MATTER OF P-- 

In DEPORTATION Proceedings 

A-10595135 

A-10381589 

Dculava up Board Novemoer dl, ivod 

Loss of citizenship—Service in foreign armed forces—Section 349(a)(3) of 1952 

act applicable only when foreign military service commenced subsequent to 

December 24, 1952. 

(1) Dual national of United States and Italy who served in Italian armed 

forces from 1954 to 1956, having been physically present in Italy for more 

than ten years preceding service. is held expatriated under aectinn :14b(a) 

(2) and (b) of the act notwithstanding claim that service was involuntary 

by reason of conscription and that expatriating conduct would have been 

avoided had it not been for erroneous advice furnished by American consul 

in 1548. (See Matter of P—. Int. Dec Na 5114, which eel:wea)°, this 

holding.) 

(2) Where circumstances were same as above, except that military service 

commenced on June 25, 1952, and continued to 1954, the case is governed by 

section 401(c) of the Nationality Act of 1940; and absence of evidence re , 

 hutting claim of conscription requires conclusion that expatriation has not 

been established, Nishileawo, v. Dulles, 356 U.S. 122. 

CHARGE: 

Order: Act of 1952—Section 241(a) (2) [0 U.S.C. 1251(a) (2))---Adm ed as 

crewman—Remained longer rIntn permitted (both aliens)) 

BEFORE THE BOARD 

Discussion: The special inquiry officer granted voluntary departure to L P and directed that he he deported if he 

failed to depart voluntarily. The proceedings were terminated with 

respect to Both cases were certified to this Board for 

final decision. 

The respondents are brothers, 26 and 21 years old, respectively, 

who are natives of Italy and claim United States citizenship. 

P P last entered the United States on August 13, 1956, and 

L—P on August 23, 1956. Neither had previously resided 

in this country. They were admitted temporarily as seamen and 

have since remained in the United States. The question to be determined is whether alienage has been established. 

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R P . father of the respondents, was horn at Brooklyn, 

New York, on April 22, 1901, and accompanied his parents on 

their return to Italy in 1904. He served in the Italian army from 

November 10, 1920, until July 21, 1922, and from March 26, 1939, 

until August 19, 1939. About May 1921, during his first period of 

service, he took an oath of allegiance to Italy while under the age 

of 21. On April 13, 1948, he executed an affidavit before an 

American consular officer to explain his protracted foreign residence in which he stated that a United States passport was issued 

to him in 1980; that lie was in the United States for a few months 

at that time, that lie 1,1 Aimed to Italy because of the illness of his 

wife; that he voted in an Italian election on June 2, 1946; and that 

he was desirous of returning to the United States as soon as possible to reside permanently. 

P P was horn on June 25, 1932, and 11, P on 

April 29, 1934. The American consular officer issued a certificate on 

May 10, 1948, to the effect, that R P expatriated himself as 

the result of taking an oath of allegiance to Italy during minority 

and confirming the oath after reaching majority by again serving 

in the Italian army during 1939 without protest, and that his children, including the respondents, had no claim to United Stan's 

citizenship because they were born after the date of R P 's 

expatriation. This certificate was approved by the Department of 

State on April 11, 1950. 

Assuming that R P 's action in 1939 divested him of United 

States citizenship retroactively to about 1922, he and the two respondents were in actuality citizens until 1939. However, the 

question of whether the respondents' citizenship could be thus extinguished is not important because we, hold that the present record 

does not support a conclusion that P expatriated himself prior to .June 2, 1916, when he voted in an Italian election. 

We believe this conclusion is required by Mavdol 1 v. Ach eson., 

344 U.S. 133 (1952), in which the court indicated its approval of the 

position of a former Attorney General that service in the army of 

Fascist Italy and the taking of on oath of allegi sue(' must he considered as having been under legal compulsion amounting to duress. 

Hence, R P--- was still a citizcen when the respondents were 

born and they acquired United States citizenship under section 

1993 of the Revised Statutes (8 U.S.C. 6. 1926 ed.). 

The remaining question is -whether the re:Tothlents Live become 

expahcioted. I, 11served in the Italian navy from May 

1051, when be was 20 years old, until June 1956. P P served 

in the Italian navy from July 15, 1952, until 1954. Both testified 

they were drafted. The special inquiry officer held that under 

section 340 of the Immigration and Nationality Act (8 U.S.C. 

195 
1481) became expatriated and was deportable on the 

charge stated above, and that the Government failed to establish 

that war an alien. 

Subsection (a) (3) of section 349 of the Inonigretion and Nationality Act [8 U.S.C. 1481(a) (3)] provides that a person shall 

lose his United States nationality by entering, or serving in, the 

armed forces of a foreign state unless specifically authorized in 

writing by the Secretary of State and the Secretary of Defense. 

Subsection (b) of the same section [8 U.S.C. 1481(b)] provides 

that any person who performs any act specified in subsection (a) 

"shall be conclusively presumed to have done so voluntarily and 

without having been subjected to duress of any kind, if such person 

at the time of the act wee a national of the state in which the act 

was performed and had been physically present in such state for a 

period or periods totaling ten years or more immediately prior to 

such act." 

Counsel contends that the respondents would have been able to 

avoid service entirely in the armed forces of Italy because they 

would have come to the United States in 1948, if it had not been 

for the action of the American consular offiece and the Department 

of State in holding that they had no claim to United States citizenWhether the two respondents would have come to the United 

States prior to their induction into the armed forces of Italy is a 

matter of conjecture. The case must be decided on the basis of the 

facts as they exist and not on what the situation might have been 

if the American consular officer had not issued the certificate of 

expatriation. 

Counsel also contends that the ruling of the Department of State 

precluded the respondents from obtaining authorization for service 

in the armed forces of Italy from the Secretary of State and the 

Secretary of Defense in accordance with the provisions of section 

349(a) (3) of the Immigration and Nationality Act. Under that 

statutory provision, service in the armed forces of a foreign state 

must be specifically authorized in writing by the Secretary of 

State and the Secretary of Defense "prior to such entry or service." 

The respondents did not apply for such authorization and, even if 

they had been recognized as citizens, there is no assurance that 

they would have been authorized to enter the armed forces of Italy. 

In any event, it is °tsar that, prior to their entry into the armed 

forces of Italy, they were not specifically authorized in writing to 

do so by the Secretary of State and the Secretary of Defense. 

Hence, the matter must be decided without reference to this exemption. 

Counsel asserted that the Italian oath of allegiance taken b3 

was not a voluntary act, and he also referred to a statu 

198 
tory provision that nationality shall not be lost by a person under 

21 through the naturalization of a parent if the child comes to 

the United States for permanent residence before his 25th birthday. These provisions are contained in paragraphs (1) and (2) 

of section 349(a) of the Immigration and Nationality Act and are 

not revelant to the cases of the respondents since the Government 

has not asserted that expatriation occurred under these paragraphs, 

and the only applicable provisions are those contained in paragraph 

(3) of that subsection and subsection (b). As a matter of fact, 

section 349(a) (1) is entirely irrelevant because the two respondents 

and appear to have acquired dual citizenship in Italy 

and the United States at birth and no question is involved here 

regarding the Italian naturalization of any of them. 

L mecca clearly within the provisions of subsections 

(a) (3) and (b) of section 349 of the Immigration and Nationality 

Act. After the effective date of that act, he entered and served 

in the armed forces of a foreign state. Prior to entering the 

Italian navy, such service had not been specifically authorized in 

writing by the Secretary of State and the Secretary of Defense. At 

the time he entered the Italian navy, he possessed not only United 

States citizenship, but the citizenship of Italy by reason of hie birth 

in that country. He had been physically present in Italy for over 

ten years immediately prior thereto, having lived there continuously from the time of his birth on April 2R. 1934. Hence. under 

section 849(b) he is conclusively presumed to have performed his 

service in the armed forces of Italy "voluntarily and without having been subjected to duress of any kind." Accordingly, we hold 

that L P became expatriated and that he is deportable on 

the charge stated above. 

The other respondent, P P was conscripted into the 

Italian navy en duly 15, 19.52, and served until 1904. The special 

inquiry officer terminated the proceedings in his case, holding that 

his service in the Italian navy was not voluntary and that the Government had failed to establish that he was an alien. Insofar as concerns section 411(c) of the Nationality Act of 1940 [8 U.S.C. 

801(c), 1946 ed.], which was in effect from 1941 until December 23, 

1952, we hold that it has not been established that P P 's entry 

into the. Italian navy caused his expatriation. This conclusion is 

required in view of the statement in Nishikoma v. Dulles, 3;59 U.S. 

129, 135. 137 (March 31, 1958) ;that the Government has the burden 

of proving by clear, convincing and unequivocal evidence that the 

act showing renunciation of citizenship was voluntarily performed. 

The Service raised the question of whether P---P may have 

become expatriated tinder section 349 of the Immigration and 

Nationality Act which became effective on December 24, 1952. Sec197 
tion 349(a) (3) provides for the expatriation of a United States national who thereafter enters or serves in the armed forces of a 

foreign state, and it is aise that. this respondent did serve in the 

Italian navy after December 24, 1952. He is also within the 

literal terms of the conclusive presumption contained in section 

349(b). However, we hold that these provisions are not binding 

on this respondent. He had entered the Italian navy prior to their 

effective date; section 101(c) of the Nationality Act of 1910 may 

have enotinned to operate in his case by reason of the savings 

clause in section 405(0 of the Immigration and Nationality Act 

(8 11.8.C. 1101, Note) ; and his continued service after December 24, 

1952, did not divest him of citizenship since there is nothing to 

indicate that he could have secured his release from the Italian navy 

prior to the completion of his required period of service. The 

latter is consonant with the procedure previously followed in cases 

arising under section 405 (c) of the Nationality Act of 1940 where 

it was held that a United States citizen who entered a foreign 

army prior to the effective date of that act (January 13, 1941) was 

not to 13<, cleom Rd expatriated by reason of completion of his term 

of enlistment or period of service subsequent to Januftry 13, 1941 

(Matter of A—, 2I. & N. Dec. 304 (1945)). Accordingly, we 

hold that the Government has not established that P---P----- is 

an alien, and the special inquiry offices wan correct in terminating 

the proceedings in his case. 

Order: It is ordered that the special inquiry officer's orders 

concerning the two respondents be and the same are hereby affirmed. 

198