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IN RE BALSAMO

United States District Court, Northern District of Illinois, E. D


November 20, 1969

IN THE MATTER OF THE PETITION FOR NATURALIZATION OF FRANK BALSAMO.

The opinion of the court was delivered by: Perry, District Judge.

DECREE

This cause comes on to be heard upon the Petition for Naturalization of Frank Balsamo, a hearing thereon, and the Findings of Fact, Conclusions of Law and Recommendation of the designated Naturalization Examiner.*fn*

The court having considered said Findings of Fact and Conclusions of Law and Recommendation does hereby adopt, ratify and confirm the same haec verba.

Now, therefore, it is hereby ordered, adjudged and decreed that the Certificate of Loss of Nationality, issued to Frank Balsamo pursuant to Section 404(a) of Chapter IV of the Nationality Act of 1940, be and the same is hereby declared null and void ab initio and said Frank Balsamo is hereby decreed to be a naturalized citizen of the United States of America now and at all times since December 16, 1926 and is therefore ineligible to again be naturalized.

APPENDIX

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN
  DISTRICT OF ILLINOIS

Petition for Naturalization }
            of              }
        FRANK BALSAMO       }

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION OF
  DESIGNATED NATURALIZATION EXAMINER

TO THE HONORABLE, THE JUDGES OF THE UNITED STATES DISTRICT
  COURT FOR THE NORTHERN DISTRICT OF ILLINOIS:

1. The undersigned, duly designated under the Immigration and Nationality Act to conduct preliminary examinations upon petitions for naturalization, respectfully submits that the above named petitioner, a 69-year-old native and national of Italy who was lawfully admitted to the United States for permanent residence on June 5, 1957, filed the petition for naturalization referred to above on January 4, 1966, under the provisions of Section 316(a) of the Immigration and Nationality Act (8 U.S.C. § 1427).

The question presented is whether the petitioner is a United States citizen, the question arising by reason of the fact that he was naturalized in the Circuit Court of Cook County at Chicago, Illinois during 1926, subsequently returned to Italy, and, by protracted residence there, automatically reacquired Italian nationality.

2. The undisputed facts are as follows. Petitioner, born in Italy on March 25, 1900, first entered the United States on May 27, 1920. He was naturalized on December 16, 1926, and, after becoming a citizen, he returned to Italy on several occasions.

Initially, he, his wife, and his two children, who had been born in the United States in 1928 and 1930, respectively, went to Italy in April 1936. His wife and children remained there, but he came back to the United States in about February 1938. Then, in April 1938, he rejoined his family in Italy. In 1952, after 14 years in Italy, petitioner decided to return to the United States and applied to the United States Consulate in Palermo for a passport. The application, however, was rejected, and the Department of State issued a Certificate of Loss of Nationality, advising him that he had lost his United States citizenship in accordance with the provisions of Section 404(a) of Chapter IV of the Nationality Act of 1940 by residing for over two years in Italy, a foreign state of which he was formerly a national, and by reacquiring through such residence the nationality of such foreign state by operation of Italian law.

Some four years thereafter, petitioner chose to immigrate to the United States, obtained a permanent resident's visa, and presented it when he entered this country on June 5, 1957. Then, on March 23, 1958, he went back to Italy, returned to the United States on December 27, 1958, went back to Italy again during April 1960, returned to this country on September 5, 1961, and has remained here continuously since the latter date.

On January 4, 1966, he filed his petition for naturalization with the Court. When asked during an examination conducted in accordance with 8 U.S.C. § 1446 why he had remained abroad for such prolonged periods, he explained that he returned to Italy in 1936 to visit his parents; that he went back in 1938 to visit his wife and children and remained abroad because of his wife's death in 1942, and because of World War II; that his trip in 1958 was due to the death of his daughter; and that he returned to Italy in 1960 to recuperate from an illness. During the examination he also testified that when visiting Italy he did not intend to remain permanently; that he did not belong to any political parties; that he did not take an oath of allegiance; that he did not serve in the armed forces; that he was not employed by the Italian Government; that he did not vote in any political elections; that he did not formally renounce his United States citizenship; and that he did not intend to abandon or relinquish his United States citizenship.

Subsequently, on January 9, 1968, in answer to an inquiry from petitioner, the Department of State informed him that their prior decision that he had expatriated himself was reversed and that said Certificate of Loss of Nationality was void.

3. Section 2 of the Act of March 2, 1907, 34 Stat. 1228, provided 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 * * *."

Section 404 of the Nationality Act of 1940 (8 U.S.C. § 804), effective January 13, 1941, states:

  "A person who has become a national by
  naturalization shall lose his nationality by:

    (a) Residing for at least two years in the
    territory of a foreign state of which he was
    formerly a national or in which the place of
    his birth is situated, if he acquires through
    such residence the nationality of such foreign
    state by operation of the law thereof; or

    (b) Residing continuously for three years in
    the territory of a foreign state of which he
    was formerly a national or in which the place
    of his birth is situated, except as provided in
    section 406 hereof;

    (c) Residing continuously for five years in any
    other foreign state * * *."

Article IX of the Italian Nationality Law of June 13, 1912 provided:*fn1

  "If a person has ceased to be an Italian
  citizen * * * he may recover Italian citizenship
  if he:

    (3) Having ceased to be an Italian citizen
    owing to the acquisition of foreign
    citizenship, has been resident in the kingdon
    for two years."

The petitioner, born in Italy, was a citizen of that country at the time of his birth. He lost this nationality, however, when he became a citizen of the United States on December 16, 1926.*fn2 Then, in April 1940, two years after he returned to Italy, he reacquired Italian citizenship in accordance with Article IX (3) of the Italian Nationality Law of June 13, 1912, supra,*fn3 and by such residence and reacquisition of Italian nationality brought himself squarely within the expatriating provisions of Section 2 of the Act of March 2, 1907, supra, and Section 404(a) of the Nationality Act of 1940, supra.

Although initially it seems reasonably clear that petitioner lost his United States citizenship by reacquiring Italian nationality, the issue is far from settled because of two recent Supreme Court decisions: Schneider v. Rusk,*fn4 and Afroyim v. Rusk.*fn5

We turn first to Schneider v. Rusk. That case involved Section 352(a)(1) of the 1952 Act,*fn6 a statutory provision which is almost identical to Section 404(b) of the Nationality Act of 1940, supra. The pertinent part of Section 352 provides:

  "(a) A person who has become a national by
    naturalization shall lose his nationality by
    —

    (1) having a continuous residence for three
    years in the territory of a foreign state of
    which he was formerly a national or in which
    the place of his birth is situated, except as
    provided in section 353 of this title, whether
    such residence commenced before or after the
    effective date of this Act * * *."

The Supreme Court, however, in Schneider, held this statutory provision unconstitutional and declared that Congress could not properly restrict the freedom of naturalized citizens to reside abroad.

The Court said:*fn7

  "* * * A native-born citizen is free to reside
  abroad indefinitely without suffering loss of
  citizenship. The discrimination aimed at
  naturalized citizens drastically limits their
  rights to live and work abroad in a way that
  other citizens may. It creates indeed a
  second-class citizenship. Living abroad, whether
  the citizen be naturalized or native born, is no
  badge

  of lack of allegiance and in no way evidences a
  voluntary renunciation of nationality and
  allegiance. It may indeed be compelled by family,
  business, or other legitimate reasons." (Emphasis
  added)

Then, faced with the question of whether a United States citizen could constitutionally be deprived of his citizenship under Section 401(e) of the Nationality Act of 1940*fn8 by voluntarily voting in a foreign political election, the Supreme Court, in Afroyim v. Rusk, overruled its prior decision in Perez v. Brownell,*fn9 established an important new principle in the law of expatriation, and held that since the Fourteenth Amendment describes citizenship as that "which a citizen keeps unless he voluntarily relinquishes it", Congress may not forcibly expatriate a citizen. Justice Black, writing for a 5-to-4 divided court, stated:*fn10

  "* * * Citizenship is no light trifle * * *. The
  very nature of our free government makes it
  completely incongruous to have a rule of law
  under which a group of citizens temporarily in
  office can deprive another group of citizens of
  their citizenship. We hold that the Fourteenth
  Amendment was designed to, and does, protect
  every citizen of this Nation against congressional
  forcible destruction of his citizenship, whatever
  his creed, color, or race. Our holding does no more
  than to give to this citizen that which is his own,
  a constitutional right to remain a citizen in a
  free country unless he voluntarily relinquishes
  that citizenship." (Emphasis added)

But the Court in Afroyim expressly invalidated only Section 401(e) of the Nationality Act of 1940,*fn11 did not rule upon the constitutionality of other expatriating provisions, and did not state what declarations or other conduct constitutes a voluntary relinquishment or abandonment of citizenship. The problem is spelled out clearly by Justice Harlan speaking for four members of the Court in his dissenting opinion:*fn12

  "It is appropriate to note at the outset what
  appears to be a fundamental ambiguity in the
  opinion for the Court. The Court at one point
  intimates, but does not expressly declare, that
  it adopts the reasoning of the dissent of The
  Chief Justice in Perez. The Chief Justice there
  acknowledged that `actions in derogation of
  undivided allegiance to this country' had `long
  been recognized' to result in expatriation, id.,
  at 68 [78 S.Ct. at 581]; he argued, however, that
  the connection between voting in a foreign
  political election and abandonment of citizenship
  was logically insufficient to support a
  presumption that a citizen had renounced his
  nationality. Id., at 76 [78 S.Ct. at 586]. It is
  difficult to find any semblance of this
  reasoning, beyond the momentary reference to the
  opinion of The Chief Justice, in the approach
  taken by the Court today; it seems instead to
  adopt a substantially wider view of the
  restrictions upon Congress' authority in this
  area. Whatever the Court's position, it has
  assumed that voluntariness is here a term of
  fixed meaning; in fact, of course, it has been
  employed to describe both a specific intent to
  renounce citizenship, and the uncoerced
  commission of an act conclusively deemed by law
  to be a relinquishment of citizenship. Until the
  Court indicates with greater precision what it
  means by `assent,' today's opinion will

  surely cause still greater confusion in this area
  of the law."

The ultimate question that must be resolved, therefore, is whether petitioner's protracted residence in Italy after automatically reacquiring citizenship of that country constitutes a voluntary renunciation or relinquishment of United States citizenship resulting in expatriation under Section 2 of the Act of March 2, 1907, supra, or Section 404(a) of the Nationality Act of 1940, supra.

First of all, it is clear from an examination of the case law that reacquisition of Italian citizenship is a naturalization within the scope and meaning of the expatriation statutes,*fn13 and that "* * * Nearly all sovereignties recognize that acquisition of foreign nationality ordinarily shows a renunciation of citizenship * * *"*fn14 but it is equally clear that petitioner could not have lost his United States citizenship under Section 2 unless, prior to January 13, 1941, the date the Act of 1907 was repealed, he performed an affirmative voluntary act clearly manifesting a decision to accept the Italian nationality automatically reacquired by operation of law.*fn15 The record discloses that petitioner performed no such act.

Further, applying the rationale of the Schneider decision, that "Living abroad, whether the citizen be naturalized or native born, is no badge of lack of allegiance and in no way evidences a voluntary renunciation of nationality and allegiance * * *", and applying the rationale of the Afroyin decision,*fn16 that a citizen has "* * * a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship * * *", it is concluded that petitioner, by automatically reacquiring Italian citizenship and by his voluntary protracted residence in that country did not, by such conduct, or by any other declaration or act, voluntarily abandon or relinquish his United States citizenship under either of the expatriation statutes in question.

Accordingly, I find that petitioner, having been naturalized on December 16, 1926, is a citizen of the United States; that he did not expatriate under Section 2 of the Act of March 2, 1907 or under Section 404(a) of the Nationality Act of 1940; that he has failed to establish alienage or non-citizen nationality of the United States; and that he is, therefore, ineligible for naturalization.

4. Pursuant to the provisions of Section 335 of the Immigration and Nationality Act (8 U.S.C. § 1446), I hereby make the following findings of fact and conclusions of law:

Findings of Fact:

  (a) That the petitioner was born in Italy on
    March 25, 1900;

  (b) That the petitioner was naturalized in the
    Circuit Court of Cook County at Chicago,
    Illinois on December 16, 1926;

  (c) That the petitioner returned to Italy during
    1938 and voluntarily

    remained there continuously until at least
    1952;

  (d) That the petitioner, during his resumed
    residence in Italy, did not belong to any
    political parties, did not take an oath of
    allegiance to Italy, did not serve in the armed
    forces, was not employed by its government, did
    not vote in a political election, did not
    formally renounce his United States
    citizenship, and did not intend to relinquish
    or abandon his United States nationality.

Conclusions of Law:

  (a) That the petitioner was a national of Italy
    at the time of his birth;

  (b) That the petitioner lost his Italian
    nationality when he was naturalized in the
    Circuit Court of Cook County at Chicago,
    Illinois on December 16, 1926;

  (c) That the petitioner automatically reacquired
    Italian nationality during April 1940, two
    years after he returned there;

  (d) That the petitioner did not lose his United
    States citizenship under Section 2 of the Act
    of March 2, 1907, under Section 404(a) of the
    Nationality Act of 1940, or under any other
    provision of the expatriation laws;

  (e) That the petitioner is a citizen of the
    United States and thus ineligible for
    naturalization.

5. I recommend that this petition for naturalization be DENIED on the ground that the petitioner has failed to establish alienage or non-citizen nationality of the United States, and is thus ineligible for naturalization.

Respectfully submitted,

            (s) Harold W. Calhoun
            ---------------------
    Designated Naturalization Examiner

Nov. 13, 1969
 -------------
      Date


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