136/913
The Secretary of State to the Ambassador in Italy (Long)
Sir: The Department acknowledges the receipt of your despatch No. 1673 of November 12, 1932,21 concerning the case of … and referring to conferences with the Consuls General at Naples and Rome with regard to the reacquisition of Italian nationality under the provisions of Article 9 (3) of the Italian Nationality Law of June 13, 1912, by naturalized American citizens of Italian origin after residence in Italy for a period of two years. The Consuls General at Naples and Rome addressed the Department on this subject on August 23 and October 3, 1932, respectively.22
The Department has carefully considered the despatches above referred to as well as other correspondence which has passed between it and your office and the various American consular offices in Italy, with a view to establishing a policy which should be pursued with reference to naturalized American citizens of Italian origin who have returned to Italy and resided there for a period of two years, thus reacquiring Italian nationality under the provisions of the Italian Law above mentioned. In discussing the reacquisition of Italian nationality by naturalized American citizens of Italian origin in the manner provided for by Italian Law, the Department desires to reiterate the position which it has consistently followed and which [Page 607] is that an American citizen should not be considered as having been expatriated under the provisions of Section 2 of the Act of March 2, 1907,23 by being naturalized in a foreign state in conformity with its laws unless the naturalization is the result of a distinctly voluntary act and the person concerned has indicated acceptance of it. Therefore, this instruction will discuss the conditions which will hereafter be considered by the Department as indicating a voluntary acceptance of Italian nationality conferred upon a naturalized American citizen under the provisions of Article 9 (3) of the Italian Law of June 13, 1912.
As has heretofore been the policy of the Department, it will not consider that any action on the part of a minor results in the loss of American citizenship. However, as heretofore has been the case, when an American father voluntarily acquires the nationality of a foreign country in conformity with its laws and his minor children residing with him also acquire the nationality of such foreign country under its laws the father and children will be held to have lost American citizenship under the provisions of the first paragraph of Section 2 of the Act of March 2, 1907. (See circular instruction of July 6, 1932, Diplomatic Serial No. 2191, entitled “Expatriation of Minor Children through Foreign Naturalization of Father”).24 The same principle will also apply with respect to the American minor children of an American mother who, being a widow or a divorcee, voluntarily acquires the nationality of a foreign country, the laws of which confer its citizenship upon her children. If the American minor children are not residing in the foreign country concerned at the time of the acquisition of the foreign nationality by the parent but subsequently and before attaining the age of twenty-one years take up residence with the parent, the children will be considered to have been expatriated if they acquire the nationality of the foreign country in conformity with its laws.
From a despatch of April 10, 1933, from the Consul General at Naples24 regarding the case of Salvatore Mauro it is understood that when a naturalized American citizen of Italian origin has resided in Italy for a period of two years subsequent to July 1, 1912, the effective date of the Italian Law of June 13, 1912, he ipso faoto acquires Italian nationality under Article 9 (3) of such law, since no act other than mere residence in Italy for a period of two years seems to be required in order for a person of Italian origin, who has acquired foreign nationality, to reacquire Italian nationality. The Department does not, therefore, understand that, before a naturalized American citizen of [Page 608] Italian origin may be deemed to have reacquired Italian nationality under the provisions of Article 9 (3) of the Law under discussion, he must have signed a formal written application or declaration. Apparently, he ipso facto acquired Italian nationality under Italian law when he has resided for two years in Italy. Whether or not the Department will consider that the acquisition of Italian nationality in the manner indicated results in loss of American citizenship under the provisions of the first paragraph of Section 2 of the Act of March 2, 1907, depends upon whether the individual reacquiring Italian nationality under Italian law manifested an acceptance of such nationality either by a written or oral declaration or by some other overt act. The Department considers that Italian nationality conferred under the provisions of the law under discussion is voluntarily accepted when a naturalized American citizen of Italian origin (1) accepts employment by the Italian Government, (2) applies for and accepts an Italian passport or identity card describing him as an Italian national, (3) votes in the general elections in Italy, or (4) joins the Italian National Fascist Party. The first condition would seem not only to indicate the acceptance of Italian nationality under Article 9 (3) of Italian Law but would also result in the reacquisition of Italian nationality under the provisions of Article 9 (1) of the same law. However, in such a case the Department will consider that employment by the Italian Government after a residence in Italy for a period of two years involves a voluntary acceptance of Italian nationality under Article 9 (3) of the Italian Law. This distinction is made for the reason that the Department considers that an act evidencing acceptance of Italian nationality under the provisions of Article 9 (3) relates back to the date of acquisition of Italian nationality, that is, after the individual concerned had resided in Italy for a period of two years subsequent to July 1, 1912, the effective date of the Law of June 13, 1912. However, if a naturalized American citizen of Italian origin accepts employment by the Italian Government prior to the expiration of the two year period mentioned in Article 9 (3) of the Italian Law under discussion he will be considered as having accepted Italian nationality under Article 9 (1) of the same law immediately upon acceptance of employment by the Italian Government and, consequently, to have been expatriated under the provisions of the first paragraph of Section 2 of the Act of March 2, 1907.
As to the second condition, the Department believes that when a naturalized American citizen of Italian origin has applied for and accepted an Italian passport or identity card describing him as an Italian national, such fact should be considered as prima facie evidence of the acceptance of Italian nationality under the provisions of Article 9 (3) of the Italian Law. The Department is not unmindful [Page 609] of the fact that in some instances the application for and acceptance of an Italian passport or identity card may be explained in such a way that the person concerned should not be held to have accepted Italian nationality voluntarily. In some cases it may be possible for the individual concerned to show that the Italian document describing him as an Italian national was obtained through duress or conditions indicating extreme necessity or through ignorance of the meaning and effect of his obtaining such a document describing him therein as an Italian national.
As to the third condition, the Department is of the opinion that voting in the general elections in Italy is not ordinarily done under duress. However, it has been advised in several instances by consular officers in Italy that compulsion was exercised in connection with such matter.
As to the fourth condition, the Department has been advised that upon becoming a member of the Italian National Fascist Party a person is required to take the following oath:
“In the name of God and of Italy, I swear to execute the commands of the Duce and to serve with all my strength and, if necessary, with my blood, the cause of the Fascist Revolution.”
The voluntary taking of such an oath by a naturalized American citizen of Italian origin is, in the opinion of the Department, inconsistent with the retention of American citizenship and consistent only with the formal acquirement of Italian nationality and will ordinarily be considered as an acceptance of Italian nationality conferred upon him by Article 9 (3) of the Italian Law of June 13, 1912, after two years residence in Italy at any time subsequent to July 1, 1912, the effective date of the Italian Law.
While in all such cases the burden of proof should be regarded as resting upon the individual who alleges that he did not voluntarily accept Italian nationality conferred upon him by Article 9 (3) of the Italian Law, he should be given ample opportunity to explain his action, and the Consul, after a careful weighing of the evidence, should inform the Department whether it is his belief that such individual voluntarily held himself out as an Italian national. Each case must be decided upon its own apparent merits. With reference to the conditions outlined above which are considered as showing conclusive or prima facie evidence of acceptance of Italian nationality under the provisions of Article 9 (3) of the Italian Law, the Department desires to say that there may be other methods by which an American citizen of Italian origin may indicate his voluntary acceptance of Italian nationality conferred upon him by the provisions of the Italian Law under discussion. In all cases where an individual endeavors to show that his application for and acceptance of an Italian passport or identity card should not be considered as a voluntary [Page 610] acceptance of Italian nationality consideration should be given to the date when the individual returned to Italy; whether he has during the period of his residence in that country held himself out consistently as an American citizen; whether he has from time to time applied for American passports or to be registered as an American citizen in an American Consulate; and whether he has maintained a definite intention of returning to the United States to reside. With regard to the latter point consideration may be given to the questions, whether he has married since returning to Italy and begun to raise a family, or has returned to reside with a wife or child already established in Italy, and whether he holds property and pays taxes in Italy. In connection with the case of a person who returned to Italy subsequent to the enactment of the Law of June 13, 1912, it will ordinarily be considered that he had presumptive knowledge of the Italian Law and that his remaining in that country for a period of two years indicated a voluntary acceptance of Italian nationality when coupled with an overt act, such as the application for and acceptance of an Italian passport or identity card.
The Department desires to point out that if a naturalized American citizen of Italian origin applies for and accepts an Italian passport or identity card describing him as an Italian national, votes in the general elections in Italy, or joins the Italian National Fascist Party prior to the date when he has resided in Italy for a period of two years subsequent to the effective date of the Italian Law of June 13, 1912, he will nevertheless be considered as having accepted Italian nationality if he continues to reside in Italy until the two year period has elapsed, unless he can show that any such act on his part was performed through duress or conditions indicating extreme necessity or ignorance of the meaning and effect of his act.
In connection with any case in which a naturalized American citizen of Italian origin is considered to have reacquired Italian nationality under the provisions of Article 9 (3) of the Italian Law you should ascertain whether or not he had a wife and children residing with him. In the case of the wife, she will be considered as having lost her American citizenship provided her husband is deemed to have reacquired Italian nationality prior to September 22, 1922, since it is understood that under Article 11 of the Italian Law of June 13, 1912, a wife acquires Italian citizenship with her husband if she has a residence in common with him. If the husband is deemed to have reacquired Italian nationality subsequent to September 22, 1922, the wife will not be considered as having lost her American citizenship unless she performs some overt act indicative of her desire to accept Italian nationality involuntarily conferred upon her under Italian law. Under the provisions of Paragraph 1 of Article 12 of the same law [Page 611] “minor non-emancipated children of those who acquire or reacquire citizenship, become citizens, except in cases when, residing abroad they retain the foreign citizenship, in conformity with the law of the state to which they belong.” Consequently, any such child having American nationality who acquires Italian citizenship under the provisions of the Italian Law just quoted through the acquisition or reacquisition of Italian nationality by a parent is deemed to have lost his American citizenship under the first paragraph of Section 2 of the Act of March 2, 1907. When a husband and father reacquires Italian nationality under the provisions of Article 9 (3) and the evidence shows that he has voluntarily accepted such nationality, a certificate of expatriation prepared in accordance with Note 3 to Section 144 of the Consular Regulations should be prepared and there should be included in such certificate a statement concerning the wife if she was an American citizen and lost such citizenship prior to September 22, 1922, by the acquisition of Italian nationality under the provisions of Article 11 of the Italian Law, or if she performed some overt act indicative of her desire to accept Italian nationality involuntarily conferred upon her under the section of Italian Law just mentioned, as well as a statement concerning such minor non-emancipated children as may have acquired Italian nationality under the provisions of Paragraph 1 of Article 12 of the Italian Law. In this connection the Department desires to point out that under the provisions of Article 5 of the Italian Civil Code promulgated on June 25, 1865, a child born in Italy of a father who was an Italian national and lost such nationality before the birth of the child is considered an Italian subject if he has his residence in Italy. This provision of the Civil Code was abolished by the Italian Law of June 13, 1912. However, with reference to children born in Italy of naturalized American citizens of Italian origin prior to the effective date of the Law of June 13, 1912, it would seem that they acquired at birth both American and Italian nationality and, consequently, already having Italian nationality, may not be considered as having lost their American citizenship by reason of the reacquisition of Italian nationality on the part of their fathers under Article 9 of the Italian Law of June 13, 1912.
Very truly yours,