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TOMASICCHIO v. ACHESON

June 18, 1951

TOMASICCHIO
v.
ACHESON, Secretary of State



The opinion of the court was delivered by: HOLTZOFF

This is an action against the Secretary of State ot procure a judgment declaring the plaintiff to be a citizen of the United States. *fn1"

 To formulate the same question in a somewhat different form, if a person who is a citizen of the United States by birth in this country, but whose parents are aliens, is taken during his minority to the country to which they owe allegiance and continues to reside there, is he under an obligation to make an affirmative election to retain his American citizenship upon reaching his majority, if he desires to remain a citizen of the United States and if the country in which he resides also claims his allegiance?

 The salient facts bearing on this question are undisputed. The plaintiff was born in the United States on June 16, 1915. His parents were subjects of Italy. He had dual nationality as he was a national of both the United States and Italy at birth. In August, 1915, he was taken by his parents to Italy and resided there continuously until after the institution of this action in 1949. In 1937 he wrote a letter to the American Consul in Naples requesting information 'regarding repatriation'. No reply to this communication was forthcoming. *fn2" The plaintiff testified that he was prevented by poverty from returning to the United States.

 The Government claims that in order to retain his citizenship the plaintiff was under an obligation to return to the United States within a reasonable time after attaining his majority, or at least to perform some other affirmative act that would indicate an election to remain a citizen of the United States. The Government further contends that failure so to do operates as an expatriation and deprives the plaintiff of his American Nationality.

 By reason of differences between nationality laws of various countries, there are many persons whose allegiance is claimed by two or more states, or conversely, on whom the benefits of nationality are conferred by two or more countries. These conflicts arise principally by reason of the fact that in some countries nationality is governed by jus soli, i.e., it originates by birth within the country; in others, it is based on jus sanguinis, i.e., the child inherits the nationality of his parents irrespective of his place of birth; and in still others, like the United States, it may be predicated on either jus soli or jus sanguinis. Thus, a person born in the United States is a citizen thereof irrespective of the nationality of his parents. Conversely, a person whose parents are citizens of the United States inherits their citizenship irrespective of the place of his birth. By the same token the state to which the parents owe allegiance or the country in which the child was born, may claim him as its own under its laws. A person who is claimed as a subject or citizen by two states is said to possess a dual nationality. Dual nationality is a well recognized concept in international law, because the situation is one that frequently arises. Writers on international law have often observed in a general way, at times somewhat loosely, that a person in this position upon reaching his majority has the right to elect which nationality he will retain; that he is under a duty to make the choice; and that if he fails to do so, he becomes permanently subject to the laws of the country in which he then resides, if he is living in one of the states that claim his allegiance. *fn3"

 Citizenship depends, however, entirely on municipal law and is not regulated by international law. Acquisition of citizenship of the United States is governed solely by the Constitution and by Acts of Congress. All persons born in the United States and subject to its jurisdiction are citizens of the United States at birth. *fn4" Similarly, expatriation or loss of citizenship is regulated solely by Acts of Congress or by treaty. *fn5" Provisions relating to this subject are found in the Nationality Code of 1940, 8 U.S.C.A. §§ 800-810. It is expressly stated in Section 808 that 'The loss of nationality under this chapter shall result solely from the performance by a national of the acts or fulfillment of the conditions specified in this chapter'. In other words, provisions found in the Nationality Code regarding expatriation are exclusive.

 Citizens of the United States who possess dual nationality may be divided into several groups. In the one category are included persons born in the United States of alien parents, but whose allegiance is claimed by the state of the parents' nationality. In a second class are found persons born abroad whose parents are citizens of the United States, but on whom citizenship is also conferred by the land of their birth. A third group comprises persons who become citizens of the United States either by their own or their parents' naturalization, but whose country of origin does not recognize expatriation. A fourth type of dual citizenship arises in the case of minors who are citizens of the United States, but whose parents become naturalized in a foreign state and who thereby acquire the new nationality of their parents. This enumeration is not to be deemed exclusive, but comprehends the principal situations giving rise to dual nationality. The plaintiff in this action is in the first of these categories, namely, he is a person born in the United States of alien parents and his allegiance is also claimed by the state of the nationality of his parents, i.e., Italy.

 Whether the doctrine of election is applicable to any of the types of dual nationality must be determined by recourse to the pertinent statutes. Section 801(a) of 8 U.S.C.A. declares that a person who is a national of the United States, either by birth or naturalization, shall lose his nationality by obtaining naturalization in a foreign state either upon his own application or through the naturalization of a parent having legal custody of such person. It is provided, however, that nationality shall not be lost as a result of naturalization of a parent unless and until the child shall have attained the age of twenty-three years without acquiring a permanent residence in the United States. *fn6" It is further provided that such a person shall be permitted to return to the United States within two years from the effective date of the Act and take up permanent residence therein, and in that event it shall thereafter be deemed that he has elected to be an American citizen. *fn7" Failure to do so is regarded as a determination on his part to discontinue his status as an American citizen. He is estopped from thereafter claiming American citizenship. In other words, the doctrine of election is expressly made applicable to persons who acquire dual citizenship by the naturalization of their parents in a foreign country.

 Prior to the enactment of the Nationality Code of 1940, provisions in respect to expatriation were found in the Act of March 2, 1907. *fn8" There has been no statutory provision, and there is none now, requiring election in any form on the part of a person who has dual nationality, or providing for expatriation because of failure to elect citizenship of the United States in respect to any dual national, except of the type heretofore mentioned, namely, a person who acquires the second nationality by his parents' naturalization in a foreign state.

 Richard W. Flournoy, a leading authority on the law of citizenship, recognizes that the Nationality Code does not require election under the conditions involved in this case. He says: *fn9" 'It seems unfortunate that the Code contains no provision for automatic termination of American nationality in cases of persons having also the nationality of foreign states and residing for protracted periods, after attainment of majority, in the territories of such states.'

 The Government relies on Perkins v. Elg, 307 U.S. 325, 59 S. Ct. 884, 83 L. Ed. 1320, in support of its contention that the plaintiff became expatriated because of his failure to elect citizenship of the United States within a reasonable time after attaining his majority. That case, however, presented a different problem and is distinguishable on principle. It involved a woman born in this country of Swedish parents, who were naturalized citizens of the United States. During her minority she was removed by her parents to Sweden who resumed their citizenship in that country and renounced American citizenship, thereby according Swedish nationality to her. She returned to the United States shortly after reaching her majority. Several years later she was notified by the Immigration and Naturalization Service that she was an alien illegally in the United States and was threatened with deportation. The Supreme Court held that the naturalization of her parents in Sweden during her minority did not operate as a termination of her American citizenship, on the theory that a person cannot lose his citizenship except by an act of his own performed after reaching his majority, and may not be deprived of his birthright by any action of his parents. All that this case holds, therefore, is that the naturalization of a citizen's parents in a foreign country during the citizen's minority does not divest the latter of his nationality by operation of law. It is also true that the Supreme Court refers to the fact that in that case the citizen made an affirmative election to retain American citizenship by returning to this country shortly after attaining majority. These statements may be regarded as obiter, since the opinion does not indicate what would have happened had the election not taken place. Even if, however, this decision should be construed as a ruling that election to retain American citizenship was required in respect to the plaintiff in that case, it would not sustain the position of the Government in the present instance. The plaintiff in Perkins v. Elg belonged in the fourth group of dual citizens described above, namely, she was a minor who was a citizen of the United States, but whose parents became repatriated in a foreign state, and who thereby acquired the new nationality of her parents. As shown above, the Nationality statutes expressly apply the doctrine of election to a person in that situation. They do not extend that doctrine to any of the other types of dual citizenship, such as that of persons born in the United States of alien parents, but whose allegiance is claimed by the state of their parents' nationality. There is nothing in Perkins v. Elg, therefore, that detracts from the conclusion reached above or that sustains the contentions of the Government.

 While the policy of the Department of State in connection with issuing passports and extending diplomatic protection to persons possessing dual nationality and residing abroad, has been clear and consistent, its expressions have been at times lacking in precision. As a result some of its statements have been cited as supporting the doctrine of election even in respect to persons in the situation of the present plaintiff. It seems helpful to ...


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