fore reaching its final determination rejecting all his claims and dismissing his appeal.

The Board found that the 1948 renunciation had been voluntary and unequivocal, and it rejected arguments both as to its ambiguity and as to the Government's burden of proof regarding the alleged ambiguity, saying in part:

(footnotes omitted)

Counsel urges that in weighing his argument that the renunciation was ambiguous, the Government should have to show by clear, convincing and unequivocal evidence that the renunciation was intended to sever Davis' allegiance to the United States. He argues that in 1961, when Congress changed the burden of proof required to establish loss of United States citizenship to that of a preponderance of the evidence, it meant only to affect the standard required for proving voluntariness. Since voluntariness is not in issue here, counsel argues that the older standard should apply. He also argues that it is anomalous to have a preponderance of the evidence rule apply here, where United States citizenship is at stake, while the Government's burden of proof in a proceeding to establish the deportability of an alien is one of clear, convincing and unequivocal evidence. Woodby v. INS, 385 U.S. 276 (1966).

Section 349 (c) of the Immigration and Nationality Act, 8 U.S.C. 1481 (c), as amended by section 19 of the Act of September 26, 1961, P.L. 87-301, 75 Stat. 656, speaks for itself. It may be anomalous, but it is the law which we must apply. It clearly establishes a burden of proof of preponderance of the evidence, except upon the issue of voluntariness. There, the burden is on the person claiming United States citizenship to show that his act of expatriation was not performed voluntarily. See King v. Rogers [463 F.2d 1188 (9th Cir. 1972)], at 1189. The discussion is academic in any event, because even if the Government's burden were one of clear, convincing and unequivocal evidence, we would find that the Government had met that burden here.

The Board also rejected the argument that section 349 (a) (6) of the Immigration and Nationality Act, 8 U.S.C. 1481 (a) (6), should be construed to mean that a voluntary renunciation of American citizenship would be effective only if the person acquired another nationality, and that otherwise the provision would run afoul of the Ninth and Tenth Amendments to the Constitution. The Board cited subsections of section 349 (a) (two of which it noted had already been declared unconstitutional), which provided for voluntary loss of nationality without regard to resulting statelessness, i.e., "expatriation for acts which are not connected with the acquisition of a foreign nationality." It drew attention to other subsections which were so connected, saying:

Section 349 (a) (4) (A), 8 U.S.C. 1481 (a) (4) (A), on the other hand provides for loss of nationality by "accepting, serving in, or

performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, if he has or acquires the nationality of such foreign state." (Emphasis supplied.) The terms of section 349 (a) (4) (A) indicate that Congress considered the acquisition of foreign nationality significant in that particular context: Therefore, it would seem that the absence of a similar proviso in section 349 (a) (6) is not an oversight, a conclusion supported by the fact that foreign naturalization is itself made a ground for expatriation in section 349 (a) (1).

*

In Jolley v. INS, 441 F.2d 1245 (5 Cir.), cert. denied 404 U.S. 946 (1971), a native born United States citizen had gone to Canada and executed a formal Oath of Renunciation pursuant to section 349 (a) (6). He did this to avoid military service during the Vietnam War. Despite the fact that Jolley would clearly become stateless, and would, unlike Davis, be permanently barred from entering the United States, ven as an alien, id. at 1257, the court found that he had expatriated himself. There is no hint or suggestion, even in the dissent, that section 349 (a) (6) might not contemplate expatriation where it resulted in statelessness. See also United States v. Lucienno D'Hotelle, 558 F.2d 37, 42-43 (1 Cir. 1977). Similarly, legal scholars have assumed that a voluntary renunciation of American citizenship would be effective, even if statelessness resulted.

It is true that there has been some movement in the international sphere to reduce the incidence of involuntary statelessness resulting from various national expatriation laws. The 1961 United Nations Conference on the Elimination or Reduction of Future Statelessness, in which the United States participated, adopted a Convention on the Reduction of Statelessness, U.N. Doc. A/CONF. 9/15 (August 29, 1961). Articles 5 through 9 of the Convention provided, in general, that any involuntary expatriation law of a signatory state is to be conditioned upon the person's possession or acquisition of another nationality.

The United States has not signed or ratified the Convention. This country's reluctance to do so is "probably explained by its comments during the drafting stage, which specified that articles 6, 7 and 8 of the Convention conflicted with . . . the Immigration and Nationality Act of 1952." Even if . . . the United States adheres to it, it would not affect Davis' case because it contains several exceptions, whereby expatriation could still result in statelessness. One exception is "where the national... gives definite evidence of his determination to repudiate his allegiance." Thus, even the Convention on the Reduction of Statelessness deems it appropriate to allow for voluntary renunciation of citizenship where statelessness results.

The Board also rejected Davis' contention that if he were not an American citizen, he was an American "national." It pointed out that section 349 of the Act spoke in terms of loss of nationality, not loss of citizenship, and that Davis' Oath of Renunciation had contained the same language. It also pointed out that Davis' "Statement of Beliefs," which had been attached to his 1948 Oath of Renunciation at his own

request, contained nothing to make doubtful Davis' intent to "abjure all allegiance to the United States."

In conclusion the Board found that Davis had abandoned his status as a lawful permanent resident alien, since he had failed to return for a number of years after his 1961 permit to reenter the United States had expired. Excerpts from this portion of the Board's decision follow:

It remains to be determined whether Davis is still a lawful permanent resident alien or whether he abandoned that status. It must be emphasized that Davis is excludable under section 212 (a) (20) of the Act in either case, because he is in possession of no valid documents. However, if he is an alien returning to an unrelinquished lawful permanent residence in the United States, the normal documentary requirements may be waived pursuant to section 211 (b) of the Act, 8 U.S.C. 1181 (b). See 8 C.F.R. 211.1 (b). On the other hand, if he abandoned his permanent resident status, Davis must go through the process of obtaining a new immigrant visa. See section 211 (a) of the Act, 8 U.S.C. 1181 (a).

The Board has held that once a colorable claim to returning lawful resident status is established, the burden is on the Government to show that that status has been abandoned. Matter of Kane, Interim Decision 2371 (BIA 1975). See Chew v. Rogers, 257 F. 2d 607 (D.C. Cir. 1958).

From Davis' testimony it is apparent that his sojourn in Europe after 1961 cannot be characterized as a "temporary visit abroad.” For nearly sixteen years Davis lived in Europe-principally in France-where he married, raised a family and engaged in business. His periodic trips to the United States were of brief duration and appear to have been for family or business reasons. We can find no indication that he intended to maintain his resident status throughout his absence. His decision in late 1976 to secure a nonimmigrant rather than an immigrant visa from the United States consulate in France corroborates our conclusion that Davis abandoned his status after 1961. He did not take steps to reacquire that status.

We note that Davis has obtained three immigrant visas in the past. He has several immediate relatives who are United States citizens. Any of them might submit the necessary visa petition in his behalf.

We find that Davis is excludable under section 212(a)(20) of the Immigration and Nationality Act. He is not excludable under section 212 (a) (26) because he was not a nonimmigrant. There is no evidence concerning whether Davis is coming to the United States to perform labor, so the applicability of the exclusion ground under section 212 (a) (14) remains in doubt; however, because of our disposition under the section 212 (a) (20) ground we deem it unnecessary to look further into the alleged requirement of a labor certification. The appeal will be dismissed.

The U.N. Convention on the Reduction of Statelessness, concluded at New York and opened for signature Aug. 30, 1961, entered into force on Dec. 13, 1975. U.N.Reg. No. 14458.

82

Passports and Other Travel Documents;

Travel

Passports and Visas

Extended Validity of Passports

The Department of State issued Public Notice 633 on October 4, 1978, listing countries whose governments have entered into agreements with the United States Government, under which their passports are recognized as valid for the return of the bearer to the country of the foreign-issuing authority for a period of six months beyond the expiration date specified in the passport. The agreements have the effect of extending the validity period of the foreign passport an additional six months, notwithstanding the expiration date indicated in the passport.

The agreements also facilitate issuance of nonimmigrant United States visas, since under the provisions of section 212 (a) (26) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(26)) a nonimmigrant alien who applies for a visa or for admission into the United States must possess a passport valid for a minimum period of six months from the date of expiration of his initial period of admission into the United States or contemplated initial period of stay, so that the nonimmigrant alien can either return to the country from which he came or proceed to and enter another.

Public Notice 633 of Oct. 4, 1978, superseded Public Notice 375 of Jan. 10, 1973 (Fed. Reg., Vol. 38, p. 1224), and amendments thereto, and listed the following countries:

By a note dated February 23, 1978, the Department of State replied to certain questions received from the Embassy of Canada, concerning passports in cases of dual nationality, as follows:

1. There is no law or regulation prohibiting issuance of a United States passport solely because the United States national is residing in the country of his other nationality, and even though he may also be entitled to a passport of that country.

2. As a matter of policy, the United States Government is opposed to the practice of a United States citizen carrying a passport of a foreign country together with a United States passport. The reason for this policy is that carrying passports of different countries can create protection problems and other difficulties especially when the dual national is questioned, detained, or arrested abroad. United States law (section 215 (b) of the Immigration and Nationality Act [8 U.S.C. 1185 (b)]) requires that United States citizens enter and depart the United States with United States passports. Entry or departure using a foreign passport violates this statute. A United States citizen in direct transit to the United States from Canada, or from the United States to Canada, is not required to possess a passport. (Title 22, Code of Federal Regulations, Part 53, Section 53.2(b)).

There are circumstances under which a United States citizen who also possesses another nationality may be required under the laws of that country to use a foreign passport. The reaction of United States authorities to possession of a foreign passport by a United States citizen would therefore be guided by this country's, and the foreign country's, statutory and regulatory requirements, and the particular circumstances of each case.

3. (a) The United States does not approve of dual nationality nor does it approve of United States citizens holding the passports of foreign countries. However, just as it recognizes that each state