P

                                         MATTER OF P--

                           In DEPORTATION Proceedings

                                              A-10595135
                                              A-10381589
                             Dculava     up Board Novemoer dl, ivod

Loss of citizenship—Service in foreign armed forces—Section 349(a)(3) of 1952
 act applicable only when foreign military service commenced subsequent to
 December 24, 1952.
(1) Dual national of United States and Italy who served in Italian armed
  forces from 1954 to 1956, having been physically present in Italy for more
  than ten years preceding service. is held expatriated under aectinn :14b(a)
   (2) and (b) of the act notwithstanding claim that service was involuntary
  by reason of conscription and that expatriating conduct would have been
  avoided had it not been for erroneous advice furnished by American consul
  in 1548. (See Matter of P—. Int. Dec Na 5114, which eel:wea)°, this
  holding.)
(2) Where circumstances were same as above, except that military service
  commenced on June 25, 1952, and continued to 1954, the case is governed by
  section 401(c) of the Nationality Act of 1940; and absence of evidence re ,
                                                                              hutingclamofsrpequiconlthaxpri sno
  been established, Nishileawo, v. Du lles, 

.

CHARGE:
  Order: Act of 1952—Section 241(a) (2) [0 U.S.C. 1251(a) (2))---Adm ed as
           crewman—Remained longer rIntn permitted (both aliens))

                                      BEFORE THE BOARD

   Discussion: The special inquiry officer granted voluntary departure to L P and directed that he he deported if he
failed to depart voluntarily. The proceedings were terminated with
respect to Both cases were certified to this Board for
final decision.
  The respondents are brothers, 26 and 21 years old, respectively,
who are natives of Italy and claim United States citizenship.
P      P last entered the United States on August 13, 1956, and
L—P on August 23, 1956. Neither had previously resided
in this country. They were admitted temporarily as seamen and
have since remained in the United States. The question to be determ ined is whether alienage has been established.

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  R      P     . father of the respondents, was horn at Brooklyn,
New York, on April 22, 1901, and accompanied his parents on
their return to Italy in 1904. He served in the Italian army from
November 10, 1920, until July 21, 1922, and from March 26, 1939,
until August 19, 1939. About May 1921, during his first period of
service, he took an oath of allegiance to Italy while under the age
of 21. On April 13, 1948, he executed an affidavit before an
American consular officer to explain his protracted foreign residence in which he stated that a United States passport was issued
to him in 1980; that lie was in the United States for a few months
at that time, that lie 1,1 Aimed to Italy because of the illness of his
wife; that he voted in an Italian election on June 2, 1946; and that
he was desirous of returning to the United States as soon as possible to reside permanently.
  P      P      was horn on June 25, 1932, and 11,         P        on
April 29, 1934. The American consular officer issued a certificate on
May 10, 1948, to the effect, that R P expatriated himself as
the result of taking an oath of allegiance to Italy during minority
and confirming the oath after reaching majority by again serving
in the Italian army during 1939 without protest, and that his children, including the respondents, had no claim to United Stan's
citizenship because they were born after the date of R P 's
expatriation. This certificate was approved by the Department of
State on April 11, 1950.
   Assuming that R      P     's action in 1939 divested him of United
States citizenship retroactively to about 1922, he and the two respondents were in actuality citizens until 1939. However, the
question of whether the respondents' citizenship could be thus extinguished is not important because we, hold that the present record
does not support a conclusion that P expatriated himself prior to .June 2, 1916, when he voted in an Italian election.
We believe this conclusion is required by Mavdol 1 v. Ach eson.,

 (1952), in which the court indicated its approval of the
position of a former Attorney General that service in the army of
Fascist Italy and the taking of on oath of allegi sue(' must he considered as having been under legal compulsion amounting to duress.
Hence, R P--- was still a citizcen when the respondents were
born and they acquired United States citizenship under section
1993 of the Revised Statutes (8 U.S.C. 6. 1926 ed.).
   The remaining question is -whether the re:Tothlents Live become
expahcioted. I, 1 1 served in the Italian navy from May
1051, when be was 20 years old, until June 1956. P P served
in the Italian navy from July 15, 1952, until 1954. Both testified
they were drafted. The special inquiry officer held that under
section 340 of the Immigration and Nationality Act (8 U.S.C.
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 1481)                became expatriated and was deportable on the
 charge stated above, and that the Government failed to establish
 that war an alien.
    Subsection (a) (3) of section 349 of the Inonigretion and Nationality Act [8 U.S.C. 1481(a) (3)] provides that a person shall
 lose his United States nationality by entering, or serving in, the
 armed forces of a foreign state unless specifically authorized in
 writing by the Secretary of State and the Secretary of Defense.
 Subsection (b) of the same section [8 U.S.C. 1481(b)] provides
 that any person who performs any act specified in subsection (a)
 "shall be conclusively presumed to have done so voluntarily and
 without having been subjected to duress of any kind, if such person
 at the time of the act wee a national of the state in which the act
 was performed and had been physically present in such state for a
 period or periods totaling ten years or more immediately prior to
 such act."
    Counsel contends that the respondents would have been able to
 avoid service entirely in the armed forces of Italy because they
 would have come to the United States in 1948, if it had not been
 for the action of the American consular offiece and the Department
 of State in holding that they had no claim to United States citizenWhether the two respondents would have come to the United
 States prior to their induction into the armed forces of Italy is a
 matter of conjecture. The case must be decided on the basis of the
 facts as they exist and not on what the situation might have been
 if the American consular officer had not issued the certificate of
expatriation.
    Counsel also contends that the ruling of the Department of State
precluded the respondents from obtaining authorization for service
in the armed forces of Italy from the Secretary of State and the
Secretary of Defense in accordance with the provisions of section
349(a) (3) of the Immigration and Nationality Act. Under that
statutory provision, service in the armed forces of a foreign state
must be specifically authorized in writing by the Secretary of
State and the Secretary of Defense "prior to such entry or service."
The respondents did not apply for such authorization and, even if
they had been recognized as citizens, there is no assurance that
they would have been authorized to enter the armed forces of Italy.
In any event, it is °tsar that, prior to their entry into the armed
forces of Italy, they were not specifically authorized in writing to
do so by the Secretary of State and the Secretary of Defense.
Hence, the matter must be decided without reference to this exemption.
    Counsel asserted that the Italian oath of allegiance taken b3
              was not a voluntary act, and he also referred to a statu

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tory provision that nationality shall not be lost by a person under
21 through the naturalization of a parent if the child comes to
the United States for permanent residence before his 25th birthday. These provisions are contained in paragraphs (1) and (2)
of section 349(a) of the Immigration and Nationality Act and are
not revelant to the cases of the respondents since the Government
has not asserted that expatriation occurred under these paragraphs,
and the only applicable provisions are those contained in paragraph
(3) of that subsection and subsection (b). As a matter of fact,
section 349(a) (1) is entirely irrelevant because the two respondents
and                 appear to have acquired dual citizenship in Italy
and the United States at birth and no question is involved here
regarding the Italian naturalization of any of them.
   L             mecca clearly within the provisions of subsections
 (a) (3) and (b) of section 349 of the Immigration and Nationality
Act. After the effective date of that act, he entered and served
in the armed forces of a foreign state. Prior to entering the
Italian navy, such service had not been specifically authorized in
writing by the Secretary of State and the Secretary of Defense. At
the time he entered the Italian navy, he possessed not only United
S tates citizenship, but the citizenship of Italy by reason of hie birth
in that country. He had been physically present in Italy for over
ten years immediately prior thereto, having lived there continuously from the time of his birth on April 2R. 1934. Hence. under
section 849(b) he is conclusively presumed to have performed his
service in the armed forces of Italy "voluntarily and without having been subjected to duress of any kind." Accordingly, we hold
that L P became expatriated and that he is deportable on
the charge stated above.
   The other respondent, P          P        was conscripted into the
Italian navy en duly 15, 19.52, and served until 1904. The special
inquiry officer terminated the proceedings in his case, holding that
his service in the Italian navy was not voluntary and that the Government had failed to establish that he was an alien. Insofar as concerns section 411(c) of the Nationality Act of 1940 [8 U.S.C.
801(c), 1946 ed.], which was in effect from 1941 until December 23,
1952, we hold that it has not been established that P P 's entry
into the. Italian navy caused his expatriation. This conclusion is
required in view of the statement in Nishikoma v. Dulles, 3;

, 135. 137 (March 31, 1958) ; that the Government has the burden
of proving by clear, convincing and unequivocal evidence that the
act showing renunciation of citizenship was voluntarily performed.
   The Service raised the question of whether P---P may have
become expatriated tinder section 349 of the Immigration and
Nationality Act which became effective on December 24, 1952. Sec-

                                  197
 tion 349(a) (3) provides for the expatriation of a United States national who thereafter enters or serves in the armed forces of a
 foreign state, and it is aise that. this respondent did serve in the
 Italian navy after December 24, 1952. He is also within the
 literal terms of the conclusive presumption contained in section
 349(b). However, we hold that these provisions are not binding
 on this respondent. He had entered the Italian navy prior to their
 effective date; section 101(c) of the Nationality Act of 1910 may
 have enotinned to operate in his case by reason of the savings
 clause in section 405(0 of the Immigration and Nationality Act
 (8 11.8.C. 1101, Note) ; and his continued service after December 24,
 1952, did not divest him of citizenship since there is nothing to
 indicate that he could have secured his release from the Italian navy
prior to the completion of his required period of service. The
latter is consonant with the procedure previously followed in cases
arising under section 405 (c) of the Nationality Act of 1940 where
it was held that a United States citizen who entered a foreign
army prior to the effective date of that act (January 13, 1941) was
not to 13<, cleom Rd expatriated by reason of completion of his term
of enlistment or period of service subsequent to Januftry 13, 1941
 (Matter of A—, 2I. & N. Dec. 304 (1945)). Accordingly, we
hold that the Government has not established that P---P----- is
an alien, and the special inquiry offices wan correct in terminating
the proceedings in his case.
   Order: It is ordered that the special inquiry officer's orders
concerning the two respondents be and the same are hereby affirmed.




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