Calif., and that he was not the same individual who appeared under his name at the Fresno Draft Board in October 1943.

Exhibit 7 also establishes that on November 25, 1942, a notice of the reopening of the appellant's case for reclassification was mailed to him in Oxnard and that he was ordered to report for mass physical examination but the date of "December 4, 1942" beside this latter notation does not indicate whether the notice to report was mailed on that day or whether the appellant was required to report on that day. The subject denied that he ever received either the letter mailed on November 25, 1942, or any notice to report for physical examination.

Sworn statements of the appellant's father and sister were admitted in evidence and the former testified that he knew no notice to appear for physical examination was received by his son prior to his departure from the United States on November 29, 1942. He further testified that his son had told him several times that he desired to enter the United States Army and so he could not explain the appellant's departure to Mexico.

The sister testified that about December 10, 1942, she found a letter from the draft board to her brother under the tablecloth and that it had been opened but that her brother had not mentioned having received it up to the time he disappeared on November 29, 1942. Her testimony is rather confusing since the notice from the draft board is variously referred to as "letter," "notice for the draft" and "notice to appear for physical examination" and so it is not clear whether the notice she found was the notice of reopening for reclassification or the notice to report for physical examination which latter notice, as stated above, might have been mailed subsequent to the appellant's departure from the United States. She also testified that she received no mail from the draft board to her brother following his departure but later admitted that the notice of reclassification to 1-A was received after he left. The sister confirmed her father's statement, however, that her brother was glad over the prospects of joining the army.

The appellant's testimony concerning why he stayed in Mexico for approximately 22 years, and particularly after September 27, 1944, is not satisfactory but it appears that he moved from place to place working intermittently, and always with the intention of returning to the United States. He testified that "time just passed by" and it seems likely that the delay in his return was due to procrastination as some new employment or desire to see a place or person presented itself.

This Board concedes that the evidence in this case is not all that could be desired to establish that the appellant did not remain out of the United States after September 27, 1944, for the purpose of evading service in the armed forces of this country but it is also of the opinion

844885-50-26

that the evidence fails to establish that he did. The subject's veracity was arduously attacked insofar as his presence in this country during 1943 was concerned and receipt by him of notices from his draft board but it was ultimately established that he had testified truthfully with respect to his continued absence from the United States since November 1942 and it was never established that he had actual knowledge of the imminence of his induction at the time of his departure to Mexico.

The Acting Commissioner of the Immigration and Naturalization Service concluded that,

The subject's bare and unsupported explanations are utterly irreconcilable with his actions manifesting, in the main, a clear purpose on his part in remaining out of the United States. In such a situation, the self-serving and exculpatory testimony must give way to accomplished actions pointing to the inescapable and conclusive purpose on the subject's part. It cannot be contended, with any force, that such clear acts on his part do not constitute substantial evidence.

Merely remaining outside of the jurisdiction of the United States is not sufficient to justify a declaration of expatriation under section 401 (j), supra, and this Board does not consider the appellant's conduct from September 27, 1944, to May 9, 1945, including his failure to return to the United States during this period, sufficient to establish the specific purpose required to find that the appellant has expatriated himself. Citizenship is a right not to be lightly denied and in the absence of convincing evidence of expatriation we must conclude that he is still a citizen of the United States. Accordingly, the appeal in this case will be sustained.

Findings of Fact: Upon the basis of all the evidence presented, it is found:

(1) That the appellant was born on December 5, 1922, in Oxnard, Calif.;

(2) That on May 9, 1945, the appellant applied for admission into the United States as a citizen thereof;

(3) That the appellant departed from the jurisdiction of the United States on November 29, 1942, which was prior to the September 27, 1944, amendment to the Nationality Act of 1940;

(4) That it has not been established that the appellant remained outside of the jurisdiction of the United States from September 27, 1944, until May 9, 1945, for the purpose of evading or avoiding training and service in the armed forces of this country; (5) That the appellant is not in possession of an unexpired immigration visa;

(6) That the appellant is not in possession of a passport or document in lieu thereof.

Hauenstein v. Lynham, 100 U. S. 482, 484 (1880).

Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:

(1) That under the 14th Amendment to the Constitution of the United States the appellant was born a citizen of this country; (2) That under section 401 (j) of the Nationality Act of 1940, as amended, the appellant has not expatriated himself;

(3) That under the Passport Act approved May 22, 1918, as amended, and Executive Order 8766 the appellant is not inadmissible to the United States as an immigrant not in possession of an unexpired passport;

(4) That under section 13 (a) of the Immigration Act of May 26, 1924, the appellant is not inadmissible to the United States as an immigrant not in possession of an unexpired immigration visa. Order: It is ordered that the appeal be sustained and the appellant be admitted to the United States as a citizen thereof.

In accordance with the provisions of title 8, Code of Federal Regulations, now section 90 12 (c), this case is certified to the Attorney General for final decision upon the request of the Acting Commissioner of the Immigration and Naturalization Service.

BEFORE THE ATTORNEY GENERAL

(March 25, 1946)

In re: M― C▬▬▬▬▬▬▬▬ A▬▬▬▬▬ or M A- C. Before the Attorney General for review of an order sustaining appellant's admissibility to the United States as a citizen thereof.

I agree with the reasons for exclusion in this case expressed in the opinion of the Commissioner of Immigration, dated October 16, 1945. Accordingly, the findings of fact, conclusions of law and order of the Board of Immigration Appeals sustaining appellant's admissibility to the United States as a citizen thereof are hereby set aside, and the findings of fact and conclusions of law of the Commissioner of Immigration, dated October 16, 1945, and the order of exclusion of the Board of Special Inquiry, dated September 13, 1945, are hereby approved.

IN THE MATTER OF A-H

In EXCLUSION Proceedings

56196/251

Decided by Central Office October 31, 1945

Decided by Board December 13, 1945

Ruling by Attorney General May 15, 1946

Citizenship-Expatriation-Section 401 (j) of the Nationality Act of 1940, as amended-Applicability to persons under twenty-one.

A native born citizen can forfeit his citizenship under the provisions of section 401 (j) of the Nationality Act of 1940, as amended, prior to attaining his twenty-first birthday.

EXCLUDED BY BOARD OF SPECIAL INQUIRY:

Act of 1917, as amended-Departed to escape military service.

BEFORE THE CENTRAL OFFICE

(October 31, 1945)

Discussion: The appellant applied for admission as a citizen of the United States on July 30, 1945, at the port of Nogales, Ariz. He was found to be inadmissible by a Board of Special Inquiry on the ground stated above and has appealed from that decision.

The appellant stated that he was born in the United States on April 19, 1926, and in support thereof he presented a baptismal certificate showing birth on the date stated and stating that he was baptized on August 15, 1926 at Owensmouth, Calif. While this baptismal certificate shows baptism 4 months after birth and does not contain a statement of the place of birth and although no independent evidence of the place of birth has been presented, it may be conceded, for the purposes of this opinion, that he was born in this country and therefore a citizen thereof at birth.

During his hearing the appellant stated that the reason he last departed from the United States during February 1944 was that he "was getting to be nearly 18 years old and (he) did not want to register for the selective service in the United States." He added that that was the reason he remained outside of this country until his present application for admission. He is not yet 21 years of age.

Section 401 of the Nationality Act of 1940, as amended by the act of September 27, 1944, provides that:

A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: (j) Departing from or remaining outside

of the jurisdiction of the United States in time of war or during a period declared by the President to be a period of National emergency for the purpose of evading or avoiding training and service in the land or naval forces of the United States. It is conceded that the appellant remained outside of the United States on and after September 27, 1944 for the purposes proscribed by the said act. The sole question to be determined therefore, is whether he became expatriated thereby in view of his minority. If he did not, he is admissible as an American citizen. If he did become expatriated he is an alien and excludable on the ground urged by the Board of Special Inquiry inasmuch as section 3 of the act of February 5, 1917, was amended on September 27, 1944, to provide for the exclusion of aliens who have departed from the jurisdiction of the United States for the purpose of evading or avoiding training or service in the armed forces of this country during time of war or during a period declared by the President to be a period of national emergency.1

The issue presented in this case does not appear to have been determined by any court. The question of whether minority is a bar to the appellant's expatriation is not resolved by the provisions of the statute. Section 403 (b) of the Nationality Act of 1940, as amended, provides that no national under 18 years of age can expatriate himself under the provisions of subsections (b) to (g), inclusive, of section 401. When subsection (j) was added to section 401, the age provisions of section 403 were not extended to encompass it. Did Congress intend to impose majority as the sine qua non to expatriation under section 401 (j) and must that subsection be so interpreted?

I. General Observations

Under the Act of March 2, 1907, an individual could become expatriated by naturalization in a foreign state, by taking an oath of allegiance to a foreign state or by marriage to a foreigner. This act was entirely silent as to any minimum age at which expatriation could occur. It was held, however, that minority prevented loss of nationality by an oath of allegiance to a foreign state. (U. S. ex rel. Baglivo v. Day, 28 F. (2d) (44 D. C., N. Y., 1928)), or by naturalization in a foreign state (Legal Branch, file 56034/793, May 31, 1941; Board of Immigration Appeals, files 56096/426, November 1, 1942; 56107/249, October 21, 1942) because it was stated that a minor could not renounce his citizenship. However, minority was no bar to expatriation (under

'It is conceded that departure for the proscribed purpose before the effective date of the act renders an alien excludable if he seeks to reenter on or after that date.

2

Marriage to a foreigner was removed as a ground for expatriation by the acts of September 22, 1922 and March 3, 1931. The other two stated statutory provisions of the act of March 2, 1907 relating to expatriation remained in effect until the passage of the Nationality Act of 1940, effective January 13, 1941.