the United States but
who also acquired German citizenship at birth through her parents.
She had lived in Germany for 66 years. We held that she had not
become expatriated although we said, at page 392 of that decision,
that her entire history prior to 1938 showed that she had considered herself a German citizen and had acted as one. Nevertheless,
we said that there was no duty upon her to elected between United
States and German citizenship and that she could have lost her United
States nationality only in a method provided by the Act of March 2,
1907. In Matter of Z—, 2 —346, 347 (approved by Atty. Gen. 1945),
we stated that the doctrine of election does not apply to one who
acquired dual nationality at birth and we held that the applicant
was a citizen of the United States even though, during the exclusion
proceeding, he withdrew his claim to United States citizenship and
said that he wished to be considered a national of Canada.
Mandoli v. Acheson, 344 U.S. 133 (1952), also involved a person
who was a dual citizen at birth and the lower court had held that
he elected between his dual citizenships in favor of Italy. The
Supreme Court concluded that Mandoli had not lost his United
States citizenship and said that such citizenship, conferred by the
Constitution upon persons born in this country, "* * * is not to be
—

withdrawn or extinguished by the courts except pursuant to a clear

statutory mandate." That case was governed by the expatriation
Act of March 2, 1907, but the Court stated that the Nationality
Ant of 1940, although not controlling, showed that. Congress therein

"refused to require a citizen by nativity to elect between dual
citizenships upon reaching a majority."
41t

A case analogous Eu (hat of (lie applicant is Matter of L--, 4 - 756
(1952), which was governed by the provisions of the _Nationality
Act of 1940 and related to a person who lied become at birth a dual
citizen of the United States and Canada. He applied for admission
to the United States on March 16, 1951, at which time he claimed
to be a Canadian national and evidently intended to abandon all
claim to United States citizenship. He became 21 years of age on
December 25, 1950, and the Canadian Cioverninent issued a certificate
of citizenship to him on March 31, 1951. On June 4, 1951, the Service
held that this man was a citizen of the United States. On February 4,
1952, he nit«le a formal renunciation of his citizenship before an
American consular officer and was, therefore, no longer a citizen of
the United States when the case came before us on December 5, 1952.
There, counsel urged that we find that United States citizenship had
been terminated on a date earlier than February 4, 1952, by an election
of Canadian citizenship. Our decision was to the effect that the doctrine of election had no applicability to a person who became a dual
national at birth and that such a person could not divest himself of
United States citizenship by electing a foreign nationality unless he
performed one of the expatriating acts mentioned in the statute. We
approved the finding of the Service dated June 4, 1951, that on that
date this person was still a citizen of the United States. At pages
6 and 8 of its motion, the Service • referred to this decision and
stated that it rejected the case as authority to the extent that it is
or may he inconsistent with Kawakita v. United States, supra.
However, Matter of L— does not conflict with the Kawakita decision.
In view of the foregoing, we conclude that this applicant did not
become expatriated under section 401 of the Nationality Act of
1940, and we will next consider whether expatriation occurred under
section 350 of the Immigration and Nationality Act [8 U.S.C. 1482].
A preliminary- Observation is appropriate. In its discussion of possible expatriation under section 350, several statements were imputed to this Board which were actually the statements of the
special inquiry officer. For example, the Service stated (motion,
p. 12) that Jalbuena v. Dulles, supra., was cited by the Board but
did not involve section 350. The special inquiry officer mentioned
that case but it was not referred to in our previous orders. Our
order of March 14, 1961, in this applicant's case approved the special inquiry officer's order of January 10, 1961, directing the applicant's admission to the United States as a citizen, but this does
not mean that we, approved each and every statement appearing in
the decision of January 10, 1961.
The Service stated (motion, p. 10) that the three elements required by sectiun 350 are; (1) dual nationality, (2) a benefit sought
6543T7-63----28

417

or claimed from a foreign state, and (3) "Residence in the foreign
state of which he is a national after the age of 21 and after December 24, 1952, for a continuous period of three years." It was
then stated that the only element which is limited to prospective
effect is residence. However, the Service is in error with respect
to these statements. We have specifically held that expatriation does
not take place under section 350 unless the benefits of the foreign
nationality were sought or claimed after the effective date of the
Immigration and Nationality Act (December 24, 1952) and unless,
following such claim of benefits and subsequent to the individual's
22nd birthday, he resided in the foreign country for three years.
Matter of G—Q--, 7-195 (1956) ; Matter of J—, 8-112 (1958).
Apparently the Service claims that the declaration of retention

of Canadian citizenship was a claim of benefits of Canadian nationality within the purview of section 350 of the Immigration and
Nationality Act. However, since this document was executed on
July 24, 1952, prior to the effective date of section 350, it is not
within the scope of that statutory provision for the reasons stated
in Matter of G—Q— and Matter of J—, supra.
The Service stated that after the applicant's declaration of retention of Canadian citizenship July 1952 he considered himself
to be solely a Canadian citizen. That appears to be correct.. As a
matter of fact, when the applicant first appeared before the special

inquiry officer on October 26, 1959, and was asked regarding the
country of which he was a citizen, he answered, "As far as I know,
Canada." We believe it is clear from the record that the applicant
thought he had given up his United States citizenship in July
1952; that about October 1959, when he desired to enter the United
States for permanent residence, he communicated with an American
consular officer who informed him as to the documents required;
that he applied for a Canadian passport at that time because this
was one of the documents specified by the American consul; and
that subsequently the American consular officer reached the conclusion that the applicant was still a citizen of the United States
and referred him to the United States immigration office at the port
of entry.
It was stated by the Service that each of five items set forth in
its motion was a benefit sought or claimed which would cause
expatriation under section 350, and that WP had ennsidered these
to be trivial. Actually, we had not passed, nor do we now pass,
upon whether these matters were or were not trivial.
Among: the items to which the Service referred were the application for an immigrant visa and the application for Canadian passport. It is difficult to perceive how the application for a United
418

States immigrant visa can be considered seeking the benefit of
Canadian nationality. There was, of course, no formal application
for the immigrant visa. The applicant specifically stated that he
never applied for a Canadian passport prior to the fall of 1959,
and it appears that the application for passport and the application
for the United States immigrant visa were both made about October 1959. Apparently the applicant has lived in the United States
since at least February 11, 1960, and it seems probable that his
residence in Canada (for the purposes of section 350) terminated in
October 1959. In any event, he did not complete three years' residence in Canada subsequent to applying for the United States immigrant visa and the Canadian passport and these acts, therefore, did
not cause expatriation under section 350 in accordance with our
decisions in Matter of 0 — Q — and Matter of

J

—

,

supra.

Two other items mentioned by the Service were that the applicant
claimed exemption from registration under the Selective Service
Act and claimed exemption from filing United States inpome tax
returns. Of course, the applicant did not actually make any claim
of exemption. As we indicated above, he had assumed since July
1952 that he was no longer a citizen of the United States and he
registered under the Selective Service Act about August 1960. He
also stated at the hearing on November 23, 1960, that he had always
filed Canadian income tax returns but had not filed a United States
return yet because he had only been here about one year. Even if
we assume that the applicant willfully violated the laws of the
I7nited States by reason of his failure to register at an earlier date
under the Selective Service Act and his failure to file United States
income tax returns, we do not understand how it can conceivably
be argued that such violations of the laws of this country constituted seeking or claiming the benefits of Canadian nationality.
The remaining item mentioned by the Service was, "He has
entered the United States as a Canadian visitor." The Service did
not state when the entries occurred, but the record shows that subsequent to December 24, 1952, the applicant entered the United
States about three times yearly. We conclude that the applicant
was a citizen of the United States on the occasion of each of these
entries and would have been entitled to enter the United States as
a citizen, and that the entries into this country cannot be held to
constitute the seeking or claiming of the benefits of Canadian
nationality.
Insofar as concerns the question of whether the applicant sought

or claimed the benefits of Canadian nationality in connection with
his returns to Canada following these temporary visits to the United
States, he stated that he thinks that, on some occasions he showed
his drivers license to the Canadian immigration officer and appar419

ently on other occasions he exhibited his Canadian citizenship certificate. He had lived in Canada since he was 6 or 8 months old,
and following these temporary visits to the United States he reentered Canada for the purpose of returning to his home there.
Presumably, he would have been entitled to do so as a resident of
Canada even if he had not possessed Canadian citizenship. Under
the circumstances and in view of the decision in Matter of R--S—,
7-71S (1958), we do not consider that the benefits of Canadian
nationality which may have been claimed upon his returns to that
country were sufficiently substantial to cause expatriation under
section 350.
Since the applicant has shown that he acquired United States
citizenship at birth, the Government must establi s h expatriation by
cizar, convincing and unequivocal evidence.
Gonzales v. Landon,
350 U.S. 920 (1955) ; Niskikawa v. Dulles, supra. In the Niskikawa
decision, the court specifically stated that, in expatriation cases, as
well as those involving denaturalization, "* * * the facts and the
law should be construed as far as is reasonably possible in favor
of the citizen." For the reasons stated above, we conclude that it
has not been established that thiS applicant became expatriated
either under section 401 of the Nationality Act of 1940 or under
section 350 of the Immigration and Nationality Act. Accordingly,
the motion of the Service will bo denied.

ORDER: It is ordered that the motion of the Service for reconconsideration, except as reconsidered herein, be and the same is
hereby denied.

420