VP-372844
Decided by Board July 14, 1949
Citizenship — Native and citizen of Italy, naturalized here in 1923 — Repatriation thereafter in Italy following residence of at least 2 years — Expatriation (United States) by overt act manifesting voluntary acceptance of reacquired Italian nationality (by joining Fascist Party in Italy in 1932) — Section 2 of the act of March 2, 1907.
1. A native and citizen of Italy who became naturalized here in 1923, was permitted under Italian law to reacquire Italian citizenship upon 2 years' residence in Italy, which 2-year period elapsed in 1929.
2. Expatriation (as to United States citizenship) under section 2 of the act of March 2, 1907, by such naturalization in Italy, requires in addition to such period of residence there, an affirmative or overt act as a manifestation of the United States naturalized citizen's intent to abandon his United States citizenship.
3. The overt act in this case was the subject's voluntarily joining the Fascist Party in Italy in 1932, whereupon he is deemed to have expatriated himself as of the time he reacquired Italian nationality in 1929.
BEFORE THE BOARD
Discussion: Shortly after petitioner's arrival in the United States in October 1946, he made application for the issuance of an immigration visa for his wife and son, who are in Italy, and (on July 9, 1947) the Immigration Service approved this visa petition. However, on December 1, 1947, the Service revoked its approval of the visa petition, upon receiving information from the Passport Division of the State Department that petitioner had inadvertently been given a passport by the American consulate in Florence, Italy; it was believed that petitioner had lost his citizenship and for that reason his registration as an American citizen at the consulate had been disapproved by the State Department in Washington, D.C. Thereafter, counsel submitted a brief and argued his appeal before this Board on February 11, 1948, we ordered that the record be reopened so that facts pertinent to the issue of expatriation could be incorporated in the record. Hearings were held by the Immigration Service in Washington, D.C., on May 28 and September 15, 1948; during the course of these hearings, petitioner stated that he had joined the Fascist Party while in Italy and, upon inquiry, the Passport Division of the State Department advised the Acting Commissioner that the American Consul General stated on June 1, 1943, that membership in the Fascist Party was limited to Italian subjects. On the basis of the facts adduced in the hearings and a study of the record, the Assistant Commissioner directed (in an order dated November 29, 1948) that the previously granted approval of petitioner's visa petition be revoked. The case is now before us on appeal from the Assistant Commissioner's decision.
Petitioner was born in Italy on March 8, 1897, and came to the United States in 1910 (when he was 13 years old) with his parents who were natives and citizens of Italy. Petitioner, his father, and two brothers were naturalized in the Court of Common Pleas of Hudson County, N.J., in 1923.
Petitioner testified that his mother made three trips to Italy: In 1924 with his father, returning in 1926; 1928-34; and for a short visit to petitioner in 1937. Petitioner accompanied his father, who had been advised to remain in the Italian climate for his health, to Italy in 1924 (when he was 28 years old) and returned in 1926; then 6 or 7 months later, in May 1927, petitioner again returned to Italy, shortly after his father's return to become a patient in a private hospital in that country. Petitioner stated in his application for travel papers at that time that his father had asked him to join him in Italy, although it is not shown that his father held out any special inducement to encourage his return to Italy. Thereafter, in 1927, petitioner's father bought property for petitioner (two farms and two houses). The following year, petitioner's father returned to the United States and petitioner testified that he, too would have returned, if his father had found it possible to remain in this country, but his father's health apparently necessitated a return to Italy. Petitioner alleges that in 1929 or 1930, while at the American consulate with his native-born citizen brother who was returning to the United States, he inquired if he was in danger of losing his United States citizenship by remaining in Italy and as to how long he could safely remain in Italy, and was allegedly assured that he had not lost citizenship and that there was no limit to the length of time he could stay abroad before becoming an expatriate.
In 1932, petitioner joined the Fascist Party in Forli, Italy; he testified that he joined on the advice of relatives in order to avoid difficulties which might arise with the Italian Government or, to quote petitioner, "Sometimes you might need something. If you were in the party you could be helped out." Then in 1933, he married a native and citizen of Italy. In 1934, when his mother returned to the United States, she attempted to persuade petitioner to come back, but he decided not to return then, for his wife was pregnant (their child was born in November 1934) and his wife was reluctant to leave her aged parents — her father was then 75 and her mother was 66. Furthermore, petitioner stated that he attended to the family property from 1927 to 1946; petitioner's father died in 1933.
On May 3, 1940, petitioner requested that an American passport be issued to him. The State Department advised its vice consul in Florence, Italy, that such a passport should be issued, provided that the consul was satisfied that petitioner had not performed an overt act manifesting his voluntary acceptance of Italian nationality under the appropriate Italian statute or provided that petitioner proved to the consul's satisfaction that the presumption of expatriation (under the act of March 2, 1907) had in fact been rebutted by an indication of willingness to comply with rule G (of the State Department regulations authorized by the above-mentioned act). It will be noted that at this time petitioner made his initial claim that he joined the Fascist Party involuntarily, when he told the consul: "In 1932, I was obliged to join the Fascist Party, but I never took an oath of allegiance or any active part, and my inscription was merely a formal one."
In October 1945, petitioner's activities during the war years were investigated by the Carabinieri Reali of Bologna, Italy, and it was reported that no derogatory information was found against petitioner and his wife during the period of 1932 to July 1943 and that they did not collaborate with the Nazi Fascist Party. On August 22, 1945, petitioner registered as an American citizen at Florence, Italy, and again applied for a United States passport; he repeated his previously stated reasons for his long residence in Italy and again stated: "In 1932, I was obliged to join the Fascist Party, but I never took an oath of allegiance or any political part, and my inscription was merely a formal one." On January 16, 1946, the vice consul recommended that the application be disapproved since the petitioner failed to show that he had overcome the presumption of having ceased to be an American citizen. Nevertheless, petitioner filed another passport application on September 4, 1946, and was issued a limited passport. It appears that this passport would not have been issued petitioner had the vice consul received the State Department's communication of September 27, 1946, for in the Department's letter of that date, he was advised that petitioner was deemed to have reacquired Italian nationality and lost his United States nationality. Petitioner's passport, issued on September 6, 1946, was valid for a return to the United States prior to October 14, 1946. When petitioner returned from abroad aboard the S.S. Marine Perch, he was first admitted for 60 days as "stateless" and then the record was amended to show that he was a United States citizen who was returning within the time limit for repatriation set out in the Nationality Act of 1940, sections 404 and 409, as amended (Oct. 14, 1946).
Section 2 of the act of March 2, 1907 (8 U.S.C. 17; 34 Stat. 1229) provides as follows:
Any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws * * *.
Two portions of the Italian Nationality Law of June 13, 1912, are pertinent to the instant case. Article VIII provides:
One loses citizenship:
(1) When he of his own will acquires a foreign citizenship and establishes his residence abroad.
In addition, article IX states:
He who has lost citizenship in pursuance of articles VII and VIII, reacquires it * * * (3) After 2 years of residence in the Kingdom, if the loss of citizenship has been due to the acquisition of foreign citizenship.
The effect of these statutes upon the status of petitioner as a citizen of the United States, in the light of the circumstances involved in the present case, is the question before us at this time.
The Italian statute makes the reacquisition of Italian citizenship, by a person who lost his Italian nationality as a result of naturalization in another country, permissive upon 2 years' residence in Italy. An affirmative or overt act, in addition to this period of residence, is necessary as a manifestation of the naturalized citizen's intent to abandon his United States citizenship. The specific overt act involved in the instant case is membership in the Fascist Party, which petitioner admittedly joined in 1932. Since membership in the Italian Fascist Party was limited to Italian citizens, such an act, regardless of motive and later active participation in the party (or lack of participation therein), is a strong manifestation of intention to change allegiance. Therefore, by operation of the two statutes, after 2 years' residence in his native Italy, petitioner became susceptible to expatriation upon the commission at a later date of an overt act showing his allegiance to Italy rather than to his adopted country. This later affirmative act is considered merely as the necessary evidentiary showing of petitioner's intention to renounce his naturalized country at the time he took up residence in Italy; hence, the act evidencing acceptance of Italian nationality relates back to the date of acquisition of Italian nationality, by virtue of the terms of the Italian statute of 1912 ( Matter of S----, C-6267838 (A.G., July 15, 1942)).
The State Department was advised by the American Consul General in Italy on July 10, 1934, that he had been informed by the secretary of the Fascist Party that membership in that organization was restricted to Italian subjects.
Counsel contends that petitioner joined the Fascist Party upon the advice of relatives and friends in order to insure his success while he was living in Italy; counsel further contends that the act of expatriation (joining the Fascist Party) was committed involuntarily under duress, and hence was ineffective to cause the loss of citizenship. It is, of course, well known that an act of expatriation must be "voluntary" to be effective ( Perkins v. Elg., 307 U.S. 325, 1939), but the act in question must in fact have been committed under duress and not as the result of mere expediency or have been motivated by a desire for personal advantage, in order that the act of expatriation will be considered to have been vitiated. The Court of Appeals for the Third Circuit held that:
If by reason of extraordinary circumstances amounting to true duress, an American national is forced into the formalities of citizenship of another country, the sine qua non of expatriation is lacking. There is not authentic abandonment of his own nationality. His act, if it can be called his act, is involuntary. He cannot be truly said to be manifesting an intention of renouncing his country. On the other hand it is just as certain that the forsaking of American citizenship, even in a difficult situation, as a matter of expediency, with attempted excuse of such conduct later when crass material considerations suggest that course, is not duress. [Italics supplied.] Doreau v. Marshall, 170 F. (2d) 721, 724 (1948). On this same issue, the Court of Appeals for the Seventh Circuit stated in Savorgnan v. United States, 171 F. (2d) 155 (1949) that:
"In other words, when an American citizen voluntarily acts in a manner inconsistent with his American citizenship by becoming a naturalized citizen of another country, his expatriation results, regardless of his subjective intent." (See also Podea v. Acheson, D.C., E.D., N.Y. Feb. 24, 1949.)
Petitioner's situation was purely one of attempting to secure personal advantage and he is now seeking to explain away the consequences by interposing the defense of duress as the cause of the act of expatriation; but, in the light of the various court cases touching on this question, petitioner's act of joining the Fascist Party cannot be considered an involuntary act.
Counsel also contends that the Government has not shown that the act in question was clearly a voluntary one. However, in this connection, it will be noted that petitioner has admitted the commission of the act (joining the Fascist Party) and thereafter seeks by way of confession and avoidance, to mitigate the legal consequences of his action in terms of duress. But the responsibility for showing affirmatively facts amounting to excuse rests with the petitioner ( Nurge v. Miller, 286 Fed. 982 (D.C., E.D., N.Y., 1923); Miller v. Sinjen, 289 Fed. 389 (C.C.A. 8, 1923)). A mere statement of the existence of duress will not be deemed as sufficient proof of the allegation, although it will have a certain persuasive value, especially if made contemporaneous with the act of expatriation. In situations of this type, the statements of the party and his actions over a period of years are generally in conflict; and while both actions and words must be considered, actions are more persuasive, since unequivocal acts serve to reveal more accurately the real attitude and intention of the persons involved.
D---- L---- O, 6983063 (Feb. 23, 1949).*
* Note reproduced here. When the facts in a case are in issue and the words and actions of one of the parties form the basis for resolving the question, both words and actions should be considered. Declarations are of only slight weight when they conflict with fact, for actions speak louder than words. However, the entire course of conduct must be considered, since it serves to reveal the real attitude and intention of the person involved. Unequivocal acts, manifesting intention outweigh declarations to the contrary, since acts have been regarded by the law as more persuasive in such a situation. Furthermore, when a person intends the acts in question, he must abide by the consequences which the law attaches thereto. Texas v. Florida, 1939, 306 U.S. 398; In re Newcomb's Estate, N.Y., 1908, 129 N.Y. 238, 84 N.E. 950.
Naturalization is the act of adopting an alien and clothing him with the privileges of citizenship ( Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 1892; In re Bishop, 26 F. 2d 759, 1927; United States v. Harbanuk, 62 F. 2d 759, 1933). There are several methods by which naturalization is accomplished; judicial naturalization and repatriation or resumption of citizenship are two such methods. Petitioner is an Italian subject who was expatriated through foreign naturalization in the United States (Article VIII (1), Italian nationality law, supra), but who reacquired Italian nationality upon 2 years' residence in Italy (Article IX (3), supra). Such reacquisition of Italian citizenship is deemed to be naturalization within the meaning of section 2 of the 1907 act, supra. Since joining the Fascist Party of Italy merely constituted evidence of petitioner's allegiance to a foreign power, the date of petitioner's expatriation is 1929, for 1929 marks the completion of the statutory 2-years' residence period mentioned in the Italian nationality law.
Therefore, we conclude that petitioner lost his citizenship in 1929 by virtue of a voluntary, self-operating act of expatriation (foreign naturalization) which constituted an abandonment of his American citizenship. Thus, since petitioner is an alien, he cannot be granted a visa petition for his wife and son.
Order: It is hereby ordered that the appeal be dismissed.