upon arrangements being made with the local immigration office for verification of departure.

Dissenting, ROBERT E. LUDWIG, Member.

Discussion: The issue in this case is whether the respondent is a citizen of the United States or whether she lost her citizenship, acquired by birth at Cleveland, Ohio, on March 31, 1924, by reason of her acceptance of employment as a teacher in Italy for approximately 2 months during May and June of 1944. It is my opinion that on this record the respondent has not become expatriated and that she is a citizen of the United States for reasons hereinafter set forth. I do not agree with the majority in this regard. The majority concedes that the burden of establishing alienage in a deportation case is upon the Government and that the presumption found in section 4021 of the Nationality Act of 1940 is a rebuttable one. It is their opinion that the respondent has not overcome the presumption of expatriation arising from evidence presented by the Government to the effect that she did accept employment and that only nationals of Italy are eligible for such employment. The majority also concedes that the question of whether Italy was a "foreign state," as that term is used in the statute, presents a close issue but then chooses to rely on two district court cases, whereas the weight of authority is just the opposite.

Expatriation, being a voluntary act under section 401 of the Nationality Act of 1940, involves serious legal consequences and should not be destroyed by the character of evidence relied upon by the Government. Cf. Perkins v. Elg, 307 U. S. 325, 83 L. Ed. 1320 (1939). The great weight of authority is that evidence that the act was committed intentionally with notice of the consequences must be clear, unequivocal, and convincing, (MacKenzie v. Hare, 329 U. S. 311; Savorgnan v. U. S., 338 U. S. 491; Furusho v. Acheson, 94 F. Supp. 1021, U. S. D. C. Hawaii, January 1951; Ouve v. Acheson, D. C. Hawaii, 91 F. Supp. 129 and cases cited therein.) We have held in a case closely paralleling the case before us that since section 401 (d) of the Nationality Act operates to terminate citizenship, its terms should be narrowly construed, especially in cases wherein there was no attempted expatriation as in this one, (Matter of S—— P56156/765, 2, I. & N. Dec. 57, B. I. A. March 11, 1944).

An unsupported ex parte statement, not under oath, made approximately 5 years subsequent to the issue of the certificate of loss of nationality to the vice consul at Rome by one purported to be the

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Sec. 402 provides that a national of the United States who was born in the United States "shall be presumed to have expatriated himself under subsecs. (c) or (d) of sec. 401 when he shall remain for 6 months or longer within any foreign state of which he or either of his parents shall have been a national according to the laws of such foreign state" (8 U. S. C. 802).

superintendent of schools for a province in Italy, in my judgment does not meet the tests referred to above. It is hearsay in its worst form. There is no showing by the Government that an Italian law was in force, during the period that respondent taught school, which provided that only a subject of Italy was eligible to be a public schoolteacher. A Federal court has commented that it would be incumbent upon the Government to make such a showing when citizenship is questioned under section 401 (d) of the Nationality Act, (Furusho v. Acheson (supra)). I think the respondent's testimony under oath that the superintendent of schools "was under the allied forces," supported as it is by documentary evidence which reads in part, "whereas your office (military government) has authorized the reopening of the elementary schools of the city of Gildone," does controvert the facts stated both in the certificate of loss of nationality and the document issued approximately 5 years later to support the certificate. In my opinion, this type of evidence is entitled to far more weight than the unsupported ex parte hearsay statement relied upon by the Government.

The majority concedes that the issue is somewhat close on the question of whether Italy was a "foreign state" under military occupation as that term is used in the statute. They rely on two district court cases one of which, the Gyeno case (supra), presents conflict of opinion within the same district. There is no question that Italy is "foreign" to the United States in the sense that it is opposed to the meaning of the word "domestic," which includes territories of the United States. The controversial issue with which we are here concerned is whether Italy was a "state" during May and June of 1944 while the respondent taught there. Judge Hall in the Kunivuki case (supra), relying on a former opinion of his and two Supreme Court cases, defines a state as follows: “A state comprehends a body of people living in a territory, who are not subject to any external rule, but who have the power within themselves to have any form of government which they choose and have the power to deal with other states."

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* Kuwahara v. Acheson, 96 F. Supp. 38 (U. S. D. C., S. D. Calif., C. D., March 5, 1951); Gyeno v. Acheson, 96 F. Supp. 510 (U. S. D. C., W. D. Wash., N. D., March 23, 1951).

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Kuniyuki v. Acheson, 94 F. Supp. 358, an opinion by Judge Hall of the U. S. District Court, Western District of Washington, Northern Division, dated August 24, 1950, holds that occupied Japan, during the elections of 1946 and 1947, was not a "foreign state" within the statute providing for loss of nationality (sec. 401 of the Nationality Act of 1940). Judge Yankwich, of the same district, in a case with similar facts holds that Japan is a "foreign state" within the meaning of the statute, (Gyeno v. Acheson, 96 F. Supp. 510, March 23, 1951.) *U. S. v. Kusche, D. C. Wash., 56 F. Supp. 201.

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* Jones v. U. S., 137 U. S., 202, 34 L. Ed. 691; Oetjen v. Central Leather Co., 246 U. S. 297, 62 L. Ed. 726.

In other words, the first essential in a state is sovereignty. Judge Yankwich in the Gyeno case (supra), makes no mention of the opinion of his colleague of the same district, but states that he disagrees with cases outside of his own district, namely, the Arikawa and Furusho cases (supra). He admits that an occupation by force of arms might effectively destroy the sovereignty of a foreign state, but distinguishes our occupation of Japan by saying that it was a "mild type of occupation" wherein "the Emperor of Japan was allowed to remain as the titular head of the state" (p. 516, Gyeno opinion).

The circumstances surrounding the occupation of Italy, in my judgement, do not meet the qualifications set forth by Judge Yankwich. During the period the respondent taught, her province had been conquered and was then occupied by an enemy army. The remainder of Italy, as we so well know, was under the domination of the Germans. These are historical facts of sufficient moment to warrant judicial notice and are opposed to conditions which existed in the past and are still subsisting with regard to the sovereignty of Italy. To say, as does the majority, that the respondent must submit affirmative evidence of the nonsovereignty of Italy during the crucial period simply begs a question wherein there are two opposing views as yet undecided by an appellate court.

The Supreme Court in a frequently cited case has stated the rule that a determination by immigration authorities regarding the citizenship of a native-born "must be after a hearing in good faith and it must find adequate support in the evidence." The evidence relied upon by the majority in this case, in my judgment, is not adequate to support a finding of expatriation. Accordingly, I find that the respondent has overcome the presumption of expatriation arising from the facts stated in the certificate of loss of nationality and the ex parte statement supporting it and that the Government has not met the burden of proving alienage.

Kwock Jan Fat v. White, 253 U. S. 454, 458, 64 L. Ed. 1010, 1012, June 1920.

IN THE MATTER OF F G

In EXCLUSION Proceedings

A-7985780

Decided by Board October 26, 1951

Citizenship-Native born-Expatriation-Voting in foreign political election (Mexico, 1947)-Section 401 (e) of the Nationality Act of 1940-DefenseIgnorance of status as United States citizen when voting-Lack of intent to expatriate.

A native born citizen of the United States, by voluntarily voting in a political election in Mexico in 1947 performed the objective, overt act set forth in section 401 (e) of the Nationality Act of 1940 and thereby expatriated himself; and such performance results in expatriation without regard to the knowledge of the subject as to his citizenship status at that time, and irrespective of this intent at the time he voted or of his ignorance of the consequences of his act of so voting.

EXCLUDED BY BOARD OF SPECIAL INQUIRY:

Act of 1924-No immigration visa.
Executive Order 8766-No passport.

BEFORE THE BOARD

Discussion: The case presents an appeal from an order dated July 17, 1951, of the Assistant Commissioner confirming the appellant's exclusion by a board of special inquiry at the port of Del Rio, Tex., on April 6, 1951, on the grounds stated above.

The appellant was born at D'Hanis, Tex., on September 5, 1924, of Mexican citizen parents, thereby possessing United States and Mexican nationality at birth. He resided in Mexico from November 8, 1928, until 1947 when he entered the United States by wading the river. He stated that at the time he was not aware that he was born in the United States, but subsequently received a birth certificate from his mother showing his birth in this country. He had previously been informed by his stepmother that he had been born in Mexico. Since 1947 the appellant has continued to reside in the United States except for brief visits to Mexico and is presently seeking admission as a citizen after a brief absence to Mexico. During the course of the hearing the appellant testified that he had voted in 1947 in an election for the President of Mexico, and before he had voted for Benencio

Lopez-Padilla for governor of Coahuila. The board of special inquiry found that although the appellant had been a citizen of the United States at birth, he had expatriated himself by voting in a political election in 1947 under the provisions of section 401 (e) of the Nationality Act of 1940 (8 U. S. C. 801 (e)), and was inadmissible on the grounds stated above. The Assistant Commissioner affirmed the excluding decision of the board of special inquiry but a brief filed by counsel takes issue with the finding of expatriation.

Counsel's contention is that although it is conceded that the appellant's act of voting in 1947 was voluntary it could not result in the expatriation of the appellant in the absence of knowledge on the part of the appellant that he was a citizen of the United States. In passing, it may be noted that it is not disputed that the appellant had no knowledge of his birth in the United States and of his United States citizenship at the time he voted in Mexico sometime in 1947 or prior thereto. The question squarely presented is whether the act of the appellant in voting in a political election in Mexico in 1947 constitutes an act of expatriation under the provisions of section 401 (e) of the Nationality Act of 1940 in the absence of knowledge at that time on the part of the appellant that he was a native-born citizen of the United States.

In his brief counsel has cited the case of Cantoni v. Acheson, 88 F. Supp. 576 (N. D. Calif. S. D., 1950), which counsel alleges stands for the proposition that if the court in that case had been satisfied that the plaintiff acted without knowledge that he was entitled to American citizenship it would have entitled him to a judgment that he had not lost citizenship so far as the question of forfeiture under section 401 (c) of the Nationality Act of 1940 was concerned. We do not, however, so construe that decision. In the Cantoni case, the plaintiff contended that at the time he served in the Italian Army and took an oath of allegiance to Italy, and also at the time he voted in the Italian election he acted without knowledge that he was entitled to American citizenship; hence, he claimed, such acts were not freely or intelligently done, and since a full and intelligent choice was essential to effectuate renunciation (cited Dos Reis ex rel. Camara v. Nicolls, 161 F. (2d) 860 (1 Cir., 1947), and other cases), such acts had no expatriative effect. The court, while expressing disbelief regarding the claimed lack of knowledge of citizenship on the part of the plaintiff, stated that even assuming the verity of plaintiff's allegation regarding his citizenship, it did not constitute evidence legally sufficient to sustain his contention that he did not freely and intelligently perform the acts that, under the law, constitute renunciation of American citizenship. The court further went on to say that it is now settled law in cases arising under 8 U. S. C. 903 that undisclosed intent is not legally relevant in determining the validity of an overt act of renun