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Perri v. Dulles.

decided.: July 24, 1953.

PERRI
v.
DULLES.



Author: Maris

Before MARIS, GOODRICH and McLAUGHLIN, Circuit Judges.

MARIS, Circuit Judge.

Nicola Perri appeals from the judgment of the District Court for the District of New Jersey entered against him upon his complaint filed under Section 503 of the Nationality Act of 1940 seeking a judgment declaring him to be a citizen of the United States. The district court found that the plaintiff, a citizen of the United States, had voluntarily expatriated himself and for that reason was not entitled to the judgment he sought. 105 F.Supp. 434.

The plaintiff's father, an Italian citizen by birth, immigrated to the United States and was naturalized in Chicago on January 24, 1906. His residence in the United States, interrupted by a number of visits to Italy, continued until 1926 when he returned to Italy and resided there until his death in 1941. His son, the plaintiff, was born in Italy on November 24, 1913 and was reared there. He nonetheless became a citizen of the United States at birth under Section 1993, Revised Statutes, 8 U.S.C.A. § 713, since his father was a naturalized citizen. The plaintiff's first entry into the United States was after the commencement of this suit in 1950 when he was admitted under a certificate of identity in order to prosecute the present litigation.

Under Article 9 of the Italian Nationality Law of June 13, 1912*fn1 the plaintiff's father, who had lost his Italian citizenship upon being naturalized in the United States, reacquired it in 1928 after two years, residence in Italy. As a result the plaintiff also became a citizen of Italy under Article 12 of the same law, since he was then a minor child of his father, 15 years of age, residing in Italy. He did not thereby lose his American citizenship, however, but from that time on became a citizen of both nations.*fn2

In September 1933 when he was 19 years old the plaintiff was conscripted into the Italian army and was assigned to an indefinite inactive status. In May 1934, when he was 20 years old he took an oath of allegiance to the King of Italy. He served actively in the Italian army from April 9, 1934 to August 28, 1934, from May 15, 1935 to July 1, 1936, from August 30, 1939 to March 31, 1940, and finally from May 30, 1940 to July 28, 1944. The plaintiff voted in the Italian municipal and national elections in 1946.

The plaintiff testified that his father had informed him that he had rights as an American citizen and that he was known in his community as an American citizen when he first entered the Italian army. This was contradicted by certain written statements which the plaintiff had previously made in Italy, however, and the district court did not credit this testimony. In any event in May, 1947 the plaintiff visited the American Consulate in Naples and learned that he might have a claim to American citizenship. He testified that he was told at the Consulate on this visit "that I had a right to go back to America as an American citizen." Frequently thereafter he wrote to the Consulate on the subject. On January 4, 1949, he filed with the Consulate his application for registration as a citizen of the United States. His application for such documentation having been denied he brought the present suit to establish his citizenship status.

The defendant contends that the plaintiff expatriated himself by taking the oath of allegiance to the King of Italy in 1934, by serving in the armed forces of Italy, by voting in the Italian elections in 1946 and by failing to return or attempting to return to the United States and take up permanent residence here within the time prescribed by the Nationality Act of 1940.*fn3 These grounds we well examine in turn.

Section 2 of the Expatriation Act of 1907 provided "That any American citizen shall be deemed to have expatriated himself * * * when he has taken an oath of allegiance to any foreign state."*fn4 It appears that the plaintiff took such an oath in 1934. But he was then a minor. It has long been settled both by administrative practice and judicial decision and the defendant concedes that a citizen by birth who has not yet attained his majority cannot expatriate himself by taking an oath of allegiance to a foreign state.*fn5 Expatriation must be by voluntary act*fn6 and the act of a minor is not regarded as voluntary in this sence. The defendant contends, however, that the continuance of the plaintiff in the Italian army after his twenty-first birthday was a continuation of his oath-taking which did effect his expatriation. We do not think that mere continuance in service as a conscript in the Italian army may be held to have that effect.*fn7 And even if it were so held it could hardly be regarded as a voluntary act, as Attorney General McGrath cogently stated in an opinion which the Supreme Court has recently quoted with approval.*fn8 The taking of the oath of allegiance accordingly did not expatriate the plaintiff.

The Expatriation Act of 1907 did not make mere service in the armed forces of a foreign state, whether voluntary or involuntary, an act of expatriation. Section 401(c) of the Nationality Act of 1940 for the first time sought to make such service an expatriating act by providing that a national of the United States shall lose his nationality by "Entering, or serving in, the armed forces of a foreign state unless expressly authorized by the laws of the United States, if he has or acquires the nationality of such foreign state". This language is to be qualified, however, by the settled doctrine to which we have referred that expatriation can be the consequence only of voluntary action. Since the plaintiff's entry into the Italian army took place long before January 13, 1941, the effective date of the Nationality Act of 1940, that Act cannot apply to his entry into or service in the armed forces of Italy prior to that date. We, therefore, need not consider the plaintiff's contention that the district court erred in finding that his original entry into the Italian forces was voluntary.

On January 13, 1941, however, the plaintiff, who then had Italian Citizenship, was serving actively in the Italian armed forces. The real question at this point, therefore, is whether the plaintiff's military service from and after January 13, 1941 was voluntary in the sense that he could have secured release from it under the laws of Italy but did not do so. Otherwise it was necessarily involuntary, however it may have originated. The plaintiff proved that he was drafted into the Italian army at the age of 19 years and that all his subsequent service was under this original draft. We think that this was sufficient to establish prima facie that his service on and after January 13, 1941 was involuntary. This would, of course, be subject to rebuttal by evidence that on or after that date Italian law or military practice would have permitted the plaintiff to secure release, on the ground of his United States citizenship or otherwise. On remand the defendant will have an opportunity to present such evidence. On the present record, however, we cannot hold that expatriation by continued voluntary military service after January 13, 1941 has been established.

Little need be said with respect to the plaintiff's act in voting in the Italian elections in 1946. If voluntary, these were expatriating acts under Section 401(e) of the Nationality Act of 1940 which makes "Voting in a political election in a foreign state" such an act. The plaintiff asserts that his voting was under duress. The district court found to the contrary. Whether or not this finding was erroneous, however, it is unnecessary to decide. For Congress provided by the Act of August 16, 1951, as amended, that any person who has lost citizenship solely by voting in a political election held in Italy between January 1, 1946 and April 18, 1948 may be naturalized merely by taking the oath of allegiance and a non-communist oath before a naturalization court or foreign service officer at any time prior to August 17, 1953.*fn9 If such oaths are taken by the plaintiff and it turns out upon the final determination of this case on remand that his voting was his only expatriating act he will be assured of his citizenship as Congress intended. And if it ultimately develops that he has expatriated himself by acts other than that of voting his act of voting will be merely cumulative and therefore immaterial. The right to take these oaths expires under the statute, however, on August 16, 1953. If they are not taken on or before that day the plaintiff's rights under the statute will be wholly gone. The district court will accordingly permit the plaintiff forthwith to take the oaths, their effect as to the restoration of the plaintiff's citizenship to await the court's final determination as to whether he committed other expatriating acts.

This brings us to the final ground of expatriation relied on by the defendant. Section 401(a) of the Nationality Act of 1940 provides:

" § 401. A person who is a national of the United States, whether by birth or naturalization, ...


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