A-10873633
Decided by Central Office November 22, 1957
Loss of citizenship — Retention requirements section 401 (a), Nationality Act of 1940, applicable to child who attains age of 23 subsequent to December 24, 1952 — Section 349 (a) (1) of Immigration and Nationality Act construed prospectively, applicable when expatriating naturalization takes place after effective date of act.
(1) Subject, having acquired U.S. citizenship at birth in Italy on June 29, 1931, pursuant to section 1993, Revised Statutes, and having subsequently acquired Italian nationality a year later upon reacquisition by her father of his former Italian citizenship, lost her U.S. nationality under the provisions of section 401 (a) of the Nationality Act of 1940 and section 405 (a) of the Immigration and Nationality Act when she attained the age of 23 without having acquired a permanent residence in the United States.
(2) Although subject commenced to reside permanently in the United States in October 1954 when she was under 25 but over 23 years of age, her U.S. nationality was not retained under the provisions of section 349 (a) (1) of the Immigration and Nationality Act, since those provisions are construed to operate prospectively only. Under section 349 (a) (1), the expatriating naturalization in the foreign state must take place after the effective date of the Immigration and Nationality Act.
BEFORE THE CENTRAL OFFICE
Discussion: The District Director, Detroit, Michigan, denied the application for a certificate of citizenship for the reason that, after acquiring United States citizenship at birth on June 29, 1931, applicant lost such citizenship by failing to establish permanent residence in the United States before her twenty-third birthday. The applicant appealed to the Regional Commissioner, Northwest Region, and the case has been certified to this office.
Applicant's father, G---- C----, a native of Italy, was naturalized as a United States citizen on June 5, 1918, in the Common Pleas Court, Bergen County, at Camp Merritt, New Jersey. He returned to Italy in 1930 and has remained there since that time. He was a member of the Fascist Confederation of Italian Agriculturists from 1931 to 1943, voted in the municipal elections held at Supino, Italy, on March 31, 1946, and in the Italian political elections on June 2, 1946, and April 18, 1948.
Applicant was born on June 29, 1931, in Supino, Italy. She was issued a United States passport on October 21, 1954, and first came to the United States to reside on November 18, 1954, at which time she was admitted as a United States citizen. At that time she was over 23 years of age but had not reached 25.
The issue involved in this case is whether applicant lost her United States citizenship under the provisions of section 401 (a) of the Nationality Act of 1940, because of her attaining the age of 23 years without acquiring residence in the United States.
When applicant's father became a United States citizen in 1918, he lost his Italian nationality pursuant to the provisions of Article VIII (1) of the Italian Nationality Law of June 13, 1912, which provided that "One loses citizenship when he of his own will acquires a foreign citizenship and establishes or has established his residence abroad." After he returned to Italy in 1930 to reside there and had so resided for 2 years he reacquired Italian nationality in July 1932, pursuant to the provisions of Article IX (3) of the same law which provided that "He who has lost citizenship in pursuance of Articles VII and VIII may reacquire it: * * * (3) After two years of residence in the Kingdom, if the loss of citizenship has been due to the acquisition of foreign citizenship." Loss of United States citizenship did not result unless the acceptance of the Italian nationality was manifested through an oral or written declaration or an overt act. Voluntary membership in the Italian Fascist Confederation of Agriculturists, for which only citizens of Italy were eligible, was an acceptance of Italian nationality. The father, therefore, lost his United States nationality as of July 1932 when he reacquired his Italian nationality. The reacquisition by him of Italian nationality constituted a naturalization as of that date ( Matter of M----, A-8106492, 6 IN Dec. 70 (B.I.A., 1953)).
Upon applicant's birth in Italy on June 29, 1931, she acquired United States citizenship pursuant to the provisions of section 1993, Revised Statutes. She did not acquire Italian nationality at birth, since at that time the Italian law as to nationality at birth was based principally on jus sanguinis and her father was not then an Italian national. See Articles I and III of the Italian Nationality Law of June 13, 1912, then in effect. Upon reacquisition by her father of his Italian nationality in July 1932, applicant acquired Italian nationality pursuant to the provisions of Article XII of the Italian Nationality Law of June 13, 1912, which provided that "Minor nonemancipated children of those who acquire or reacquire citizenship become citizens * * *." Consequently, applicant became after her birth a dual national of the United States and Italy in July 1932.
Section 401 (a) of the Nationality Act of 1940 provided in part that a person who is a national of the United States, whether by birth or naturalization, shall lose his United States nationality by —
(a) Obtaining naturalization in a foreign state, either upon his own application or through the naturalization of a parent having legal custody of such person; Provided, however, That nationality shall not be lost as the result of the naturalization of a parent unless and until the child shall have attained the age of twenty-three years without acquiring permanent residence in the United States. * * *
Applicant's case falls squarely within the provisions of section 401 (a). It would appear that she had to come to the United States before reaching her twenty-third birthday or loss of United States citizenship would result. She became 23 on June 29, 1954, and had not as yet come to the United States. However, the Nationality Act of 1940 was repealed on December 24, 1952, by the Immigration and Nationality Act, section 403 (a) (42). On that date, applicant was still a United States citizen. Contained in the Immigration and Nationality Act is the savings clause, section 405 (a) of such act which, in pertinent part, is as follows:
(a) Nothing contained in this Act, unless otherwise specifically provided therein, shall be construed to affect * * * any status, condition, right in process of acquisition, act, thing, liability, obligation * * * at the time this Act shall take effect; but as to all such * * * conditions, rights, acts, things, liabilities, obligations, or matters the statutes or parts of statutes repealed by this Act are, unless otherwise specifically provided therein, hereby continued in force and effect.
Section 349 of the Immigration and Nationality Act provides:
(a) From and after the effective date of this Act, a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by —
(1) obtaining naturalization in a foreign state upon his own application, upon an application filed in his behalf by a parent, guardian, or duly authorized agent, or through the naturalization of a parent having legal custody of such persons: Provided, That nationality shall not be lost by any person under this section as the result of the naturalization of a parent or parents while such person is under the age of twenty-one years, or as the result of a naturalization obtained on behalf of a person under twenty-one years of age by a parent, guardian, or duly authorized agent, unless such person shall fail to enter the United States to establish a permanent residence prior to his twenty-fifth birthday: And provided further, That a person who shall have lost nationality prior to January 1, 1948, through the naturalization in a foreign state of a parent or parents, may, within one year from the effective date of this Act, apply for a visa and for admission to the United States as a nonquota immigrant under the provisions of section 101 (a) (27) (E).
The problem presented in this case is whether applicant's case comes within the provisions of section 401 (a) of the Nationality Act of 1940, remaining in effect by virtue of the provisions of the savings clause in section 405 (a) of the Immigration and Nationality Act, in which event she would have lost her United States nationality because she did not come to the United States before her twenty-third birthday or whether her case comes within the provisions of section 349 (a) (1) of the Immigration and Nationality Act in which event she did not lose her United States nationality because she arrived in the United States before her twenty-fifth birthday.
It is a well-established rule of statutory construction that statutes are generally intended to operate prospectively ( Brewster v. Gage, 280 U.S. 327 (1930)). That section 349 (a) (1) is intended to operate prospectively is abundantly made clear by its very language. Its opening words are "From and after the effective date of this Act" and the future tense "shall lose" is employed. Clearer language to denote futurity and prospective action could hardly have been chosen. The section recites that a person "shall lose his nationality by obtaining naturalization in a foreign state * * * through the naturalization of a parent having legal custody of such person." These words can only mean that the expatriating naturalization must take place after the effective date of the Immigration and Nationality Act. In this case the expatriating naturalization of the applicant's father took place long before the effective date of the act.
The first proviso of section 349 (a) (1) states that nationality shall not be lost by any person under this section as the result of the naturalization of a parent unless such person shall fail to enter the United States to establish a permanent residence prior to his twenty-fifth birthday. This proviso limits the loss of nationality "under this section." Since the section relates only to expatriating naturalizations which take place after the effective date of the Immigration and Nationality Act, the proviso can limit the effect of those expatriating naturalizations only. Had Congress intended this limitation to be applicable to cases arising under the prior Nationality Act of 1940, it would have made specific reference thereto (See, for example, section 301 (c) of the Immigration and Nationality Act).
The savings clause referred to above preserved the status or condition which applicant enjoyed under section 401 (a) of the Nationality Act of 1940. Through the operation of the savings clause she had the right to avoid the loss of her United States nationality by acquiring permanent residence in the United States prior to her twenty-third birthday even though that date was after December 24, 1952, the effective date of the Immigration and Nationality Act. Since she did not exercise this right prior to her twenty-third birthday as required by section 401 (a) of the Nationality Act of 1940, it is concluded that she has lost her United States citizenship. The appeal will be dismissed.
Order: It is ordered that the appeal of the applicant from the denial of her application for a certificate of citizenship be dismissed.