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GAUDIO v. DULLES

February 19, 1953

GAUDIO
v.
DULLES, Secretary of State



The opinion of the court was delivered by: KIRKLAND

A declaratory judgment is sought in this suit for the purpose of establishing whether the plaintiff is a citizen of the United States under the facts at hand.

Plaintiff was born in New Haven, Connecticut, on December 24, 1916, of naturalized Italian parents. In September, 1921, she was taken to Italy by her parents and there resided continuously until October 19, 1951, when she was permitted to come to the United States on a certificate of identity to prosecute this case. Testimony by the plaintiff reveals she was issued a passport to the United States in 1937. However, she explains she was unable to leave Italy at that time because of illness suffered by her son and herself. No attempt to return to the United States was made again until June 27, 1947, when the American Consul refused an application for repatriation, because of prolonged residence abroad. Plaintiff accounts for her failure to pursue the necessary procedural steps to retain her American citizenship during this interim period on the grounds that a state of war existed in Italy from 1941 until early part of 1946; and further that war-torn roads and poor transportation prevented her from communicating with the American consulate in Naples, 70 miles away. Plaintiff married an Italian national in 1935 and two children were born of the marriage. The husband remains in Italy, although both children have taken up permanent residence in this country under an American passport issued in Italy.

 The Government takes the position that the plaintiff became a dual national after birth by reason of the parents returning to Italy and becoming nationals of their native land. This premise established, the Government concludes that plaintiff was under an obligation to return to the United States prior to January 13, 1943, if she desired to retain her American citizenship. Section 401(a) of the Nationality Act of 1940. *fn1"

 The terms of Section 401(a) appear in clear and relatively simple language. There appears to be no ambiguity and the plain meaning of the provision would seem to dispense with any need to enter the realm of conjecture. It has long been a rule of interpretation that where the Legislature has spoken in clear and unequivocal language the courts are bound thereby. Wall v. Pfanschmidt, 1914, 265 Ill. 180, 106 N.E. 785, L.R.A.1915C, 328. However, the instance is not rare when courts have found ambiguity existing in unambiguous statutes. 24 Minn.L.R. 509-513 (1940). Hard cases, with sympathizing facts, usually make bad law. Under such circumstances, courts have unduly strained at the language of a statute.

 Section 401 enumerates the many ways a person may lose his American citizenship. It was meant to apply to all nationals of the United States, whether by birth or naturalization. Originally, subsection (a) would have permitted the loss of citizenship when a person was naturalized, "either upon his own application or through the naturalization of a parent having legal custody of such person". However, the Congress was made aware that as the bill stood it would have strong opposition. Hearings before House of Representatives Committee on Immigration and Naturalization on H.R. 6127 superseded by H.R. 9980, 76th Congress, 1st Session, page 130. Accordingly, Congress adopted two provisos. The first proviso was submitted by the Department of State, and both the Department of Labor and Department of Justice were in accord with its substance. Hearings, Id., p. 158-161.

 By the adoption of this proposal, Congress made an exception to the general proposition offered under Section 401(a), and granted dual nationals, whether by birth or naturalization, the opportunity to elect within two years after reaching majority the country to which they choose to pledge allegiance. This permitted a native-born American citizen, with dual nationality, who faced losing his American citizenship by no overt act of his own, the opportunity to retain his citizenship in this country. *fn2" The second proviso did stir up some conflict of views between the Department of State and the Departments of Labor and Justice. The Department of State argued that those dual nationals who had reached the age of majority years ago and had remained abroad should be regarded as having made their choice to give up their claim to American citizenship. The Department of Labor sought to be compassionate, and forwarded the observation that it would be grossly unfair to suddenly close the door on those dual nationals abroad who, in good faith, held themselves out to be Americans. They voiced the suggestion that such persons be awarded a final opportunity to return to this country and assert themselves. The period of two years from the date of the passage of the Act, being considered, was looked upon as a reasonable time within which these persons should come forth or forever be estopped from claiming American citizenship. After lengthy consideration, the Department of Labor's submitted proposal was adopted verbatim. Hearings, Id. p. 254.

 It was, and still is, the intention that the plague of "dual nationality" be eliminated to every degree possible. This is evidenced by the recent passage of the McCarran-Walters Act. Preliminarily in the report accompanying H.R. 5678 (McCarran-Walters) to the House floor there appeared this language:

 
"The problem of dual nationality is one of the most difficult in the nationality law. It is possible in some instances for a native-born American citizen to have dual nationality, and in many cases if the dual national is taken by his parents to the country which also claims him as a national he might under other provisions of the nationality law lose his American nationality through no overt act of his own." (Report No. 1365, 82d. Congress -- 2d, Session, p. 87.)

 However, this case is controlled by the Nationality Act of 1940, and under that Act the plaintiff failed to return to the United States within the period of grace set forth. Section 401(a) extended the right to dual nationals, who had not voluntarily expatriated themselves, to return to the United States by January 13, 1943. Thereafter, such persons were to be "forever estopped" from claiming American citizenship. Plaintiff explains the war intervened and the American Consulate in Naples was closed from 1941 until 1946; that as a result it was impossible to return to the United States by January 13, 1943. The inevitable suggestion to be derived from such testimony is that the Act was in a temporary state of suspension during those years. A like defense was offered in the case of Mastrocola v. Acheson, D.C., 105 F.Supp. 580, 582, and the court held such claim was without merit in that legislative records indicated that the statute did not toll. *fn4" In support of this position, note is taken of the Congressional attitude when an occasion to alleviate this result was offered. H.R. 387, 79th Congress, 1st Session, was introduced for the purpose of extending the deadline of January 13, 1943, to January 13, 1947. The Committee on Immigration and Naturalization reported favorably on the bill and recommended it be enacted but still the House of Representatives refused to pass it.

 During the periods prior to 1947, when the American Consulate in Naples was open, plaintiff claims she could not contact them because of the interjacent impassable terrain. Her testimony left the impression that the village where she resided was completely severed and divorced from the rest of the world. This court is in doubt as to plaintiff's veracity as to these facts and, furthermore, does not feel the plaintiff displayed any sincere efforts to embrace United States citizenship until June of 1947. Prior to that date she seemingly was in a state of uncertainty as to where the pastures were greenest. Now, with the shadow of middle age approaching, she apparently feels the greatest benefits lie in American citizenship. The lure of social security and old age pensions attract many who have not contributed one iota of assistance to the well being of this country; they have not recognized their obligations as American citizens -- rather they are only conscious of the advantages and rewards thereunder. If an adult person does not value his citizenship enough to come forth and affirmatively assert it, he is not worthy of it. Those individuals in the status of dual nationals have the duty to make an election within the reasonable time established by Congress, or accept the consequences of their passive attitude.

 If this court were not bound by the rulings of the Supreme Court of the United States, and the Court of Appeals for the District of Columbia, it would not hesitate to render judgment against the plaintiff. This court would prefer to follow the doctrine announced in Mastrocola v. Acheson, N.Y., supra. However, since this is a trial court of the District of Columbia Circuit we are compelled to follow the decisions rendered by the Appellate Courts in this jurisdiction.

 In Mandoli v. Acheson, 1952, 344 U.S. 133, 137, 73 S. Ct. 135, 137, the Supreme Court, although under no compulsion to do so, had this to ...


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