A-8106492.
Decided by Board November 20, 1953.
Citizenship — Acquisition of at birth — Expatriation of parent — Date of expatriation — Reacquisition of Italian citizenship considered naturalization by operation of law — Act of March 2, 1907.
(1) Naturalization in a foreign state within the meaning of the act of March 2, 1907, need not be accomplished by a formal judicial proceeding and may occur by operation of law. Although, according to Italian law, reacquisition of Italian nationality or naturalization by operation of law occurs automatically after two years of residence in Italy, this is considered a permissive form of naturalization and does not result in loss of United States citizenship under the 1907 act unless acceptance of Italian nationality is manifested through oral or written declarations or overt acts.
(2) Where there has been a voluntary acceptance of Italian nationality, the two-year-residence period set out in article 9 (3) of the Italian nationality law of June 13, 1912, marks the date of expatriation.
(3) A native and citizen of Italy, naturalized in the United States in 1912, who returned to Italy in December 1919 and remained there until April 13, 1948, whose acceptance of Italian naturalization has been judicially determined, became expatriated in December 1921. Therefore, his son, born in Italy on December 27, 1922, did not acquire United States citizenship at birth.
BEFORE THE BOARD
Discussion: This case is before us on motion of counsel for reconsideration of our decision of August 6, 1952. Appellant's father was born in Italy and became a naturalized United States citizen at Duluth, Minn., on February 15, 1902. In December 1919, appellant's father returned to Italy, where he remained until April 13, 1948. In 1921, the father reacquired Italian nationality by virtue of article 9 (3) of the Italian nationality law of June 13, 1912.
Appellant was born in Italy on December 27, 1922. Appellant applied for admission to the United States as a citizen on August 17, 1951, at Buffalo, N.Y., and was excluded by a board of special inquiry as an alien not in possession of a valid visa (sec. 13 (a) (1), act of 1924). The board of special inquiry concluded that appellant had not acquired United States citizenship at birth as a result of his father's loss of United States nationality prior to the date of his birth. This determination was subsequently affirmed by the Board on August 6, 1952.
Counsel contends that reacquisition of prior Italian nationality is not naturalization under the act of March 2, 1907. This statute provides as follows:
Section 2. — 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, or when he has taken an oath of allegiance to any foreign state. (8 U.S.C. 17; 34 Stat. 1228.)
Naturalization has been defined as the raising of an alien to the rank of citizen and the clothing of this alien with the privileges of citizenship ( Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135 (1892); In re Bishop, 26 F. (2d) 148 (W.D. Wash., 1927); United States v. Harbanuk, 62 F. (2d) 759 (C.C.A. 2, 1933); In re Martinez, 73 F. Supp. 101 (D.C., W.D. Pa., 1947)). Clearly, naturalization which conforms with the terms of the 1907 act need not be accomplished by a formal judicial proceeding and may occur automatically by operation of law, as in the present case ( Savorgnan v. United States, 338 U.S. 491 (1950)).
Article 9 of the Italian nationality law of June 13, 1912, provides:
He who has lost citizenship * * * may reacquire it: * * * (3) After two years of residence in the Kingdom if the loss of citizenship has been due to acquisition of foreign citizenship.
Although according to Italian law reacquisition of Italian nationality or naturalization by operation of law occurs automatically after 2 years of residence in Italy, this is considered a permissive form of naturalization by the United States Government. Loss of United States citizenship under the act of 1907 does not result unless acceptance of Italian nationality is manifested through oral or written declarations or overt acts. However, the 2-year residence period, set out in article 9 (3) of the Italian nationality law of June 13, 1912, marks the date of expatriation ( Matter of R----, A-7197985, B.I.A., June 26, 1953, Int. Dec. No. 608, limiting Matter of V----, VP-372844, 3 IN Dec. 671 (B.I.A., 1949)).
In order for expatriation to occur under the above test, appellant's father must have been naturalized in Italy by operation of law and have manifested his acceptance of this naturalization by overt acts. The former occurred, for the father clearly reacquired Italian nationality under article 9 of the law of June 13, 1912. As to the latter, the father's acceptance of Italian naturalization has been judicially determined ( Mastrocola v. Acheson, 105 F. Supp. 580 (S.D.N.Y., 1952)).
Hence, since appellant's father was not a United States citizen on December 27, 1922, appellant did not acquire United States citizenship at birth. For this reason, appellant is not entitled to admission as a United States citizen and the present motion is accordingly denied.
Order: It is hereby ordered that the motion be denied.