AfAiihR OF P— 

In VISA PETITION Proceedings 

A-12111162 

Decided by Board July 14, 1961 

Expatriation—Act of March 2, 1907—Automatic reacquisition of foreign nationality—Standard of proof to establish voluntary acceptance of foreign 

nationality. 

(1) Current standard of proof in expatriation cases applies to conduct within 

section 2 of Act of March 2, 1907. Where foreign nationality was acquired 

solely by operation of law, proof of "voluntary acceptance" through overt 

acts must be supported by clear, convincing and unequivocal evidence to 

warrant finding of loss of citizenship. 

(2) Where petitioner's father, naturalized in 1903, reacquired Italian citizenship in 1914 under automatic provisions of Italian Nationality Law of June 

13, 1912, evidence that he obtained and used Italian passport in traveling to 

Italy in 1922 does not establish "voluntary acceptance" of Italian nationality with requisite degree of proof in view of unexplained motivation in 

using Italian passport, absence of evidence of other overt acts of acceptance, 

and fact that application which he made for U.S. passport in Italy the following year, in 1923, is construable as manifesting a continuing intention to 

retain U.S. nationality. 

(3) Petitioner's voting in Italian political elections and service as a conscript 

in the Italian Army, during which time he took an oath of allegiance to 

the Italian Crown, no not constitute expatriating acts when he was improperly advised prior thereto by official sources that he had no claim to 

U.S. citizenship. 

BEFORE THE BOARD 

DISCUSSION: The petitioner appeals from the denial of his visa 

petition by the District Director, New York District, dated January 27, 1961. The District Director found that the petitioner did 

not acquire United States citizenship at birth because his father 

expatriated himself prior to the birth of petitioner. The appeal will 

be sustained. 

The petitioner's father, A—P—, was naturalized in the United 

States on April 20, 1903. Records of the Passport Office of the 

Department of State show that A—P— executed two affidavits at 

the Consulate General at Naples. He applied for a United States 

passport at the American Consulate General on October 23, 1923, and 

he stated in his first affidavit that he had arrived in Italy on Janu362 
ary 20, 1922, and had traveled from the Unitod Staten with an 

Italian passport issued by the Italian Consul General at Cincinnati, 

Ohio. In the second affidavit, on January 25, 1924, he stated that 

he (A—) was in Italy from 1911 until 1914, during which stay his 

son, P—P— (petitioner), had been born. P—P— was born on 

October 30, 1914. 

It was the view of the State Department that A—P— expatriated 

himself on July 1, 1914 under the provisions of the first paragraph 

of section 2 of the Act of March 2, 1907,' by having acquired 

Italian nationality under the provisions of Article IX(3) of the 

Italian Nationality Law of June 13, 1912.2It was the view of 

our Government that the loss of United States citizenship depended 

not only upon the reacquisition of Italian nationality, but upon the 

United States citizen's having "evidenced a voluntary acceptance 

of that nationality by obtaining and using an Italian passport for 

his travel to Italy in 1922." The Department of State's decision 

that A—P— had lost United States citizenship was communicated 

to the Secretary of Labor on October 3, 1988, and a report of expatriation in the name of A—P— was transmitted to the Secretary 

of Labor with a letter of January 20, 1934. 

P—P—, petitioner, first applied for a United States passport on 

May 18, 1933, before a United States Vice Consul at Rome, Italy. 

The application for passport executed by petitioner was disapproved 

by the Department of State on October 3, 1933, on the ground that 

the applicant had not acquired United States citizenship at birth, 

since his father had expatriated himself prior to the applicant's 

birth. 

P—P— next applied for documentation as a citizen of the United 

States at the American Consulate General at Naples, Italy, on 

June 15, 1960, by executing an application for registration as a 

ritiven of the United States. In connection with his application, 

Act of March 2, 1907, section 2, 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, or when be has taken an oath 

of allegiance to any foreign state. 

"When 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 he an American eiti7sn, 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, ender siieb rules and regulations as the Department of State 

may prescribe... (34 Stat. 1228: 8 U.S.C. 17.) 

Article IX of the Italian Nationality Law of June 13, 1912, provides: "He 

who has lost citizenship * * * may reacquire it: * * * (3) After two years 

ro,bionce In 111P Kingdom if the loss of citizenship has been due to the 

acquisition of foreign citizenship." 

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he stated that he had taken an oath of allegiance to the Italian Crown 

at Rome, Italy, in 1935 while serving as a conscript in the Italian 

Army and that he had voted in Italian political elections on a 

number of occasions, because he had been advised that he had no 

claim to United States citizenship. 

The Department. of State reversed its previous decision in the 

instant case and decided that P—P— did acquire United States citizenship at time of birth on October 30, 1914, under section 1993, 

Revised Statutes; that his father, A—P—, had not lost United States 

citizenship at that time. This record contains a memorandum from 

the Director of the Passport Office to the Assistant Director for 

Citizenship, Immigration and -Naturalization Service, New York, 

stating the Department of State belief that in the light of "recent 

important court decisions," particularly "the Supreme Court decision in the case of Nishileawa v. Dulles," 356 U.S. 129 (1958), "an 

administrative decision that a person had lost United States citizenship will be upheld by the courts only if the decision is based on 

an act which was both voluntarily performed and expressly made 

expatriating by statute." 

It had been the long-standing view of the Department of State and 

the Immigration and Naturalization Service, supported by judicial 

and administrative decisions, that expatriatipn under the first paragraph of section 2 of the Act of March 2, 1907 may he based upon 

the fact that a person has acquired a foreign nationality solely by 

operation of (a foreign) law followed by overt acts or oral or 

written acts voluntarily performed, which were regarded as "acceptance" of the foreign nationality. For this view, the Immigration and Naturalization Service continues to contend. The Service 

representative points out that the Department of State has in the 

past considered that the Italian nationality conferred under the 

provisions of the Italian Nationality Law of 1912 was "voluntarily 

accepted" when a naturalized American citizen of Italian origin 

applied for and accepted an Italian passport or identity card 

describing him as an Italian national, that the act of accepting the 

Italian passport or identity card should be considered as prima facie 

evidence of the acceptance of Italian nationality under the provisions of the Italian law. The Service representative declares that 

this view was reaffirmed by this Board as recently as 1955 in Matter 

of M — . 6-590 (B.I.A., 1955). 

It seems to be the view of the State Department, expressed in the 

letter from the Director of the Passport Office, that their decision 

in this matter declares a totally new policy dictated by recent Supreme Court decisions. The State Department letter sets forth 

the past view and suggests that it would be found now that a 

person has lost United States citizenship only if the act on which 

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the decision is based "was both vnlnntarily performed and expressly 

made expatriating by statute." The Service representative argues 

that the Nationality Act of 1940 and the Immigration and Nationality Act of 1952, and the court decisions interpreting these two laws, 

should not be made to apply to the period 1907 to 1941; that the 

two later Acts contain different provisions with regard to denaturalization and expatriation of a dual national; and that it is a mistake 

at this late date to attempt to apply the present rules, decisions and 

statutory provisions regarding burden of proof and denaturalization 

to the period covered by the Act of March 2, 1907. 

It is our view that the State Department in the instant case is 

not urging a completely new standard, nor a new standard necessary 

to conform or adopt our traditional view of the Italian Nationality 

Law of June 13, 1912 to the issuance of a passport to P—P—. 

Without re-examining the Supreme Court decisions of the last ten 

years, it may be stated unequivocally that the Government now has 

a more severe burden of proof in cases regarding expatriation than 

the Government carried in the past. The facts in the instant case 

do not satisfy the requirement that the Government establish by 

clear, convincing and unequivocal evidence that the father of the 

petitioner, A—P—, "accepted" Italian nationality. 

A—P— reacquired Italian nationality in Italy on July 1, 1914, 

by operation of the Italian Nationality Law. The State Department 

records show that he left Italy in 1914, presumably after the birth 

of his son (in October) that year, and was readmitted to the United 

States. At that time there was no such thing as a reentry permit, 

and it must be assumed that he was readmitted to the United States 

as a returning citizen. The act of "acceptance," according to the 

State Department and Immigration Service, which resulted in 

A—P-- losing his United States citizenship, was his returning to 

Italy January 20, 1922, on an Italian passport. However, he applied 

at the United States Consulate in Naples, Italy; for a United States 

passport on October 23, 1923, indicating that he had not abandoned 

his United States citizenship and hoped to assert it by again obtaining a United States passport. The record does not show why 

he obtained an Italian passport (issued at Cincinnati in 1922), but 

it may be assumed that he accepted it, not voluntarily, but because 

it was the only passport he could obtain at the time. 

At no time was it held by the courts that remaining in his native 

country for more than two years automatically expatriated a naturalized citizen under the 1907 Act, but this rule was established and 

accepted by administrative officials only after extensive litigation. 

Leong ifwai Yin v. United States, 31 F.2d. 738 (CA. Hawaii, 

1929) ; United States v. Eliasen, 11 F.2d 785 (D.C. Wash., 1926) ; 

Camara.° v. Tillinghast, 29 F.2d 527 (CA. Mass., 1928), and many 

365 
other cases. At the time petitioner's father returned to Italy with 

an Italian passport in 1922, the law was not firmly established. 

There'seems to be no record, but it is reasonable to assume that he 

may have tried to secure a United States passport in this country 

and been refused due to the fact that he had remained in Italy more 

than two years (not of itself a factor causing automatic expatriation). The fact that he applied in Italy for a United States passport the following year indicates that this "overt act" of accepting 

an Italian passport was not voluntarily performed and., therefore, 

A P— had not yet lost his United States citizenship at the time 

his son was born in October of 1914. It is true that A—P— then 

remained in Italy until his death in August 1932. Having been 

denied a United States passport, there was no way he could return 

to the United States except under the Italian quota. 

P—P— at the age of 18 applied for a United States passport on 

May 18, 1933. The fact that he applied at that time indicates that 

he and his father had never given up their claim to United States 

citizenship and were still hoping to assert it successfully. Although 

petitioner voted in Italian political elections and served as a conscript in the Italian Army, during which time he took an oath of 

allegiance to the Italian Crown, it is admitted that these acts do 

not constitute expatriation when the claimayt has been improperly 

advised that he had lost his United States citizenship . 8 

In Matter of Al — , 6-590 (B.I.A., 1955), cited by the Service representative in oral argument, the Italian national returned to Italy in 

1910; he not only received an Italian card of identity describing 

him to be an Italian national, but he disposed of all his property in this country, purchased a business in Italy which he operated until his death in 1928, and never applied for a United 

States passport in Italy after he returned there in 1910. Furthermore, M— did not return to the United States until she was 

52 years old. We found in that case that M—'s father did accept 

Italian nationality; and that there was no adequate reason for 11— 

to have waited such a long period before asserting her United 

States citizenship. The record in that case was clear as to the 

"voluntary acceptance" of Italian nationality following the naturalized citizen's return to Italy. However, in matter 6-15, 

we decided that the individual had not lost his citizenship by 

performing a "voluntary overt act" manifesting "acceptance" of 

Italian nationality ; th at, tp had satisfactorily expl ained his 

'Matter of 5—, 8-221, and Matter of 5—, 8-226, wherein the board held 

that acts designated expatriative by statute will not operate to expatriate where 

the claimant was unaware that he had United States citizenship ; we limited this 

rule to situations where the claimant was misled by a change of interpretation 

in the law, or where he was misinformed by government officers and believed 

that he had already lost his United States citizenship. 

366 
failure to return promptly to the United States; that his membership in the Fascist Party had been of a "compulsory nature," to 

obtain employment and the other essentials of living, and that each 

of these cases must be decided upon its own apparent merits, citing 

Hackworth, Digest of International Law, Volume III, p. 213. Both 

those cases presented more complete records than does the instant 

matter. 

The present Act, section 349(a) (1) [8 U.S.C. 1481), provides that 

a national of the United States, whether by birth or naturalization, 

shall lose his nationality by obtaining naturalization in a foreign 

state upon his own application.4 Under the present law a foreign 

statute such as the Italian Nationality Law of June 13, 1912 could 

not operate to affect a naturalized citizen. However, this was not 

the language of the 1907 Act, and the 1907 Act cannot be ignored. 

It is still the rule that expatriation occurred under the first para. 

graph of section 2 of the Act of March 2, 1907 where a person 

acquired a foreign nationality by operation of law (as here under 

the Italian Nationality Law of June 13, 1912) followed hy overt 

acts -Ooluntarily performed, which may be regarded as "acceptance" 

of the foreign nationality. We do believe, however, that the present 

standard of proof regarding expatriation applies to the act of "acceptance" of Italian nationality, and proof of that voluntary 

acceptance must be clear, convincing and unequivocal. 

The present record does not establish that A—P— journeyed to 

Italy in 1922 on an Italian passport voluntarily, in the light of the 

fact that he applied in Italy for a United States passport the following year. Evidently he made two trips to the Consulate General 

at Naples, one in 1923 and one in 1924, because the State Department letter refers to two affidavits executed by him, one on October 

23, 1923, and one on January 25, 1924. We conclude that he had 

a "continuing intention" to retain his United States nationality, 

evidenced by his application for a United States passport in 1923, 

and that this record does not establish by clear and convincing 

evidence that he "accepted" Italian nationality. It appears that 

the change of citizenship was arbitrarily imposed upon A—Pwithout his concurrence, and that P—P— did, therefore, acquire 

United States citizenship at birth in Italy in 1914. 

ORDER: It is ordered that the appeal be sustained and that the 

petition for issuance of nonquota immigrant visa be approved. 

+Immigration and Nationality Act, section 349(a) (1), provides: "From 

and after the effective date of this Act a person who is a national of the 

United States whether by birth or naturalization, shall lose his nationality 

by—(1) obtaining naturalization in a foreign state upon his own application, 

upon an application filed in his behalf by a parent, guardian, or duly authorized agent, or through the naturalization of a parent having legal custody of 

such person. . ." (Emphasis supplied.) 

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