Interim Decision #1299 

1Y1.A24.cat or Ammo 

In SECTION 341 Proceedings 

A-11577150 

Decided by District Director 

Approved by Assistant Gromeniationer September 5, 1983 

(1) Where an oath of allegiance is taken during minority, nationality loss under 

section 2, Act of March 2, 1907, occurs as of the date after attaining majority 

and prior to January 13, 1941, of the performance of an act confirmatory of 

the oath of allegiance taken during minority, unless precluded by the proviso 

to section 2 relating to expatriation during World War I. 

(2) Alleged mandatory service from April 2, 1939, to June 19, 1939, in the Ttalian 

army by a dual national after attaining majority was involuntary and cannot 

be regarded as confirmatory of an oath of allegiance taken during monority 

in the absence of evidence to establish that such service was voluntarily performed and in view of the well-known ruthlessness of the Fascist regime which, 

even as early as 1935, would hardly have tolerated resistence to its draft 

laws by an admitted national of Italy. 

The above-named has applied for a certificate of citizenship, claiming to have acquired citizenship at birth in Italy on September 7, 

1939, to a. citizen father and an alien mother. 

The pertinent statute in effect when the applicant was born was 

section 1993, R.S., as amended by the Act of May 24, 1934, providing 

that: 

Any child hereafter born out of the limits and jurisdiction of the United 

States, whose father or mother or both at the time of the birth of such child 

is a citizen of the United States, is declared to be a citizen of the United States; 

but the rights of citizenship shall not descend to any such child unless the citizen 

father or citizen mother, as the case may be, has resided in the United States 

previous to the birth of such child. In cases where one of the parents is an 

alien, the right of citizenship shall not descend unless the child comes to the 

United States and resides therein for at least five years continuously immediately 

previous to his eighteenth birthday, s 

The latter part of this section concerning retention of citizenship 

was changed by the provisions of section 201 (g) of the Nationality 

Act of 1940 (54 Stat, 1138-39), effective 1/18/41, and these in turn 

355 
Interim Decision #1299 

were affected by section 301 (b) and. (c) of the Immigration and 

Nationality Act, effective December 24, 1952 (8 U.S.C. 1401), quoted 

below 

Any person who is a national and citizen of the United States at birth under 

paragraph (7) of subsection (a), shall lose his nationality and citizenship unless 

he shall come to the United States prior to attaining the age of twenty-three 

years and shall immediately following any such coming be continuously physically present in the United States for at least five years: Provided, That such 

physical presence follows the attainment of the age of fourteen years and 

precedes the age of twenty-eight years. 

Subsection (b) shah apply to a person born abroad subsequent to May 24, 

1934: Proviided, however, That nothing contained in this subsection shall be 

construed to alter or affect the citizenship of any person born abroad subsequent 

to May 24, 1934, who, prior to the effective date of this Act, has taken up a 

residence in the United States before attaining the age of sixteen years, and 

thereafter, whether before or after the effective date of this Aet, complies or 

shall comply with the residence requirements for retention of citizenship specified in subsection (g) and (h) of section 201 of the Nationality Act of 1910, as 

amended. 

The record discloses that the applicant entered the United States 

on January 18, 1959, when 19 years of age. No issue with regard to 

applicant's retention of United States citizenship arises out of the 

fact that he was over 16 years of age when he came to the United States, 

the talking up of physical presence in this country prior to 23 years 

of age, still being timely for such purposes under section 301 (b) . 

The applicant's father was born on January 28, 1918, in Trenton, 

New Jersey, of Italian parents. He resided in the United States 

until 1920, when his father took him to Italy. In 1953, he emigrated 

to Canada, and on May 27, 1958, he was admitted to the United States 

as an alien, in possession of an immigrant visa. On November 8, 1937, 

when only 19 years of age, he voluntarily enlisted in the Italian army 

for a period of two years, and took an oath of allegiance in connection 

with such military service. This volunteer status in the Italian army 

was terminated on October 10, 1938. He was recalled to military 

service on April 2, 1939, and discharged on June 19, 1939, "for end of 

enlistment." He was again recalled to active duty in the Italian army 

on June 21, 1941, and was discharged on November 28, 1944. He voted 

in Italy in political elections in 1946, 1947, and 19948. 

The question presented is whether the applicant's father was a 

citizen of the United States at the time of the applicant's birth. 

The father was a dual national at birth, having acquired United 

States citizenship by virtue of the XIVth Amendment to the Constitution, and Italian citizenship under the Italian Nationality Law of 

1912, which recognizes the principle of jus sanguinis. The expatriation statute in effect at the time of the applicant's birth was 

section 2 of the Act of March 2, 1907, providing in pertinent part: 

356 
Interim Decision #1299 

That any American citizen shall be deemed to have expatriated himself * * * 

when he has taken an oath of allegiance to any foreign state. * * * And 

provided also that no American citizen shall be allowed to expatriate himself 

when this country is at war. 

As pointed out above, the applicant's father took such an oath of 

allegiance in connection with his entry into. the Italian armed forces 

when he was 19 years of age. It has long been settled by both administrative practice and judicial decision that a citizen by birth, who 

has not yet attained his majority, cannot expatriate himself under 

the Act of March 2, 1907, by taking an oath of allegiance to a foreign 

state (Perri v. Dulles, 206 F. 2d 586; U.S. ere ?el Baglivo v. Day, 28 F. 

2d 44; Augello v. Dulles, 220 F. 2d 344). However, a minor may by 

clear and unequivocal acts after reaching his majority indicate a desire 

to confirm an oath of allegiance taken during his minority and thereby 

complete his loss of nationality under that Act (DiGirolamo v. 

Acheson, 101 F. Supp. 380; Matter of L —, 2 I. & N. Dee. 789; Matter 

of If—, 4 I. & N. Dec. 22) 

In analogous situations, the Service has followed the "relation back" 

theory in fixing the date upon which nationality was lost. Thus, it 

had been held that an act manifesting acceptance of a foreign nationality previously involuntarily acquired related back to the date of 

acquisition of foreign nationality, thereby resulting in loss of nationality as of the earlier date (Matter of V—, 3 I. & N. Dec. 671). 

Similar]y, where persons who had acquired both United States and 

foreign nationalities durino. minority elected the foreign nationality, 

the act of election related bmack to the attainment of majority (Matter 

of G—, 1 I. & N. Dec. 329). In Matter of S—, 8 L & N. Dec. 604, 

where an oath of allegiance, not expatriating because taken during a 

period when the United States was at war, was subsequently confirmed, 

nationality was determined to have been lost as of July 2, 1921, the 

date of termination of the war period. 

This "relation-back" principle has recently been reconsidered. In 

a case involving acceptance of a foreign nationality previously acquired by operation of law (Matter of DIP—, Int. Dec. No. 1215), the 

Board of Immigration Appeals ruled that the retroactive feature 

should be modified, stating as follows: 

There is, therefore, no longer any justification for indulging in the fiction that 

the act showing acceptance of Italian nationality invariably also shows a voluntary acceptance of Italian nationality as of the first possible moment such acceptance could be made. In the interval within which it was possible to make the 

choice of becoming an Italian national and the actual making of the choice, the 

individual may have been indifferent, undecided, or even hostile to the acceptance 

of Italian nationality. 

In Matter of Picone, Int. Dec. No. 1259, also involving acceptance 

of a foreign nationality previously acquired, the Attorney General 

357 
Interim Decision *1299 

held that the Board of Immigration Appeals had correctly ruled that 

expatriation should no longer be held to relate back, but should date 

from the act of acceptance. 

Although these two cases involve acceptance of a foreign nationality 

involuntarily acquired by operation of law, their rationale should be 

equally applicable to the instant case. "The significance of the act 

of acceptance does not lie primarily in its value as proof of previous 

intent, for such value is often doubtful, but rather in its value as a 

manifestation of present intent." (Matter of Picone, supra). Further, acceptance of a foreign nationality previously acquired, election 

of nationality by minors possessing dual nationality, and confirmation 

of an oath of allegiance taken during war time, were all regarded in 

the same posture in applying the "relation back" theory. It would 

be anomalous to hold that this doctrine should be abandoned only with 

respect to foreign nationalities involuntarily acquired, and the rule 

with regard to oaths of allegiance taken during disability remain 

unchanged. It must, therefore, be concluded that under section 2 

of the Act of March 2, 1907, nationality is lost as of the date after 

majority upon which an act confirmatory of the underage oath of allegiance is performed, unless that effect is inhibited by the proviso 

to section 2 relating to expatriation during World War I. 

Next we must determine what constitutes a confirmatory act in such 

instances. Such an act has been characterized as one which indicates 

a continued allegiance to the foreign state (Matter of L—, supra). 

Clearly, subsequent military service performed after attaining majority is of such a nature, particularly since the recognition of the duty 

of military service to the country of, origin is inconsistent with the duty 

of an American citizen 4o this country (See U.S. ex rel De Close v. 

Longo, 46 F. Supp. 170). Voting is also regarded as a confirmatory 

act of an underage oath of allegiance (Matter of L —, 2 1. & N. Dec. 

789). 

Prior to the applicant's birth, the father served a second period of 

military service from April 2, 1939, to June 19, 1939, after he had 

attained majority. He has testified that this service was mandatory 

and was regarded as a continuation of his original two-year enlistment. Did he thereby effectively confirm the oath of allegiance in 

conformity with the foregoing? 

It must be remembered that no conduct results in expatriation unless the conduct is engaged in voluntary (Nishikawa v. Dulles, 356 

U.S. 129). There must be consideration of the circumstances attending the service in the foreign army and the reasonable inferences to 

be drawn therefrom (Acheson -v. Maenza, 202 F. 2d 453, citing Okinova v. Acheson, 342 U.S. 99 and Murata v. Acheson, 342 U.S. 900). 

Factual doubts are resolved in favor of citizenship (Alata v. Dulles, 

358 
Interim Decision. #1299 

221 F. 2d 52, and cases cited). Considering the father's testimony 

in connection with the well known ruthlessness of the Fascist regime, 

which even as early as 1935, would hardly have tolerated resistance 

to its draft laws by an admitted national of Italy (See Acheson v. 

Maenza, supra) and the absence of any testimony to establish that 

such period of service was voluntarily performed, it must be concluded 

that it was involuntary and cannot be regarded as confirmatory of the 

oath of allegiance taken during minority. 

The father's third period of military service from June 21, 1911, to 

November 8, 1944, and his voting in Italian elections in 1946, 1947, and 

1948 are worthy of note. Since these occurred subsequent to the 

applicant's birth, they cannot have any impact upon his status. They 

are mentioned for the sole purpose of illustrating an additional development of the expatriation laws. Although a, questionable claim of 

duress has been advanced as to the voting, it may be assumed, arguendo, 

that such actions were voluntary and, as stated above, would generally 

be regarded as confirmatory acts of an oath of allegiance taken during 

minority. 

On January 13, 1941, the Nationality Act of 1940 (54 Stet. 1137) 

became effective. In addition to repealing section 2 of the Act of 

March 2, 1907, this statute set forth prospective grounds of expatriation. It provided further that loss of nationality shall result solely 

from the performance of the acts or fulfillment of the conditions specified in the Act. Examination of such acts and conditions discloses no 

provision with respect to confirmation of an oath of allegiance taken 

while a minor. Moreover, inasmuch as section 2 of the Act of 1907 was 

repealed prospectively by the Nationality Act of 1940, the Attorney 

General has ruled that the 1907 Act affected only cases involving acts 

that occurred during the period between 1907 to 1941 (Matter of 

Paton, supra). It follows that where an oath of allegiance is taken 

during minority, nationality can be lost under the 1907 Act only if a 

confirmatory act is performed after majority andprior to January 13, 

1941. The third period of the father's military service and his voting, 

all having occurred subsequent to January 12, 1941, cannot therefore 

be considered in this aspect. 

In light of all of the foregoing, it is found that the applicant's father 

was not expatriated prior to the applicant's birth and was a citizen of 

the United States when the applicant was born. 

ORDER: It is ordered that the application for a certificate• of 

citizenship be and the same is hereby granted. 

359