Interpretation 349.10 Expatriation resulting from action to evade military service.

(a) Before Trop v. Dulles, Kennedy v. Mendoza-Martinez, and Rusk v. Cort.

(b) Effect of Trop v. Dulles, Kennedy v. Mendoza-Martinez, and Rusk v. Cort.

(c) Section 349(a)(10) repealed.

(a) Before Trop v. Dulles, Kennedy v. Mendoza-Martinez, and Rusk v. Cort . (1) Statutory development and provisions . Through January 12, 1941, under the Act of March 3, 1865 (reenacted as sections 1996 and 1998, R.S., 1878) and enrolled draftee lost his United States citizenship if he departed from the United States or the district of his enrollment with intent to avoid conscription for military or naval service, although beginning on August 3, 1912, expatriation was limited to cases of wartime evasion. 425/ As indicated in INTERP 349.8(a)(1), supra, the same aforementioned sections also provided for expatriation based upon desertion from the military and naval services.

The Nationality Act of 1940, effective January 13, 1941, did not include expatriatory provisions such as those described above until the Act of September 27, 1944, added section 401(j) to the statute. Both section 401(j) and its successor, current section 349a(10), provided for loss of nationality as a result of "departing from" or "remaining outside" the United States in wartime for the purpose of evading training and service in specified branches of the armed forces and, with the exception of a rebuttable presumption contained in current provision, the sections are practically identical in their terms. Under the presumption in question, a departure or absence from the United States by a citizen who failed to comply with any provision of a conscription statute, was prima facie presumed to be for the purpose of evading the required training and service.

(2) Rulings . (i) Inapplicability to members of armed forces . It was held that section 401(j) had application only to citizens who sought to evade service prior to their actual induction into the armed forces. Thus, a member of the armed forces who remained outside the United States for the purpose of avoiding service did not lose nationality thereunder. 426/

(ii) Age restriction upon expatriation . The Attorney General ruled 427/ and at least one court concurred in the ruling 428/ that minority, often a bar to expatriation, did not preclude loss of nationality under the provisions of the 1940 statute in the absence of any specific age restriction contained therein. 429/

While the Attorney General's ruling set forth just above did not expressly state that persons under 18 years of age were legally incapable of losing citizenship pursuant to section 401(j), the Board of Immigration Appeals 430/ had reached that conclusion based upon the opinions rendered in the earlier administrative decisions. In passing, the Board had observed that the obligation to submit to military training and service under the conscription statute did not arise until the registrant had attained his 18th birthday.

(iii) Motive to evade service must underlie departure or absence . Absence from the United States which commenced prior to the enactment of section 401(j) did not result in expatriation unless it had been established that the citizen remained absent thereafter in order to evade military service. 431/

The evidence establishing that an absence was for the purpose of evading service was required to show clearly 432/ that the citizen had a desire to return, but was deterred in his resolve primarily by reluctance to serve in the armed forces. 433/ Thus, expatriation did not occur when there had been lengthy foreign residence prior to the outbreak of World War II, and evidence of family responsibilities in the foreign domicile which the citizen claimed as the reason for his continued absence. 434/

However, a citizen's testimony as to his motive might be overcome by his contradictory conduct 435/ or by prior contradictory statements made to a board of special inquiry. 436/ But, when a citizen's conduct permitted of two or more reasonable inferences, one favorable and the other or others unfavorable, a finding of expatriation should not have been made by a process of reasoning that gave no weight to the favorable inferences and reached its conclusion by pyramiding one unfavorable inference upon another. 437/

A ruling of the Board of Immigration Appeals that the motive underlying an absence will be imputed from a parent to his child 438/ was subsequently rejected by the Board, 439/ and the Service viewpoint was changed accordingly.

The difficulty in establishing that the motive underlying an absence was to evade service had been alleviated somewhat by the prima facie presumption contained in the current provisions, but such presumption applied only when the failure to comply with a compulsory service law occurred on or after December 24, 1952. 440/

(b) Effect of Trop v. Dulles, Kennedy v. Mendoza-Martinez, and Rusk v. Cort . As stated in INTERP 349.8(b), supra, the expatriatory desertion provisions of the Act of March 3, 1865 (reenacted as sections 1996 and 1998, R.S., 1878) were regarded as unconstitutional be reason of the United States Supreme Court decision in Trop v. Dulles. 441/ Moreover, the thrust of that decision was such that it was regarded as having also rendered unconstitutional the expatriatory draft evasion provisions of this earlier legislation. Furthermore, the Supreme Court declared unconstitutional section 401(j) of the 1940 statute 442/ and former section 349(a)(10), 443/ on the ground that they were penal in nature and as such could not constitutionally stand, lacking as they did the procedural safeguards guaranteed by the Fifth and Sixth Amendments. ( Revised )

Accordingly, by reason of the Supreme Court rulings referred to in the paragraph immediately above, loss of nationality could no longer be found to have occurred under any of the statutory provisions mentioned in this interpretation, and previous adjudications of such loss thereunder were deemed to have been nullified. ( Revised )

(c) Section 349(a)(10) repealed . By the Act of September 14, 1976, section 349(a)(10) was repealed. 443a/ ( Added )