210 F2d 760 Monaco v. Dulles

210 F.2d 760

MONACO et al.

v.

DULLES, Secretary of State.

No. 142, Docket 22913.

United States Court of Appeals, Second Circuit.

Argued Jan. 13, 1954.

Decided Feb. 15, 1954.

The trial judge's opinion (Samuel H. Kaufman, District Judge), explaining the judgment, reads in part as follows:

'Here are combined three actions for declaratory judgments of American citizenship pursuant to 8 U.S.C.A. § 903[* and a demand for an order directing the State Department to issue a non-quota immigration visa to the spouse of plaintiff Gennaro Monaco, on the ground that she is the wife of an American citizen.

'The claims of all plaintiffs hinge on the statuts of Gennaro Monaco, who will hereafter be referred to as the plaintiff. He is the father of the other two plaintiffs. If plaintiff swore allegiance to the Kingdom of Italy in 1928, as the government claims, he expatriated himself, Act of March 2, 1907, Sec. 2, 34 Stat. 1228, 8 U.S.C.A. § 17 (now 8 U.S.C.A. § 1481(a) (12)); his two children are not citizens of the United States, and his wife has no right to enter this country as the wife of an American citizen.

'Plaintiff was born in Sacco, Province of Salerno, Italy, February 13, 1905. His father was naturalized before the County Court, Schenectady County, New York on July 2, 1906. Plaintiff entered the United States on a quota visa in November 1921.

'On May 22, 1925, plaintiff personally appeared at the Italian consulate in New York City. There he applied for and received deferment from service in the Italian Army with his class. The deferment was pursuant to Italian law which provided for such deferment to Italian nationals residing abroad.

'Plaintiff embarked for Italy September 8, 1928. He ignored the warning of the State Department, made in response to Italian laws of dual nationality, to secure permission to enter Italy without liability for military service.

'Plaintiff reached Sacco about September 18, 1928 and entered the Italian Army October 1, 1928. He testified that his family told him to serve to avoid trouble. Neither he nor any member of his family, nor a friend who accompanied him to Sacco, ever made an attempt to secure the aid of American consular or diplomatic officials, Cf. Podea v. Acheson, 2 Cir., 1950, 179 F.2d 306; Dos Reis es rel. Camara v. Nicolls, 1 Cir., 1947, 161 F.2d 860.

'Plaintiff testified that because he entered the Italian military service two months after his class, he never took the oath of allegiance to Italy. Such claims of administrative lapse are not novel. Zimmer v. Acheson, D.C. Kan. 1950, 91 F.Supp. 313; Grassi v. Acheson, D.C., D.C. 1951, 101 F.Supp. 431.

'The government established that the standard, regular procedure in the Italian Army was to require the oath of all soldiers. Presumption of regularity has long attached to procedures of foreign governments and agencies. U.S. v. King, 1845, 3 How. 773, 44 U.S. 773, 11 L.Ed. 824; Boissonnas v. Acheson, D.C.S.D.N.Y. 1951, 101 F.Supp. 138. Though this presumption is rebuttable, I do not deem it overcome by plaintiff's testimony that he did not take the oath. * * *

'Plaintiff was discharged from the Italian Army because of his status as the sole son in his family. He neither applied for nor received a discharge as an American citizen.

'Plaintiff married in Sacco December 14, 1929. He reentered the United States without his wife on May 3, 1930. His son, Salvatore, now in the United States with a Certificate of Identity, was born in Sacco November 16, 1930.

'During 1937 plaintiff applied for an immigration visa for his wife and son and again embarked for Sacco. The esults of the application are not in evidence. While plaintiff was in Italy, the American consulate warned him to leave because of the war threat. Plaintiff heeded this warning, and, leaving his wife and son in Sacco, reached New York on October 7, 1938. His second child, Rosa, was born in Sacco on April 6, 1939.

'In 1946 plaintiff applied for visas for his children and wife. The application was denied. The State Department asserted that plaintiff expatriated himself by taking an oath in the Italina Army, and that hence his children and wife acquired no rights through him. * * *

'Plaintiff's testimony of involuntary service is impeached by his voluntary registration in Italy, his failure to seek exemption from military service in Italy, his failure to oppose induction in the Italian Army, and his discharge as an Italian national.

'Gennaro Monaco has not been an American citizen since October 1928. Therefore his son Salvatore and his daughter Rosa, both born subsequently in Italy, are not American citizens. His wife, never having been the spouse of an American citizen, had no right to a visa because of her claimed status.

'The foregoing shall be deemed to be the findings of fact and conclusions of law. * * *'

From the judgment, plaintiffs appeal.

Caputi & Caputi, New York City, (Sebastian P. Caputi, New York City, of counsel), for plaintiffs-appellants.

J. Edward Lumbard, U.S. Atty. for the Southern Dist. of N.Y., New York City (Harold R. Tyler, Jr., New York City, of counsel), for defendant-appellee.

Before FRANK, MEDIAN and HINCKS, Circuit Judges.

PER CURIAM.

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1

The government1 concedes that Gennaro Monaco was a citizen. Accordingly, the government had the burden of proving that he had expatriated himself. We agree with Acheson v. Maenza, 92 U.S.App.D.C. 85, 202 F.2d 453, 456, which held that the burden in such a case is like that in a denaturalization proceeding, i.e., the evidence of expatriation must be 'clear, unequivocal and convincing'.2 We think such evidence was wanting here. The crucial issue was whether Gennaro Monaco took the oath of allegiance to the Kingdom of Italy. The proof offered by the government consisted of the following:

2

(a) Exhibit H is a document, conceded by plaintiffs to report 'the law of Italy showing the requirement for taking an oath,' which, inter alia, states this: 'The oath of allegiance is administered, as a rule, 'en masse,' during the first period of military training as soon as the recruits have acquired a suitable degree of soldierly appearance in order to be in harmony with the great solemnity of the event. * * * The oath of allegiance takes place in regimental or autonomous group formation. * * * No one can belong to the Armed Forces of the State without taking the oath of allegiance.'

3

(b) Exhibit L is a letter from an Italian Colonel which states: 'This Command is not in possession of the Orders of the Day or other documents from which it would be possible to learn if Monaco may have or not taken the military oath. It is presumed that, as all other persons in the military service, Monaco took the oath about one month after his incorporation. One does not have elements to state positively whether Monaco was physically present on the day of the same oath.'

4

(c) Exhibit M is a letter from an American Vice Consul asking, inter alia, the Commander of the Military District in Salerno, Italy, 'whether in your opinion it can be possible that the class with which Monaco was assembled had already taken the oath when Monaco reported to arms and whether from that fact there can be probability that Monaco did not have to take the oath during that period that he remained under arms.' To this the reply, in Exhibit K, was, 'What is indicated in Point No. 6 may be possible.'

5

The government relies on Exhibit H plus a presumption of the regularity of foreign-government practices. That Exhibit established merely the Italian 'law.' But the other exhibits put in evidence by the government show that the actual practice may have departed from the rule. Consequently any such presumption as that on which the government relies became ineffective. Absent such a presumption, the government's proof did not meet the required standard.

6

Reversed and remanded with directions to enter judgment for plaintiffs.

*. Now 8 U.S.C.A. § 1503.

1 For convenience, we refer to the defendant as 'the government.'

2 See Knauer v. United States, 328 U.S. 654, 66 S.Ct. 1304, 90 L.Ed. 1500; Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525; Schneiderman v. United States, 320 U.S. 118, 125, 63 S.Ct. 1333, 87 L.Ed. 1796.