\ slb \ SERVICE LAW BOOKS MENU \ INTERPRETATIONS \ Interpretation 349.2 Expatriation by foreign naturalization.
Previous Document Next Document
Expatriation by foreign naturalization
Before Afroyim v. Rusk.
Effect of Afroyim v. Rusk.
Before Afroyim v. Rusk
Prior to March 2, 1907
Generally and through a citizen husband's resumption of foreign nationality
. Until the enactment of the legislation of March 2, 1907,
the statutes made no provision for expantriation
through naturalization under the laws of a foreign state. However, such foreign naturalization was stated to be the highest form in which the inherent right of expatriation
could be exercised, and it was said to result in loss of United States citizenship despite the absence of statutory sanction.
Thus, where a citizen husband renewed residence in the foreign state of his birth prior to March 2, 1907 under circumstances which caused him to be regarded as having renounced (lost) his United States citizenship under a treaty between the United States and the foreign state, and which also resulted in his resumption of the foreign state's nationality under its laws, it was held that his United States citizen wife lost her citizenship by foreign naturalization prior to March 2,1907 when she resided with
the husband in the foreign statebefore such date, and, under its law, acquired its nationality by reason of her husband's resumption thereof.
The effect of Afroyim v. Rusk upon these nonstatutory situations is considered in INTERP 349.2(b)(1), infra.
Restrictions upon expatriation
. Influenced by implications of the Attorney General's opinion of 1873,
and certain earlier court cases.,
administrative authority took the position that the establishment of a domicile in the country of foreign naturalization was a prerequisite to loss of nationality. Thus, one who accepted foreign naturalization while within the Untied States did not undergo expatriation, until residence was established abroad.
Moreover, lacking statutory guidance prior to the statute of March 2, 1907, it was an open question as to whether or not loss of nationality could have occurred in this manner during wartime.
Despite the absence of statutes, however, it was generally held that minority precluded expatriation, since at common law, an infant lacked capacity to commit a juristic act.
March 2, 1907 - January 12, 1941, inclusive; voluntary application
. The statutory provision which was in effect during this period, section 2 of the Act of March 2, 1907,
declared simply, but in general terms, that expatriation would result when a citizen has been "naturalized in any foreign state in conformity with its laws." Obviously, therefore, where the law of a foreign state provided for naturalization in the usual or normal manner; i.e., by judicial or other official proceedings pursuant to a voluntary application for citizenship, and the applicant was thereafter naturalized in such proceedings, expatriation occurred under 1907 statute. Moreover, United States citize
nship was lost even though the applicant did not desire or intend to relinquish such status. The extent to which this rule has been modified by
is considered in INTERP 349.2(b)(2)(i), infra.
March 2, 1907 - January 12, 1941, inclusive; involuntary application
Origin of concept
. The generality of the language used in section 2 of the Act of March 2, 1907,
not only assured the expatriative effect of foreign naturalization accomplished in the usual manner, as noted in paragraph (2) above, but it also allowed for the possibility that foreign nationality acquired in other ways during the stated period might be considered a "naturalization" for purposes of the section. Furthering such thought was the failure of this early legislation to define "naturalization," a term which was then broadly stated by the courts to mean the act of adopting a foreigner and clothin
g him with the privileges of a native citizen.
Conceivably, under such an interpretation, persons acquiring foreign nationality without any form of application, consent, or even knowledge, through the automatic operation of foreign statutes or treaties, could have been regarded as having been "naturalized" and, therefore, as having been expatriated under section 2.
It must be evident, however, that to have accepted the viewpoint to the established concept that expatriation must flow from voluntary action. Yet to have denied the benefits of foreign statutes or treaties to one who wished to claim the foreign nationality bestowed thereby and abandon United States citizenship, would have constituted and infringement of the principle that expatriation is an inherent right. As a result of this conflict of ideas, there emerged the theory that "naturalization" within the mean
ing of section 2, and expatriation based thereon, could result from the involuntary acquisition of a foreign nationality in the manner stated, provided the person affected subsequently indicated a voluntary acceptance of the foreign nationality by oral or written declaration, or overt act. The extent to which this concept and the related rules which follow have been modified by
is considered in INTERP 349.2(b)(2)(ii), infra.
Under Italian law; general rule
. Under Article 9 of the Italian nationality law of June 13, 1912 (effective July 1, 1912) a former Italian citizen automatically reacquires Italian citizenship after two years' residence in Italy, if Italian citizenship was lost by acquisition of a foreign nationality (i.e., U.S. citizenship). It has long been held that repatriation of a naturalized citizen of the United States in accordance with this foreign statute constitutes a "naturalization" within the meaning of section 2 of the Act of March 2, 1907
provided further affirmative action is taken by the repatriate evidencing a voluntary acceptance of Italian nationality.
Notwithstanding that reacquisition of Italian citizenship under Article 9 is conditioned upon original loss of Italian citizenship having occurred under the law of 1912, the Italian authorities nevertheless construe Article 9 as applicable to former Italian citizens who lost citizenship by foreign naturalization before the effective date of the law of 1912.
The validity of the above principle was confirmed by the Attorney General as recently as 1963,
at which time he reiterated that an overt voluntary act manifesting clearly and unambiguously a decision to accept a foreign nationality previously acquired by operation of law results in the loss of United States citizenship under section 2. While the citizen could have intended to relinquish his United States citizenship by accepting the Italian nationality, the said intent as such was not a required element.
A person who lost his Italian nationality by becoming a naturalized citizen of the United States was regarded as having expatriated himself by foreign naturalization pursuant to section 2 of the Act of March 2, 1907, when he resumed Italian citizenship under provisions of the Italian law
by performing voluntary military service in Italy as a member of the Italian armed forces.
Under Italian law; former retroactive rule to determine expatriation date
. Prior to 1962, it had been well established that, upon voluntary acceptance of Italian nationality reacquired after resumed residence in Italy for a two-year period, as in (ii) above, the completion of the two-year period, begun on or after July 1, 1912 (the effective date of the Italian nationality act), marked the date of expatriation,
even though the confirmatory act of acceptance occurred many years later; that if residence was resumed prior to July 1, 1912, loss of nationality occurred on July 1, 1914;
and that the act or acts evidencing acceptance could be performed during World War I
and when so performed expatriation related back to the prewar reacquisition of Italian nationality.
For these purposes, World War I extended from April 6, 1917, to July 1, 1921, inclusive.
Consistent with the above theory that the act of acceptance was retroactive in expatriatory effect was the further holding that, although the statutory loss of United States citizenship under this form of naturalization was necessarily limited to cases in which the foreign nationality was acquired before January 13, 1941,
the performance of the overt act or acts evidencing acceptance, and from which the conclusion of expatriation might be drawn, were not so limited and might occur either before, on, or after that date.
Under Italian law; present non-retroactive rule to determine expatriation date
. The Board of Immigration Appeals, in 1962, abandoned the retroactive rule for determining the date of expatriation as described in (iii) above, and ruled that henceforth expatriation should be held to have occurred on the date of the performance of the act of acceptance.
This shift in position was subsequently approved by the Attorney General.
Significantly, however, the Attorney General in voicing his approval of the new viewpoint expressed above added that expatriation might be found to have taken place as of the date on which the two-year period of resumed residence to reacquire his Italian citizenship.
Consistent with the non-retroactive rule for determining the date of nationality loss is the further current holding that, although the act or acts manifesting acceptance of Italian nationality may be performed during the World War I period, expatriation no longer relates back to the date of pre-war reacquisition of such nationality, as stated in (iii) above, but, as with foreign naturalization generally during such period, loss of nationality does not thereby become effective until July 2, 1921, by which d
ate the war had terminated.
Again, in line with the non-retroactive viewpoint, the Service now holds that, since the act in acceptance of Italian nationality is the final constituent element completing foreign nationalization within the meaning of section 2 of the Act of March 2, 1907,
and since, in pertinent part, said section 2 was repealed by the Nationality Act of 1940,
such act of acceptance is expatriatory under section 2 only if performed prior to January 13, 1941, the effective date of the 1940 enactment.
Citizenship status between resumption and acceptance of Italian nationality
. Under both the retroactive and non-retroactive rules for determining the date of citizenship loss, as in (iii) and (iv) above, the naturalized person was a dual national--a national of the United States and Italy-- during the interval between resumption of Italian nationality and the performance of an overt act manifesting its acceptance. So, too, were any of his United States citizen children who under Italian law acquired Italian nationality upon his resumption of that nationality, and their expatriatio
n could become complete by a voluntary choice of Italian nationality under the doctrine of election (see (xi) to (xvi), infra).
Evidence of acceptance, Italian nationality
. A voluntary expatriative acceptance of Italian nationality was held to have occurred when the repatriate disposed of all property in the United States and purchased a home and business in Italy where he resided with his wife and family for 18 years, during which time he applied for and received a card of identity as an Italian national, failed to register as a United States citizen, and never sought issuance of a United States passport.
A similar finding of expatriative acceptance of Italian nationality was based upon the act of voting in an Italian political election, coupled with the use of an Italian passport and voluntary membership in the Fascist Party;
and upon such party membership alone.
However, joining a Fascist organization solely for the purpose of engaging in business and obtaining food rations, when mandatory for such purposes, was not considered an overt act manifesting acceptance of Italian nationality since, under such circumstances, the action was not considered voluntary.
Under Yugoslavian law of September 21, 1928
. A native-born United States citizen woman, who acquired Serbian nationality by marriage to a Serbian national in 1902, under conditions not causing loss of United States citizenship,
who subsequently became a Yugoslavian national in 1928 under that country's law of September 21, 1928,
effective November 1, 1928, and who thereafter pursued a course of conduct which indicated a voluntary acceptance of such foreign nationality was considered as having been naturalized in a foreign state, and therefore expatriated under section 2 of the Act of March 2, 1907.
Under Yugoslavian Treaty of St. Germain-en-Laye
. Voluntary acceptance was found to exist and a finding of expatriation by foreign naturalization under section 2 of the Act of March 2, 1907, was entered, when Yugoslav nationality was acquired involuntarily under the Treaty of St. Germain-en-Laye, and a Yugoslav passport was thereafter solicited and used without a prior assertion of United States citizenship.
Under Irish Free State laws
. Citizenship of the Irish Free State acquired by automatic operation of that State's Constitution of December 6, 1922, if voluntarily accepted, is regarded as an expatriatory foreign naturalization within the meaning of section 2 of the Act of March 2, 1907. Similarly, a person who did not become a citizen of the Free State under the Constitution, but who subsequently acquired such citizenship automatically by operation of the Irish Nationality and Citizenship Act of 1935, was held to have expatriated upon
the same basis, when she accepted the nationality of the Irish Free State by voluntarily voting in the political elections of that State.
Under other foreign laws through citizen husband;s acquisition of foreign nationality
. Prior to September 22, 1922,
pursuant to section 2 of the Act of March 2, 1907, a married woman was regarded as having lost her status as a United States citizen by foreign naturalization, if she acquired the nationality of a foreign state by operation of its law as a result of her United States citizen husband's acquisition of such foreign nationality during subsistence of the marriage, and provided she established residence abroad with the husband prior to the 1922 date.
A rule similar to that set forth above also prevailed when the Untied States citizen husband acquired the foreign nationality on or after September 22, 1922, and before January 13, 1941,
provided the United States citizen wife voluntarily performed an overt act prior to the 1941 date, manifesting an acceptance of the foreign nationality and termination of allegiance to the United States.
Thus, when a United States national woman voted in a political election in Canada in 1933, after having acquired Canadian nationality through the naturalization of her citizen husband in 1928, expatriation followed.
However, when foreign nationality was conferred upon a United States citizen woman at the time of an by reason of marriage to an alien on or after September 22, 1922, and such woman subsequently, before January 13, 1941, voted in a foreign plebiscite under conditions approximating a voluntary acceptance of the foreign status, she was not regarded as having been expatriated by foreign naturalization pursuant to section 2 of the Act of March 2, 1907. The rationale of this decision recognized that expatriation
by marriage on and after September 22, 1922, while it could occur through March 2, 1931, under the 1922 statute, if the husband was an alien racially ineligible for naturalization, was expressly forbidden by the 1922 statute when the husband was an alien not within this racially barred grouping, unless the citizen wife executed a formal renunciation of United States citizenship before a naturalization court.
Under doctrine of election; origin of dual nationality
. The doctrine of election originated from the accepted concept that a person may have the nationality of two or more countries at birth, or may acquire an additional nationality subsequent to birth. For example, persons born in the United States of alien parents not only have United States nationality (at birth) jus soli, but also may be simultaneously vested with the foreign nationality of their parents, jus sanguinis; and, under like principles, persons born abroad of United States citizen parents may ha
ve similar duality of status at birth.
On the other hand, a person born abroad may subsequently become a United States citizen through his own or his parent's naturalization, and yet may still be claimed as a national by the foreign country of his origin; or, a foreign nationality may be conferred upon a United States citizen minor through his parent's acquisition or resumption of such foreign status by naturalization in various forms. As is evident, these situations involve the acquisition of dual nationality after birth.
Determinations as to whether or not a person has acquired and is vested with a foreign nationality, as described in the two preceding paragraphs, are governed by the laws of the foreign sovereignty involved, and sometimes treaties
to which the United States is signatory will be a material factor in such determinations.
Under doctrine of election; origin of doctrine (Perkins v. Elg)
. As early as 1875, the Attorney General of the United States asserted that a native-born United States citizen minor, who acquired dual nationality after birth through a parent's resumption of foreign citizenship, could elect to retain United States citizenship upon attaining majority,
a viewpoint subsequently approved by the United States Supreme Court in Perkins v. Elg,
although not without prior dissident opinion.
The Elg decision established that a right to elect United States nationality upon attaining majority existed under the circumstances stated, and that expatriation did not result when the dual national exercised such right by resuming residence in the United States. Upon the facts, the case did not decide any question as to the consequences of continued foreign residence and a failure to otherwise make an election,
although the decision expressed the view that an election of foreign nationality by affirmative action could have been made by the dual national with expatriative effect.
Based upon the decision in Perkins v. Elg, it was well established that a United States citizen, who after birth and during minority acquired a foreign nationality involuntarily through his parent's naturalization, and the right to choose between nationalities on attaining majority. Upon an affirmative election of foreign citizenship, the dual national was deemed to have lost his United States nationality by foreign naturalization, pursuant to section 2 of the Act of March 2, 1907.
The effect of Afroyim v. Rusk upon this rule is considered in INTERP 349.2(b)(2)(ii), infra.
Under doctrine of election; dual nationality must be acquired after birth; application under Italian law
. The doctrine of election was applicable only to those actual situations involving dual nationality acquired after birth
and, as reaffirmed by the United States Supreme Court in Mandoli v. Acheson,
one who was vested with dual nationality at birth had no obligation to make an election in avoidance of expatriation.
Although, as observed by the appellate court in Dulles v. Iavarone,
the ruling in Mandoli cited above is limited upon the facts to individuals acquiring dual nationality at birth, a few courts erroneously applied its principles and conclusions to persons who became dual nationals after birth.
Pursuant to an interpretation of the second paragraph of Article XII of the Italian nationality law of 1912, a minor child born outside Italy of Italian parents did not lose Italian nationality when the parent having legal custody was naturalized in the country of the child's birth, if the child already possessed the citizenship of that country. Thus, a minor child who was both a United States citizen by native birth and an Italian citizen at birth through his parents did not lose Italian nationality upon t
he naturalization of his father in the United States. It further follows that since such child initially was and thereafter remained an Italian citizen, he could not and did not acquire anything more in the way of Italian nationality under the first paragraph of Article XII of the Italian statute when his father resumed Italian citizenship in accordance with Article IX(3) of that statute. Accordingly, such child did not acquire dual nationality after birth, the doctrine of election had no application, and e
xpatriation thereunder by foreign naturalization pursuant to section 2 of the Act of March 2, 1907, could not and did not take place.
Valid election by overt act (related rulings)
. A valid election, which contemplated a definite choice of citizenship, did not necessarily require a formal procedure and might be deduced from a person's voluntary conduct or behavior.
While it was not the only method of choice, entry into the United States for permanent residence, regardless of age at the time of entry, was generally regarded as an effective election, provided a prior valid election of foreign nationality had not been made. However, for reasons set forth in (xv) which follows in sequence, the entry had to occur prior to January 13, 1941.
Thus, a dual national who returned to the united States for permanent residence in 1926 at the age of 27 years was held to have elected United States nationality.
A variant of the situation last described above was that of a citizen whose attempted reentry into the United States at 19 years of age was considered an election because his return at that time had been thwarted wrongfully by governmental action.
Registration as a United States citizen with an American consul at majority and entry into the United States for permanent residence two years later constituted an election even though the citizen returned to the country of his foreign nationality two months later and resided there for 20 years, reentering the United States as a citizen an average of five times a year during such period.
An entry for temporary residence under a claim of United States citizenship has also been held to be an election to retain status.
However, mere extended residence in the country of foreign nationality beyond majority, standing alone, did not constitute an election of foreign nationality;
neither did registration under a foreign military conscription law, not an unsuccessful attempt to enlist in the armed services of the country of foreign nationality.
On the other hand, voting in a foreign political election, a specific statutory ground of expatriation subsequently declared unconstitutional, was considered a binding choice of the foreign nationality,
as was the continuous use of a foreign passport over a period of years while serving on merchant vessels owned and operated by the country of foreign nationality which had issued the passport.
Election must occur prior to January 13, 1941
. Because the pertinent part of section 2 of the Act of March 2, 1907, was repealed by the Nationality Act of 1940,
which became effective on January 13, 1941, the manifestation of electing a foreign nationality and the consequent loss of United States citizenship under section 2 had to take place prior to the January date. Moreover, by reason of affirmative statutory stipulation, citizenship could and can be lost on or after January 13, 1941, only in a manner set forth in statute or treaty.
However, under the 1940 and the current enactments, certain United States citizens acquiring a foreign nationality after birth and during minority were and are required to take action in order to retain United States citizenship
while, pursuant to the present statute, dual nationals at birth also may be obligated to act in avoidance of citizenship loss.
Valid election precluded further election
. A valid election of United States citizenship prior to January 13, 1941, established the claim to such status, and the dual national was not obligated to make a further election.
Under doctrine of election; date of expatriation; wartime restriction
. It was formerly held that when a valid election of foreign nationality was exercised, even well after majority, expatriation became effective as of the date of majority or, if majority was attained during World War I when expatriation was restricted, as of the date the conflict terminated, namely, July 2, 1921.
However, in the light of more recent views expressed by the Board of Immigration Appeals
and the Attorney General,
it is the current position of the Service that the act elective of foreign nationality is not retroactive in expatriatory effect, and that loss of nationality in this situation, under section 2 of the Act of March 2, 1907, first occurs on the date when the citizen,
having reached or passed majority, actually commits an overt act which affirmatively and unambiguously manifests his intent to elect the foreign nationality. Under this rule, the manifestation of election also may occur during World War I, but again, expatriation does not thereby become effective until the date of the war's termination, July 2, 1921.
March 2, 1907 - January 12, 1941, inclusive; restrictions upon expatriation
Place of foreign naturalization
. The Supreme Court in Savorgnan v. U.S.
stated that the words "naturalized in any foreign state," as they appear in section 2 of the Act of March 2, 1907, mean naturalization into the citizenship of such state, and do not preclude loss of nationality when the naturalization occurs without the geographical area of the sovereignty involved.
Before the court proceeding in the Savorgnan case mentioned above, administrative authority differed as to whether expatriation under section 2 of the 1907 Act could result from foreign naturalization within the United States, absent a subsequent establishment of residence abroad by the citizen. Initially, the Commissioner regarded the question as one which could not be settled with certainty until passed upon by the courts.
The United States Court of Appeals which thereafter considered Savorgnan specifically held that, in such circumstances, expatriation was immediate and not contingent upon the citizen's subsequent removal from the United States.
While the Supreme Court did not rule on this precise point when it later decided Savorgnan,
shortly thereafter the Service officially embraced the position taken by the Court of Appeals, and has consistently held that foreign naturalization accomplished within the United States resulted in immediate expatriation under section 2 of the 1907 statute, and that the subsequent establishment of foreign residence was not a condition precedent to nationality loss.
. Minority prevented loss of nationality by foreign naturalization pursuant to section 2, when the minor applied for the foreign citizenship and was naturalized in his own right. However, such naturalization was regarded as being in the same category as one which flowed from an involuntary acquisition of foreign nationality by operation of foreign law, and if, after attaining majority, the naturalized person voluntarily performed acts clearly evidencing a continued acceptance of or adherence to the foreign
nationality, he was deemed to have expatriated himself by foreign naturalization pursuant to section 2. Thus, a minor who was naturalized a Canadian in order to procure a homestead which he later sold was considered to have affirmed his expatriation by foreign naturalization when, upon attaining majority, he failed to disaffirm the homestead and continued to enjoy the fruits of the sale.
Furthermore, since the naturalizations described above became complete and effective in causing expatriation by application of the same principle, namely, by the voluntary performance of acts after majority which denoted an acceptance of or conformation of the foreign nationality, it was held that the same rule should be applied in determining the effective date of expatriation; i.e., loss of nationality by foreign naturalization, pursuant to section 2 of the Act of March 2, 1907, in both instances, would o
ccur on the date when, after majority and before January 13, 1941, the naturalized person actually manifested an election of or a continued adherence to the foreign nationality by an affirmative and unambiguous act,
unless such date fell within the period of World War I. In the latter event, the rules set forth in (iii) below applied.
. The Act of March 2, 1907, expressly provided that no American citizen shall be allowed to expatriate himself while this country is at war.
Accordingly, where naturalization in a foreign state was accomplished during the World War I period (April 6, 1917 - July 1, 1921, incl.),
pursuant to the voluntary application of a citizen who had already attained majority, expatriation did not occur until July 2, 1921, by which date the conflict had terminated.
Similarly, a minor who was naturalized in a foreign state pursuant to his own application, and who was regarded as having expatriated himself on the date he voluntarily performed (after majority) an act clearly evidencing a continued adherence to the foreign nationality, as in (ii) above, did not undergo expatriation on such date if such act fell within the World War I period. Rather his loss of citizenship was postponed until the end of the war on July 2, 1921.
Since January 13, 1941; forms of "naturalization."
The term "naturalization" as defined in the Nationality Act of 1940,
effective January 13, 1941, and the current Act,
effective December 24, 1952, means the conferring of the nationality of a state upon a person after birth, and the present definition specifically states that such nationality may be conferred "by any means whatsoever."
Notwithstanding the broad implications of the above definitive statements, the circumstances under which acquisition of foreign nationality may be considered a "naturalization" for expatriation purposes are circumscribed, by specific descriptive reference in section 401(a) of the Nationality Act of 1940 and current section 349(a)(1), and by general statutory limitations.
The aforementioned sections are identical insofar as they provide that a United States national shall lose his nationality by naturalization in a foreign state either upon his own application, or through the acquisition of foreign nationality by a parent. The additional current method of naturalization, upon application filed by a parent, guardian, or agent in the national's behalf, was not found in the 1940 statute.
A national who is naturalized during minority by either of the last two methods described in the next paragraph does not undergo a loss of nationality if he acquires a permanent residence in the United States prior to a specified age. In effect, this aspect of the statutory provisions carries forward in modified form the concept of "foreign naturalization" under the doctrine of election, which applied to dual national minors before January 13, 1941. However, the then prevailing difficulty of determining wh
at acts constituted a valid election has been eliminated by these statutory provisions which, in substance, have adopted a person's entry into the United States for permanent residence as the sole factor to be used in determining the issue.
The effect of the decision in Afroyim v. Rusk upon determinations of expatriation under each of the above-mentioned forms of naturalization is considered in INTERP 349.2(b)(2)(i) and (iii), infra.
Since January 13, 1941; through parent, guardian, or agent
Requirement that citizen take up permanent residence in United States; majority attained before the 1941 date
. Subject to exceptions noted in (vi) which follows in order, a United States national minor who, prior to January 13, 1941, had acquired duality of status after birth through the foreign naturalization of a parent, and who having also attained the age of 21 years before such date was obligated to choose between the two nationalities under the doctrine of election, and who failed to exercise such choice before the 1941 date, was required to take up permanent residence in the United States prior to January 1
or forfeit his United Sates citizenship under section 401(a) of the Nationality Act of 1940. Taking up such residence was deemed to be an election of the United States citizenship. This retention-by entry-privilege
within two years was granted to persons regardless of age at the time of entry and irrespective of the number of years they may have resided abroad after attaining majority.
Requirement that citizen take up permanent residence in United States; majority attained on or after the 1941 date
. If the dual national described in (i) above did not attain majority until on or after January 13, 1941, section 401(a) of the Nationality Act of 1940 required him to enter the United States for permanent residence before his 23rd birthday in order to avoid citizenship loss
unless, on December 24, 1952, he had not as yet attained his 23rd birthday, in which event the then effective provisions of the current statute
apply and the citizen may make such an entry prior to his 25th birthday
and thereby retain citizenship.
Similarly, a citizen minor who acquires a foreign (dual) nationality on or after January 13, 1941, and before December 24, 1952, through the voluntary foreign naturalization of a parent, is required to enter the United States for permanent residence before his 23rd birthday in order to avoid citizenship loss, unless, on December 24, 1952, he was not yet 23 years of age, in which event, current section 349(a)(1) applies and citizenship is not lost if he enters prior to his 25th birthday.
On the other hand, where the citizen minor acquires the foreign nationality on or after December 24, 1952, whether in the manner described in the paragraph above or through an application for his naturalization filed by a parent, guardian, or agent the only applicable requirement is an entry prior to his 25th birthday in accordance with current section 349(a)(1)
Permanent residence requirement applies only if dual nationality existed on January 13, 1941
. The retention-by-entry provisions of the Nationality Act of 1940
and the current statute,
in their application to minors who acquired dual nationality prior to the 1941 date and were subject to the doctrine of election,
were invoked only if such citizens still retained dual nationality on January 13, 1941.
Accordingly, pursuant to the above rule, it was held that a failure to comply with the retention-by-entry provisions did not expatriate a citizen who had already made a valid election to retain United States citizenship prior to the 1941 date.
Furthermore, United States citizenship lost by an election of foreign nationality or expatriation in any other form prior to the determinative 1941 date was not restored by a subsequent compliance with the retention-by-entry provisions of the 1940 statute.
Minor must acquire foreign (dual) nationality after birth to be naturalized through a parent's naturalization
. Under an interpretation of the second paragraph of Article XII of the Italian nationality law of June 13, 1912, a minor child born outside Italy of Italian parents does not lose Italian nationality when the parent having legal custody is naturalized in the country of the child's birth, if the child already possesses the citizenship of that country. Thus, a minor child who is both a United States citizen by native birth and an Italian citizen at birth through his parents does not lose Italian nationality u
pon the naturalization of his father in the United States.
From the above interpretation, it further follows that since such child initially was and thereafter remained an Italian citizen, he could not and did not acquire anything more in the way of Italian nationality under the first paragraph of Article XII of the Italian statute when his father resumed Italian citizenship in accordance with Article IX(3) of that statute. Accordingly, even though the child was a minor in the legal custody of his father at the time the latter resumed Italian nationality, he must b
e regarded as a dual national at birth and not as having been naturalized (nationality acquired after birth) in a foreign state meaning of section 401(a) of the Nationality Act of 1940 and current section 349(a)(1). Consequently, it was held that such child need not comply with the retention-by-entry requirements of the aforesaid sections.
A minor is not naturalized through a parent's naturalization unless the latter's acquisition of foreign nationality is voluntary
. A person who, on January 13, 1941, was still a dual national of this country and Italy, because he had theretofore acquired Italian nationality under the first paragraph of Article XII of the 1912 Italian statute by reason of his father's automatic resumption of Italian citizenship in accordance with Article IX(3) of the same statute, and had not elected one or the other nationality before such date, is not required to comply with the retention-by-entry requirements,
unless the father has undergone expatriation by voluntarily taking affirmative action prior to January 13, 1941, in acceptance of the Italian nationality.
Absent such action by the father, such person is not regarded as having been naturalized in a foreign state through the naturalization of a parent within the meaning of either section 401(a) of the Nationality Act of 1940 or current section 349(a)(1).
Excusable failure to timely take up permanent residence (war conditions, official error, ignorance of citizenship claim)
. It has been held that a dual national who reached majority prior to January 13, 1941, and who as stated in (6)(i) above had two years from such date within which to establish permanent residence in the United States under penalty of citizenship loss, did not suffer expatriation when circumstances beyond his control, such as war conditions,
or the mistake of consular officials
prevented compliance within the required period.
However, while failure to enter the United States within the requisite two-year period was excusable under the circumstances stated just above, such period was not extended indefinitely, and loss of nationality occurred when the dual national actually had a two-year period within which it was possible to come to the United States, and he failed to do so.
It also has been held that the two-year period within which an entry into the United States for permanent residence must be made does not begin to run until the dual national learns that he has a claim to United States citizenship.
Since January 13, 1941; restrictions upon expatriation
Place of naturalization
. Unlike the rule which prevailed under the Act of March 2, 1907, expatriation by foreign naturalization pursuant to section 401(a), Nationality Act of 1940, and current section 349(a)(1), when accomplished within the United States or its outlying possessions, does not cause a loss of nationality unless the naturalized person establishes residence outside such areas. Under such conditions, expatriation occurs when the person takes up such residence.
. While the provisions of the Nationality Act of 1940
and the current statute
impose no age restriction upon expatriation resulting from foreign naturalization pursuant to one's own application, it is the rule under both statutes that, when naturalization in a foreign state is obtained in this particular manner during minority, and is the sole basis for expatriation, the minor does not thereby lose his United States citizenship.
Moreover, while citizens acquiring foreign (dual) nationality during minority through the naturalization of a parent, or an application therefor filed in their behalf by a parent, guardian, or agent, do, in effect, lose citizenship by foreign naturalization under express provisions of the Nationality Act of 1940 and the present enactment unless they comply with specified retention-by-entry requirements, the Service, guided by the fact that section 408 of the Nationality Act of 1940 and current section 356 i
ndicate a Congressional purpose to eliminate expatriations based, in part, upon acts other than those made expressly expatriatory by statute,
holds that an under-21 naturalization accomplished pursuant to the citizen's own application on or after January 13, 1941, does not become expatriatory under the enactments in question, even though the citizen voluntarily manifests a continued adherence to the foreign nationality after attaining majority.
No wartime restriction
. Unlike the Act of March 2, 1907, which precluded loss of nationality while the United States was at war,
the provisions of the Nationality Act of 1940
and the current statute
neither preclude nor restrict expatriation by foreign naturalization because of an existing state of war.
Since January 13, 1941; under Israeli law
. Israeli citizenship automatically attache to a U.S. citizen who takes up permanent residence in Israel, unless the citizen makes a written declaration declining or opting-out from such acquisition. A citizen who thus made an opting-out declaration was, under Israeli law, given the privilege of revoking or canceling the declaration. Where a citizen exercised the privilege to cancel his declaration, and thereby was automatically vested with Israeli citizenship, the filing of the declaration to cancel is not
regarded as an application for naturalization within the meaning of section 349(a)(1) of the Act and did not cause a loss of U.S. citizenship.
Effect of Afroyim v. Rusk
Naturalizations prior to March 2, 1907
. The Attorney General's Statement of Interpretation and the rules to be followed in applying it
in relationship to statutory acts of expatriation alone, and therefore offer no guidance as to the decision's effect upon foreign naturalization as a basis for citizenship loss, prior to the time such action first became a statutory ground of expatriation in Act of March 2, 1907.
The Service will not take a position in this matter unless and until the question presented arises in an actual case.
Naturalizations since March 2, 1907
. In accord with the Attorney General's Statement of Interpretation and the rules implementing it,
naturalization in a foreign state pursuant to one's own voluntary application is regarded as an action in derogation of allegiance to the United States, and therefore the proof of such naturalization constitutes highly persuasive evidence of the intent to relinquish citizenship required by the Afroyim principle.
Foreign nationality acquired involuntarily and accepted or elected before January 13, 1941
. As described in INTERP 349.2(a)(3), supra, a conclusive finding of expatriation by foreign naturalization, pursuant to section 2 of the Act of March 2, 1907, could flow from the voluntary acceptance of a foreign nationality automatically and involuntarily acquired after birth through operation of foreign law, or by a voluntary election of foreign nationality at or after majority, such foreign nationality having been automatically and involuntarily acquired as a minor through a parent's naturalization. Not
withstanding the decision in Afroyim v. Rusk, the voluntary acceptance or election of the foreign nationality is regarded as having completed a "voluntary naturalization in a foreign state" within contemplation of the 1907 statute
and, under the Statement of Interpretation by the Attorney General
and the implementing rules,
the completed naturalization is considered highly persuasive evidence of an intention to relinquish United States citizenship. While such evidence will normally satisfy the burden of proof imposed by Afroyim and result in expatriation, it is not necessarily conclusive of nationality loss (see INTERPS 349.1(d)(2) and 349.1(f)(4), supra).
Although Afroyim v. Rusk invalidated foreign voting as an independent ground of expatriation, such voting can constitute the "acceptance"
of a foreign nationality referred to in the paragraph just above.
Generally, the conclusion expressed above is warranted when the citizen admits knowing that he acquired the foreign nationality, admits knowing that by, and only because of, such acquisition he became eligible to vote, and admits that as a national of the foreign state, he voted voluntarily in a political election thereof. However, even where such factors are present, it must be recognized that a citizen may vote for reasons entirely unconnected with an abandonment of United States citizenship. In fact it i
s a matter of history that, after World War II, United States citizens voted in Italian and Japanese elections of vital concern to this country, solely because they were United States citizens and wished to further the interests of the United States. Thus, while voting may be an act of "acceptance", it will not always spell out the requisite intent to relinquish citizenship.
The highly persuasive evidence of an intent to relinquish United States citizenship, flowing from the voluntary acceptance (voting) of foreign nationality involuntarily acquired, was deemed rebutted in the case of a native-born citizen who lived in the Irish Free State and automatically acquired Irish nationality under its constitutinon, when his uncontroverted testimony alleged no knowledge of the constitution or other Irish laws conferring citizenship; that he thought he was only a United States and not a
n Irish citizen; that he voted because his name was on the voting register, having been entered because his father identified him to the tax collector as a family member of voting age; that he believed anyone on the voting register, regardless of nationality, could vote; that he would not have voted had he realized that it might cause him to lose United States citizenship, a possibility of which he first became aware after he had voted; and that, when he voted he did not intend to accept Irish nationality a
nd relinquish United States citizenship.
On the other hand, when a native-born citizen minor automatically acquired the status of British subject in Canada on March 19, 1910, through the naturalization of his father in Canada, as provided by Canadian law, such citizen's voluntary acceptance of title to homestead land in Canada on January 4, 1926, after majority and upon proof of his status as a British subject, was held to constitute a voluntary "election" of that foreign nationality, and completion of a voluntary naturalization in a foreign state
within the meaning of section 2 of the Act of March 2, 1907, and evidence of his intention to relinquish United States citizenship sufficiently persuasive to warrant a finding of expatriation under the Afroyim doctrine. Additionally, because of his status as a British subject in Canada, he also became a citizen of that country pursuant to later Canadian statutes, and his continued residence there until his death in 1961, his voting in Canadian elections, and his representing border were regarded as corrobo
rative evidence of a voluntary relinquishment.
Cases involving a question of citizenship loss arising from a voluntary acceptance or election before January 13, 1941, of a foreign nationality involuntarily acquired must be submitted through the region for Central Office review, irrespective of whether or not United States citizenship was found to have been lost
Involuntary acquisition of foreign nationality by minors before or since January 13, 1941--failure to timely take up permanent residence in the United States under 1940 and 1952 statutes
. A failure by the dual national to take up permanent residence in the United States before the specified age or within the prescribed period (see INTERP 349.2(a)(5) and (6), supra) does not result in a loss of citizenship by foreign naturalization under section 401(a) of the Nationality Act of 1940 or current section 349(a)(1), unless persuasive evidence is forthcoming to establish that the citizen's inaction was motivated by his intention, desire, or wish to abandon or transfer his allegiance to the Unite
d States. This ruling, founded upon the Attorney General's Statement of Interpretation
and the rules to be followed in applying it,
is consistent with the view that mere extended residence in the country of foreign nationality beyond majority, standing alone, was not an election, and therefore did not perfect an expatriatory foreign naturalization under section 2 of the Act of March 2, 1907.