MATTER OF C
In DEPORTATION Proceedings
A-10265782
Decided by Board August 20, 1960
Expatriation—Dual national—Conclusive presumption of voluntariness.
Fteepondent's United States citizenship Required at time of birth abroad pursuant to section 1993, Revised Statutes, was lost under section 349(a) (3)
of the Immigration and Nationality Act upon performance of military service in the Italian Army 1953-1955. Where the evidence establishes that at
the time of hic military service the respondent was a dual national of the
United States and Italy who had been physically present in Italy for more
than ten years, the conclusive presumption of voluntariness of the expatriating action attaching under section 349(b) of the Act precludes defense that
respondent's army service was involuntary and the result of conscription.
CHARGE :
Order: Act of 1952—Section 241(a) (2) [8 "U.S.C. 1251(a) (2)]—Nonimmigrant remained longer than permitted.
BEFORE THE BOARD
DISCUSSION: This case is before us on appeal from a decision
of a special inquiry officer granting voluntary departure and directing that the respondent be deported if he fails to depart voluntarily.
The respondent is a 28-year-old male, native of Italy, who claims
TTnited States citizenship. His marital status is not shown in the
record. He last entered the United States on February 5, 1956, and
was admitted as a nonimmigrant crewman. The sole contested issue
is whether the government has established that the respondent is an
alien.
The respondent's father was born at Jersey City, New Jersey, on
March 15, 1008, and went to Italy with his parents in 1911 where he
has eince recided. He was married to the respondent's mother on
February 15, 1932, and the respondent was born in Italy on May 15,
1932, at which time his father was still a citizen of the United States.
At birth, the respondent acquired United States citizenship under
section 1993 of the Revised Statutes but the question arises whether
he lost his citizenship by service in the Italian Army from May 5,
1953, to July 1, 1955. The respondent claims this service was involuntary and the result of conscription.
41
Under section 349(a) (3) of the Immigration and Nationality Act
[8 U.S.C. 1481(a) (3)] a national of the United States loses his
nationality by entering or serving in the armed forces of a foreign
state with certain exceptions not here pertinent. Subsection (b)
[8 U.S.C. 1481(b)] provides that any person who commits 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 was 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." We previously considered this
presumption in Matter of ill Cr--, 7-665 (1958). The respondent
had been physically present in Italy for over ten years prior to 1053,
having lived there continuously since his birth in 1932. This leaves
for consideration the question of whether the respondent's case meets
the other condition necessary to raise this conclusive presumption, that
is, whether he was a national of Italy in 1953.
The Service takes the position that the respondent's paternal
grandfather was by birth a citizen of Italy ; that he never became a
United States citizen; and that the respondent and his father became
at birth dual nationals of the United States and Italy, Italian
citizenship having been acquired under a provision of Italian law
which vests such citizenship at birth in the child of ati Italian
citizen (Article I of the Italian Nationality Law of June 13, 1912,
an English translation of which appears in Nationality Laws by
Flournoy and Hudson, pages 363 to 367, and Article 4 of the Italian
Civil Code of June 25, 1865). The respondent testified that he does
not know whether his paternal grandfather ever became a United
States citizen but that he was born in Italy. On June 13, 1958, the
respondent's father executed before an American consular officer an
application for registration as a United States citizen in which he
stated that his father emigrated to the United States about 1904;
that he resided continuously in the United States from 1904 to 1911;
and that he was not naturalized as a citizen of the United States.
Counsel asserts that if the respondent's grandfather was naturalized as a citizen of the United States, he would have lost his Italian
citizenship and the respondent and his father would not have
acquired Italian nationality. Of course, it would have been necessary fur the United States naturalization to have occurred prior to
March 15, 1908, when the respondent's father was born in the United
States. In any event, counsel does not assert that the respondent's
grandfather was actually naturalized in the United States but only
that he might have been. The contention of counsel is that the
government must establish that the respondent's grandfather was
42
nut naturalized during the period of his residence in the United
States.
In this connection, the government presented three documents
(exhs. R-1, R-2 and R-3) at the reopened hearing. Exhibit R-3 is
a letter from the Italian Ministry of Foreign Affairs to the effect
that the registry of Meta di Sorrento does not show that the respondent's grandfather was ever registered as a citizen of the United
States. The special inquiry officer gave no weight to this exhibit
and we have disregarded it. Counsel claims that there is an erroneous statement in exhibit 11-2. This is a certificate by the appropriate officer of the Department of State, and we believe it is
clear that there is no error in the certificate but that it means that
a search was made, of the passport records from 1871 through 1931
for A—C— (and three similar names), who was born in Italy on
November 3, 1871, and no record was found. However, we do not
rely on this certificate because, even if the respondent's grandfather
had been naturalized in this country, he might have departed in 1911
without obtaining a United States passport.
The third document (exh. R-1) includes the certifications of the
appropriate officers showing that the Service maintains a centralized
index of all persons naturalized after September 27, 1906, and that
after diligent search no record or entry has been found evidencing
the United States naturalization of the respondent's grandfather.
8 U.S.C. 1360(d) specifically authorizes such a certificate concerning
nonexistence of a record.
Commencing in 182l and throughout the period of United States
residence of the respondent's grandfather, there had been a requirement that an applicant for naturalization must have resided in
the United States for five years (section 2165 of the Revised Statutes;
section 4 of the Act of June 29, 1906, 34 Stat. 596). If the respondent's grandfather emigrated to the United States in 1904 as
indicated above, then he could not have been naturalized until
1909 which would mean that the respondent's father had prior
thereto acquired dual citizenship of the United States and Italy,
he having been born on March 15, 1908. There is no contention that
the respondent's grandfather had come to the United States at so
early a date that he could have completed five years' residence before
September 27, 1906, and exhibit 11 - 1 establishes that he was not
naturalized after that date.
With respect to the certification (exh. R-1) concerning the nonexistence of a record of the naturalization of the respondent.'s grand
father, counsel contends that a certificate of naturalization might
have been issued by a state court and not reported to the Central
Office of the Service. Section 3 of the Act of June 29, 1906 (
34
Stat. 596) conferred exclusive jurisdiction to naturalize aliens on
43
certain courts and provided that "all certificates of naturalization
shall be consecutively numbered and printed on safety paper" furnished by the former Bureau of Immigration and Naturalization.
Section 12 of that Act made it the duty of the clerk of court to send
a duplicate of each certificate of naturalization to the Bureau within
30 days after the issuance of the certificate and provided a penalty
if the clerk of court failed to properly account for any certificate
furnished to him by the Bureau. Section 18 made it a felony for
any clerk of court to issue a certificate of naturalization except upon
a final order of the court.
Counsel offered no proof to support his bare allegation that a
certificate of naturalization might have been issued to the respondent's grandfather without being reported to the Central Office of
the Service. We are convinced that the government has established
by exhibit 13. 1 that the respondent's grandfather was not natural-
-
ized as a United States citizen. In addition, there is the statement
of the respondent's father in exhibit 8 that his father was not
naturalized as a United States citizen and the evidence showing that
the respondent's grandfather could not have completed five years'
residence in order that he might have obtained naturalization prior
to the birth of the respondent's father.
In view of the foregoing, it is our considered opinion that the
government has established by clear, convincing and unequivocal
evidence that the respondent's paternal grandfather had not lost
his Italian nationality prier to the birth of the respondent's father
on March 15, 1908, and that the latter and this respondent acquired
at birth dual nationality of the United States and Italy. Accordingly, the respondent is within the terms of the conclusive presumption set forth in 8 U.S.C. 1481(b), and we hold that he became
expatriated under 8 U.S.C. 1481(a) (3) by reason of his service in
the Italian Army from May 5, 1953, to July 1, 1955. Counsel conceded that the respondent was admitted to the United States on
February 5, 1956, as a nonimmigrant crewman for the period his
vessel remained in port, but in no event to exceed 29 days, and that
he has remained in the United States beyond the authorized time.
We conclude, therefore, that he is deportable on the charge stated in
the order to show cause and the appeal will be dismissed.
Miring the oral argument, the Service representative referred to
the Italian Nationality Law of June 13, 1912, supra, and stated that
under the provisions of article IX(3) the respondent's paternal
grandfather, if he had lost Italian nationality by naturalization in
the United States, would have reacquired Italian nationality two
years after his return to Italy in 1911. We have held that in addition to two years' residence in Italy there must be an affirmative act
on the part of the naturalized United States citizen indicating a
44
voluntary acceptance of Italian nationality before loss of United
States citizenship occurs (Matter of V—, 3 671 (1949) ; Matter of
-
R—, 6 15 (1953) ; Matter of Al—, 6 7C (1953); Matter of M—,
- -
6 590 (1955)). In these decisions, the affirmative act was necessary
-
before loss of United States citizenship occurred, but the mere fact of
two years' residence would restore Italian nationality even though
United States nationality might not be lost. Since we have found that
the respondent's paternal grandfather was never naturalized as a
United States citizen, it is unnecessary for us to consider this contention of the Service.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
45
