VP-361035
Decided by Board April 22, 1949
Citizenship — Expatriation — Oath of allegiance to foreign country — Section 2 of the act of March 2, 1907 — Degree of proof — Evidence — "Voluntary" nature of oath.
1. Where the evidence establishes that an oath to a foreign country taken pursuant to military service in a foreign army was wholly involuntary, such oath does not have expatriative effect under the provisions of section 2 of the act of March 2, 1907.
2. Since expatriation involves forfeiture of nationality, the requirement for proof thereof is strict and exacting.
BEFORE THE BOARD
Discussion: This case comes before us on appeal from a decision by the Assistant Commissioner of Immigration and Naturalization, dated October 19, 1948, denying the petition for issuance of immigration visas to the applicant's wife and sons. As the sons attained majority (they were born, respectively, in 1914 and 1922) before the petition was submitted, January 24, 1947, they cannot qualify for either nonquota or preferential quota status on the application of their father (8 U.S.C. 204, 206); hence disposition of this appeal can affect only the applicant's wife.
Denial of the petition is based on the conclusion that the applicant is no longer a citizen of the United States. He was born in Connecticut on June 15, 1884, and was absent from the United States from 1889-1923 and from 1927-28.
The conclusion that citizenship has terminated is found on the applicant's alleged performance of military service in Italy from April to October 1907 and from February 1917 to December 1918. Advice from the State Department is that an application for passport to the American consulate at Naples on May 20, 1922, was disapproved by the Department. A later application, dated June 11, 1927, was also disapproved by the Department. Another application, made on May 22, 1928, was approved, due apparently to a slight variation in spelling of the name which resulted in failure to associate the application with those which had been denied.
The record is at variance as to the second period of service, whether it began in 1915, or February 1917.
On appeal to us counsel has filed a brief with which he transmitted the applicant's military certificate, translation of which shows the following:
Conscription, presented himself involuntarily and released with illimited discharge ______________________________ Apr. 29, 1907. Called to Army and reported ______________________________ Oct. 16, 1907. Removed from service following special review ____________ Oct. 28, 1907. Discharged following above mentioned review ______________ Do.
Counsel contends that the applicant did not lose citizenship; that no oath was administered in 1907, and that the later service was involuntary. We agree with counsel.
The petition under consideration contains the following:
I * * * have served in the armed forces of a foreign state — W. I 1915 to December 1918.
In a sworn statement by the applicant before Hearing Examiner S.S. Rudy on March 4, 1947, in support of the petition, the following appears:
Q. Will you give me now a short resume of your military service with the Italian Government?
A. When the war broke out I didn't register as an Italian subject because I didn't want to serve in the Italian Army, because I was born in Middletown, Conn., and I always considered myself an American citizen. Six months after the war started I was arrested for not registering for military service and I was put in the army. I was forced to do this. On Armistice Day, when the war was over, I just left because I figured I was through, and I didn't get a discharge. Five or six months later, when I applied for a permit to leave the country, they arrested me again because of the way I left the army. They kept me in jail 1 day, then they gave me my discharge paper so I could go to the American consul and get an American passport.
* * * * * * *
Q. Did you ever make a protest to the American consul about your being forced into Italian military service?
A. I didn't have a chance.
* * * * * * *
Q. Did you take an oath of allegiance to a foreign government, in connection with your service in the Italian Army?
A. I don't remember. I had been arrested and put in the army, so I did what they told me. I don't remember whether I ever took an oath or not.
The Assistant Commissioner concludes that citizenship in the United States was lost by an oath of allegiance incident to military service in 1907. He adds that "The question of his being forced into the Italian Army in 1917 is immaterial as the petitioner was not at that time an American citizen."
The pertinent statute, section 2 of the act of March 2, 1907 ( 34 Stat. 1228), provided that an American citizen shall be deemed to have expatriated himself when he has taken an oath of allegiance to any foreign state. It has been judicially determined that such an oath taken in connection with entering foreign military service terminated citizenship in the United States ( Ex parte Griffin, 237 F. 445, 1916).
The Supreme Court has said that to cause loss of citizenship in the United States "there must be voluntary action" ( Perkins v. Elg. 307 U.S. 325, 334, 1939).
It will be noted it is the oath, not performance of military service, which constituted the act of expatriation. We understand that established procedure in Italy involved administration of the oath 3 months after entering service. Consideration of the military certificate leads us to conclude it was highly improbable that an oath was administered as an incident to the events which occurred in 1907; and in the absence of a showing oath was administered we conclude that on this record a finding of expatriation is not warranted. But even if there were an oath, the notation in the military certificate that the petitioner "presented himself involuntarily" weighs against a finding adverse to his claim.
Respecting the World War I service, the testimony quoted refutes voluntary action. It was determined in Dos Reis ex rel. Camara v. Nicolls, C.C.A.-1, 1947, 161 F. (2d) 860, that one who was born in the United States and was inducted into the Portuguese Army against his will, did not lose his United States citizenship. U.S. ex rel. Fracassi v. Karnuth, D.C.N.Y. 1937, 19 F. Supp. 581; In re Gogal, D.C. Pa. 1947, 75 F. Supp. 268, are to the same effect.
It is worthy of note, also, that in the event the later service commenced in February 1917, instead of at an earlier date as appears at some portions of the record, any oath administered was probably taken on or after April 6, 1917, when the United States declared war and after which date an oath would not result in expatriation (sec. 2, act of March 2, 1907, id.).
As expatriation involves forfeiture of nationality the requirement for proof is strict and exacting. Those elements are lacking here; hence a finding of expatriation is not warranted. As stated by the Supreme Court in Hauenstein v. Lynham, 1879, 100 U.S. 483, 484, in the absence of proof that one has denationalized himself his original citizenship is to be presumed to have continued.
Order: It is ordered that the appeal be sustained and that the petition for nonquota status of the applicant's wife be granted.