M

9 I. & N. Dec. 452

• Court: Board of Immigration Appeals
• Decided: July 1, 1961
• Docket: 1169
• Status: Published

Opinion

MA rraR or DI—

In DEPORTATION Proceedings A-11875663 Decided by Board August 2,1961

Expatriation—Section 349(a)(3), 1952 act—Volunntary service in Rebel Army of Cuba after January 1, 1959. (1) Native-born United States citizen who served in We Reno. Army ut Cuba subsequent to January 1, 1959, is held to have expatriated under the pro- visions of section 349(a) (3) of the Act upon evidence establishing that he voluntarily joined the rebel forces in Cuba in January 1958, that he went back to the United States in December 1958, and that he voluntarily re- turned to Cuba in January 1959 and resumed his military rank (Captain) and duties without protest. (2) Service In the Rebel Army of Cuba after January 1, 1959, the date on which Castro came to power, constitutes service in the arn .,,c1 forces of a. —

foreign state as defined in section 349(a) (3) of the Act. CHARGES : Order : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—No immi- grant visa. Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Convicted of crime involving moral turpitude, to wit, carnal knowledge and abuse.

BEFORE THE BOARD

DISCUSSION: The case comes forward on appeal from the order- of the special inquiry officer dated May 31, 1961, finding the re- spondent to be an alien and directing his deportation on the charges contained in the order to show cause. The respondent was born in Milwaukee, Wisconsin, on August 1, 1921, last entered the United States at the port of El Paso, Texas, on or about July 22, 1960, and was admitted upon his claim that he was a citizen of the United States_ The rpsponclent was, of course, a citizen of the United States at birth.' The primary ques- tion to be resolved is whether the respondent, as result of conduct subsequent to his birth, expatriated himself under the provisions of section 349(a) (3) of the Immigration and Nationality Act (8 U.S.C. 1 U.S. Constitution, Fourteenth Amendment, and section 1992, U.S. Revised

Statutes.

452 1481 (a)(3)), which provides for loss of nationality by a native or naturalized citizen after the effective date of the Act by: entering, or serving in, the armed forces of a foreign state unless, prior to such entry or service, such entry or service is specifically authorized in writ- ing by the Secretary of State and the Secretary of Defense * • *. It has been established that the respondent was a citizen of the United States at birth. The Government, therefore, has the burden of proving that the respondent subsequently becalm:, expatriated. The burden is a heavy one; the proof to establish loss of citizen- ship must be clear, unequivocal and convincing? Likewise, the burden is upon the Government to establish that the expatriatory act was performed voluntarily.' The contentions raised by brief and oral argument on the issue of alienage raise the following quections: (1) Did the respondent serve voluntarily in the Rebel Army of Cuba after January 2, 1959? (2) Did service in the Rebel Army of Cuba constitute service in the armed forces of a foreign State within the meaning of section 319(a) (3) ? The record establishes that respondent went to Cuba in January 1958 to join the revolutionary forces of Castro against the existing Batista regime. The motivation which prompted the respondent to join the Castro regime does not appear to us to be material. Start- ing as a private he rose to rank of Captain in July 1958. He tes- tified that he returned to the United States in November or Decem- ber 1958 for medical treatment. However, after Batista had been deposed, and the respondent knew the actual fighting had ceased, the respondent returned to Havana about January 5, 1959, allegedly for a reunion with comrades, in arms with whom he had fought during the revolution. There is some inconsistency in the testimony of the respondent regarding his own thoughts as to his status upon his return to Cuba, but it is established by the record that respond- ent returned to one of the leaders of the revolutionary forces in whose home he slept in La Cabana, a military fortress in Havana, and who, on the next day, took him to general quarters and assigned him to take over the corps of guards and the security of the Rebel Army at La Cabana, with the rank of Captain, supervising the guards at the tribunalc of the revolutionary forces in executing the orders of the tribunals. He remained at La Cabana until May 1959, when the executions of persons condemned to death by the revolutionary tribunals ceased, and acknowledged that during that

2 Nishikawa v. Dulles, 356 U.S. 129; Gonzales v. Landon, 350 U.S. 920; Baumgartner v. United States, 322 U.S. 665; Schiteiderman v. United States, 320 U.S. 118. 3 Nishikawa v. Dulles, supra; Perez v. Brownett, 306 U.S. 44; Matter of C- 8-317. 453 period he was a member of the Rebel Army and the men under his command were likewise members. About June 1959 he was trans- ferred to various installations, men under him performing chiefly guard duty, although for one month during July 1959 gave in- structions in the use of weapons at a military police school and again at Principe Prison, Havana, from March 1960 until he left Cuba in May 1960. It has been established that during the period of his service the respondent retained his military rank of Captain, wore the insignia, issued commands to men under his jurisdiction and was himself subject to official orders of his commanding officer or chief of staff, and was paid by the Chief of Staff of the Rebel Army. He was holder of an identity card issued by the Director of Personnel of the itebel Army on August 17, 1959, identifying him as a Captain of the Rebel Army. Several witnesses testified to the effect that the respondent wore a uniform, olive-green in color, and that the men under his command in the firing squad wore the same uniform with- out the insignia of Captain (three chevrons) which the respondent wore. He vouched for the truth and correctness of a magazine article covering his military activities subsequent to January 1959. Although the respondent has claimed that his service in the Cuban army after January 1959 was involuntary, it is to be remem- bered that the respondent's original act of joining the Cuban revo- lutionary forces was voluntary and that he was in the United States at the time the Batista regime was overthrown and the actual fight- ing had ceased. There is no showing that his return to Cuba in January 1959 was other than voluntary, for it is manifest that he could have remained in the United States without fear of punish- ment or retribution from the Rebel Army of Cuba. There is some indication that the respondent's return to Cuba in January 1959 was motivated by 1 - -pect of sharing in the land distribution of the agrarian re—tai program promised by Castro. However, when he returned, it does not appear that he was impressed into service or compelled to return to service. The respondent, it is to be remembered, was a volunteer foreigner and his case differs from those persons who were conscripted into service. 4 On the other hand, he sought out his commander, was cordially received, and was continued in the rank of Captain with complete willingness and without any protest either to the commanding officer or to the American Consul. After voluntarily returning to Cuba and con- tinuing in his military rank and duties since January 1959 without protest, his present claim of duress does not appear credible. Having established his return to military service in the Rebel Army 4 Nishikawa v. Dulles, 356 U.S. 129 (1958); Podea v. Acheson, 170 F.2d 306 (C.A. 2, 1950).

454 in January 1959 was voluntary and of respondent's own free will, a discussion as to respondent's difficulty in thereafter obtaining his release from milit a ry service would appear to be academic. It is believed that the evidence establishes conclusively the voluntari ess of the respondent's service in the Cuban•revolutionary armed forces after January 6, 1959. The next question to be resolved is whether the Rebel Army after the fall of the Batista regime subsequent to January 1, 1959, when Castro took over the reins of the Cuban Government, constituted the armed forces of a foreign state within the meaning of section 349(a) (3) of the Immigration and Nationality Act. Prior to the fall of Batista and the then duly constituted Government of Cuba, it is not doubted that the Rebel Army was merely a revolutionary force and had no official or legal status. However, after January 1, 1959, Castro, by decree published in the Official Gazette of Cuba on January 2, 1959, wee appointed the Commanding Chief of the Air, Sea and Land Forces of Cuba. Law #13 promulgated on Janu- ary 13, 1959, temporarily suspended the Organic Law relating to the organization of what had previously constituted the regular Cuban Army, pending a reorganization of the armed forces. The fundamental law of Cuba setting up the organization and the new government became effective on February 7, 1959. Article 126 as- signed to the President of the Republic, assisted by the Council of Ministers, the function of directing the Armed Forcer of the Repub- lic as their supreme head. Law #100 enacted February 23, 1959, created certain nonmilitary departments in the Rebel Army and assigned them to the Ministry of Defense. Law #600 of October 16, 1959, created a new Minister of Revolutionary Armed Forces (in lieu of the former Ministry of Defense) and placed all the armed forces of the country under its jurisdiction. This law dissolved the previously existing regular Cuban Army, Navy, National Police and Joint Chiefs of Staff and provided for the preparation of a new Organic Law within 60 days. However, the Rebel Army never dis- appeared but its continued existence as the armed forces of Cuba after Castro had taken over was explicitly recognized in Article 6 of Law #600 which stated that "members of the Rebel An and other persons at present rendering real and effective service in any of the Armed Forces of the Nation, shall retain their mil:dal sta tus." The Service produced a witness, Dr. J—A--M—, a former prac- ticing attorney and public defender in Cuba, as an expert on Cuban law to testify as to the effect of these various provisions of law set out above. His qualifications were not disputed. This witness testi- fied that although Law #13 temporarily suspended the Organic Law relating to the army, it did not dissolve the army itself nor 455 was Article 3 of Law #600 necessary to give the Rebel Army legal sanction; that law merely provided for the administrative organiza- tion of the Rebel Army and did not relate to the creation or existence of the Rebel Army as a military force of Cuba; and even without such a law, the Minister of the Revolutionary Armed Forces was empowered to issue decrees providing for the organiz'ation of the Rebel Army. The Immigration and Nationality Act does not define the term "armed forces" as used in section 349(a) (3). The legislative history relating to loss of citizenship by serving in foreign military forces 5 comments that before enactment of the Nationality Act, entry into or service in the armed forces of a foreign state would not, of itself, cause loss of citizenship but that under the Nationality Act loss of citizenship occurred under certain circumstances, such as the posses- sion or acquisition of the nationality of the state for which he was serving. The report referred to the modification of the general rule of expatriation by entering foreign service by certain Execu- tive Agreements which permitted foreign service without expatri- ation. It also made reference to the holding that service in the reserve forces in a foreign state would expatriate if the obligations thereby incurred were the same rs those in active service if nation- ality of the foreign state was acquired. The Subcommittee com- mented that the provisions covering loss of nationality through serv- ice in the armed forces of a foreign country should be uniform and should not be dependent upon foreign law, and was therefore recom- mending changes in the subsection relating to expatriation by serv- ice in foreign military forces. In the report to accompany S. 5550, which became the Immigration and Nationality Act,° in connection with the provision of the Nationality Act of 1940 which caused loss of nationality by entering or serving in the armed forces of a foreign state unless expressly authorized to do so by the laws of the United States, the report pointed out that the new bill requires, in lieu of general authorization, that a specific authorization in writing must be made by the Secretary of State and the Secretary of Defense before a national of the United States may enter or serve in the armed forces of a foreign state without losing his status as a national of the United States. The legislative history, therefore, discloses an intent on the part of Congress to broaden the expatriatory conse- quences of service in the armed forces of a foreign state. There is no doubt in the testimony of witnesses and from reference to the various Cuban laws, previously referred to, that after Castro came into power in January 1959 the Rebel Army constituted the only effective military establishment in Cuba, that it was, de facto, enate Report No. 1515 (81st Cong., 2d Sess., p. 749). 6 Senate Report No. 1137 (82d Cong., 2d Sess., p. 4G t.

456 the exclusive armed force prior to the passage of laws which direc- ted the absorption of the remnants of the former Cuban army in a subordinate or subservient role until the final dissolution of the former regular army in October 1959, 'We agree with the conclu- sion of the special inquiry officer that the assignment of certain nonmilitary duties to the Rebel Army did not negate its status as a military force. Cases cited by counsel limiting the term "aimed forces" under prior law are distinguishable since they involve re- serve or training units rather than active military components, and there is no dispute that respondent was actually serving in the active part of the Cuban military armed force. The unreported Matter of F—A--F—, A-11884065, cited by counsel, in which proceedings were terminated by the special inquiry officer on May 14, 1961, is not a binding precedent and the issue, there appeared to be whether that respondent was an officer of the Rebel Army after January 1959. In this case, the testimony of the respondent and of witnesses clearly demonstrates that, respondent served voluntarily in active service in the armed forces of a foreign state. Voluntary foreign military service having been proved, the element of intent as a factor in expatriation is not critical.? Expatriation of the respondent pur- suant to section 349(a) (3) of the Immigration and Nationality Act has been established by clear, convincing and unequivocal evidence. Alienage having been established, consideration of the deporta- bility of this respondent on the charges set forth in the order to show cause is in order. At the time of his last entry the respondent in- tended to remain in the United States indefinitely although not in possession of an immigrant visa or any document in lieu thereof. It is the performance of expatriatory acts which results in loss of na- tionality, not the time of the adjudication thereof. 8 The respondent has admitted that he was put on notice as to the effect of his conduct by the service of a certificate of loss of nationality upon him by the consular officer at Havana. True, such certificate is not conclusive on the issue of loss of nationality, but the respondent cannot now plead ignorance or surprise and should have resorted to established procedures for seeking a final determination on the issue of loss of nationality. Although the respondent testified that he was in con- tact with the American Consul in Havana, there is no indication that he sought to avail himself of the procedure act forth in sections 360(a) and (c) of the Immigration and Nationality Act for a de- termination of his citizenship status. The case appears to be dis- tinguishable from the capes of naturalized citizens who subsequently were denaturalized and to whom the relation back doctrine as to

7 MacKenzie v. Rare, 239 U.S. 299; Savorganit v. Umited Suites, 338 U.S. 491: Perez a, Brownell, $99 U.S. 44. - Section 355 of the Immigration and Nationality Act.

457 documentary requirements has been held inapplicable. 9 The first charge in the order to show cause is sustained. The record establishes that the respondent was convicted_ on No- vember 14, 1951, on his plea of guilt in the Municipal Court, City of Milwaukee, Wisconsin, of the offense of carnal knowledge and abuse of a female, 16 years of age, contrary to section 5 0.17 of the statutes and was sentenced on January 11, 1952, to an indeterminate sentence of one to four years. Section 340.47, Wisconsin Statutes, provides: "Any person over eighteen years of age who shall unlaw- fully and carnally know and abuse any female under the age of eighteen years shall be punished by imprisonment in the State Prison for not more than 35 years nor less than one year ; or by a fine not exceeding $200 * * *." This crime has been likened to statutory rape and involves moral turpitude.° Counsel does not dispute that respondent has been convicted of a crime involving moral turpitude. However, counsel coniends that respondent was not a member of an excludable class at the time of his last entry by virtue of such conviction because section 212(a) (9) of the Immigration and Nationality Act (8 U.S.C. 1182(a) (9)) applies to "aliens" who have been convicted of such a crime and the respondent's conviction occurred :n 1952 when he was a citizen of the United States and prior to the occurrence of any of the allegedly expatriating acts. The same contention was raised in Matter of S , —

5-678, and was rejected, it being held that the respondent's con- viction of crime involving moral turpitude was precedent to his excludability and the adjudication of his status as an alien was a necessary further condition to the requirements of the Immigration and Nationality Act. 1' Counsel has raised constitutional objections to the provisions of section 349(a) (3) upon the record, but recognizes that such consti- tutional objections cannot be entertained at the administrative level. We have read the record and believe that respondent was accorded a fair hearing and due process and that the• special inquiry officer permitted counsel for the respondent wide leeway in raising objec- tions and expressing himself upon the record. We see no evidence of prejudgment upon the part of the special inquiry officer. We

Matter of 147—, 5--759. The holding in the case of Podea v. ichevon, 179 F.2d 306, cited by counsel, was that the plaintiff's ninitary service wan undo], duress and did not result in expatrialion. 1O Pin0 V. biieolls, 215 F.2d 237, rev. on other grounds, 349 U.S. 901; Bendel v. Nagle, 17 F2d 719; Matter of R—, 3-562. Reliance was placed upon United States ex rod. Eichenlaub v. Shaughnessy, 338 U.S. 521, and the decision in Mangaoang v. Boyd, 205 F.2d 533, cert. den. 346 U.S. 876, was held to be not controlling for the reasons set forth on page 555 of that decision ; see also Matter of B—, 5-405, footnote 4.

458 are not prepared to disturb the finding of the special inquiry officer who had an opportunity to observe the demeanor and deportment Of the respondent and the witnesses on the issue of credibility. After a careful consideration of the record, we concur with the finding of the special inquiry officer as to alienage and deportability. ORDER: It is ordered that the appeal be and the same is hereby dismissed.