Matter of M-

Cite as 6 I&N Dec. 590

IN THE MATTER OF M-

In VISA PETITION Proceedings

VP 2-14046

Decided by Board May 16, 1955 Expatriation-Italian Law of June 13, 1912—Naturalized citizen formerly of Italian nationality -Dual nationality status of minor child-Timely return to United States under Section 401 (a) of Nationality Act of 1940.

(1) Italian nationality was reacquired under the Italian Nationality Law of June 13, 1912, by naturalized United States citizen, in 1914, following two years' residence in Italy, acceptance of Italian nationality being manifested in 1928 by applying for and receiving Italian identity card.

(2) Reacquisition of Italian nationality by naturalized United States citizen in 1914, following two years' residence in Italy, acceptance of Italian nationality being manifested in 1928 by applying for and receiving Italian identity card, operated to confer Italian nationality upon his minor United States citizen child in 1914, thereby making her a dual national of Italy and the United States.

(3) Where adult dual national of the United States and Italy first applied for a United States passport in April 1948, after having resided in Italy continuously since 1910, and made no effort to come to the United States during the period May 1945 to March 1948 when she was free to do so, she lost her United States citizenship under section 401 (a) of the Nationality Act of 1940. BEFORE THE BOARD

Discussion : Appeal from the order of the district director denying the application of M for a nonquota visa for her husband, a native and resident of Italy. The appeal must be dismissed. The petitioner's father was naturalized in the United States in October, 1882. She was born in the United States on October 19, 1898. About August, 1909, petitioner and her mother went to Italy to reside and her father followed the next year. Her parents remained in Italy. She returned to the United States in May, 1950, when she was admitted as a citizen. The district director has found that the petitioner became ex- patriated under section 401 (a) of the Nationality Act of 1940 because she acquired Italian nationality upon her father's reacquisition of Italian nationality and because she thereafter failed to reestablish her permanent residence in the United States prior to January 13, 1943 .

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Cite as 6 I&N Dec. 590

Three issues are presented by this appeal : One, whether the petitioner's father became expatriated, two, if so, whether the petitioner was required to return to the United States, and three, whether, if required to return, she did so within the time provided by law. The State Department has issued a certificate stating that the petitioner's father lost United States citizenship under the act of 1907 by reacquiring Italian nationality under the Italian Nationality Law of June 13, 1912, by returning to Italy in 1910 and residing there for two or more years, and manifesting acceptance of such naturalization by applying for, and in 1928 receiving, an Italian card of identity describing him to be an Italian national. The Department of State has also furnished a copy of a letter written by the American Consulate at Leghorn, Italy, on August 9, 1935, which adds the following information on the question of the acceptance of Italian nationality by petitioner's father: It appears when the father left the United States in 1910 he disposed of all of his property in that country; that in 1911 he purchased in Italy an establishment consisting of a dwelling and a small paper mill; that from the time of purchase until his death in 1928, the father lived in the dwelling and operated the papermill; that the father's wife resided with him from 1910 until the time of his death and is still residing in Italy; that the father did not during the period of his last residence in Italy ever take any step to register as an American citizen or to apply for a passport, and that none of the father's three children ever took any such step until the son, A , applied for a passport at the Consulate at Leghorn on March 15, 1935. It is thus clear that petitioner's father became an Italian citizen in 1914. Prior to her father's reacquisition of Italian citizenship, petitioner was a minor and a citizen only of the United States. She did not acquire Italian nationality at birth because the Italian Civil Code then provided :

before the child's birth is considered a foreigner ( Article 6, Civil Code of June 25, 1865 ) . By reason of her father's reacquisition of Italian nationality in 1914, petitioner became an Italian national and for the first time acquired a nationality other than that of the United States, as of 1914 she was a dual national (Matter of M—, A-8106492, Int. Dec. No. 630) . Under the Nationality Act of 1940, which applies here, one like petitioner who is a dual national of the United States not at birth, but by reason of a naturalization which occurred after acquisition of United States citizenship was required to elect between the two nationalities within a period fixed by law (Dulles V. Iavarone, 221 F. (2d) 826 ( C.A. D.C., 1954) , ex- plaining Mandoli v. Acheson, 344 U.S. 133, and holding wrongly

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Cite as 6 I&N Dec. 590

decided, Gaudio v. Dulles, 110 F. Supp. 706, D.C., contra; Application of Bernasconi, 113 F. Supp. 71, N.D. Calif. ) . Those such as petitioner, who had reached majority prior to the effective date of the Nationality Act of 1940, were given two years from January 13, 1941, to make application to return to the United States under the penalty of forfeiting United States citizenship if they failed to so do (Dulles v. Iavarone, supra; Perri v. Dulles, 206 F. (2d) 586 ( C.A. 3, 1953) ) . There is strong authority for the rule that the two-year period did not run out on January 13, 1943, in cases where circumstances beyond the control of the individual-such as war-made it physically impossible for the individual to return by January 13, 1943 ; in such an event, there must have run a period totaling at least two years within which it was possible for the individual to have returned to the United States before expatriation can occur (Perri v. Dulles, ( supra ) ; Peduzzi v. Brownell, 113 F. Supp. 419, D.C.; contra, Mastrocola V. Acheson, 105 F. Supp. 580, S.D. N.Y.; Gaudio v. Dulles, (supra) , criticized, Dulles v. Iavarone ( supra) ; and Peduzzi v. Brownell, (supra) , which also criticizes Mastrocola, (supra) ) . Assuming, arguendo, that the liberal construction of the courts should apply, the following situation would have existed. Petitioner, a dual national by reason of an act which occurred after her acquisition of American citizenship, was required to make an election between the two nationalities. By statute she was required to return to the United States by January 13, 1943, if she desired to retain United States citizenship. From January 1941 to June 30, 1941, the American consulates in Italy were open and she could have made arrangements to return. For the remaining 18 months of the two-year period, the American consulates in Italy were closed because of the war and it was with rare ex- ceptions not possible to depart from Italy (Peduzzi v. Brownell, (supra) ) . The American consulates reopened in Northern Italy in May 1945, and earlier in Southern Italy (Peduzzi v. Brownell, (supra) ) . The petitioner could, therefore, have applied for a passport to return to the United States in May 1945. Six months of the period within which she could have returned had already passed. She therefore had 18 months after May 1945 within which she could make application to return to the United States to pre- serve her United States citizenship. This would bring us to December 1946. She did not apply for a passport until April 1948. This was too late (Peduzzi v. Brownell, (supra) ; Application of Bernasconi (supra) ; Mastrocola v. Acheson, (supra ) ) . As to the steps taken to return to the United States, petitioner has furnished the following information. In 1940 she went to the

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Cite as 6 I&N Dec. 590

American consulate and was told she need not do anything to protect her United States citizenship. She stated she had not informed the consulate that her father had been naturalized in the United States because at the time she did not know this was so. She stated she had tried to get a birth certificate since 1947 and that in April 1948 she first applied for a passport and was told to return when she had received her birth certificate. She obtained her birth certificate the following month and registered for a passport. The State Department has furnished us with the information that she made application for registration as a United States citizen on May 19, 1948, at the consulate at Florence, Italy. The petitioner stated her application was approved in September 1949 and the record reveals that she obtained her passport on February 20, 1950, at Florence, Italy. Accepting the most liberal interpretation possible, we must hold that her failure to make application to return to the United States within the two-year period during which she could have freely done so subjected her to the loss of United States citizenship under the provisions of section 401 (a) , (supra) . The petitioner seeks to excuse her failure to return to the United States on the ground that she was compelled to remain in Italy by the ties of duty. She states she was compelled first to care for her sick father and after his death in 1929 for her invalid sister who had suffered a paralytic stroke in 1913 and who died in 1943. There is attached to the file, a certificate from an Italian physician stating that the petitioner's father was bedridden and that he died in 1929; that the petitioner was in attendance upon him ; the petitioner's sister had been stricken in 1913 and until her death in 1943 was permanently attended by her sister, the petitioner. Assuming, arguendo, that the petitioner's stay in Italy to care for the immediate members of her family, made her stay involuntary and such a stay would prevent her expatriation under section 401 ( a) , ( supra) , we do not believe that the petitioner has made out a case. From May 1945, respondent was free to come to the United States. Within the two-year period following May 1945, she made no effort to come to the United States. Her first application for such purpose was filed with the American consulate about three years after she was free to come. It was not filed in time. The petitioner has not established her right to the issuance of a nonquota visa. The appeal must be dismissed. Order: It is ordered that the appeal be and the same is hereby dismissed.

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