Minoru Tanaka v. Immigration & Naturalization Service , 346 F.2d 438 ( 1965 )

LUMBARD, Chief Judge.

Minoru Tanaka petitions this court to transfer his petition for review, filed in this court pursuant to 8 U.S.C. § 1105a (a) (5), to the district court to determine whether he acted involuntarily in voting in the Japanese election of June 1950, as it is upon such a finding that the Immigration and Naturalization Service found that he has lost his American citizenship and thus is subject to deportation.¹

After three days of hearings in 1960, the Special Hearing Officer found that Tanaka had voted in a Japanese political election in June 1950 and that this action was voluntary, and he concluded that he thereby lost his United States citizenship by reason of § 401(e) of the 19401 Nationality Act which was in effect at the time, 8 U.S.C. (1946 ed.) § 801(e).² The Board of Immigration Appeals affirmed this decision in all respects and dismissed Tanaka’s appeal on November 23, 1960. On December 20, 1960 Tanaka brought a declaratory judgment action to review the order of deportation in the Southern District of New York and on July 23, 1962, the district court transferred the action to this court under the judicial review provisions of § 106 of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1105a, which became law on October 26, 1961. Act of September 26, 1961, 75 Stat. 651, 8 U.S.C. (Supp. V, 1959-1963) § 1105a.

Under § 106, a petition for review of a final order of deportation, if it is not frivolous,³ shall first be considered by the court of appeals, and if that court determines, on the basis of the administrative record, that there exists a genuine issue of material fact, the proceedings are to be transferred to the district court. However, if the record leaves no factual issues to be resolved, the court of appeals is required to pass upon the issues presented in the petition.

On the record made before the Special Inquiry Officer, we find that no question of material fact is left unresolved and there is no need for proceedings before the district court. Reaching the merits of Tanaka’s petition, we find that the circumstances surrounding his voting in 1950 do not constitute duress, and that therefore the Board of Immigration Appeals correctly determined that Tanaka lost his American citizenship by voting in a foreign election.

The facts, almost all testified to by Tanaka, are not in dispute.⁴

Tanaka was born in New York City on March 29, 1923, of parents born in Japan. Thus at birth he was a citizen of the United States as well as of Japan. His mother took him to Japan when he was three years old and he resided there continuously for over 30 years. Tanaka attended Maiji University in Tokoyo for two years. He married a Japanese national in 1954 and his wife and their child are in Japan. He served in the Japanese Army from December 1, 1943 to October 30, 1944, when he was discharged because of illness. The Special Inquiry Officer concluded that this military service did not expatriate him as it was involuntary. See Nishikawa v. Dulles, 356 U.S. 129, 78 S.Ct. 612, 2 L.Ed.2d 659 (1958). Likewise, his employment in a Japanese political subdivision from November 1946 to April 1955 ⁵ was held not to have expatriated Tanaka as the Service had not established that this was voluntary or that the position was one for which only Japanese nationals were eligible. After April 1955, he was employed as a newspaper correspondent.

Tanaka never made any claim in Japan that he was an American citizen until he applied to the United States Consul at Fokuoko, Japan, for a United States passport in 1954. His application was rejected because of his army service and his voting.

Tanaka entered the United States in February 1957 on a Japanese passport for a three-months’ stay as a non-immigrant newspaper representative. Extensions of his stay were granted until May 1959. Thereafter Tanaka’s departure pursuant to deportation orders was delayed until Congress, in April 1960, rejected a private bill to naturalize him. The deportation proceedings were reopened, on Tanaka’s motion, and his claims that he was a United States citizen and that he had not expatriated himself were considered by the Special Inquiry Officer for the first time.

Tanaka testified that he first voted in 1946 or 1947 at a national election when elections were first held in Japan after World War II, and at every election thereafter, until 1956, including an election on June 4, 1950.⁶ Tanaka, answering through an interpreter his counsel’s question why he voted in the Japanese elections, said “I participated in the elections because I was afraid of what my neighbors thought if I didn’t.” He said he knew he was “under a close watch by the police” and that everyone in the community knew he had been born in the United States and that his father was living in the United States; he had to protect himself from suspicion and from possible danger. He also said he never told his neighbors he was an American citizen. In explaining what he meant by being under a “close watch,” he said, “They might have thought that I may have some special privilege of some kind or something.”

He testified that he lived in Saiki, a community of about 30,000, and he felt his neighbors were always watching him. Prior to voting the first time he received in the mail a numbered paper from the city authority where he lived which enabled him to vote. There was no testimony or claim that there was any compulsion to vote or that anyone checked up on those who did not vote, except that elementary school children were sent around to urge the non-voters to vote as the communities in Japan were competing for the highest rate of voting. He had never been threatened with violence by any of his neighbors and had never heard of anyone who had been assaulted solely because he didn’t vote.

It is not open to question that the voluntary act of voting in a foreign election in 1950 results in expatriation under § 401(e) of the Nationality Act of 1940, the constitutionality of this provision having been expressly affirmed in Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568, 2 L.Ed.2d 603 (1958). However, no conduct results in expatriation unless it is voluntary. Nishikawa v. Dulles, supra.

Tanaka has shown that he was a United States citizen by reason of his birth. The burden then shifts to the government to prove the act of expatriation “by clear, convincing and unequivocal evidence.” Nishikawa v. Dulles, supra, 356 U.S. at 133, 78 S.Ct. at 615. Tanaka’s admissions that he voted in the 1950 election have discharged the government’s burden. Tanaka is then obligated to come forward and adequately inject the issue of voluntariness. This is the test laid down by the Supreme Court in Nishikawa where it was held that the petitioner had “adequately injected the issue of voluntariness” by showing conscription into the Japanese army in March 1941, under penal sanctions for failure to obey.

In our view, taking Tanaka’s testimony in the light most favorable to him, we find that he has not adequately injected the issue of involuntariness to require the government to come forward and introduce evidence on that issue. Tanaka was under no compulsion or sanction to vote in the 1950 election. Compare Nishikawa v. Dulles, supra. Fear of what one’s neighbors might think does not supply the kind of involuntariness that the law recognizes or that Congress could possibly have haa in mind. While he testified that there was considerable public sentiment in favor of voting by those who were eligible, he admitted that no official action was ever taken regarding those who did not vote, he never heard of anyone being assaulted in Japan after World War II solely because of failure to vote, and he was on good terms with his neighbors. In short, there was no evidence whatever that he had any reason to fear bodily harm or any form of oppression.

Other courts in considering whether a petitioner has come forward with enough evidence to put the government to its proof on the issue of involuntariness have required that, in addition to a showing of petitioner’s subjective fear, he also must show some additional circumstances to justify his fear. In Nishikawa v. Dulles, supra, the conscription laws of Japan provided that justification for Nishikawa’s fears. In Doreau v. Marshall, 170 F.2d 721 (3 Cir. 1948), the petitioner, in France during World War II and expecting a child, applied for French citizenship hoping to avoid the very real threat of internment as an American national; this act was found to be involuntary. Matter of G, 8 I. & N. Dec. 317 (1959), relied on by Tanaka, is a case where a dual national of Greece and the United States possessed a mistaken belief that he would be branded a communist and subjected to violence if he did not vote in a Greek election. He was able to show a prevailing mob atmosphere which was adequate to put the government to its proof. In cases involving voting in Japanese elections during the immediate post-war period, petitioners who were successful in maintaining their burden of going forward made a showing of specific pressures or threats. See, e. g., Takehara v. Dulles, 205 F.2d 560 (9 Cir. 1953); Serizawa v. Dulles, 134 F.Supp. 713 (N.D.Calif.1955) and cases cited at 715.⁷

The petitioner must show something more than his own vague and groundless fears of what his neighbors would have thought had he not voted, especially where there was no basis whatever for believing that they might have applied any coercive measures as a result of his not voting. The act of voting in a foreign election — in this case a national election — is such an unequivocal act of expatriation — and generally so considered — that it cannot be explained away as being involuntary because of a feeling that one’s neighbors would have disapproved if it had not been done. If this were to be enough to nullify acts of expatriation it would be almost impossible ever to prove that such an act was voluntary. We ought not to emasculate the clear mandate of Congress by the construction which the petitioner urges.

We find no genuine issue of material fact such as to require transfer to the district court for resolution, and we affirm the order of deportation.

1 . The Service also found that in any event Tanaka had lost his American citizenship under the presumption of voluntariness of § 349(b) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1481(b), (1), by voting in two Japanese elections in April 1953, because of the provisions of § 349(a) (5), 8 U.S.C. § 1481 (a) (5), and (2), by remaining in the employ of a Japanese government political subdivision after December 24, 1952, because of the provisions of § 349(a) (4), 8 U.S.C. § 1481(a) (4). As we are of the opinion that Tanaka lost his American citizenship under § 401(d) of the Nationality Act of 1940, 8 U.S.C. (1946 ed.) § 801(d), by voting in the 1950 Japanese election, we do not consider the Questions under the 1952 Act or any facts relating thereto.

2 . This provision was continued in force in the Immigration and Nationality Act of 1952. Act of June 27, 1952, § 349, 66 Stat. 267, 8 U.S.C. § 1481(a) (5).

3 . The government concedes, and we agree, that this petition is not frivolous.

4 . For the purpose of this proceeding, the government accepts Tanaka’s testimony as “a truthful and sincere account of the reasons underlying his decision to vote in the Japanese political election of June 4, 1950.”

5 . Tanaka was a tax clerk in the Treasury Department and later a clerk in the Welfare Department of the Prefecture of Oita.

6 . For reasons which are not clear, the Special Inquiry Officer held that Tanaka voted for the first time in the June 1950 election, apparently because Tanaka had so stated in an application for a United States passport which he executed in July 1954.

7 . Passage of the Watkins Act, 68 Stat. 495, 496, July 20, 1954, 8 U.S.C. § 1438 note, which temporarily provided simplified naturalization procedures for certain persons who had lost their citizenship by voting in Japanese elections between September 2, 1945 and April 27, 1952, provides no support for Tanaka’s claim of duress. Contra, Kamada v. Dulles, 145 F.Supp. 457, 461 (N.D.Calif. 1956); Serizawa v. Dulles, supra. The Act specifically recognized that those who voted in the election had lost their citizenship. The legislative history of the Act indicates that it was passed out of sympathy for those dual American-Japanese nationals who had responded to the call by General MacArthur and others to participate in Japanese political life, many of whom were unaware of the consequences to their American citizenship. Specifically disavowed was the assumption that many of these people had acted under compulsion. See 2 U.S.Code Cong. and Admin.News, pp. 2579, 2583 (1954).