Matter of G- — 4 I&N Dec. 57

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IN THE MATTER OF G——

In VISA PETITION Proceedings

VP-377773

Decided by Board May 19, 1950 Decided by Board January 27, 1950

Citizenship-Expatriation- Foreign military service-Section 401 ( c) of the Nationality Act of 1940–Voluntary service-Evidence. A native and citizen of Italy, naturalized here in 1929, was found to have established on the basis of the evidence presented that his service in the Italian Armed Forces in 1941 was of an involuntary nature ( it having been previously found that he had not expatriated himself in 1931-32 by taking an oath of allegiance in connection with his service during that period in the Italian Armed Forces ) . [ See, 3, I. & N. Decs. 558, 586, 701, and 890. ] ( Also see, 41 Op. Atty. Gen. No. 16, May 8, 1951. )

BEFORE THE BOARD (May 19, 1950)

Discussion: This case is before us on motion of counsel for reconsideration of our previous order, dated January 27, 1950, wherein we dismissed the appeal from a finding of expatriation below. Counsel now presents additional documentary evidence, together with another brief, in support of his prayer for an order modifying the above order approving the visa petition for petitioner's wife and six children . The facts may briefly be summarized as follows : On March 1, 1941, petitioner was recalled by the Italian Army and served until October 1 , 1941. It was previously determined that petitioner's prior taking of an oath of allegiance and consequent military service from October 1 , 1931 , to October 1, 1932, occurred involuntarily and did not serve to divest him of his United States citizenship . Because petitioner was granted a 2 months ' convalescent leave upon initial recall ( petitioner was again allegedly suffering from the nervous stomach condition, which had troubled him during his military service in 1931 ) , petitioner alleged that he believed that he would not actually be inducted for service. During this period of 2 months, petitioner testified that he protested to the American consul at Palermo, where he was allegedly

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told that the best thing to do was to serve. At the end of the convalescent leave, petitioner was informed that he must serve immediately, whereupon he stated that he protested to the Italian military authorities, but was reportedly told that if he refused to serve he would be arrested and his family sent to a concentration camp. (With regard to the American consul's alleged refusal to take action in petitioner's behalf, it is noted that the State Department has consistently held that, since persons who have a basis for refusal to serve in the Italian Army can apply to the Italian authorities for exemption, if their name has been automatically and erroneously listed on the rolls, the American consulate is powerless to obtain an exemption for these persons and these American citizens must take the affirmative action themselves to prove to the Italian authorities that they are actually unwilling to serve. ) In our order of January 27 , 1950 , it was determined that petitioner not only chose to remain in Italy in the face of impending war, but also served in a foreign army under circumstances which were not proved as extraordinary and amounting to true duress as defined by the courts. It was, therefore, concluded that "petitioner expatriated himself by voluntarily acting in a manner inconsistent with his American citizenship" (sec. 401 ( c ) , Nationality Act of 1940 ) . Our prior conclusion was based upon the premise that present allegations of duress in connection with foreign military service standing alone are not sufficient to negative expatriation , for additional evidence in collaboration is required. The best evidence is a contemporaneous protest, but this type of proof is oftentimes unavailable. Therefore , we have found it expedient to accept evidence of conditions existing in a given country, which render plausible the story now related . Upon reconsideration of the record and in the light of the latest presentation of the case to the Board , we believe the latter requirement has been met . Hence, even though we cannot agree with the broad premises which counsel advances in his brief, we feel that

¹ Counsel posed several contentions in his brief which are worthy of comment. ( 1 ) Counsel stated that petitioner's refusal to serve in the Italian Army would have subjected him to criminal prosecution. In Matter of De M , VP-412127 (March 27, 1950 ) , we took notice of the habit of Italian tribunals to hand down such sentences in abstentia . However, it appears that such severe and extreme penalties, as were invoked in the De M- case, occur chiefly when the subject departs or hides immediately prior to the time of his liability for a draft call, and do not generally take place in this manner if the subject has been long absent from Italy. In passing, we wish to deal with counsel's unqualified statement that "It has been held that if a United States citizen serves in a foreign army, expatriation does not result, if refusal to serve in said armed forces is punishable criminally ( citing Matter of Podea , 56129/480 , February 28, 1944 , Adjudications Office ) ." In both this decision of the Assistant Commissioner in 1944 and the

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petitioner has now sustained the burden of proving that his military service in 1941 was under duress. He has affirmatively established and sustained by evidence the credibility of his defense . Thus, we conclude that the motion for reconsideration should be granted and we, therefore, find that petitioner's visa petition in behalf of his wife and alien children should be approved. Order: It is hereby ordered that the motion be granted and the visa petition approved. BEFORE THE BOARD

(January 27, 1950 )

Discussion : This case is before us on appeal from a decision of the Assistant Commissioner dated July 15, 1949, directing that the petition be denied. Petitioner filed a petition for nonquota status under section 4 (a) , act of 1924, for his wife and 6 children (4 sons, aged 13, 11 , 7, and 5 , and 2 daughters, aged 9 and 6) . The Assistant Commissioner found that petitioner had expatriated himself under section 2, act of 1907, by taking an oath to the King of Italy while serving in the Italian Army during 1931 and 1932 and therefore the beneficiaries were not entitled to nonquota visas. Petitioner was born in Italy in 1902 and entered the United States on August 23, 1923, aboard the S. S. Conte Verde. He was naturalrecent

court decision by Judge Augustus Hand (Podea v. Acheson, C. A. 2, January 10, 1950 ) ( 179 F. ( 2d ) 306 ) , this contention was disregarded and did not serve as the basis for the determination that Podea retained his United States citizenship. The court concluded that Podea was not expatriated under either sec. 2 of the 1907 act or sec. 401 ( c ) of the Nationality Act of 1940, since his acts were not voluntary but "were required by the situation in which he found himself and were primarily caused by the erroneous advice of the State Department and were fartherest from his real purpose." (2 ) Counsel also stated that under Italian law, petitioner was considered an Italian citizen and compelled to serve. In view of the provisions of art. 8 of the Italian Nationality Law of 1912 ( entitled "Loss of Citizenship” ) and petitioner's naturalization in 1929, petitioner's acquisition of United States citizenship was recognized at the time he performed military service in Italy and he was not then regarded as an Italian citizen. However, because petitioner was 27 years old at the time he relinquished his Italian citizenship, his liability for military service in Italy had already accrued and the State Department has had occasion to state that military service obligations which accrue prior to foreign naturalization of Italian citizens are enforced upon the person's later return to Italy. (3 ) Counsel contends that the Matter of S (VP-385381 , August 3, 1949 ) (3, I. & N. Dec. 701 ) controls the present appeal. It is our opinion that counsel has extended the ruling in that case beyond the boundaries indicated by us. Futhermore, the existence of a draft law in a given case is only one of the factual elements to be considered, not the sole factor involved. Ropers v. Shaughnessy ( S. D. , N. Y. , November 9, 1949) .

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ized on September 23, 1929, in the District Court for the Eastern District of Michigan. On September 4, 1931 , petitioner departed for Italy to visit his parents ; he alleges that he planned to stay only a year's time, but before leaving he closed out his bank account of $500 and left no property in this country. Petitioner testified that 2 weeks after his arrival in Salemi ( Sicily) , the Italian Police served him with an induction notice (they had allegedly been awaiting his return since 1924, when he became liable for military service ) and took him to the military center. Petitioner stated that he protested to the military authorities that he was a United States citizen, but not to the American consul. He was inducted into the Italian Army on October 1 , 1931 , and served until October 1, 1932. According to Italian law, the oath of allegiance is administered 3 months after induction and all inductees are required to take it. However, petitioner stated that he did not take the oath to the King of Italy, but pretended to be sick with a nervous stomach and was later punished for his nonattendance ; two of his fellow soldiers stated in affidavits that petitioner did not take the oath. Petitioner testified that he wrote his father to protest his induction to the Italian Ministry of War ; no proof of this protest has been produced . Petitioner was home on furlough from December 23 to January 1 , but failed to contact the American consulate ; petitioner explained that he was under the impression that the consulate was closed for the holidays . In September 1933, he was married and in December 1933 , he obtained a renewal of his United States passport ; petitioner failed to reveal his service in the Italian Army to the American consul · at Palermo. About this time, petitioner opened a perfume shop in Salemi, which was allegedly run by his wife due to his illness with a nervous stomach condition ; petitioner stated that he suffered from this stomach condition while in the Army and was thus prevented from returning to the United States because of it. On March 1 , 1941 , petitioner was recalled by the Italian Army and served until October 1 , 1941. Petitioner testified that he protested at the American consulate at Palermo, where he was allegedly told that the best thing to do was to serve ; petitioner also testified that he protested to the Italian military authorities, but was reportedly told that if he refused to serve he would be arrested and his family sent to a concentration camp. On October 18 , 1944, petitioner made application for registration as a United States citizen and also applied for a United States passport ; at that time, petitioner failed to disclose that he had served in the Italian Army and was granted a passport on June 15 , 1946. Petitioner returned to this country on July 16, 1946, arriving at New York aboard the S. S. Vulcania. According to the provisions of section 2 of the act of March 2 , 1907 , a native -born citizen is expatriated upon taking an oath of allegiance

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to a foreign state, if that oath is taken voluntarily. In the instant case, however, the evidence indicates that petitioner did not take an oath of allegiance in 1931 , as an incident to his year's military service, and he is not considered as having expatriated himself on that occasion . In re Gogal, 75 F. Supp . 268 (W. D. , Pa. , 1947 ) ; Matter of C— , VP-361035 (April 22, 1949 ) . Thereafter, although petitioner had adequate opportunity to leave Italy if he sincerely desired to do so , but instead he went into business in Salemi and, with war clouds threatening all over Europe , deliberately placed himself in a position to be recalled to duty in the Italian Army. And petitioner again served in the Italian Army for 7 months in 1941. On the basis of the facts. of record, petitioner's claim that this military service was under duress has not been established (Podea v. Marshall, 83 F. Supp . 216 ( E. D.. N. Y. , 1949 ) ; Matter of R— , A-7142292 ( October 21 , 1949 ) ) . Thus , petitioner lost his citizenship by virtue of military service in 1941 (sec. 401 ( c ) , Nationality Act of 1940 ) . The burden of proving citizenship is on petitioner in a visa petition proceeding. Hence, it must be shown that extraordinary circumstances amounting to true duress existed at the time of the military service in 1941 (Doreau v. Marshall, 170 F. ( 2d ) 721 ( C. A. 3, 1948 ) ) . The present case does not parallel Matter of S- , VP-385381 ( August 3, 1949 ) (3 , I. & N. Dec. 701 ) , as counsel suggests, since the cases are clearly distinguishable on the facts. Matter of C— , VP-361035 (April 22, 1949 ) (3 , I. & N. Dec. 586 ) is not controlling in the instant case, for in the C case more affirmative evidence was presented , which was found to be sufficient to negative a finding of expatriation . Therefore, since the period of military service in 1941 was not shown . as occurring under duress, it is concluded that petitioner expatriated himself.by voluntarily acting in a manner inconsistent with his American citizenship . (Savorgnan v. United States, 171 F. ( 2d ) 155 (C. A. 7, 1949 ) ; Podea v. Marshall (supra) . ) Order : It is hereby ordered that the appeal be dismissed. Editor's note. In a letter to the Secretary of State dated November 1, 1950, from the Chairman of the Board of Immigration Appeals, in connection with the above case, the following appears : "You ask to be advised as to the nature of the evidence which was submitted to the Immigration and Naturalization Service for the purpose of showing that Mr. G's service in the Italian Army from October 1 , 1931 , to October 1, 1932, was performed involuntarily. You also state that with reference to the second period of service from March 1 , 1941, to October 1 , 1941, it appears that no evidence was submitted other than the petitioner's testimony to the effect that he protested to the American consul at Palermo, who informed him that the best thing to do was to serve and that he thereafter protested to the Italian authorities but was told that if he failed to serve he would be arrested and his family sent to a concentration camp. "The Board found that the evidence did not establish that petitioner took an oath of allegiance in connection with his military service in the Italian Army

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in 1931 , as required by sec. 2 of the act of March 2, 1907, upon which to predicate expatriation of his American citizenship, or that the second period of service was voluntary. "The evidence established that Mr. G was born in Italy in 1902 and was admitted to the United States for permanent residence on August 23, 1923 ; that he was naturalized in this country on September 23, 1929. On September 4, 1931 , he departed for Italy to visit his parents. His testimony indicated that two weeks after his arrival in Italy, he was served with notice of induction into the military service and he was taken to the military center. He testified that he protested to the Italian military authorities against service in the Italian Army on the ground that he was a citizen of the United States but not to the American consul. Nevertheless he was inducted into the Italian Army on October 1 , 1931 , and served until October 1 , 1932. "According to Italian law in such cases, the oath of allegiance is administered approximately 3 months after induction and all inductees are required to take such an oath. Mr. G— , however, testified that he did not take an oath to the King of Italy but pretended to be ill and was later punished for his nonattendance. "Mr. G also deposed in a sworn affidavit that in connection with the second period of military service, he protested to the Italian military authorities displaying his United States passport but this action was of no avail and he subsequently protested to the American consul with the result already stated ; that with respect to his second period of service the Italian military authorities went to his home and insisted that he report for service ; that as a result of such enforced military service he became seriously ill and was hospitalized in the military hospital. "In a sworn statement by S- P , it is stated that : " GS of the deceased I- and of M—— , M—— , arrived as effective military to the 23d Infantry Regiment, Como Brigade, October 5 , 1931 , and at the taking of the oath, November 4, did not want to participate because he was an American citizen, and was severely punished. The military service class of 1910 was completed in 18 months, beginning April 1931 to November 1932, whereas G completed 12 months beginning October 5, 1931 to October 1, 1932.' "In another sworn statement by V- C , it is stated : " I, the undersigned C- V son of the deceased G- and of C- M- born at Salemi on February 18, 1911 , and presently residing in Fontanbianca, declare under my own personal responsibility that I was a fellow soldier of the 4th Regiment Infantry at Gorizia, with G , S , son of the deceased I—- of and of M , M ; That Mr. G- did not take the oath in the Italian army. Salemi, September 7, 1949.' "As you know, the court in the case of Dos Reis ex rel. Camara v. Nicolls, 161 F. (2d ) 860, ruled that a person who is a citizen of the United States and also a citizen of a foreign state loses his United States citizenship under the provisions of sec. 401 ( c ) , Nationality Act of 1940, only if his entry or service in a foreign army is voluntary. "Also , in the case of Bussa v. McGrath, decided by the United States District Court, Northern District of New York, on March 18, 1950, which involved the question whether Bussa lost his United States citizenship by reason of his continued residence in the country of his birth, the court ruled that he did not even though Bussa was the only witness in his behalf. The court accepted his explanations of his reasons why he remained in the country of his birth and why he participated in certain actions ordinarily inconsistent with retention of his American citizenship.

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"In Petition of Nicola Lo Pomo (Petition for Nat. No. 191736 ) decided by the United States District Court, Eastern District of Pennsylvania, on June 7, 1950, the petitioner was born in the United States and taken to Italy by his parents in August of 1928, where he remained until October 25, 1948, when he returned to the United States. During his stay in Italy he was inducted into the Italian Army on May 11 , 1937, and discharged August 18, 1938, reinducted September 4, 1939, demobilized in September 1943, and finally discharged on March 4, 1944. He took oath of allegiance about a month after his induction. In November 1933 he applied for an American passport and asked to be returned to this country, he then being without funds. This was found to be impracticable. He registered at the American Consulate in Naples, Italy, as an American citizen in 1938, 1942, and 1944, and applied for a passport but passport was denied on the ground that he became expatriated by taking an oath of allegiance to Italy after reaching majority. "The court pointed out that the record established that petitioner offered no protest with respect to either induction or the taking of an oath . The record also contained statement by petitioner that such service was against his will. The court pointed out that under conditions then existing in Italy protest would have been futile and also protest under existing conditions would have resulted in reprisals and punishment. The court found that service and oath by petitioner were against his will. Citing Dos Reis ex rel. Camara v. Nicolls, 161 F. (2d ) 860. "Thus, on the basis of the uncontroverted evidence submitted in this case, together with the fact that in each instance, G― was inducted into the Italian Army, and the circumstances surrounding the service, together with the further fact of conditions existing in Italy at that time, and in the light of court rulings in substantially similar circumstances, the Board felt that its decision was justified beyond any question."