0300-279373
Decided by Central Office, October 18, 1949
Citizenship — Derived by child through father's naturalization (1924) — Acquisition of foreign nationality through father's naturalization (Italy, 1932) — Loss of United States citizenship status under section 401 (a) of the Nationality Act of 1940, having resided in Italy from 1930 (age 13) to September 1946 (age 29).
1. A person born in 1917 in Italy and admitted to the United States for permanent residence in 1920, became a citizen through her father's (native of Italy) naturalization here in 1924 while she was a minor and a legal resident of the United States (sec. 5, act of March 2, 1907).
2. The father had lost his Italian nationality upon his naturalization here in 1924 (art. VIII, Italian Nationality Law, June 13, 1912), but reacquired Italian nationality 2 years after he resumed residence in Italy (September 1932) (art. IX (3), Italian Nationality Law, June 13, 1912), and is deemed to have expatriated himself by foreign naturalization (September 1932) (sec. 2, act of March 2, 1907), by manifesting his voluntary acceptance of Italian nationality in voluntarily joining the Italian National Fascist Party, voting in a political election in 1946, and obtaining an Italian passport for travel in 1939.
3. The subject who took up residence in Italy with her parents in 1930, and who resided in Italy when the father reacquired Italian citizenship in 1932 under (art. IX, ( supra), also reacquired Italian nationality in 1932 (15 years old) (art. XII, Italian Nationality Law, June 13, 1912).
4. Thereafter and up to January 13, 1941 (the effective date of the Nationality Act of 1940), the subject having done nothing to expatriate herself, remained a citizen of the United States, as well as a citizen of Italy, and on January 13, 1941, was a dual national subject to the expatriative provisions of section 401 (a) of the Nationality Act of 1940, so that (being over 23 on January 13, 1943) she expatriated herself thereunder by failing to return to the United States before January 13, 1943.
BEFORE THE CENTRAL OFFICE
Discussion: The above-named applicant claims that she derived United States citizenship on June 18, 1924, through the naturalization on that date of her father, A---- P----, by the Common Pleas Court of Hudson County, at Jersey City, N.J., applicant being then a minor and having resided permanently in the United States since December 22, 1920.
The question presented is whether subject who was a national of the United States by naturalization, lost her nationality in accordance with the provisions of section 401 (a) of the Nationality Act of 1940.
The record discloses that subject's father A---- P----, who was born in Italy on February 24, 1887, was naturalized as a United States citizen by the Common Pleas Court of Hudson County, at Jersey City, N.J., on June 18, 1924. The subject was born at Caprino Veronese, Province of Verona, Italy, on March 7, 1917. She lawfully entered the United States for permanent residence at New York, N.Y., on December 22, 1920. She resided continuously in the United States until September 6, 1930, when she was taken by her parents to Italy, and she resided in Italy until her return to the United States, as a United States citizen, on September 19, 1946. Her father did not return to the United States and is still residing in Italy.
Subject has testified that she never committed any overt act of expatriation; that to her knowledge she knew of no act of expatriation being committed by her father; and that in applying for a renewal of her United States passport, with which she returned to the United States on September 18, 1946, she was advised by the State Department that her father had expatriated himself and that she had lost her United States citizenship and that said passport which she used on her return to the United States, was issued erroneously to her by said Department in Milan, Italy. She further testified that in 1932 she and her father went to the United States consul at Venice, Italy, to renew their United States passport and when the consul asked them why they wanted to renew their passports, they stated, in order to be able to return to the United States when they should so desire; that her father was advised not to worry but to return with his tickets when ready to return to the United States; that she was then 15 years of age and in her father's custody; that when she reached her majority she could not make up her mind as to what she was going to do as her family was in Italy and since American residence had been given up, she did not know what she would do in America, not knowing what she would find here. She further stated that in 1939, she tried to make arrangements to visit the United States for the World's Fair, expecting then to decide about permanent residence in the United States, but her plans fell through because of the cancellation of all tours due to the impending hostilities; that at the end of the war she went to work for the Allied Military Government and subsequently for the British in 1946, and when that work ceased, she went to the United States consul and arranged for her passage on a United States passport, returning to the United States on September 18, 1946.
The State Department on February 2, 1949, informed this Service that it had erroneously issued the United States passport on which the subject returned to the United States in September 1946, and forwarded to this Service a certificate of the loss of the nationality of the United States by the subject, which certificate stated in part that subject had expatriated herself under the provisions of section 401 (a) of chapter IV of the Nationality Act of 1940 by being naturalized in Italy as a minor through the reacquisition of Italian nationality on the part of her father, who was naturalized as an American citizen in 1924, returned to Italy in 1930, and has lived there ever since; that subject has resided in Italy since September 1930 and did not establish permanent residence in the United States on or before January 13, 1943; and that the evidence of such action consists of the following:
A sworn statement made by the subject at the consulate general, Milan, Italy, on April 18, 1946, in connection with an application for registration as an American citizen, in which she stated that she returned to Italy in September 1930 with her father and had resided in Italy ever since.
The State Department further stated that its file in the case of subject's father shows that he has been residing in Italy since 1930 and has demonstrated an acceptance of Italian nationality which he reacquired under Italian law, and that the subject must be held to have lost nationality of the United States as set forth in the enclosed certificate. It further stated that the consulate general at Milan was requested in an instruction dated October 18, 1948, to submit a certificate of expatriation in the case of A---- P----, who is the subject's father.
The State Department on August 1, 1949, informed this Service that subject's father executed an application for documentation as an American citizen at the American consulate general at Milan on June 11, 1946, at which time he stated that he was born in Italy on February 24, 1887, that he immigrated to the United States in 1913 where he was naturalized as a citizen of the United States before the Common Pleas Court of Hudson County at Jersey City, N.J., on June 18, 1924, that he had resided in Italy from 1926 to 1927 and from 1930 to the date of his application, that in 1939 he obtained an Italian passport for travel to Switzerland, that he was a member of the Fascist Party, and that he voted in a political election held in Italy on June 2, 1946. It also stated that the subject's father reacquired Italian nationality under the provisions of article IX (3) of the Italian Nationality Law of June 13, 1912, 2 years after he resumed his residence in Italy and it was the Department's opinion that by his actions he manifested a voluntary acceptance of the status of an Italian national and must, therefore, be held to have been naturalized in Italy and to have lost nationality of the United States through the operation of section 2 of the Act of March 2, 1907.
When subject's father was naturalized as a United States citizen on June 18, 1924, he lost his Italian nationality pursuant to article VIII of the Italian Nationality Law of June 13, 1912, which provides that one loses citizenship when he of his own will acquires a foreign citizenship, or establishes or has established his residence abroad. Under article IX of said Italian nationality law, one who has lost citizenship pursuant to article VIII may reacquire it after 2 years' residence in the Kingdom, if the loss of citizenship has been due to the acquisition of foreign citizenship. Therefore, after the father's return to Italy and residence therein the father reacquired Italian nationality pursuant to the provision of article IX (3) of the Italian nationality law of June 13, 1912.
In accordance with Italian law the father regained Italian nationality in September 1932, after residing in Italy for 2 years subsequent to his arrival in Italy in September 1930.
It is the view of this Service and of the State Department that the provisions of article IX (3) of the Italian law, supra, constitute merely a permissive form of naturalization. Unless there is some affirmative act on the part of the individual which would manifest a voluntary acceptance of the Italian nationality other than his mere residence in that country, for 2 years, there is no expatriation (O.I. 801.3 III; Hackworth, Digest of International Law, Volume 3, pages 212, 213). The record establishes that the father in 1939 obtained an Italian passport for travel to Switzerland, that he was a member of the Fascist Party, and that he voted in a political election held in Italy on June 2, 1946. It is the view of the State Department and this Service that joining the Italian National Fascist Party is an act manifesting acceptance of Italian nationality (Hackworth, Digest of International Law, vol. 3, p. 213; 0900-25085, R---- R----, Jan. 19, 1949; C-6267838, H---- C---- S----). The father, therefore, by voluntarily becoming a member of the Fascist Party, in addition to the obtaining of an Italian passport for travel and his voting in a political election in Italy on June 2, 1946, manifested a voluntary acceptance of Italian nationality and thereby lost his United States nationality pursuant to section 2 of the act of March 2, 1907, by having been naturalized as an Italian citizen in September 1932.
Article XII of the Italian Nationality Law of June 13, 1912, provides that minor children of the person reacquiring Italian citizenship pursuant to the provisions of article IX (3) became Italian citizens provided they were residing in Italy. In view thereof, subject acquired Italian nationality in September 1932 at the same time that her father reacquired Italian nationality. Subject was, therefore, a dual national of the United States and Italy in September 1932.
In the case of Perkins v. Elg, U.S. 325, the Supreme Court held that a child did not lose United States nationality through the acquisition of a foreign nationality during minority. The Court stated, however, that such a child, upon attainment of majority, could elect the foreign nationality and thus lose United States nationality. An election does not necessarily require a prescribed procedure but it is possible of determination from the circumstances of a person's conduct and behavior. It must, however, indicate a definitive choice of citizenship. In the instant case it does not appear that subject made any election of Italian nationality. After reaching her majority she continued living in Italy and did no actual work of any kind during the war. There was nothing in her conduct or behavior to indicate a choice between Italian or United States nationality.
However, section 401 (a) of the Nationality Act of 1940 provides in part that a person who is a national of the United States, whether by birth or naturalization, shall lose his nationality —
Provided further, That a person who has acquired foreign nationality through the naturalization of his parent or parents, and who at the same time is a citizen of the United States, shall, if abroad and he has not heretofore expatriated himself as an American citizen by his own voluntary act, be permitted within 2 years from the effective date of this act to return to the United States and take up permanent residence therein, and it shall be thereafter deemed that he has elected to be an American citizen. Failure on the part of such person to so return and take up permanent residence in the United States during such period shall be deemed to be a determination on the part of such person to discontinue his status as an American citizen, and such person shall be forever estopped by such failure from thereafter claiming such American citizenship ( 54 Stat. 1168-1169; 8 U.S.C. 801).
Subject was a United States citizen by derivation on June 18, 1924, through the naturalization on that date of her father, and acquired foreign nationality, namely, Italian, through the naturalization of her father in Italy in September 1932. Since she had made no election as to Italian or United States nationality prior to the effective date of the Nationality Act of 1940, she had at that time Italian nationality as well as United States nationality.
It is the view of this Service that the portion of section 401 (a) cited is not applicable, unless the parent was expatriated as a United States citizen by his voluntary naturalization ( In re L---- D---- R----, 2270-P-562709, Oct. 19, 1948). The evidence of record establishes that the father's actions constituted a voluntary acceptance of Italian nationality which he reacquired in September 1932 and amounted to a voluntary naturalization in Italy as of that date, so as to result in expatriation, pursuant to section 2 of the act of March 2, 1907. Since the subject acquired foreign nationality through the voluntary naturalization of her father in Italy, and was also a United States citizen at the same time, the provisions of section 401 (a) are applicable to her case. The subject, having failed to return to the United States within 2 years after the effective date of the Nationality Act, lost her United States nationality pursuant to the provisions of section 401 (a) of the Nationality Act of 1940. A similar conclusion was arrived at by this Service in the case of A---- N----, A-6730015, June 10, 1949.
It is ordered, That from the evidence presented, the subject be deemed to have lost her United States nationality on January 13, 1943, under the provisions of section 401 (a) of the Nationality Act of 1940.
It is further ordered, That the application for a certificate of citizenship be denied.