Interim Decision #1259 

MATTER OF PICONE 

In EXCLUSION Proceedings 

A-12323330 

Decisions by Board April 27, 1.962 and July 12,1962 

Decided by Attorney General January 21,1963 

An overt voluntary act manifesting clearly and unambiguously a decision to 

accept a foreign nationality previously acquired by operation of law, even 

though such act in and of itself may not constitute a statutory ground of 

expatriation, results in the loss of United States citizenship under section 2 

of the Act of March 2, 1907, and the loss of citizenship dates from the time 

of the act of acceptance [Matter of Di P—, Int. Dec. #1215, upheld]. 

APPLICATION : Admission as United States citizen. 

BEFORE THE BOARD 

The special inquiry officer ordered the applicant admitted as a, 

United States citizen and certified the case to the Board for final 

decision. We shall reopen proceedings. 

Applicant, born in Italy on January 15, 1932, claims to be a United 

States citizen through birth to Giuseppe Picone who in 1922 became a 

United States citizen by naturalization. The Service contends that 

applicant's father lost United States citizenship by later becoming naturalized in Italy before applicant was born. The Department of State 

has ruled that as a matter of law Giuseppe Picone could not have lost 

United States citizenship in the manner relied upon by the Service. 

Pertinent portions of relevant statutes follow : 

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, or when 

he has taken an oath of allegiance to any foreign state. (Section 2, Act of 

March 2, 1907, 34 Stat. 1228) 

There shall be recovery of Italian citizenship by one who having ceased to be 

an Italian citizen owing to the acquisition of foreign citizenship, has been resident 

in the kingdom for two years. (Article 9 (3), Italian Nationality Law, June 13, 

1012, UNITED NATIONS PUBLICATION, LAWS CONOBBNING NATIONALITY, July 1945, 269) 

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Interim Decision #1259 

These are the facts of record. The exclusion hearing reveals that 

applicant's father was naturalized in the United States on March 16, 

1922, that he secured a United States passport on March 27, 1922, that 

he went to Italy to marry, that he returned to the United States in 

October 1928 (his wife never came), that he next went to Italy on 

December 3.7, 1925 on a United States passport issued on October 20, 

1925, and that he remained in Italy until his death in 1958. 

An affidavit executed by Giueseppe Picone on February 6, 1953 

reveals that he left behind no property in the United States when he 

returned to Italy, but in Italy owned farm land and three houses valued 

at about 15,000,000 lire, that part of the property was inherited and 

part purchased from 1922 to 1947, that property tax was paid in Italy 

but no taxes were paid to the United States, that on April 18, 1928, he 

was issued an Italian Identity Card No. 2179 by the Commune of 

Carini, that the card showed his nationality as Italian, that he is of the 

belief that he voted in 1934 and in all the following elections held in 

Italy from 1946 to 1952 but remembers well only having voted in 1951 

and 1952, that he announced his American citizenship to local authorities, that he had never renounced his American citizenship, that he did 

not know that naturalized citizens were supposed to return to the 

United States before October 15, 1946, and that he had not been in 

contact with the Consulate at Palermo, Italy since his arrival in Italy. 

The affidavit shows that applicant's father stated it was his intention 

to establish United States citizenship because his son, the applicant, 

wished to come to the United States. This affidavit and another executed. the same day reveal that Giuseppe Picone's return to Italy in 

1925 was for the purpose of taking his father to the United States, 

because his father had been left alone after the death of his -wife 

(1920), that two brothers were residing in the United States, that 

his father's death in 1941 and the circumstances which arose subsequently caused his protracted residence in Italy, and that it was his 

intention to return to the United States to reside permanently if he 

were authorized to do so. 

On February 16, 1953, the Vice Consul at Palermo issued a certificate 

of expatriation finding the applicant's father had lost United States 

citizenship under section 2 of the Act of March 2, 1907 by having been 

naturalized as a subject of Italy under article 9(3) of the Italian 

Nationality Law of June 13, 1912 and having manifested a voluntary 

acceptance of such nationality. This certificate was approved by the 

Secretary of State on September 9, 1953. 

Applicant's father died in Italy on March 23, 1958. The applicant 

requested a review of his case. On February 23, 1961, the American 

Consul at Palermo informed the Department of State that a review 

of Giuseppe Picone's case resulted in the determination that the 

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Interim Decision #1259 

naturalization granted by operation of Italian law may not have expatriated applicant's father under the provisions of section 2 of the 

Act of March 2, 1907 but that he did become expatriated (after applicant's birth) by voting in elections held in Italy in 1951. The Department of State concurred in the finding that the applicant's father 

had not lost United States citizenship by accepting the Italian naturalization and had not lost United States citizenship until he had 

voted in 1951. The applicant was, therefore issued a United States 

passport. 

The action of the Department of State in reversing its former finding that the applicant's father had lost United States nationality by 

accepting the Italian naturalization is based on the following 

reasoning: 

The Department of State, after the most careful consideration and study in 

the light of recent important court decisions, has reversed its long standing 

pouey that expatriation under the first paragraph of section 2 of the Act of 

March 2, 1907 may be based upon the fact that a person has acquired a foreign 

nationality solely by operation of law (as, for example, under section 9(3) of 

the Italian Nationality Law of June 13, 1912), followed by overt acts voluntarily 

Performed, which may be regarded as "acceptance" of the foreign nationality. 

Underlying this determination was the Department's belief, particularly in the 

light of the Supreme Court decision in the case of Nishileciam, v. Dultea [358 U.S. 

129 (1958)] that an administrative decision that a person has lost United 

States citizenship will be upheld by the courts only if the decision is based upon 

an act which must be both voluntary and specifically made expatriating by 

statute. (Ex. 5) 

The special inquiry officer, in a most comprehensive opinion, points 

out that the Service had the burden of establishing (by evidence that 

was clear, convincing, and unequivocal) that applicant's father had 

accepted Italian nationality. The special inquiry officer found that 

the Service had not borne its burden_ The special inquiry officer 

held that the prolonged residence in Italy had been partially explained 

away by the applicant's father, and that in any event, it did not constitute an acceptance of Italian nationality. The special inquiry officer 

held that the obtaining of an identity card, without eliminating the 

possibility that it was procured under duress, necessity, or ignorance, 

did not constitute an acceptance; and that the voting concerning which 

there is certainty (the voting in 1951 and 1952) is too remote to establish that in 1927, some 24 years earlier when Italian nationality had 

become available, the applicant's father had formed the intention of 

accepting Italian nationality. In a letter dated December 20, 1961, 

counsel asks that the order of the special inquiry officer be confirmed 

and that the position of the State Department be fully considered. At 

oral argument the Service representative contended that the applicant 

was not a United States citizen at birth because his father had ex141 
Interim Decision #1259 

patriated himself by, among other things, registering as an Italian 

national. 

Briefly, the "long standing policy" to which the Department of 

State refers, as it related to Italy, took cognizance of the fact that 

until July 1943, Italy regarded any naturalized American citizen of 

Italian origin who resided in Italy for two years after 'July 1, 1912 

as having acquired Italian nationality under article 9(3) of the 

Itialiar Nationality Law of 1912 by no other act than mere residence 

in Italy for the period of two years regardless of whether the naturalized American citizen desired to become an Italian citizen or not. 1 

Nevertheless, the United States did not consider acquisition of 

Italian nationality in such a manner as causing loss of American 

citizenship under section 2 of the Act of March 2, 1907 unless the 

individual manifested a voluntary acceptance of Italian nationality 

by declaration, or overt act such as accepting employment by the 

Italian Government, accepting an Italian passport or identity card, 

voting in Italy, or joining an Italian political party. (HACKWORTII, DIGEST OF INTERNATIONAL LAW, Vol. 3, Government Printing Office, 1942, 207-217; Barsanti v. Acheson, 103 F. 

Supp. 1011, Mass. (1952), aff'cl 200 F. 2a. 562, C.A. 1; Rosasco v. 

Brownell, 168 F. Supp. 45, 55, E.D.N.Y. (1958) ; United States v. 

Ouccaro,138 F. Supp. 847, E.D.N.Y. (1956) ; U.S. an rel. De Caeca v. 

Lango, 46 F. Supp. 170, Conn. (1942) ; Matter of Int. Dee. No. 

1155; Matter of M—,.6 I & N. Dec. 70). 

The aba.ndonment of the "long standing policy" by the Department 

of State was noted in Matter of P—, Int. Dee. No 1155, but was not 

considered because we found there that the Service bad failed to bear 

its heavy burden of showing that P— had voluntarily accepted 

Italian naturalization. In Matter of D—P—, A-12561169, Int. Dec. 

No. 1215, 4/26/62, a reevaluation of the problem in light of Nisi:ahem-a 

caused. us to hold that since the burden of proof was upon the Government to prove expatriation by clear, convincing, and unequivocal 

evidence, we could no longer indulge in the fiction that acceptance 

of Italian naturalization which arose by operation of law implied 

that there had been an acceptance as of the date of the naturalisation. 

We did not discuss the issue raised here—the propriety of finding 

that it was possible to accept naturalization by an act which was not 

in itself a ground of expatriation. In the instant case there is considerable evidence that the Italian naturalization was voluntarily 

accepted by the applicant's father. It becomes necessary, therefore, 

1 After July 1943 the Italian Government gave some recognition to the intention of the naturalized American citizen of Italian origin as to whether he 

desired to become an Italian national. 

142 
Interim Decision #1259 

to decide whether to join the Department of State in what appears to 

be its view that as a matter of law, a person cannot become expatriated 

under a law which makes him a foreign national solely by operation 

of law, although there are overt acts voluntarily performed which 

may be regarded as acceptance of the foreign nationality. 

The Department of State relies upon Niskikawa. v. Dulles, 356 U.S. 

129, as requiring abandonment of the established rule. We must 

respectfully dissent from this view. Niskikawa was not concerned 

with. substantive issues of expatriation but with issues which related 

"solely to problems of burden of proof," (at p. 662). As to the burden 

of proof, the court held that "regardless of what conduct is alleged 

to result in expatriation, whenever the issue of voluntariness is put 

in issue, the Government must in each case prove voluntary conduct by 

clear, convincing, and unequivocal evidence". This is, of course, the 

burden which must be met by the Government in the instant case. 

However, we do not believe that Ni8hikawa attempts to be controlling 

on what is or is not an act of expatriation. 

Nishikawet did not concern itself with section 2 of the Act of March 

2, 1907 which is involved here. Niaikainct dealt with expatriation 

under section 401(e) of the Nationality Act of 1940 which involved 

service in the armed forces of a foreign country. Nishikawa does not 

state that a person could not have become naturalized in a foreign 

country by voluntarily acquiring a foreign nationality which as far 

as the United States is concerned he was free to accept or reject as he 

pleased. There is no logical reason why an individual who had been 

naturalized in the United States could not voluntarily accept Italian 

nationality which was offered to him by Italian law. The only problem we see raised is one of proof. 

The issue here is whether there was a voluntary acceptance of 

Italian nationality. Before we decide whether there was such a 

voluntary acceptance, we believe further information, if it is available, 

should be supplied on the following matters : what is involved in 

obtaining an Italian identity card, whether an Italian identity card is 

available to one of dual nationality, why it was obtained in the instant 

case, whether applicant's father could have continued to live in Italy 

without obtaining one, what benefits and what obligations are involved 

in obtaining one, whether application had ever 'been made for documentation for-the emigration of applicant's grandfather, and why, if 

the applicant's father returned to Italy in 1925 to bring his father back 

to the United States, he did not do so, what military document, 

employment card, and party certificates are referred to on page 2 of 

the application for registration executed by applicant's father on 

February 0, 1953 (Lx. 2), whether the applicant's father who is shown 

as not having paid taxes to the United States, was liable for the pay143 
Interim Decision #1259 

went of United States taxes, and whether applicant's father as a 

United States national was treated differently for tax purposes by the 

Italian Government than he would have been if he had not been a 

United States national. Any other pertinent information should, of 

course, be made a part of the record. 

ORDER? It is ordered that the order of the special inquiry officer 

be and the same is hereby withdrawn. 

It is furth,er ordered that proceedings be reopened for the reasons 

contained in this opinion and for such further action as the special 

inquiry officer may deem appropriate. 

BEFORE THE BOARD 

The Commissioner requests that this case be certified to the Attorney 

General for review. An issue of fact and an issue of law are involved. 

The issue of law is whether United States citizenship is lost under 

section 2 of the Act of March 2, 1907, 34 Stet_ 1228, by a foreign 

naturalization arising solely by operation of law under section 9 (3) 

of the Italian Nationality Law of June 13, 1912 where the naturalization is followed by voluntary acts not in themselves made acts of 

expatriation by statute but which do show an acceptance of the Italian 

nationality. 

The Service and the Board adhere to the rule that a, foreign 

naturalization arising by operation- of law may be accepted by an act 

which is in itself not a ground of expatriation. The Department of 

State is of the belief that expatriation cannot occur unless an act is 

performed which is expressly made one of expatriation by statute. 

The factual question, assuming that the first question is answered in 

the affirmative, is whether the applicant has conducted himself in a 

manner as to indicate his acceptance of Italian nationality. 

The Board has ordered reopening of proceeding for additional 

evidence as to the nature of the acts of acceptance and as to other 

background matters. The Service however finds it inadvisable to 

await resolution of the factual issue. ' The Service states that it is 

faced with a serious, urgent and continuing problem arising out of 

the differences between the Service and Board on one hand and the 

Department of State on the other which makes it imperative to obtain 

a prompt ruling on the legal issue. The Board believes that until the 

additional information is obtained, the record will not be in the state 

necessary for a proper determination; however, under the regulations 

it has no alternative to complying with the Commissioner's request 

that the case be certified. 

ORDER: Under the provisions of 8 CFR 8.1(h) (1) the case 

is referred to the Attorney General for review of the Board's decision. 

144 
Interim. Decision #1259 

BEFORE THE ATTORNEY GENERAL 

This case has been certified to me for review by the Board of Immigration Appeals pursuant to 8 CFR 3.1(h) (1) (iii). 

The applicant seeks admission as a United States citizen. His claim 

to citizenship is based on the assertion that his father was a United 

States citizen at the time of his birth in Italy in 1932, R.S. § 1993.1 

The Immigration and Naturalization. Service concedes that applicant's 

father was naturalized in the United States in 1922, but contends that 

he had expatriated himself prior to applicant's birth. The special 

inquiry officer held that the Service had not sustained its burden of 

establishing that applicant's father had lost his United States citizenship prior to the applicant's birth and ordered that applicant be 

admitted as a United States citizen. The Board of Immigration 

Appeals ordered that the proceedings be reopened for the taking of 

additional evidence on the question of expatriation. Following denial 

of a motion by the Service for reconsideration of the Board's order,* 

the Service requested that this case be certified to me for review limited 

to the question of the correct interpretation of the statute which is the 

basis for the claim of expatriation. There is no dispute between the 

Board and the Service on this question. Since, however, the Department of State has taken a contrary position, the Service desired that 

this conflict in administrative interpretations be resolved prior to the 

remand of the case to the special inquiry officer- 3Although it. is 

ordinarily the better practice to refer to the Attorney General only 

cases in which the Board has reached a final decision on the merits, 

I am accepting this case because the legal question involved is a recurring one and its resolution does not hinge on the particular facts shown 

by the record. 

I 

The record shows, and I assume for the purpose of this opinion, the 

following facts : 

Applicant's father, a native of Italy, was naturalized in the United 

States in 1922 and returned to Italy that same year. He returned to 

the United States in 1923, returned to Italy in December 1925 and 

remained there until his death in 1958. The applicant was born in 

' R.S. $1993, in force in 1932, conferred United States citizenship on children 

born outside the United States whose fathers at the time of their birth were 

citizens of the United States and bad resided therein. 

'The motion for reconsideration was directed to the question of the burden 

of proof on the Issue of expatriation. This question is not before me on this 

review. 

'In such cases the rulings of the Attorney General are controlling. Immigration and Nationality Act, § 103(a), 8 U.S.C. 1103 (a). 

145 

76S-456.--65--11 
Interim Decision #1259 

Italy on January 15, 1932, and lived there until he applied for admission to the United States in June 1961. 

Whether or not applicant is a United States citizen depends on 

whether his father was a United States citizen on applicant's date of 

birth. R.S. § 1993, supra. The Service contends that the father had 

expatriated himself prior to January 15, 1032, under section 2 of the 

Act of March 2, 1907, 34 Stet. 1228, by acquiring and voluntarily 

accepting Italian citizenship. The relevant portion of section 2 reads 

as follows: 

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, or 

when he has taken an oath of allegiance to any foreign state' 

Article 9 of the Italian .N atonality Law of June 15, 1912, provides : 

He who has lost citizenship * * * may reacquire it * * * (3) after two years 

of residence in the Kingdom, if the loss of citizenship has been due to the acquisition of foreign citizenship. 

It is conceded in this proceeding that article 9 had the effect of automatically conferring Italian citizenship upon applicant's father after 

he had completed 2 years' residence in Italy. See 3 Ilackworth, 

Digest of international Law (1942) 212. 

Such a "naturalization" is within the literal coverage of section 2 

of the Act of March 2, 1907, Matter of Al—, 6 I. & N. Dec. 70, 71 (1953) . 

It has long been held, however, that section 2 applies only to voluntary 

Section 2 further provides : 

Whim any naturalized citizen shall have resided for two years in the foreign 

state from which he came, or for five years in any other foreign state it shall be 

presumed that he has ceased to be an American citizen, and the place of his general abode shall be deemed his place of residence during said years: Provided, 

however, That such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, under 

such rules and regulations as the Department of State may prescribe: And provided also, That no American citizen shall be allowed to expatriate himself when 

this country is at war. 

However, this presumption of loss of citizenship arising from prolonged residence abroad was interpreted by Attorney General Wickersham, 28 Cps. A.G. 

504 (1910), to operate merely to relieve the Government of the obligation of 

protecting citizens residing abroad and to have no effect on the status of citizenship itself. This view has been followed in Cangardo v. Tillinghast, 29 F. 

2c1 527 (C.A. 1, 1928) ; In re Alfonso, 114 F. Snpp. 280 (D.N.S. 1933) ; Garcia 

Zeranjo v. Brownell, 126 P. Stipp. 370 (N.D. Cal. 1954). While judicial authority 

to the contrary is not lacking, Zimmer v. Acheson, 191 F. 2d 209 (C.A. 10. 1951) ; 

Rosasco v. Brotonell,163 F. Supp. 45, 55-57 (P.D. N.Y. 1958), I find the opinion of 

Attorney General Wickersham rendered a relatively short time after the enactment of the statute, the more persuasive, and I adhere to it. 

Section 2 of the Act of 1907 was repealed prospectively by the Nationality 

Act of 1940, 54 Stat. 1137, 1172, and therefore affects only cases involving acts 

that occurred during the period 1907 to 1941. 

146 
Interim Decision #1269 

expatriation, Perkins v. Elg, 307 U.S. 325, 343 (1939), and that where 

a citizen of the United States acquires a foreign nationality through 

operation of law and not upon his own application, his United States 

citizenship is not lost unless he indicates acceptance of the foreign 

nationality by some voluntary affirmative act, Matter of V—, 3 I. & N. 

Dec. 671 (1949) ; Matter of R , 6 I & N. Dee. 15 (1953) ; Barsanti v. 

Acheson,108 F. Supp. 1011 (D. Mass. 1952) aff'd per ouriam 200 F.2d 

562 (CA. 1, 1953) ; 3 Hackworth's Digest, 211-215. Such acts have 

been held to include accepting a passport or identity card describing 

the individual as a national of the foreign country, voting in an election of such country, or joining an organization open only to its 

nationals, Matter of V—, supra, at 674; 3 Hack-worth's Digest, at 213. 

Most of the cases in which these principles were applied have involved article 9 of the Italian Nationality Law. Since the voluntary 

act showing acceptance of the foreign nationality was regarded merely 

as evidence of the intent existing at the time such nationality was 

acquired, it was held that once the act was shown, the expatriation 

would relate back to the date when the foreign nationality was acquired 

by operation of law, Matter of V—, supra, at 674; Matter of M—, 

supra. 

However, the Board of Immigration Appeals has recently reexamined this rule of retroactivity and has concluded that in the light 

of the Supreme Court's statement in Nishikaway. Dulles, 356 U.S. 129, 

133 (1958), to the effect that the Government must show expatriation 

by clear, convincing and unequivocal evidence, there is "no longer 

any justification for indulging in the Bctioli 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 conk] be made," Matter of DiP—, Int. Dec. No. 1215 (1962) . 

Consequently, it is now the Board's position that expatriation dates 

from the time of the act indicating acceptance of the foreign nationality 

and not from the time when that nationality was acquired by operation 

of law. Applying this rule in the instant case, the Board found the 

record incomplete and remanded the case to the special inquiry officer 

to take further evidence as to the nature of the acts relied on by the 

Service to manifest voluntary acceptance of Italian nationality. 

Ii 

The applicant, on the other hand, urges me to adopt the position recently taken by the Department of State in its administration of the 

nationality laws. This position is stated by the Department as 

follows : 

The Department of State, after the most careful consideration and study in 

the light of recent important court decisions, has reversed its long standing po1- 

147 
Interim Decision #1259 

icy that expatriation under the first paragraph of section 2 of the Act of March 2, 

1907 may be based upon the fact that a person has acquired a foreign nationality 

solely by operation of law (as, for example, under section 9(3) of the Italian 

Nationality Law of June 13, 1912), followed by overt acts voluntarily performed, 

which may be regarded as "acceptance" of the foreign nationality. Underlying 

this determination was the Department's belief, particulirly in the light of the 

Supreme Court decision in ease of Hiskikawa v. Dulles [356 U.S. 129 (1958)1, 

that an administrative decision that a person has lost United States citizenship 

will be upheld by the courts only if the decision is based upon an act which must 

be both voluntary and specifically made expatriating by statute. 

' The question before me on this review is whether to adhere to the 

long-standing administrative view that voluntary acceptance of a naturalization obtained by operation of law results in expatriation under 

the Act of 1907 or to adopt the conclusion of the Department of State 

that in such circumstances the voluntary act cannot result in expatriation unless the act itself is specifically made an expatriating act by 

the statutes In a memorandum submitted in support of its position, 

the Department argues that Nishikawa establishes that expatriation 

must be shown by clear, convincing and unequivocal evidence, and that 

where the act relied on to establish expatriation is not, standing alone, 

an expatriating act under the statute, then, as a matter of law, it cannot be so clear, convincing and unequivocal as to justify a finding of 

intent to renounce 'United States citizenship 

I cannot accept the view that the substantive law of expatriation 

is affected by the decision in Nishilcawa v. Dulles. The opinion in 

that case states that the Government has the burden of proving "an 

act that shows expatriation by clear, convincing and unequivocal evidence." 356 U.S., at 133. But the question of the quantum of proof 

necessary to establish expatriation is quite separate from the substantive question of what voluntary conduct, assuming it is proved, 

results in expatriation wider section 2. La the N•skikaava case the 

"act" of expatriation upon which the Government relied was service 

in a foreign army; here the "act" is naturalization in a foreign state. 

There, as here, an issue was raised as to the voluntariness of the act 

upon which reliance was placed. Although the Court in Nishikawa 

held that the burden of proof on this issue must be borne by the Government, and that the standard of proof to be met was "clear, convincing and unequivocal evidence," B it did not by any means hold, 

° Thus the Department of State would 'attach no legal significance to the 

naturalization by operation of law, and expatriation, if established, would be 

grounded entirely on the subsequent expatriating act. 

° Following the decision in Nish/Me/Loa v. Dulles, Congress enacted section 19 

of Public Law 87-301, 75 Stat. 650, 656, which added to section 349 of the Immigration and Nationality Act, 8 U.S.C. 1481, a new subsection (c) providing 

that when loss of United States nationality is put in issue in an action or proceeding commenced on or after September 26, 1961, the fact that such a loss 

148 
Interim Decision #1259 

as the Department of State in effect argues, that the evidence adduced 

on the issue of voluntariness could relate only to incidents that would 

independently furnish grounds for expatriation. The opinion clearly 

contemplates that the voluntariness of Nishikawa's service in the 

Japanese armed forces could be shown by evidence of any acts or 

declarations having the requisite probative value, whether independently expatriating or not. 

III 

Nevertheless, the position taken by the Department of State, as 

well as the Board's own modification of the voluntary acceptance rule 

in Matter of DiP—, supra, suggests the desirability of a re-examination of the rule obtaining in cases of naturalization by operation of 

The language of section 2 is that an American citizen shall be 

deemed to have expatriated himself "when he has been naturalized 

in any foreign state in conformity with its laws * * *." There is no 

exception in the statute for involuntary naturalization, but such an 

exception has been read into the statute, Perkins v. Elg, supra, at 

843, and would today appear to be a constitutional requirement, 

Perez v. Brownell, 356 U.S. 44, 61 (1958). Naturalization by operation of law has long been considered to be within the exception for 

involuntary naturalization, although as a matter of strict logic a 

citizen whose voluntary acts, such as foreign residence, give rise to 

a foreign naturalization could be held to the legal consequences of 

his actions regardless of whether he knew those consequences would 

ensue. See Mackenzie v. Hare, 289 U.S. 299 (1915) ; Savorgnan v. 

United States, 338 U.S. 491 (1950).7However, the term "naturalization" ordinarily connotes a deliberate and purposeful acquisition of 

a changed citizenship status. For that reason, it is unlikely that Congress intended to expatriate by section 2 a citizen who, unaware of 

the consequences, performed a voluntary act which brought about a 

foreign naturalization. The section should not be interpreted in 

such a way as to make it a trap for the unwary. 8 

occurred may be established by "a preponderance of the evidence." This enactment has no application to the present proceeding, which was instituted before 

September 26, 1961. 

T Perkins v. Ela, supra, is not authority to the contrary. In that ease the 

citizen was a minor at the time of her foreign naturalization and therefore was 

not legally responsible for the acts giving rise to the naturalisation. 

° The Department of Statb points to the following passage in the Congressional debate on section 2 as evidence that the section was intended to have no 

application to naturalization by operation of law : 

Cons. Lacey : "* * * If a man bugs a piece of land or a piece of real estate 

[in Mexico] it is necessary for him to say in the deed that he does not desire 

Footnote continued on following page. 

149 
Interim Decision #1259 

It does not follow, however, that because the statute does not apply 

to every naturalization by operation of law, it should apply to none. 

Every naturalization occurs by operation of law in the sense that 

the law of the foreign country operates on a given set of facts, which 

may consist of residence in that country for a certain period of time, 

an application for naturalization, an oath of allegience, or some other 

act or event. When we distinguish for purposes of section 2 between 

a. voluntary naturalization and one which is at least prima facie 

involuntary because it arose by operation of law, we import into 

section 2 a requirement that for expatriation to result there must 

be an intent on the part of the citizen to acquire the foreign nationality, and where the acts which give rise to the naturalization, though 

voluntary in themselves, are not such acts as ordinarily give rise 

to naturalization, we presume that they have been performed without 

this required intent.° Thus, in cases involving article 9 of the Italian 

Nationality Law, we regard a mere two years' residence in the country 

of the citizen's former nationality as insufficient evidence of intent 

to reacquire that nationality, and treat such a naturalization by operation of law as involuntary. 

But the principle which justifies the exception for involuntary 

naturalization also defines its limits Where intent to acquire the 

foreign nationality is present at the time of naturalization or intent 

to accept the nationality arises thereafter and is manifested by affirmative and unambiguous acts, there would appear to be no reason 

in law or policy to bring the case within the exception. It seems clear, 

for example, that where it can be shown by contemporaneous proof 

that the United States citizen intended by his two-year residence to 

reacquire his Italian citizenship, he should be held to have become 

"naturalized" within the meaning of section 2, and hence to have 

expatriated himself, notwithstanding that the naturalization was accomplished "by operation of law" and without any formal application 

Footnotes continued. 

to be a Mexican citizen. The mere fact of recording the deed otherwise makes 

him a citizen of Mexico. I would like to ask my friend how far we would 

recognize that peculiar state of the Mexican law?" 

Cong. Perkins: "It does not go so far. * * *" 41 Cong. Bee. 1467. 

However, this colloquy furnishes little instruction on the question before me, 

because neither the position of the Department of State nor that of the Service 

and the Board goes "so far." 

'This principle is not in conflict with Savorgnan v. United States, 338 U.S. 

491,499-500 (1950), where it was held that an American who had applied for 

and accepted Italian citizenship expatriated herself notwithstanding that she 

did not intend to give up her American citizenship. The intent required by 

section 2 is not an intent to renounce United States citizenship but an Intent 

to become naturalized in a foreign state. 

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for a new citizenship status. Such cases are, of course, seldom encountered. In the usual case the only evidence of the citizen's intent to 

reacquire Italian nationality is provided by his actions subsequent 

to that naturalization. So arose the doctrine of voluntary acceptance. 

The theory was that the naturalization by operation of law created 

an ambiguity as to the citizen's intention, -which could be resolved by 

subsequent evidence of his desire to accept Italian nationality. When 

the citizen manifested his acceptance of Italian nationality by an 

overt voluntary act, this act was taken as evidence of the citizen's 

intent, at the time when he took up residence in Italy, to reacquire 

Italian nationality, and his expatriation was held to relate back to 

the date when his naturalization took effect under the law of Italy. 

Matter of V—, supra, at 674. Because of the obvious artificiality of 

a rule which related the finding of intent to acquire Italian nationality 

back to an arbitrary point of time, often in the remote past, the Board 

in Matter of DiP—, supra, ruled correctly that the act indicating 

acceptance of Italian nationality was probative only of intent at the 

time the act was performed, and that therefore expatriation should 

no longer be held to relate back but should date from the act of 

acceptance. 

The decision in Matter of DiP—, however, forces recognition that 

the requirement of an overt voluntary act of acceptance is not, and 

probably never was, a rule of evidence but a rule of substance reflecting the proper interpretation of the term "naturalization" as used in 

section 2. 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. 

The act of acceptance is the final constituent element of a more complex act, voluntary naturalization, which entails the legal consequence 

of loss of United States citizenship. Since, however, it is an essential 

element of the ultimate fact upon which expatriation depends under 

the statute it cannot be equivocal but must be an act which clearly and 

unambiguously imports a purposeful assumption of nationality. 

It has been suggested that a "naturalization" involuntary when it 

took place cannot be converted into a voluntary naturalization by an 

act occurring years afterward, and that since concededly section 2 of 

the Act of 1907 applies only to voluntary naturalization; the Board's 

rule is an attempt to amend section 2 to create an additional act of 

expatriation, i.e., acceptance of a previously involuntary naturalization. This argument seems to me a mere confusion of terms. As already noted, the term "naturalization" as used in the statute, because 

of constitutional and other considerations, must be construed to mean a 

voluntary and purposeful aquisition of foreign nationality. Although 

the involuntary acquisition of foreign nationality or the acquisition 

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of such nationality by operation of law certainly constitutes naturalization in one sense of the term, naturalization in the sense intended 

by the statute does not occur until the individual has appropriately 

manifested an intent to accept the foreign nationality. Acceptance 

thus does not serve to give legal effect to a naturalization which has 

already ocoured; it is itself an element of the naturalization made 

expatriating by the statute. 

The construction of the statute which is proposed by the Department of State would lead to anomalous results. It would require a 

holding that a United States citizen naturalized in a foreign country 

by operation of law who may have accepted all the benefits of that 

status, who may even have renounced United States citizenship, would 

nevertheless not have lost his United States citizenship unless he had 

taken an oath of allegiance to the foreign state, the only other act made 

expatriating by section 2. I cannot doubt that such a result would be 

contrary to the intent of the Congress that enacted the Act of 1901, 

and that it would also be contrary to this Nation's often expressed 

recognition of the inherent right of expatriation. 15 Stet. 223-224; 

Eafflorgnanv.UnitedBtates,supra, at 497-98. 

Because litigation involving nationality usually arises in the context of an assertion of United States citizenship by an individual and 

the claim of =expatriation by the Government (although compare 

Kawakita v. United States, 343 U.S. 717 (1952) ), it is sometimes overlooked that expatriation found its place in the law initially not as a 

weapon of the Government but as a right of the individual. It is true, 

of course, that "rights of citizenship are not to be destroyed by 

an ambiguity," Perkins v. Elg, supra, at 337, but when a United 

States citizen becomes naturalized by operation of law in a foreign 

country and by his subsequent course of conduct clearly manifests an 

intention to accept the rights and obligations that go with his new 

nationality, I do not believe that it does violence to the language of 

the Act of 1907 to hold that he has expatriated himself, notwithstanding that the tender of a new status under foreign law and its acceptance by the individual do not occur contemporaneously. I believe it 

is more realistic and more consistent with the policy of our nationality 

legislation to regard the naturalization by operation of law as in. effect 

a continuing offer, the acceptance of which completes the act of 

naturalization in a foreign state made expatriating by section 2." 

" This conclusion makes it unnecessary to consider whether an expatriation 

may arise in such a situation otherwise than under the provisions of the Act of 

1907. See 39 Ops. A.G. 411, 412 (1940) ; United States ex reL Rojak V. Harahan, 

34 FM 219, 220 (W.D. Pa. 1929) ; United States ex reZ. DeCicco v. Longo, 40 F. 

Sapp. 170,174 (D. Conn. 1942) ;•contra, Leong Moat Yin. v. United States, 31 F.2d 

738, 740 (C.A.9, 1929). 

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Such doubts as might be raised by the contrary argument are set at 

rest by the long history of administrative and judicial application of 

the voluntary acceptance rule, Barsanti v. Acheson, supra,- 3 Hackworth's Digest, 211-215. 

Iv 

As has been stated, my purpose in reviewing this case in its present 

posture is to resolve the conflict in interpretation between the Department of State and the Board of Immigration Appeals over continued 

adherence to the voluntary acceptance rule. I hold that an overt voluntary act manifesting clearly and unambiguously a decision to accept 

a foreign nationality previously acquired by operation of law results 

in the loss of United States citizenship under section 2 of the Act of 

1907. What acts consitute such an acceptance and what factual showing is required to establish their character I find it unnecessary to 

consider at this time. 

The case is remanded to the Board of Immigration Appeals for 

disposition in accordance with the views set forth herein. 

153