IN THE MATTER OF S P—— In EXCLUSION Proceedings 56156/765 Decided by the Board March 11, 1944 Expatriation-Employment by foreign government-Section 401 (d) of the Nationality Act of 1940. United States citizenship is not deemed lost under the provisions of section 401 (d) of the Nationality Act of 1940 as a result of employment by the Mexican Government when such employment is not restricted to Mexican nationals only. (Alien held job as school teacher, after 18; also that of forest ranger before 18.) EXCLUDED BY BOARD OF SPECIAL INQUIRY: Act of 1924-No immigration visa. BEFORE THE BOARD Discussion: The appellant applied for admission to the United States for an indefinite period at Nogales, Ariz., on January 3, 1944. A Board of Special Inquiry has excluded him on the ground above specified and he appeals. The appellant was born in San Gabriel, Calif., on March 18, 1924. In 1926 his parents took him to Mexico where he has lived since. The Board of Special Inquiry in excluding him has held that he lost his United States nationality under section 401 (d) of the Nationality Act of 1940. The appellant testified that from February 1, 1942 to March 15, 1942, he was employed by the Mexican government as a forest ranger, and that from September 1943 to December 16, 1943, he was employed by that government as a school teacher. The Nationality Act of 1940 (54 Stat. 1137) provides as follows: SEC. 401. A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: ** (d) Accepting, or performing the duties of, any office, post, or employment under the government of a foreign state or political subdivision thereof for which only nationals of such state are eligible. (8 U. S. C. 801) * SEC. 403 (b). No national under eighteen years of age can expatriate himself under subsections (b) to (g), inclusive of Section 401. (8 U. S. C. 803) Inasmuch as the appellant was under 18 years of age throughout the period of his employment as forest ranger, his employment as such could not by reason of section 403 (b) have resulted in his expatriation. He was more than 18 years of age, however, during his employment as a school teacher and section 403 (b) has no application thereto, and the question presented is whether such employment resulted in his expatriation under section 401 (d). Article 6 of the Judicial Code of Mexico provides that "All federal workers shall be of Mexican Nationality and may be substituted by foreign workers only in the absence of Mexican technicians necessary to efficiently develop the service in question. The substitution shall be decided by the Secretary or Department of the respective State, consulting beforehand the corresponding syndicate, and, in case of disagreement between the latter and the Secretary, it shall be agreed upon decision of the Arbitration Tribunal." The Central Office states that since Article 6 permits the employment of non-Mexicans as federal workers under certain circumstances, the appellant's employment did not cause him to lose his United States Nationality under the provisions of section 401 (d). The appellant testified that although he was born in California, his parents were natives and citizens of Mexico. The Mexican Constitution provides that persons born of Mexican parents are Mexican whether born "within or without the Republic" (Constitution of 1917, Article 30; Section 1, Nationality Laws by Flournoy and Hudson, p. 426). Thus it is apparent that the appellant satisfied the requirements of the Mexican statute without resort to the authorization for substitution of foreign workers. However, as is pointed out by the Central Office, persons other than nationals of Mexico are eligible, if authorized, for such employment. As section 401 (d) operates to terminate citizenship, we believe that it should be narrowly applied, especially in a case where there was no attempted expatriation. Accordingly, we shall adopt the view of the Central Office and sustain the appeal. Findings of Fact: Upon the basis of all the evidence presented, it is found: (1) That the appellant was born in San Gabriel, California, on March 18, 1924; (2) That the appellant has applied for admission to the United States as a citizen thereof for an indefinite period; (3) That from February 1, 1942 to March 15, 1942, the appellant was employed as a forest ranger by the government of Mexico; (4) That from September to December 1943, the appellant was employed by the government of Mexico as a school teacher, at which time he was over 18 years of age; (5) That employment as federal workers of persons other than those of Mexican nationality may be authorized. Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded: (1) That under the 14th Amendment of the Constitution and Section 1992 of the Revised Statutes, the appellant was a citizen of the United States at birth; (2) That under section 401 (d) of the Nationality Act of 1940 the appellant did not lose his United States nationality by accepting and performing the duties of an office, post, or employment under the government of a foreign state for which only nationals of such state are eligible; (3) That under the Immigration Act of May 26, 1924, the appellant is not inadmissible to the United States in that he is an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by said Act or regulations made thereunder. Other Factors: The appellant's mother and sister reside in Mexico. He has an uncle residing in the United States. Order: It is ordered that the appeal be sustained and the appellant admitted as a citizen of the United States. IN THE MATTER OF R———— In EXCLUSION Proceedings 56156/670 Decided by the Board March 18, 1944 Expatriation-Performing duties of an office under a foreign government— Section 401 (d) of the Nationality Act of 1940-Oath of allegiance to foreign state-Section 2 of act of March 2, 1907. 1. Service as a member of a board of school trustees in a School District in Canada or service on a local ration board in Canada is not restricted to Canadian nationals, and therefore does not result in loss of United States citizenship under section 401 (d) of the Nationality Act of 1940. 2. An oath of allegiance taken by a minor on entering the armed forces of Canada in 1914 did not result in expatriation under section 2 of the act of March 2, 1907, where he was released in 1915 from the Canadian army less than 4 months after his twenty-first birthday, on the basis of his minority at the time of enlistment. EXCLUDED BY BOARD OF SPECIAL INQUIRY: Executive Order No. 8766-No passport or nonresident alien's border crossing identification card. BEFORE THE BOARD Discussion: The appellant, claiming United States citizenship by virtue of his birth at Caribou, Maine, on March 26, 1894, applied for temporary admission to the United States on November 23, 1943, at Madawaska, Maine, for the purpose of visiting in this country. He was not in possession of any documents required of aliens to enter the United States and a Board of Special Inquiry, after disallowing the appellant's claim to United States citizenship on the basis of expatriation under section 401 (d) of the Nationality Act of 1940, excluded him on the ground designated above. He appeals. The appellant presented a certificate covering the birth of one C Ron the date and at the place set forth above and testified that he is the same person shown in said certificate, irrespective of the difference in the given name. While the appellant gave his name as "ER", he stated he is also known as "C" and that there were no other children in his family known by that name. The appellant further testified that his father was born in St. Alexandre, Riviere du Loup, P. Q. and that, although he lived in the United States for approximately 45 years, he never, to the appellant's knowledge, became naturalized in this country. The family moved to Canada when the appellant was 13 years old and has resided in the Dominion since that time. The appellant also testified that on September 14, 1914, at the age of 20 years, he enlisted in the Canadian Army, taking the prescribed oath of allegiance to the King of England, and that he was discharged on July 15, 1915, at the instigation of his father since he, the appellant, was under age at the time of his enlistment and had not secured his parents' permission to join the army. He was later exempted from the Canadian draft because of being employed on a railroad. Irrespective of whether the appellant was a Canadian citizen at the time of his birth by reason of the fact that his father was a native citizen of that country, there is no question that the subject was born a citizen of the United States (14th Amendment, U. S. Const.) and the only issue for determination is whether or not, under the laws of the United States, he has expatriated himself. Section 2 of the act of March 2, 1907, which was in effect until its repeal by the Nationality Act of 1940, provided only two means of expatriation by male citizens, namely: That any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign State in conformity with its laws, or when he has taken an oath of allegiance to any foreign State (8 U. S. C. 17, 1927 Ed.). Inasmuch as there is no question of expatriation on the part of the appellant prior to 1907, since it was apparently in that year that he first departed from the United States, consideration need not be given to any earlier laws on the subject. It has been consistently held, prior to the Nationality Act, supra, that a native United States citizen who has not attained the age of 21 years cannot expatriate himself (U. S. ex rel. Baglivo v. Day, 28 F. (2d) 44), but the Attorney General has indicated that, "in the case of an infant reaching his majority while in the service of a foreign state it might ‘be assumed that the oath would be a continuing oath, which attached to him when he reached 21 years of age'" (39 Op. Atty. Gen. 474, 482). Assuming that such a presumption does attach to continued service in a foreign army, it is not considered of material significance in the subject case in view of the appellant's release from the Canadian Army less than 4 months after his twenty-first birthday, on the basis of his minority at the time of enlistment. The other pertinent ground for expatriation under the 1907 Act, supra, has no bearing on the subject case, since the appellant testified that he has never been naturalized in Canada. The doctrine of election as pronounced in the case of Perkins et al. v. Elg (307 U. S. 325) has no application in instances of dual citizenship at birth (In re J— R—, 56127/95, Jan 13, 1943), and accordingly, it must be concluded |