A-6961564
Decided by Board March 22, 1949
Citizenship — Expatriation — Dual national serving in foreign military forces — Section 401 (c) of the Nationality Act of 1940 — Voluntary service.
A native of Italy, who acquired both the nationality of Italy and the United States at birth, expatriated himself under the provisions of section 401 (c) of the Nationality Act of 1940 by voluntarily serving in the Italian armed forces in 1943, such person being charged with knowledge of the law and the consequences of his act of service in the Italian military forces.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
BEFORE THE BOARD
Discussion: This is an appeal from the decision of the Assistant Commissioner of Immigration and Naturalization dated November 9, 1948, wherein the excluding decision of the Board of Special Inquiry was affirmed without prejudice to reapplication for admission to the United States within 1 year from the date of exclusion. The excluding decision was predicated upon a finding that at the time of application for admission to the United States at Hidalgo, Tex., August 27, 1948, the appellant was found to be an immigrant not in possession of an unexpired consular immigration visa.
The sole question in this case is whether the appellant became expatriated under the provisions of section 401 (c) of the Nationality Act of 1940 ( 8 U.S.C. 801).
The appellant was born in Palermo, Sicily, Italy, on September 12, 1922. He remained in Italy until 1948, when he proceeded to Mexico in transit to Guatemala. He asserts that while in Mexico he learned that his father was born in New Orleans, La., on February 15, 1898, and that his mother was a native of Palermo, Sicily, Italy. At the time of application he presented a copy of his father's birth certificate and Italian passport issued on February 24, 1948, valid until February 23, 1949, containing a notation thereon made by the consul of Guatemala indicating that such notation was for a visit to the Republic of Guatemala for 1 year.
The subject of this proceeding claims that he is a citizen of the United States by reason of the provisions of section 1993 of the Revised Statutes, which section provides as follows:
All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States (R.S. 1878, p. 350; 1 Comp. Stat. 1901, p. 1268).
It is conceded that by reason of the provisions of section 1993 of the Revised Statutes of the United States ( supra) the appellant was a citizen of the United States at the time of his birth, inasmuch as his father at that time was a native-born citizen. He was also a national of Italy by reason of his birth in Palermo, Sicily, Italy, pursuant to the law of Italy and pursuant to the doctrine of jus soli.
The testimony of the appellant further shows that during the year of 1942 he was called for military service by the Government of Italy, but because of the fact that he was then completing his education as an engineer, he was not inducted into the Italian military forces until September 8, 1943. During the month of June 1947 he received the degree of doctor of industrial engineering, which degree was conferred upon him by the University of Palermo.
Section 401 (c) of the Nationality Act of 1940, 8 U.S.C. 801, 54 Stat. 1169, provides that a person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by ( 54 Stat. 1168) entering, or serving in, the armed forces of a foreign state unless expressly authorized by the laws of the United States, if he has or acquires the nationality of such foreign state.
The principal contentions of counsel, as advanced in his brief as well as upon oral argument, are (1) that the service in the Italian Army was involuntary, and (2) that the appellant had no knowledge of derivative citizenship in the United States until reaching Mexico in the fall of 1948.
As to the first contention, that the service in the Italian Army was involuntary, we need but refer to the testimony of the appellant. He raised no protest to service nor did he advance a claim of citizenship at that time. As a matter of fact, the present case is totally devoid of evidence of alleged involuntary service such as would be required to support a finding that such military service was in fact involuntary.
Counsel's second contention, and that which he stresses most vigorously, is that at the time the alleged act of expatriation occurred (service in the Italian Army) the subject was unaware that he had acquired United States citizenship at the time of his birth and, hence, was not in a position to elect between Italian and United States citizenship. Therefore, it is argued Italian army service could not be an act of expatriation. It is pointed out, had the subject then known he was a citizen of the United States he could have decided whether to take steps to prevent his induction into the Italian Army.
Expatriation is voluntary when the performance of the act which Congress says results in expatriation is voluntary. That the subject did not know he acquired citizenship at birth was a fact susceptible of ascertainment by him. His ignorance in this regard cannot excuse him from the normal result flowing from his voluntary act, to wit: service in the Italian Army. Of relevance here is the following observation made by the court in Schaufus v. Attorney General of the United States, 45 F. Supp. 61, 65 (U.S.D.C.D. Md., 1942), where as here the issue was whether one who was a citizen at birth became an expatriate:
Furthermore, there is absolutely nothing in the petitioner's own testimony from which it may reasonably be inferred that he knew what his status had been at birth or that he ever considered himself as having derivative American citizenship from his father until a few months ago, when he was apprised of the decision of this court in Haaland v. Attorney General of United States, supra. Of course, mere ignorance of his status at birth would not alone preclude him from still asserting it, provided he had not lost it by what he had done meanwhile.
In Ethel C. Mackenzie v. John P. Hare, 239 U.S. 299, an argument analogous to that presented in this case was urged. The issue there was whether Mrs. Mackenzie who had always lived in the United States could be deprived of citizenship against her wishes because of her marriage to an alien under the terms of the act of March 2, 1907, which provided "That any American woman who marries a foreigner shall take the nationality of her husband." The argument of Mrs. Mackenzie is stated by the court as follows:
An earnest argument is presented to demonstrate its invalidity. Its basis is that the citizenship of plaintiff was an incident to her birth in the United States, and, under the constitution and laws of the United States, it became a right, privilege, and immunity which could not be taken away from her except as a punishment for crime or by her voluntary expatriation.
The court concluded:
It may be conceded that a change of citizenship cannot be arbitrarily imposed, that is, imposed without the concurrence of the citizen. The law in controversy does not have that feature. It deals with a condition voluntarily entered into, with notice of the consequences. We concur with counsel that citizenship is of tangible worth, and we sympathize with plaintiff in her desire to retain it and in her earnest assertion of it. But there is involved more than personal considerations. As we have seen, the legislation was urged by conditions of national moment. And this is an answer to the apprehension of counsel that our construction of the legislation will make every act, though lawful, as marriage, of course, is, a renunciation of citizenship. The marriage of an American woman with a foreigner has consequences of like kind, may involve national complications of like kind, as her physical expatriation may involve * * *.
After careful consideration of all of the evidence of record, we find that the appellant was a national of Italy when he entered the armed forces of that country. We further find that the service in the Italian Army was voluntary. It is the further finding of this Board that the appellant is charged with knowledge of the law and the consequences of his act of service in the Italian military. Alienage being thus established, it is the further finding of this Board that at the time of application for admission to the United States he was an alien and an immigrant who, as a prerequisite to permanent admission to the United States, requires an unexpired consular immigration visa. (See sec. 13 (a) of the act approved May 26, 1924, 8 U.S.C. 213.)
Order: It is ordered that the appeal from the decision of the Assistant Commissioner of Immigration and Naturalization be and the same is hereby dismissed.