MATTER OF DIP—
In EXCLUSION Proceedings
A-12561169
Decided by Board April 26, 1962
Expatriation—Italian law—Acquisition of foreign nationality by operation of
law—Acceptance—Effect upon citizenship of child.
11) Where. under Italian law, a former Italian national reacquires Italian
nationality automatically by operation of law after two years' residence in
Italy, such "naturalization" does not cause loss of United States citizenship
under section 2 of the Act of March 2, 1907, unless the person voluntarily
manifests acceptance of the Italian nationality by a declaration or overt act.
(2) Where acceptance of Italian nationality acquired by operation of law has
been manifested, expatriation dates from the first act evidencing acceptance
of Italian nationality. (Modifies Matter of If—, 6-40, insofar as it relates
to retroactive expatriation.)
(3) A child born abroad to a United States citizen parent subsequent to the
parent's automatic reacquisition of Italian nationality by operation of law,
but prior to acceptance of Italian nationality by the parent, Is held to have
been born at a time when the parent was still a United States citizen, so
that the child became a United States citizen at birth.
EXCLUDABLE: Act of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) ( 20)1—No
immigrant visa.
BEFORE THE BOARD
DISCUSSION: The case is before us by certification. The special
inquiry officer ordered the applicant excluded upon the ground stated
above and certified the decision to the Board for final decision. Applicant's admission will he ordered.
The applicant applied for admission on November 3, 1961, as a
citizen of the United States. She was born in Italy but claims
United States citizenship through her father, L—G—. Applicant is
in possession of a United States passport issued to her on October 5,
1961. The Department of State considers her a citizen of the United
States; the Service is of the belief that she is an alien. There is
no issue of fact. The question involves a matter of law, and the
differing position's are based on differing conclusions as to whether
the applicant's father lost his citizenship prior to the birth of the
applicant.
660
Applicant's father became a citizen of the United States by naturalization on April 11, 1919. He returned to Italy in 1921 and resided there until 1926 when he returned to the United States. In
1930 he again returned to Italy and has lived there since that date.
(The applicant was born in Italy on September 1, 1937.) Applicant's
father voted on June 2, 1946, in the Italian elections and lost his
United States citizenship at that time if he had not lost previously
(section 401(e), Nationality Act of 1940; 54 Stat. 1188).
The special inquiry officer found that the applicant's father had
lost United States citizenship by becoming naturalized in Italy in
1932. The Department of State is of the belief that the applicant's
father did not become naturalized in Italy but that his United States
citizenship was lost in 1946 when he first, voted in an Italian political
election.
The special inquiry officer found that United States citizenship
had been lost under - section 2 of the Act of March 2, 1907 (
34 Stat.
1228) which in pertinent part provides 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, * • •.
The special inquiry officer found that applicant's father had been
naturalized in Italy under section 3 of Article 9 of the Italian Nas
tionality Law of June 13, 1912, which provided for the recovery of
Italian citizenship by one who:
buying ceased to be an Italian citizen owing to the acquisition of foreign citihas been resident in the kingdom for two years. (UNITED NAzenship,
TIONS PUBLICATION, LAWS CONCERNING NATIONALITY, July 1945,
269)
The special inquiry officer's position, correctly based upon precedents which are binding upon him, is that the Italian naturalization
which became available to the applicant's father in 1932 when two
years had passed after his return to Italy, was accepted by the
applicant's father and brought about his expatriation. Acceptance
is shown by his voting in 1946 in Italy. The acceptance manifested
in 1946 is by fiction of law deemed an acceptance of the Italian
naturalization as of the date it first became available. Thus, the
applicant's father lost United States citizenship in 1932 and at the
time of the applirant's birth in 1937 was an alien and could not
pass United States citizenship to the applicant. The Department of
State, on the other hand, is of the belief that an acceptance of foreign nationality acquired solely by operation of law cannot be accomplished by overt acts which are not a ground of expatriation in
and of themselves, and applicant's father being a citizen of the
United States until 1946 when he became expatriated by voting in
Italy could and did pass United States citizenship to his daughter.
661
Until recently, both the Department of State and the Department
of Justice followed a judicially sanctioned policy which, briefly, 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 by mere residence in Italy for a period of two years, without
reg.rd to whether the naturalized American citizen had intended to
reacquire Italian nationality.' The American Government did not
consider the acquisition of Italian nationality by mere residence a
"naturalization" which would cause loss of American citizenship
under section 2 of the Act of March 2, 1907. Loss of United States
nationality would, however, be found if the individual voluntarily
manifested acceptance of the Italian naturalization by a declaration
or overt act, such as acceptance of employment with the Italian Government, or the acceptance of Italian passport or identity card,
voting in Italy, or joining an Italian political party. (Hackworth,
Digest of International Law, Vol. III, Government Printing Office,
1942, pp. 207-217; Barsanti v. Acheson, 103 F. Supp. 1011, Mass.
(1952), aff'd
200 F.2d 562, C.A. 1; Rosasco v. Brownell,
163 F.
Supp. 45, 55 (E.D. N.Y., 1958) ; United States v. Cuccaro,
138 F.
Supp. 847 (E.D. N.Y., 1956) ; United States ex rel. DeCicco v. Longo,
46 F. Supp. 170, Conn. (1942) ; Matter of P—, 9-362; Matter of M—,
6-70).
The abandonment of the position that expatriation can take place
by reason of a foreign naturalization which arose solely by operation of law was announced by the Department of State in a letter
dated March 10, 1960, addressed to the Service in the case of
P—M— (Exh. 3). We take administrative notice that in pertinent
detail, this letter reads 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
policy 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 Nishikawa
v. Dulles [
356 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 the statute.
The Board has taken notice of the change in the Department's
position (Matter of P , 9—.362), but has not found it necessary
—
'After July 1943, the Italian government did give some recognition to the
.
intention of the naturalized American citizen of Italian origin.
662
to reevaluate the established doctrine. The Service representative
points out that a conflict exists in the position now taken by the
Department of State and that required by Board precedents.
He requests that the Board fully consider the matter, and he calls
attention to the power of the Board to certify a case to the Attorney General for a ruling. It is counsel's position that even if
expatriation can occur by the voluntary acceptance of naturalization which arises by operation of law, it is nevertheless error to
make the naturalization effective as of the date it arose rather than
the date of the voluntary act of acceptance.
We have reexamined the doctrine of expatriation by the performance of an act showing an acceptance of naturalization which arises
by operation of law and we conclude that modification of the retroactive feature is in order. Because we can decide the case in this
Manner, we are not required to consider whether abandonment of the
established doctrine itself is justified. Nishikawa reasserts the rule
that the facts and law should be considered as far as is reasonably
possible in favor of the citizen and that the burden is upon the
Government to show by clear, convincing, and unequivocal evidence
that the act of renunciation of citizenship was voluntarily performed
(Matter of P, supra). 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. Under such circumstances, it would be far from relying upon evidence that is
clear, convincing, and unequivocal in finding expatration occurred as
of the first moment it was legally possible. Since there is nothing
here to show an acceptance of Italian nationality prior to the time
that the applicant was born, we must hold that applicant was born
at a time when her father was still a citizen of the United States and
that she became a citizen of the United States at birth. Her admission as a citizen must be ordered.
In view of the action taken, we see no necessity for certification
of the case to the Attorney General. Matter of M , 6- 70, insofar
—
as it relates to retroactive acquisition of Italian nationality, is
modified.
ORDER: It is ordered that the appeal be sustained and that the
applicant be admitted to the United States as a citizen of the United
States.
663
