A-7197985.
Decided by Board June 26, 1953.
Status: Expatriation — Native and citizen of Italy, naturalized here in 1912 — Repatriation in Italy following residence of two years — Expatriation by overt act manifesting acceptance of Italian nationality — Involuntary membership in Fascist organization not regarded as such overt act.
(1) Unless there is some affirmative act, other than mere residence in Italy, manifesting voluntary acceptance of Italian nationality by a native and citizen of Italy who was naturalized in the United States but who was later reinvested with Italian nationality under Article 9 (3) of the Italian Nationality Law of 1912, there is no expatriation under section 2 of the act of March 2, 1907.
(2) Joining a Fascist organization solely for the purpose of engaging in business and obtaining food rations where necessary for such purpose is not regarded as an overt act manifesting voluntary acceptance of Italian nationality.
CHARGES:
Warrant: Act of 1924 — Remained longer — Visitor.
Lodged: Act of 1924 — No immigration visa.
BEFORE THE BOARD
Discussion: This case comes forward on appeal from the order dated April 21, 1952, of the Assistant Commissioner ordering the respondent deported on the lodged charge.
The primary contention of counsel is that the respondent is still a citizen by virtue of his naturalization at Rochester, N.Y., on November 26, 1912, and that he has never lost such citizenship. The hearing officer concludes that the respondent lost his citizenship on the basis of two letters, one dated July 26, 1948, and the other dated January 10, 1949, from the Department of State which indicate that he expatriated himself as of July 1923 through the operation of section 2 of the act of March 2, 1907. The hearing officer has erroneously concluded that this expatriation was based upon that portion of section 2 of the act approved March 2, 1907, dealing with residence abroad. However, it is apparent that the State Department based its conclusion as to loss of citizenship upon the first part of section 2 of the act of March 2, 1907, which provides 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."
The record relates to a native of Italy, 73 years old, male, who originally entered the United States for permanent residence in 1904 and was naturalized on November 26, 1912. He made trips to Italy from 1921 to 1926; from 1929 until 1931; and in 1938 returned to Italy for the purpose of filing suit against a company which owned a truck which had run over and caused the death of the respondent's son. The prior returns to Italy were for the purpose of settling his father's estate, and the respondent obtained extensions of his American passport and returned on his United States passport. At the time of his last trip to Italy in 1938, the court action in connection with his son's death dragged on and the respondent testified that in 1939 or 1940 he wrote to the American consul for an extension and then was forced to remain in Italy due to the outbreak of the war. The respondent testified that he realized that he would be in Italy for some time and in order to have an income decided to go into business as a soap manufacturer. He testified that it was necessary for him to obtain a license to enter such business from the city authorities and that as an incident thereto he was required to join the Fascist Party of Italy. He testified that such membership was compulsory and that he remained a member until 1942. It is not clear from the respondent's testimony whether he joined the Fascist Party itself or some trade organization affiliated with the Fascist Party, but in any event he testified that he took no part in the activities of the Fascist Party and that his membership arose solely out of the necessity of becoming a member of the trade organization and in order to have a ration card because of the requirements imposed by the Fascist regime in connection with industry and with the obtaining of any employment.
On the basis of the respondent's membership in the Fascist Party, the Department of State held that the respondent had expatriated himself by an overt act indicating acceptance of the Italian nationality which he reacquired in 1923 after residing in Italy for 2 years by virtue of the operation of article 9 of the Italian law of June 13, 1912. This holding was in accordance with the administrative view of the Department of State to the effect that the provisions of the Italian statute reinvesting Italian citizenship upon former nationals after returning to Italy constituted merely a permissive form of naturalization and was of no effect unless there was some affirmative act on the part of the individual affected which would manifest voluntary acceptance of such Italian nationality, and such acceptance operated to reinvest Italian nationality under a doctrine of relation back to the period of 2 years subsequent to the beginning of the residence in Italy.
Hackworth, G.H., Digest of International Law, Vol. III, pp. 212-214; Matter of V----, VP-372844, 3 IN Dec. 671 (B.I.A., 1949).
It is to be noted that the Department of State does not regard the reinvestment of Italian nationality by residence in Italy for 2 years under article 9 (3) of the Italian law of June 13, 1912, sufficient in itself to divest or expatriate an American national. The provisions of the Italian statute are regarded as constituting merely a permissive form of naturalization. Whether or not the State Department will consider that the acquisition of Italian nationality in the manner already indicated results in loss of American citizenship under the provisions of the first paragraph of section 2 of the act of March 2, 1907, depends upon whether the individual manifested an acceptance of such nationality either by a written or oral declaration or by some other overt act. Unless there is some affirmative act on the part of the individual that would manifest voluntary acceptance of Italian nationality, other than his mere residence in that country for 2 years, there is no expatriation. The Department of State takes the view that while in all cases the burden of proof should be regarded as resting upon the individual who alleges that he did not voluntarily accept Italian nationality conferred upon him by article 9 (3) of the Italian law, he should nonetheless be given ample opportunity to explain his action and only after a careful weighing of all the evidence should it be concluded whether such individual voluntarily held himself out as an Italian national so as to indicate acceptance retroactively to the date of reacquisition of Italian nationality under the 1912 law. Each case must be decided upon its own apparent merits.
It is well settled, however, that an expatriation can come about only as the result of a voluntary renunciation of abandonment of nationality and allegiance and that a change of citizenship cannot be arbitrarily imposed, that is, imposed without the concurrence of the citizen. Expatriation is a matter of intent on the part of the person concerned, which must be shown by some expressed act. It, therefore, becomes necessary to examine and determine whether the additional or overt act indicating acceptance of Italian nationality, without which expatriation could not have been held to have occurred, was a voluntary act on the part of the respondent.
Perkins v. Elg, 307 U.S. 325; MacKenzie v. Hare, 239 U.S. 299.
Shaufus v. Attorney General, 45 F. Supp. 61.
The respondent testified consistently throughout these proceedings that he was forced to join the Fascist Party or Fascist organization in order to obtain employment or participate in any industrial activities; further, that without belonging to the Fascist trade organization he could not have obtained a ration card. His purpose in joining this organization about 1938 or 1939 was in order to obtain a license to enable him to engage in the manufacture of soap because he became aware that the law suit which he was bringing on behalf of his dead son would take a long time and he needed to live while in Italy. The respondent testified that he proved the compulsory nature of membership in the Fascist Party before the American consul by producing affidavits. Although the respondent's claim as to compulsion and his involuntariness in joining the Fascist Party is not corroborated, neither is it contradicted and we find his story to be both plausible and credible.
There remains for consideration the question of whether the respondent, by joining a Fascist organization solely for the purpose of enabling him to engage in business and earn a livelihood, performed acts of a voluntary nature so as to result in expatriation. It is of course conceded that any acts which resulted in expatriation must have been done voluntarily. Membership in the Fascist Party was made the subject of legislation in the act of October 16, 1918, as amended by the Internal Security Act of 1950, wherein it was provided that membership in the totalitarian party of a foreign state would render such person inadmissible to the United States. As a result of hardship arising out of a strict, literal interpretation of this provision as to membership, there was enacted the act of March 28, 1951, which provided that the Attorney General was authorized and directed to provide by regulation that the terms "members of" and "affiliated with" where used in the act of October 16, 1918, as amended, should include only membership or affiliation which is or was voluntary, and should not include membership or affiliation which is or was solely (a) when under 16 years of age, (b) by operation of law, or (c) for purposes of obtaining employment, food rations, or other essentials of living, and where necessary for such purposes. Where the alien could show that he came within these provisions of the act of March 28, 1951, he was of course held to be not inadmissible as a voluntary member of the proscribed classes set forth in the act of October 16, 1918, as amended.
It is clear that the respondent's action in joining a Fascist organization for the purpose of enabling him to engage in business and to obtain food rations and which was necessary for such purposes is within the purview of the language used in the act of March 28, 1951, and would, in the event he were charged with violation of the act of October 16, 1918, as amended, in all likelihood defeat deportation. Deportation is of course a matter of grave consequence but loss of American citizenship is equally serious and has historically been surrounded with equal safeguards requiring that expatriation be the result of voluntary action. We see no reason to conclude that the respondent's action would be less voluntary as regards his expatriation than it would be if he were charged with deportation because of a ground arising out of the very same act. We, therefore, hold that the respondent's action in obtaining membership in a Fascist organization in Italy for the purpose of engaging in business and obtaining food rations was involuntary and did not result in loss of citizenship. We, therefore, conclude that respondent has not lost citizenship under the provisions of section 2 of the act of March 2, 1907, by performing a voluntary overt act manifesting acceptance of Italian nationality conferred upon him under article 9 (3) of the Italian law of June 13, 1912.
Despite the fact that the respondent did not return to the United States until November 18, 1948, the question of possible loss of nationality through the provisions of section 404 of the Nationality Act of 1940 is not involved. This conclusion is predicated upon the fact that section 409 extended the period for loss of nationality under section 404 until the expiration of 6 years following the date of the approval of the act, and the evidence establishes that the respondent attempted to obtain a United States passport and return to this country long before that date. He is regarded as having set in motion the appropriate machinery to effect his return to the United States but was precluded from doing so because of delay due to conditions beyond his control. Since we conclude that alienage has not been established, we shall order the proceedings terminated.
Matter of C----, C-192976, A-6576113, 2 IN Dec. 889 (1947).
Order: It is ordered that the proceedings be and the same are hereby terminated.