Interim Decision #1259
MATTER OF PICONE
In EXCLUSION Proceedings
A-12323330
Decisions by Board April 27, 1.962 and July 12,1962
Decided by Attorney General January 21,1963
An overt voluntary act manifesting clearly and unambiguously a decision to
accept a foreign nationality previously acquired by operation of law, even
though such act in and of itself may not constitute a statutory ground of
expatriation, results in the loss of United States citizenship under section 2
of the Act of March 2, 1907, and the loss of citizenship dates from the time
of the act of acceptance [Matter of Di P , Int. Dec. #1215, upheld].
—
APPLICATION Admission as United States citizen.
:
BEFORE THE BOARD
The special inquiry officer ordered the applicant admitted as a,
United States citizen and certified the case to the Board for final
decision. We shall reopen proceedings.
Applicant, born in Italy on January 15, 1932, claims to be a United
States citizen through birth to Giuseppe Picone who in 1922 became a
United States citizen by naturalization. The Service contends that
applicant's father lost United States citizenship by later becoming naturalized in Italy before applicant was born. The Department of State
has ruled that as a matter of law Giuseppe Picone could not have lost
United States citizenship in the manner relied upon by the Service.
Pertinent portions of relevant statutes follow :
That any American citizen shall be deemed to have expatriated himself when
he has been naturalized in any foreign state in conformity with its laws, or when
he has taken an oath of allegiance to any foreign state. (Section 2, Act of
March 2, 1907, 34 Stat. 1228)
There shall be recovery of Italian citizenship by one who having ceased to be
an Italian citizen owing to the acquisition of foreign citizenship, has been resident
in the kingdom for two years. (Article 9 (3), Italian Nationality Law, June 13,
1012, UNITED NATIONS PUBLICATION, LAWS CONOBBNING NATIONALITY, July 1945, 269)
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Interim Decision #1259
These are the facts of record. The exclusion hearing reveals that
applicant's father was naturalized in the United States on March 16,
1922, that he secured a United States passport on March 27, 1922, that
he went to Italy to marry, that he returned to the United States in
October 1928 (his wife never came), that he next went to Italy on
December 3.7, 1925 on a United States passport issued on October 20,
1925, and that he remained in Italy until his death in 1958.
An affidavit executed by Giueseppe Picone on February 6, 1953
reveals that he left behind no property in the United States when he
returned to Italy, but in Italy owned farm land and three houses valued
at about 15,000,000 lire, that part of the property was inherited and
part purchased from 1922 to 1947, that property tax was paid in Italy
but no taxes were paid to the United States, that on April 18, 1928, he
was issued an Italian Identity Card No. 2179 by the Commune of
Carini, that the card showed his nationality as Italian, that he is of the
belief that he voted in 1934 and in all the following elections held in
Italy from 1946 to 1952 but remembers well only having voted in 1951
and 1952, that he announced his American citizenship to local authorities, that he had never renounced his American citizenship, that he did
not know that naturalized citizens were supposed to return to the
United States before October 15, 1946, and that he had not been in
contact with the Consulate at Palermo, Italy since his arrival in Italy.
The affidavit shows that applicant's father stated it was his intention
to establish United States citizenship because his son, the applicant,
wished to come to the United States. This affidavit and another executed. the same day reveal that Giuseppe Picone's return to Italy in
1925 was for the purpose of taking his father to the United States,
because his father had been left alone after the death of his -wife
(1920), that two brothers were residing in the United States, that
his father's death in 1941 and the circumstances which arose subsequently caused his protracted residence in Italy, and that it was his
intention to return to the United States to reside permanently if he
were authorized to do so.
On February 16, 1953, the Vice Consul at Palermo issued a certificate
of expatriation finding the applicant's father had lost United States
citizenship under section 2 of the Act of March 2, 1907 by having been
naturalized as a subject of Italy under article 9(3) of the Italian
Nationality Law of June 13, 1912 and having manifested a voluntary
acceptance of such nationality. This certificate was approved by the
Secretary of State on September 9, 1953.
Applicant's father died in Italy on March 23, 1958. The applicant
requested a review of his case. On February 23, 1961, the American
Consul at Palermo informed the Department of State that a review
of Giuseppe Picone's case resulted in the determination that the
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Interim Decision #1259
naturalization granted by operation of Italian law may not have expatriated applicant's father under the provisions of section 2 of the
Act of March 2, 1907 but that he did become expatriated (after applicant's birth) by voting in elections held in Italy in 1951. The Department of State concurred in the finding that the applicant's father
had not lost United States citizenship by accepting the Italian naturalization and had not lost United States citizenship until he had
voted in 1951. The applicant was, therefore issued a United States
passport.
The action of the Department of State in reversing its former finding that the applicant's father had lost United States nationality by
accepting the Italian naturalization is based on the following
reasoning:
The Department of State, after the most careful consideration and study in
the light of recent important court decisions, has reversed its long standing
pouey that expatriation under the first paragraph of section 2 of the Act of
March 2, 1907 may be based upon the fact that a person has acquired a foreign
nationality solely by operation of law (as, for example, under section 9(3) of
the Italian Nationality Law of June 13, 1912), followed by overt acts voluntarily
Performed, which may be regarded as "acceptance" of the foreign nationality.
Underlying this determination was the Department's belief, particularly in the
light of the Supreme Court decision in the case of Nishileciam, v. Dultea [358 U.S.
129 (1958)] that an administrative decision that a person has lost United
States citizenship will be upheld by the courts only if the decision is based upon
an act which must be both voluntary and specifically made expatriating by
statute. (Ex. 5)
The special inquiry officer, in a most comprehensive opinion, points
out that the Service had the burden of establishing (by evidence that
was clear, convincing, and unequivocal) that applicant's father had
accepted Italian nationality. The special inquiry officer found that
the Service had not borne its burden_ The special inquiry officer
held that the prolonged residence in Italy had been partially explained
away by the applicant's father, and that in any event, it did not constitute an acceptance of Italian nationality. The special inquiry officer
held that the obtaining of an identity card, without eliminating the
possibility that it was procured under duress, necessity, or ignorance,
did not constitute an acceptance; and that the voting concerning which
there is certainty (the voting in 1951 and 1952) is too remote to establish that in 1927, some 24 years earlier when Italian nationality had
become available, the applicant's father had formed the intention of
accepting Italian nationality. In a letter dated December 20, 1961,
counsel asks that the order of the special inquiry officer be confirmed
and that the position of the State Department be fully considered. At
oral argument the Service representative contended that the applicant
was not a United States citizen at birth because his father had ex-
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Interim Decision #1259
patriated himself by, among other things, registering as an Italian
national.
Briefly, the "long standing policy" to which the Department of
State refers, as it related to Italy, took cognizance of the fact that
until July 1943, Italy regarded any naturalized American citizen of
Italian origin who resided in Italy for two years after 'July 1, 1912
as having acquired Italian nationality under article 9(3) of the
Itialiar Nationality Law of 1912 by no other act than mere residence
in Italy for the period of two years regardless of whether the naturalized American citizen desired to become an Italian citizen or not. 1
Nevertheless, the United States did not consider acquisition of
Italian nationality in such a manner as causing loss of American
citizenship under section 2 of the Act of March 2, 1907 unless the
individual manifested a voluntary acceptance of Italian nationality
by declaration, or overt act such as accepting employment by the
Italian Government, accepting an Italian passport or identity card,
voting in Italy, or joining an Italian political party. (HACKWORTII, DIGEST OF INTERNATIONAL LAW, Vol. 3, Government Printing Office, 1942, 207-217; Barsanti v. Acheson, 103 F.
Supp. 1011, Mass. (1952), aff'cl 200 F. 2a. 562, C.A. 1; Rosasco v.
Brownell,
168 F. Supp. 45, 55, E.D.N.Y. (1958) ; United States v.
Ouccaro,
138 F. Supp. 847, E.D.N.Y. (1956) ; U.S. an rel. De Caeca v.
Lango,
46 F. Supp. 170, Conn. (1942) ; Matter of Int. Dee. No.
1155; Matter of M—,.6 I & N. Dec. 70).
The aba.ndonment of the "long standing policy" by the Department
of State was noted in Matter of P , Int. Dee. No 1155, but was not
—
considered because we found there that the Service bad failed to bear
its heavy burden of showing that P— had voluntarily accepted
Italian naturalization. In Matter of D—P—, A-12561169, Int. Dec.
No. 1215, 4/26/62, a reevaluation of the problem in light of Nisi:ahem-a
caused. us to hold that since the burden of proof was upon the Government to prove expatriation by clear, convincing, and unequivocal
evidence, we could no longer indulge in the fiction that acceptance
of Italian naturalization which arose by operation of law implied
that there had been an acceptance as of the date of the naturalisation.
We did not discuss the issue raised here—the propriety of finding
that it was possible to accept naturalization by an act which was not
in itself a ground of expatriation. In the instant case there is considerable evidence that the Italian naturalization was voluntarily
accepted by the applicant's father. It becomes necessary, therefore,
1 After July 1943 the Italian Government gave some recognition to the inten-
tion of the naturalized American citizen of Italian origin as to whether he
desired to become an Italian national.
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Interim Decision #1259
to decide whether to join the Department of State in what appears to
be its view that as a matter of law, a person cannot become expatriated
under a law which makes him a foreign national solely by operation
of law, although there are overt acts voluntarily performed which
may be regarded as acceptance of the foreign nationality.
The Department of State relies upon Niskikawa. v. Dulles, 356 U.S.
129, as requiring abandonment of the established rule. We must
respectfully dissent from this view. Niskikawa was not concerned
with. substantive issues of expatriation but with issues which related
"solely to problems of burden of proof," (at p. 662). As to the burden
of proof, the court held that "regardless of what conduct is alleged
to result in expatriation, whenever the issue of voluntariness is put
in issue, the Government must in each case prove voluntary conduct by
clear, convincing, and unequivocal evidence". This is, of course, the
burden which must be met by the Government in the instant case.
However, we do not believe that Ni8hikawa attempts to be controlling
on what is or is not an act of expatriation.
Nishikawet did not concern itself with section 2 of the Act of March
2, 1907 which is involved here. Niaikainct dealt with expatriation
under section 401(e) of the Nationality Act of 1940 which involved
service in the armed forces of a foreign country. Nishikawa does not
state that a person could not have become naturalized in a foreign
country by voluntarily acquiring a foreign nationality which as far
as the United States is concerned he was free to accept or reject as he
pleased. There is no logical reason why an individual who had been
naturalized in the United States could not voluntarily accept Italian
nationality which was offered to him by Italian law. The only problem we see raised is one of proof.
The issue here is whether there was a voluntary acceptance of
Italian nationality. Before we decide whether there was such a
voluntary acceptance, we believe further information, if it is available,
should be supplied on the following matters : what is involved in
obtaining an Italian identity card, whether an Italian identity card is
available to one of dual nationality, why it was obtained in the instant
case, whether applicant's father could have continued to live in Italy
without obtaining one, what benefits and what obligations are involved
in obtaining one, whether application had ever 'been made for documentation for-the emigration of applicant's grandfather, and why, if
the applicant's father returned to Italy in 1925 to bring his father back
to the United States, he did not do so, what military document,
employment card, and party certificates are referred to on page 2 of
the application for registration executed by applicant's father on
February 0, 1953 (Lx. 2), whether the applicant's father who is shown
as not having paid taxes to the United States, was liable for the pay-
143
Interim Decision #1259
went of United States taxes, and whether applicant's father as a
United States national was treated differently for tax purposes by the
Italian Government than he would have been if he had not been a
United States national. Any other pertinent information should, of
course, be made a part of the record.
ORDER? It is ordered that the order of the special inquiry officer
be and the same is hereby withdrawn.
It is furth,er ordered that proceedings be reopened for the reasons
contained in this opinion and for such further action as the special
inquiry officer may deem appropriate.
BEFORE THE BOARD
The Commissioner requests that this case be certified to the Attorney
General for review. An issue of fact and an issue of law are involved.
The issue of law is whether United States citizenship is lost under
section 2 of the Act of March 2, 1907, 34 Stet_ 1228, by a foreign
naturalization arising solely by operation of law under section 9 (3)
of the Italian Nationality Law of June 13, 1912 where the naturalization is followed by voluntary acts not in themselves made acts of
expatriation by statute but which do show an acceptance of the Italian
nationality.
The Service and the Board adhere to the rule that a, foreign
naturalization arising by operation- of law may be accepted by an act
which is in itself not a ground of expatriation. The Department of
State is of the belief that expatriation cannot occur unless an act is
performed which is expressly made one of expatriation by statute.
The factual question, assuming that the first question is answered in
the affirmative, is whether the applicant has conducted himself in a
manner as to indicate his acceptance of Italian nationality.
The Board has ordered reopening of proceeding for additional
evidence as to the nature of the acts of acceptance and as to other
background matters. The Service however finds it inadvisable to
await resolution of the factual issue. ' The Service states that it is
faced with a serious, urgent and continuing problem arising out of
the differences between the Service and Board on one hand and the
Department of State on the other which makes it imperative to obtain
a prompt ruling on the legal issue. The Board believes that until the
additional information is obtained, the record will not be in the state
necessary for a proper determination; however, under the regulations
it has no alternative to complying with the Commissioner's request
that the case be certified.
ORDER: Under the provisions of 8 CFR 8.1(h) (1) the case
is referred to the Attorney General for review of the Board's decision.
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Interim. Decision #1259
BEFORE THE ATTORNEY GENERAL
This case has been certified to me for review by the Board of Immigration Appeals pursuant to 8 CFR 3.1(h) (1) (iii).
The applicant seeks admission as a United States citizen. His claim
to citizenship is based on the assertion that his father was a United
States citizen at the time of his birth in Italy in 1932, R.S. § 1993.1
The Immigration and Naturalization. Service concedes that applicant's
father was naturalized in the United States in 1922, but contends that
he had expatriated himself prior to applicant's birth. The special
inquiry officer held that the Service had not sustained its burden of
establishing that applicant's father had lost his United States citizenship prior to the applicant's birth and ordered that applicant be
admitted as a United States citizen. The Board of Immigration
Appeals ordered that the proceedings be reopened for the taking of
additional evidence on the question of expatriation. Following denial
of a motion by the Service for reconsideration of the Board's order,*
the Service requested that this case be certified to me for review limited
to the question of the correct interpretation of the statute which is the
basis for the claim of expatriation. There is no dispute between the
Board and the Service on this question. Since, however, the Department of State has taken a contrary position, the Service desired that
this conflict in administrative interpretations be resolved prior to the
remand of the case to the special inquiry officer- 3 Although it. is
ordinarily the better practice to refer to the Attorney General only
cases in which the Board has reached a final decision on the merits,
I am accepting this case because the legal question involved is a recurring one and its resolution does not hinge on the particular facts shown
by the record.
I
The record shows, and I assume for the purpose of this opinion, the
following facts :
Applicant's father, a native of Italy, was naturalized in the United
States in 1922 and returned to Italy that same year. He returned to
the United States in 1923, returned to Italy in December 1925 and
remained there until his death in 1958. The applicant was born in
' R.S. $1993, in force in 1932, conferred United States citizenship on children
born outside the United States whose fathers at the time of their birth were
citizens of the United States and bad resided therein.
'The motion for reconsideration was directed to the question of the burden
of proof on the Issue of expatriation. This question is not before me on this
review.
'In such cases the rulings of the Attorney General are controlling. Immigration and Nationality Act, § 103(a), 8 U.S.C. 1103 (a).
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76S-456.--65--11
Interim Decision #1259
Italy on January 15, 1932, and lived there until he applied for admission to the United States in June 1961.
Whether or not applicant is a United States citizen depends on
whether his father was a United States citizen on applicant's date of
birth. R.S. § 1993, supra. The Service contends that the father had
expatriated himself prior to January 15, 1032, under section 2 of the
Act of March 2, 1907, 34 Stet. 1228, by acquiring and voluntarily
accepting Italian citizenship. The relevant portion of section 2 reads
as follows:
That any American citizen shall be deemed to have expatriated himself when
he has been naturalized in any foreign state in conformity with its laws, or
when he has taken an oath of allegiance to any foreign state'
Article 9 of the Italian .N atonality Law of June 15, 1912, provides :
He who has lost citizenship … may reacquire it … (3) after two years
of residence in the Kingdom, if the loss of citizenship has been due to the acquisition of foreign citizenship.
It is conceded in this proceeding that article 9 had the effect of automatically conferring Italian citizenship upon applicant's father after
he had completed 2 years' residence in Italy. See 3 Ilackworth,
Digest of international Law (1942) 212.
Such a "naturalization" is within the literal coverage of section 2
of the Act of March 2, 1907, Matter of Al—, 6 I. & N. Dec. 70, 71 (1953) .
It has long been held, however, that section 2 applies only to voluntary
Section 2 further provides :
Whim any naturalized citizen shall have resided for two years in the foreign
state from which he came, or for five years in any other foreign state it shall be
presumed that he has ceased to be an American citizen, and the place of his general abode shall be deemed his place of residence during said years: Provided,
however, That such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, under
such rules and regulations as the Department of State may prescribe: And provided also, That no American citizen shall be allowed to expatriate himself when
this country is at war.
However, this presumption of loss of citizenship arising from prolonged residence abroad was interpreted by Attorney General Wickersham, 28 Cps. A.G.
504 (1910), to operate merely to relieve the Government of the obligation of
protecting citizens residing abroad and to have no effect on the status of citizenship itself. This view has been followed in Cangardo v. Tillinghast, 29 F.
2c1 527 (C.A. 1, 1928) ; In re Alfonso, 114 F. Snpp. 280 (D.N.S. 1933) ; Garcia
Zeranjo v. Brownell, 126 P. Stipp. 370 (N.D. Cal. 1954). While judicial authority
to the contrary is not lacking, Zimmer v. Acheson, 191 F. 2d 209 (C.A. 10. 1951) ;
Rosasco v. Brotonell,
163 F. Supp. 45, 55-57 (P.D. N.Y. 1958), I find the opinion of
Attorney General Wickersham rendered a relatively short time after the enactment of the statute, the more persuasive, and I adhere to it.
Section 2 of the Act of 1907 was repealed prospectively by the Nationality
Act of 1940,
54 Stat. 1137, 1172, and therefore affects only cases involving acts
that occurred during the period 1907 to 1941.
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Interim Decision #1269
expatriation, Perkins v. Elg, 307 U.S. 325, 343 (1939), and that where
a citizen of the United States acquires a foreign nationality through
operation of law and not upon his own application, his United States
citizenship is not lost unless he indicates acceptance of the foreign
nationality by some voluntary affirmative act, Matter of V—,
3 I. & N.
Dec. 671 (1949) ; Matter of R , 6 I & N. Dee. 15 (1953) ; Barsanti v.
Acheson,
108 F. Supp. 1011 (D. Mass. 1952) aff'd per ouriam
200 F.2d
562 (CA. 1, 1953) ; 3 Hackworth's Digest, 211-215. Such acts have
been held to include accepting a passport or identity card describing
the individual as a national of the foreign country, voting in an election of such country, or joining an organization open only to its
nationals, Matter of V , supra, at 674; 3 Hack-worth's Digest, at 213.
—
Most of the cases in which these principles were applied have involved article 9 of the Italian Nationality Law. Since the voluntary
act showing acceptance of the foreign nationality was regarded merely
as evidence of the intent existing at the time such nationality was
acquired, it was held that once the act was shown, the expatriation
would relate back to the date when the foreign nationality was acquired
by operation of law, Matter of V—, supra, at 674; Matter of M—,
supra.
However, the Board of Immigration Appeals has recently reexamined this rule of retroactivity and has concluded that in the light
of the Supreme Court's statement in Nishikaway. Dulles, 356 U.S. 129,
133 (1958), to the effect that the Government must show expatriation
by clear, convincing and unequivocal evidence, there is "no longer
any justification for indulging in the Bctioli that the act showing
acceptance of Italian nationality invariably also shows a voluntary
acceptance of Italian nationality as of the first possible moment such
acceptance conk] be made ," Matter of DiP—, Int. Dec. No. 1215 (1962) .
Consequently, it is now the Board's position that expatriation dates
from the time of the act indicating acceptance of the foreign nationality
and not from the time when that nationality was acquired by operation
of law. Applying this rule in the instant case, the Board found the
record incomplete and remanded the case to the special inquiry officer
to take further evidence as to the nature of the acts relied on by the
Service to manifest voluntary acceptance of Italian nationality.
Ii
The applicant, on the other hand, urges me to adopt the position recently taken by the Department of State in its administration of the
nationality laws. This position is stated by the Department as
follows :
The Department of State, after the most careful consideration and study in
the light of recent important court decisions, has reversed its long standing po1-
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Interim Decision #1259
icy that expatriation under the first paragraph of section 2 of the Act of March 2,
1907 may be based upon the fact that a person has acquired a foreign nationality
solely by operation of law (as, for example, under section 9(3) of the Italian
Nationality Law of June 13, 1912), followed by overt acts voluntarily performed,
which may be regarded as "acceptance" of the foreign nationality. Underlying
this determination was the Department's belief, particulirly in the light of the
Supreme Court decision in ease of Hiskikawa v. Dulles [356 U.S. 129 (1958)1,
that an administrative decision that a person has lost United States citizenship
will be upheld by the courts only if the decision is based upon an act which must
be both voluntary and specifically made expatriating by statute.
' The question before me on this review is whether to adhere to the
long-standing administrative view that voluntary acceptance of a naturalization obtained by operation of law results in expatriation under
the Act of 1907 or to adopt the conclusion of the Department of State
that in such circumstances the voluntary act cannot result in expatriation unless the act itself is specifically made an expatriating act by
the statutes In a memorandum submitted in support of its position,
the Department argues that Nishikawa establishes that expatriation
must be shown by clear, convincing and unequivocal evidence, and that
where the act relied on to establish expatriation is not, standing alone,
an expatriating act under the statute, then, as a matter of law, it cannot be so clear, convincing and unequivocal as to justify a finding of
intent to renounce 'United States citizenship
I cannot accept the view that the substantive law of expatriation
is affected by the decision in Nishilcawa v. Dulles. The opinion in
that case states that the Government has the burden of proving "an
act that shows expatriation by clear, convincing and unequivocal evidence."
356 U.S., at 133. But the question of the quantum of proof
necessary to establish expatriation is quite separate from the substantive question of what voluntary conduct, assuming it is proved,
results in expatriation wider section 2. La the N•skikaava case the
"act" of expatriation upon which the Government relied was service
in a foreign army; here the "act" is naturalization in a foreign state.
There, as here, an issue was raised as to the voluntariness of the act
upon which reliance was placed. Although the Court in Nishikawa
held that the burden of proof on this issue must be borne by the Government, and that the standard of proof to be met was "clear, convincing and unequivocal evidence," B it did not by any means hold,
° Thus the Department of State would 'attach no legal significance to the
naturalization by operation of law, and expatriation, if established, would be
grounded entirely on the subsequent expatriating act.
° Following the decision in Nish/Me/Loa v. Dulles, Congress enacted section 19
of
Public Law 87-301, 75 Stat. 650, 656, which added to section 349 of the Immigration and Nationality Act, 8 U.S.C. 1481, a new subsection (c) providing
that when loss of United States nationality is put in issue in an action or proceeding commenced on or after September 26, 1961, the fact that such a loss
148
Interim Decision #1259
as the Department of State in effect argues, that the evidence adduced
on the issue of voluntariness could relate only to incidents that would
independently furnish grounds for expatriation. The opinion clearly
contemplates that the voluntariness of Nishikawa's service in the
Japanese armed forces could be shown by evidence of any acts or
declarations having the requisite probative value, whether independently expatriating or not.
III
Nevertheless, the position taken by the Department of State, as
well as the Board's own modification of the voluntary acceptance rule
in Matter of DiP—, supra, suggests the desirability of a re-examination of the rule obtaining in cases of naturalization by operation of
The language of section 2 is that an American citizen shall be
deemed to have expatriated himself "when he has been naturalized
in any foreign state in conformity with its laws …." There is no
exception in the statute for involuntary naturalization, but such an
exception has been read into the statute, Perkins v. Elg, supra, at
843, and would today appear to be a constitutional requirement,
Perez v. Brownell, 356 U.S. 44, 61 (1958). Naturalization by operation of law has long been considered to be within the exception for
involuntary naturalization, although as a matter of strict logic a
citizen whose voluntary acts, such as foreign residence, give rise to
a foreign naturalization could be held to the legal consequences of
his actions regardless of whether he knew those consequences would
ensue. See Mackenzie v. Hare,
289 U.S. 299 (1915) ; Savorgnan v.
United States,
338 U.S. 491 (1950).7 However, the term "naturalization" ordinarily connotes a deliberate and purposeful acquisition of
a changed citizenship status. For that reason, it is unlikely that Congress intended to expatriate by section 2 a citizen who, unaware of
the consequences, performed a voluntary act which brought about a
foreign naturalization. The section should not be interpreted in
such a way as to make it a trap for the unwary. 8
occurred may be established by "a preponderance of the evidence." This enactment has no application to the present proceeding, which was instituted before
September 26, 1961.
T Perkins v. Ela, supra, is not authority to the contrary. In that ease the
citizen was a minor at the time of her foreign naturalization and therefore was
not legally responsible for the acts giving rise to the naturalisation.
° The Department of Statb points to the following passage in the Congressional debate on section 2 as evidence that the section was intended to have no
application to naturalization by operation of law :
Cons. Lacey : "… If a man bugs a piece of land or a piece of real estate
[in Mexico] it is necessary for him to say in the deed that he does not desire
Footnote continued on following page.
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Interim Decision #1259
It does not follow, however, that because the statute does not apply
to every naturalization by operation of law, it should apply to none.
Every naturalization occurs by operation of law in the sense that
the law of the foreign country operates on a given set of facts, which
may consist of residence in that country for a certain period of time,
an application for naturalization, an oath of allegience, or some other
act or event. When we distinguish for purposes of section 2 between
a. voluntary naturalization and one which is at least prima facie
involuntary because it arose by operation of law, we import into
section 2 a requirement that for expatriation to result there must
be an intent on the part of the citizen to acquire the foreign nationality, and where the acts which give rise to the naturalization, though
voluntary in themselves, are not such acts as ordinarily give rise
to naturalization, we presume that they have been performed without
this required intent.° Thus, in cases involving article 9 of the Italian
Nationality Law, we regard a mere two years' residence in the country
of the citizen's former nationality as insufficient evidence of intent
to reacquire that nationality, and treat such a naturalization by operation of law as involuntary.
But the principle which justifies the exception for involuntary
naturalization also defines its limits Where intent to acquire the
foreign nationality is present at the time of naturalization or intent
to accept the nationality arises thereafter and is manifested by affirmative and unambiguous acts, there would appear to be no reason
in law or policy to bring the case within the exception. It seems clear,
for example, that where it can be shown by contemporaneous proof
that the United States citizen intended by his two-year residence to
reacquire his Italian citizenship, he should be held to have become
"naturalized" within the meaning of section 2, and hence to have
expatriated himself, notwithstanding that the naturalization was accomplished "by operation of law" and without any formal application
Footnotes continued.
to be a Mexican citizen. The mere fact of recording the deed otherwise makes
him a citizen of Mexico. I would like to ask my friend how far we would
recognize that peculiar state of the Mexican law?"
Cong. Perkins: "It does not go so far. …" 41 Cong. Bee. 1467.
However, this colloquy furnishes little instruction on the question before me,
because neither the position of the Department of State nor that of the Service
and the Board goes "so far."
'This principle is not in conflict with Savorgnan v. United States,
338 U.S.
491,499-500 (1950), where it was held that an American who had applied for
and accepted Italian citizenship expatriated herself notwithstanding that she
did not intend to give up her American citizenship. The intent required by
section 2 is not an intent to renounce United States citizenship but an Intent
to become naturalized in a foreign state.
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for a new citizenship status. Such cases are, of course, seldom encountered. In the usual case the only evidence of the citizen's intent to
reacquire Italian nationality is provided by his actions subsequent
to that naturalization. So arose the doctrine of voluntary acceptance.
The theory was that the naturalization by operation of law created
an ambiguity as to the citizen's intention, -which could be resolved by
subsequent evidence of his desire to accept Italian nationality. When
the citizen manifested his acceptance of Italian nationality by an
overt voluntary act, this act was taken as evidence of the citizen's
intent, at the time when he took up residence in Italy, to reacquire
Italian nationality, and his expatriation was held to relate back to
the date when his naturalization took effect under the law of Italy.
Matter of V—, supra, at 674. Because of the obvious artificiality of
a rule which related the finding of intent to acquire Italian nationality
back to an arbitrary point of time, often in the remote past, the Board
in Matter of DiP — , supra, ruled correctly that the act indicating
acceptance of Italian nationality was probative only of intent at the
time the act was performed, and that therefore expatriation should
no longer be held to relate back but should date from the act of
acceptance.
The decision in Matter of DiP , however, forces recognition that
—
the requirement of an overt voluntary act of acceptance is not, and
probably never was, a rule of evidence but a rule of substance reflecting the proper interpretation of the term "naturalization" as used in
section 2. The significance of the act of acceptance does not lie primarily in its value as proof of previous intent, for such value is often
doubtful, but rather in its value as a manifestation of present intent.
The act of acceptance is the final constituent element of a more complex act, voluntary naturalization, which entails the legal consequence
of loss of United States citizenship. Since, however, it is an essential
element of the ultimate fact upon which expatriation depends under
the statute it cannot be equivocal but must be an act which clearly and
unambiguously imports a purposeful assumption of nationality.
It has been suggested that a "naturalization" involuntary when it
took place cannot be converted into a voluntary naturalization by an
act occurring years afterward, and that since concededly section 2 of
the Act of 1907 applies only to voluntary naturalization; the Board's
rule is an attempt to amend section 2 to create an additional act of
expatriation, i.e., acceptance of a previously involuntary naturalization. This argument seems to me a mere confusion of terms. As already noted, the term "naturalization" as used in the statute, because
of constitutional and other considerations, must be construed to mean a
voluntary and purposeful aquisition of foreign nationality. Although
the involuntary acquisition of foreign nationality or the acquisition
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of such nationality by operation of law certainly constitutes naturalization in one sense of the term, naturalization in the sense intended
by the statute does not occur until the individual has appropriately
manifested an intent to accept the foreign nationality. Acceptance
thus does not serve to give legal effect to a naturalization which has
already ocoured; it is itself an element of the naturalization made
expatriating by the statute.
The construction of the statute which is proposed by the Department of State would lead to anomalous results. It would require a
holding that a United States citizen naturalized in a foreign country
by operation of law who may have accepted all the benefits of that
status, who may even have renounced United States citizenship, would
nevertheless not have lost his United States citizenship unless he had
taken an oath of allegiance to the foreign state, the only other act made
expatriating by section 2. I cannot doubt that such a result would be
contrary to the intent of the Congress that enacted the Act of 1901,
and that it would also be contrary to this Nation's often expressed
recognition of the inherent right of expatriation. 15 Stet. 223-224;
Eafflorgnanv.UnitedBtates,supra, at 497-98.
Because litigation involving nationality usually arises in the context of an assertion of United States citizenship by an individual and
the claim of =expatriation by the Government (although compare
Kawakita v. United States, 343 U.S. 717 (1952) ), it is sometimes overlooked that expatriation found its place in the law initially not as a
weapon of the Government but as a right of the individual. It is true,
of course, that "rights of citizenship are not to be destroyed by
an ambiguity," Perkins v. Elg, supra, at 337, but when a United
States citizen becomes naturalized by operation of law in a foreign
country and by his subsequent course of conduct clearly manifests an
intention to accept the rights and obligations that go with his new
nationality, I do not believe that it does violence to the language of
the Act of 1907 to hold that he has expatriated himself, notwithstanding that the tender of a new status under foreign law and its acceptance by the individual do not occur contemporaneously. I believe it
is more realistic and more consistent with the policy of our nationality
legislation to regard the naturalization by operation of law as in. effect
a continuing offer, the acceptance of which completes the act of
naturalization in a foreign state made expatriating by section 2."
" This conclusion makes it unnecessary to consider whether an expatriation
may arise in such a situation otherwise than under the provisions of the Act of
1907. See 39 Ops. A.G. 411, 412 (1940) ; United States ex reL Rojak V. Harahan,
34 FM 219, 220 (W.D. Pa. 1929) ; United States ex reZ. DeCicco v. Longo, 40 F.
Sapp. 170,174 (D. Conn. 1942) ;•contra, Leong Moat Yin. v. United States,
31 F.2d
738, 740 (C.A.9, 1929).
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Such doubts as might be raised by the contrary argument are set at
rest by the long history of administrative and judicial application of
the voluntary acceptance rule, Barsanti v. Acheson, supra, 3 Hack-
-
worth's Digest, 211-215.
Iv
As has been stated, my purpose in reviewing this case in its present
posture is to resolve the conflict in interpretation between the Department of State and the Board of Immigration Appeals over continued
adherence to the voluntary acceptance rule. I hold that an overt voluntary act manifesting clearly and unambiguously a decision to accept
a foreign nationality previously acquired by operation of law results
in the loss of United States citizenship under section 2 of the Act of
1907. What acts consitute such an acceptance and what factual showing is required to establish their character I find it unnecessary to
consider at this time.
The case is remanded to the Board of Immigration Appeals for
disposition in accordance with the views set forth herein.
153
