carry with it the right to protection. * * * In these cases the Department of State, as a rule, did not decide that the legal status of American citizenship was lost by an express or inferential election of the foreign nationality. * * * Whether or not the persons concerned had lost their legal title to American citizenship, the Department held that they had placed themselves in a position where they were not equitably entitled to the protection of this Government.'
The second governmental agency that administers certain phases of the laws of citizenship is the Immigration and Naturalization Service of the Department of Justice. A ruling on this point was made by the Board of Immigration Appeals, in the matter of R- .
This case involved a person born in the United States in 1873 of German parents, who was taken by her parents to Germany three years later and never returned to this country. The Board overruled the contention that as a dual citizen of the United States and Germany she became expatriated by failing to make an election after attaining her majority. The Board stated its conclusions as follows: 'It has not been recognized by the Immigration and Naturalization Service or by the Board that a native-born child having dual citizenship must elect between two citizenships upon attaining his majority; it has not been recognized by the courts; and the statements of authorities to this effect are subject to question insofar as they are based upon State Department rulings, which are determinative of the right of protection and not of citizenship, as such.'
The Immigration and Naturalization Service is an agency of the Department of Justice. It may perhaps seem somewhat inconsistent for representatives of that Department in this case to take a position contrary to that of another branch of the same Department. Perhaps they should not be reproached for this attitude, for it has been said by a great American philosopher that 'a foolish consistency is the hobgoblin of little minds.'
In the light of the foregoing discussion, this Court reaches the conclusion that a person born in the United States of alien parents, who possesses dual nationality and who permanently resides during his minority in the other country that claims his allegiance, need not make any election to retain his American citizenship on reaching his majority and does not become expatriated by failure to do so.
Two other contentions are advanced by the Government in support of a conclusion that the plaintiff has become expatriated.
The plaintiff served in the Italian Army from April 1936 to August 1936, and again from November 25, 1940 to September 12, 1943. The Government claims that in connection with his military service the plaintiff took an oath of allegiance to Italy. The Government urges that on the basis of these facts, the plaintiff became expatriated under the provisions of 8 U.S.C.A. §§ 801, 801(b) and 801(c):
'A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:
'(b) Taking an oath or making an affirmation or other formal declaration or allegiance to a foreign state; or
'(c) Entering, or serving in the armed forces of a foreign state unless expressly authorized by the laws of the United States, if he has or acquires the nationality of such foreign state; * * *.'
It was conceded that Italy had a system of conscription and that the plaintiff did not enlist or take the oath voluntarily, but did so as a result of compulsion by Italian law. Expatriation under the foregoing provisions of law takes place only if service in the foreign army is voluntary, Dos Reis ex rel. Camara v. Nicolls, 1 Cir., 161 F.2d 860, 863. That case contains the following illuminating observations on this point: 'It is to be noted that subsection (c) of the draft code was not limited to cases of dual nationality; and unless the words 'entering, or serving in, the armed forces of a foreign state' implied that the induction must be voluntary, then any American citizen who, during a visit abroad, might be grabbed and put in the army of the foreign state would automatically lose his American citizenship.'
The Government argues that the plaintiff was under a duty to protest against being drafted into the Italian army and not to submit without a contest. No doubt, however, a protest would have been futile and a refusal to take the oath would have been equally ineffective. The plaintiff might well have feared severe reprisals if he either protested or contested the order to respond to the draft. During the Fascist regime in Italy it would have been realistic to fear such an eventuality. The Government does not restrict its solicitude to stout-hearted men. The timid, the weak, and the ignorant are equally entitled to its protection. The law does not exact a crown of martyrdom as a condition of retaining citizenship.
Moreover, if the plaintiff took an oath of allegiance upon being drafted into the Italian Army, he was then a minor and consequently, the taking of the oath did not operate as an expatriation, United States ex rel. Baglivo v. Day, D.C., 28 F.2d 44.
The final contention made by the Government is that the plaintiff became expatriated by 'Voting in a political election in a foreign state', 8 U.S.C.A. § 801(e). The plaintiff admits that he voted in Italy at an election for mayor in March 1946, although he claims to have cast a blank ballot. He also admits that he voted in Italy in an election in 1948. He claims that he voted as a result of duress, exercised by means of posters threatening with penalties anyone failing to vote. He also claims that he was informed that anyone who did not vote would be unable to get food because he would receive no ration coupons. Common knowledge of conditions prevailing in some European countries lends credence to the plaintiff's contentions.
The Court finds that the voting was under duress and that, therefore, it did not operate as an expatriation. Etsuko Arikawa v. Acheson, D.C., 83 F.Supp. 473, 476; Mitsue Masuko Kai v. Acheson, D.C., 94 F.Supp. 383, 384; Hichino Uyeno v. Acheson, D.C., 96 F.Supp. 510.
The Court concludes that the plaintiff has remained and is now a citizen of the United States.
Counsel will submit proposed findings of fact, conclusions of law and judgment in accordance with the foregoing discussion.