SINCLITICO
In a decision of an immigration judge dated September 21, 1970, the respondent was found deportable on the above-stated charge, but was granted the privilege of voluntary departure. In that decision, the immigration judge found that the respondent had expatriated himself as a result of his naturalization as a citizen of Canada on December 8, 1961. A reopened hearing was held on November 15, 1971 for the purpose of affording the respondent an opportunity to present additional medical evidence concerning his mental condition at the time of his naturalization in Canada in 1961. In an oral decision of the same date, the immigration judge found the respondent has been expatriated and is not a citizen of the United States, found him deportable as charged, and granted him voluntary departure. This is an appeal from this decision. The appeal will be sustained.
The respondent is an unmarried male, who was born at Lawrence,
The issue is whether the applicant‘s naturalization in Canada caused him to lose United States citizenship. The immigration judge found that the respondent was mentally competent and was aware of what he was doing when the decision was made to become a citizen of Canada. That is, he found that the respondent voluntarily became naturalized, has expatriated himself, and is not a citizen of the United States. It is counsel‘s contention that expatriation did not result because the respondent was not mentally competent to intelligently and intentionally surrender his United States citizenship and assume Canadian citizenship.
Prior to the enactment of
The Supreme Court held in Woodby v. INS, 385 U.S. 276 (1966) that the test for burden of proof in a deportation proceeding is as follows: “No deportation order may be entered unless it is found by clear, unequivocal and convincing evidence that the facts alleged as grounds for deportation are true.” However, this is not the situation in reference to a case involving loss of citizenship.
A medical diagnosis from a psychiatrist was submitted in evidence (Exh. R-1). The psychiatrist‘s diagnosis was “Schizophrenia with paranoid features” and it was his opinion that “it would be justifiable to claim that he was not well enough to make a rational decision when he surrendered his United States citizenship. This diagnosis and medical opinion was based upon the psychiatrist‘s personal observation of the respondent from when he first saw him in July 1941 at various intervals up to March 1950 and upon letters received from the respondent from 1950 through 1960. In the record there is a diagnosis made in 1954 of the respondent by a psychiatrist and by a psychologist from the Ontario Mental Health Clinic, in which the respondent was diagnosed as presenting a “paranoid picture” (Exh. R-3) and reflecting “the distortion of ideational processes seen in schizophrenia” (Exh. R-4). A diagnostic report dated June 20, 1963, less than two years after the respondent became a Canadian citizen, was provided by a psychiatrist which was based on medical visits on five occasions prior to the date of the report. The psychiatrist‘s diagnosis of the respondent was “Paranoid Schizophrenia.”
In addition to the medical evidence, the respondent‘s brother, the Dean of the University of San Diego Law School, was a witness at the reopened deportation hearing. He testified as to his knowledge that his brother had been diagnosed as a schizophrenic as early as 1940 (Tr. pp. 28 and 29); that his brother was treated for schizophrenia; and he related examples of his brother‘s poor judgment, mental incompetence and strange behavior for the period from 1958 to 1968 (Tr. pp. 79, 81, 88, 94 and 95). The respondent corroborated by his own testimony that he made contributions to religious missions and purchased about 70 medical books for his medical library, despite his financial problems (Tr. pp. 92-96). In response to questions on his application for voluntary departure, the respondent did not seem to understand the questions and actually his answers were not responsive. (Tr. pp. 98 and 99).
“Schizophrenia” is defined as “Bleuler‘s term for dementia praecox. A psychosis characterized by lack of effect, inappropriate mood, unpredictable behavior, and disintegration. Frequently terminates in mental regression, total withdrawal from reality into phantasies and paranoid formulations.” (Blackiston‘s—New Gould Medical Dictionary, p. 910); Becker v. Becker, 138 N.Y.S. 2d 397, 399, 207 Misc. 17 (1954). “Schizophrenia, paranoid” is a disintegration of the mind and personality of the individual characterized by disturbances of thinking, hallucinations, and similar manifestations. In re Meyers, 189 A. 2d 852, 858, 410 Pa. 455 (1963); Am. Jur., Proof of Facts, Medical Glossary, p. 215.
The question to be resolved is not that of voluntariness, but whether the respondent had the mental capacity or competence to expatriate
ORDER: The appeal is sustained and the deportation proceedings are terminated.
Notes
“Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after the enactment of this Subsection under, or by virtue of, the provisions of this or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Except as otherwise provided in Subsection (b), any person who commits or performs, or has committed or performed, any act of expatriation under the provisions of this or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.”