Interim Decision #1299
1Y1.A24.cat or Ammo
In SECTION 341 Proceedings
A-11577150
Decided by District Director
Approved by Assistant Gromeniationer September 5, 1983
(1) Where an oath of allegiance is taken during minority, nationality loss under
section 2, Act of March 2, 1907, occurs as of the date after attaining majority
and prior to January 13, 1941, of the performance of an act confirmatory of
the oath of allegiance taken during minority, unless precluded by the proviso
to section 2 relating to expatriation during World War I.
(2) Alleged mandatory service from April 2, 1939, to June 19, 1939, in the Ttalian
army by a dual national after attaining majority was involuntary and cannot
be regarded as confirmatory of an oath of allegiance taken during monority
in the absence of evidence to establish that such service was voluntarily performed and in view of the well-known ruthlessness of the Fascist regime which,
even as early as 1935, would hardly have tolerated resistence to its draft
laws by an admitted national of Italy.
The above-named has applied for a certificate of citizenship, claiming to have acquired citizenship at birth in Italy on September 7,
1939, to a. citizen father and an alien mother.
The pertinent statute in effect when the applicant was born was
section 1993, R.S., as amended by the Act of May 24, 1934, providing
that:
Any child hereafter born out of the limits and jurisdiction of the United
States, whose father or mother or both at the time of the birth of such child
is a citizen of the United States, is declared to be a citizen of the United States;
but the rights of citizenship shall not descend to any such child unless the citizen
father or citizen mother, as the case may be, has resided in the United States
previous to the birth of such child. In cases where one of the parents is an
alien, the right of citizenship shall not descend unless the child comes to the
United States and resides therein for at least five years continuously immediately
previous to his eighteenth birthday, s
The latter part of this section concerning retention of citizenship
was changed by the provisions of section 201 (g) of the Nationality
Act of 1940 (54 Stat, 1138-39), effective 1/18/41, and these in turn
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Interim Decision #1299
were affected by section 301 (b) and. (c) of the Immigration and
Nationality Act, effective December 24, 1952 (8 U.S.C. 1401), quoted
below
Any person who is a national and citizen of the United States at birth under
paragraph (7) of subsection (a), shall lose his nationality and citizenship unless
he shall come to the United States prior to attaining the age of twenty-three
years and shall immediately following any such coming be continuously physically present in the United States for at least five years: Provided, That such
physical presence follows the attainment of the age of fourteen years and
precedes the age of twenty-eight years.
Subsection (b) shah apply to a person born abroad subsequent to May 24,
1934: Proviided, however, That nothing contained in this subsection shall be
construed to alter or affect the citizenship of any person born abroad subsequent
to May 24, 1934, who, prior to the effective date of this Act, has taken up a
residence in the United States before attaining the age of sixteen years, and
thereafter, whether before or after the effective date of this Aet, complies or
shall comply with the residence requirements for retention of citizenship specified in subsection (g) and (h) of section 201 of the Nationality Act of 1910, as
amended.
The record discloses that the applicant entered the United States
on January 18, 1959, when 19 years of age. No issue with regard to
applicant's retention of United States citizenship arises out of the
fact that he was over 16 years of age when he came to the United States,
the talking up of physical presence in this country prior to 23 years
of age, still being timely for such purposes under section 301 (b) .
The applicant's father was born on January 28, 1918, in Trenton,
New Jersey, of Italian parents. He resided in the United States
until 1920, when his father took him to Italy. In 1953, he emigrated
to Canada, and on May 27, 1958, he was admitted to the United States
as an alien, in possession of an immigrant visa. On November 8, 1937,
when only 19 years of age, he voluntarily enlisted in the Italian army
for a period of two years, and took an oath of allegiance in connection
with such military service. This volunteer status in the Italian army
was terminated on October 10, 1938. He was recalled to military
service on April 2, 1939, and discharged on June 19, 1939, "for end of
enlistment." He was again recalled to active duty in the Italian army
on June 21, 1941, and was discharged on November 28, 1944. He voted
in Italy in political elections in 1946, 1947, and 19948.
The question presented is whether the applicant's father was a
citizen of the United States at the time of the applicant's birth.
The father was a dual national at birth, having acquired United
States citizenship by virtue of the XIVth Amendment to the Constitution, and Italian citizenship under the Italian Nationality Law of
1912, which recognizes the principle of jus sanguinis. The expatriation statute in effect at the time of the applicant's birth was
section 2 of the Act of March 2, 1907, providing in pertinent part:
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Interim Decision #1299
That any American citizen shall be deemed to have expatriated himself …
when he has taken an oath of allegiance to any foreign state. … And
provided also that no American citizen shall be allowed to expatriate himself
when this country is at war.
As pointed out above, the applicant's father took such an oath of
allegiance in connection with his entry into. the Italian armed forces
when he was 19 years of age. It has long been settled by both administrative practice and judicial decision that a citizen by birth, who
has not yet attained his majority, cannot expatriate himself under
the Act of March 2, 1907, by taking an oath of allegiance to a foreign
state (Perri v. Dulles, 206 F. 2d 586; U.S. ere ?el Baglivo v. Day,
28 F.
2d 44; Augello v. Dulles,
220 F. 2d 344). However, a minor may by
clear and unequivocal acts after reaching his majority indicate a desire
to confirm an oath of allegiance taken during his minority and thereby
complete his loss of nationality under that Act (DiGirolamo v.
Acheson,
101 F. Supp. 380; Matter of L , 2 I. & N. Dee. 789; Matter
—
of If—, 4 I. & N. Dec. 22)
In analogous situations, the Service has followed the "relation back"
theory in fixing the date upon which nationality was lost. Thus, it
had been held that an act manifesting acceptance of a foreign nationality previously involuntarily acquired related back to the date of
acquisition of foreign nationality, thereby resulting in loss of nationality as of the earlier date (Matter of V—,
3 I. & N. Dec. 671).
Similar]y, where persons who had acquired both United States and
foreign nationalities durino. minority elected the foreign nationality,
the act of election related bmack to the attainment of majority (Matter
of G—,
1 I. & N. Dec. 329). In Matter of S—, 8 L & N. Dec. 604,
where an oath of allegiance, not expatriating because taken during a
period when the United States was at war, was subsequently confirmed,
nationality was determined to have been lost as of July 2, 1921, the
date of termination of the war period.
This "relation-back" principle has recently been reconsidered. In
a case involving acceptance of a foreign nationality previously acquired by operation of law (Matter of DIP—, Int. Dec. No. 1215), the
Board of Immigration Appeals ruled that the retroactive feature
should be modified, stating as follows:
There is, therefore, no longer any justification for indulging in the fiction 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 could be made. In the interval within which it was possible to make the
choice of becoming an Italian national and the actual making of the choice, the
individual may have been indifferent, undecided, or even hostile to the acceptance
of Italian nationality.
In Matter of Picone, Int. Dec. No. 1259, also involving acceptance
of a foreign nationality previously acquired, the Attorney General
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Interim Decision *1299
held that the Board of Immigration Appeals had correctly ruled that
expatriation should no longer be held to relate back, but should date
from the act of acceptance.
Although these two cases involve acceptance of a foreign nationality
involuntarily acquired by operation of law, their rationale should be
equally applicable to the instant case. "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." (Matter of Picone, supra). Further, acceptance of a foreign nationality previously acquired, election
of nationality by minors possessing dual nationality, and confirmation
of an oath of allegiance taken during war time, were all regarded in
the same posture in applying the "relation back" theory. It would
be anomalous to hold that this doctrine should be abandoned only with
respect to foreign nationalities involuntarily acquired, and the rule
with regard to oaths of allegiance taken during disability remain
unchanged. It must, therefore, be concluded that under section 2
of the Act of March 2, 1907, nationality is lost as of the date after
majority upon which an act confirmatory of the underage oath of allegiance is performed, unless that effect is inhibited by the proviso
to section 2 relating to expatriation during World War I.
Next we must determine what constitutes a confirmatory act in such
instances. Such an act has been characterized as one which indicates
a continued allegiance to the foreign state (Matter of L—, supra).
Clearly, subsequent military service performed after attaining majority is of such a nature, particularly since the recognition of the duty
of military service to the country of, origin is inconsistent with the duty
of an American citizen 4o this country (See U.S. ex rel De Close v.
Longo, 46 F. Supp. 170). Voting is also regarded as a confirmatory
act of an underage oath of allegiance (Matter of L , 2 1. & N. Dec.
—
789).
Prior to the applicant's birth, the father served a second period of
military service from April 2, 1939, to June 19, 1939, after he had
attained majority. He has testified that this service was mandatory
and was regarded as a continuation of his original two-year enlistment. Did he thereby effectively confirm the oath of allegiance in
conformity with the foregoing?
It must be remembered that no conduct results in expatriation unless the conduct is engaged in voluntary (Nishikawa v. Dulles, 356
U.S. 129). There must be consideration of the circumstances attending the service in the foreign army and the reasonable inferences to
be drawn therefrom (Acheson -v. Maenza,
202 F. 2d 453, citing Okinova v. Acheson,
342 U.S. 99 and Murata v. Acheson,
342 U.S. 900).
Factual doubts are resolved in favor of citizenship (Alata v. Dulles,
358
Interim Decision. #1299
221 F. 2d 52, and cases cited). Considering the father's testimony
in connection with the well known ruthlessness of the Fascist regime,
which even as early as 1935, would hardly have tolerated resistance
to its draft laws by an admitted national of Italy (See Acheson v.
Maenza, supra) and the absence of any testimony to establish that
such period of service was voluntarily performed, it must be concluded
that it was involuntary and cannot be regarded as confirmatory of the
oath of allegiance taken during minority.
The father's third period of military service from June 21, 1911, to
November 8, 1944, and his voting in Italian elections in 1946, 1947, and
1948 are worthy of note. Since these occurred subsequent to the
applicant's birth, they cannot have any impact upon his status. They
are mentioned for the sole purpose of illustrating an additional development of the expatriation laws. Although a, questionable claim of
duress has been advanced as to the voting, it may be assumed, arguendo,
that such actions were voluntary and, as stated above, would generally
be regarded as confirmatory acts of an oath of allegiance taken during
minority.
On January 13, 1941, the Nationality Act of 1940 (54 Stet. 1137)
became effective. In addition to repealing section 2 of the Act of
March 2, 1907, this statute set forth prospective grounds of expatriation. It provided further that loss of nationality shall result solely
from the performance of the acts or fulfillment of the conditions specified in the Act. Examination of such acts and conditions discloses no
provision with respect to confirmation of an oath of allegiance taken
while a minor. Moreover, inasmuch as section 2 of the Act of 1907 was
repealed prospectively by the Nationality Act of 1940, the Attorney
General has ruled that the 1907 Act affected only cases involving acts
that occurred during the period between 1907 to 1941 (Matter of
Paton, supra). It follows that where an oath of allegiance is taken
during minority, nationality can be lost under the 1907 Act only if a
confirmatory act is performed after majority andprior to January 13,
1941. The third period of the father's military service and his voting,
all having occurred subsequent to January 12, 1941, cannot therefore
be considered in this aspect.
In light of all of the foregoing, it is found that the applicant's father
was not expatriated prior to the applicant's birth and was a citizen of
the United States when the applicant was born.
ORDER: It is ordered that the application for a certificate• of
citizenship be and the same is hereby granted.
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