* * * that a citizen by birth who has not yet attained his majority cannot expatriate himself by taking an oath of allegiance to a foreign state.' In the circumstances the taking of the oath in question by Plaintiff did not, in the Court's opinion, constitute an act of expatriation. Nor does the mere continuance in the service of a conscript in the Italian Army who attains his twenty-first birthday have that effect. Perri v. Dulles, supra. Di Girolama v. Acheson, D.C.D.C.1951, 101 F.Supp. 380.
Recognizing the established law set out above, Defendant has attempted to show confirmation of the Plaintiff's oath of allegiance by certain acts, namely, the securing of an identity card describing his nationality as Italian, and membership in the Fascist Party, which it is contended are inconsistent with his claim of citizenship.
Wowever, after a careful consideration of the record the Court is unable to accept this position. There cannot be expatriation because of the confirmation of these acts unless the intention to relinquish citizenship was clear. Di Girolama v. Acheson, supra; Tomasicchio v. Acheson, supra. 'Expatriation is the voluntary renunciation or abandonment of nationality and allegiance', Perkins v. Elg, 1939, 307 U.S. 325, 59 S. Ct. 884, 889, 83 L. Ed. 1320, and 'proof to bring about a loss of citizenship must be clear and unequivocal.' Baumgartner v. United States, 1944, 322 U.S. 665, 64 S. Ct. 1240, 1243, 88 L. Ed. 1525; Schneiderman v. United States, 1943, 320 U.S. 118, 63 S. Ct. 1333, 87 L. Ed. 1796. Common knowledge of conditions prevailing in Italy at the times in question lends credence to the Plaintiff's testimony that he acted as a result of duress. Thus, the Court is unable to find in the record the high degree of proof required of the Government to establish its case by clear unequivocal and convincing evidence, which does not leave the issue in doubt. Knauer v. United States, 1946, 328 U.S. 654, 657, 66 S. Ct. 1304, 90 L. Ed. 1500.
What has been said above is likewise applicable to the Government's contention that the Plaintiff was expatriated by serving in the Italian Army after the effective date of the Nationality Act of 1940. Section 401(c) of the Nationality Act provides that: 'A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: * * * (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'. 8 U.S.C.A. § 801(c). Consideration of the legislative history of this section of the Act justifies the conclusion that Congress intended that expatriation should take place only if the prohibited service were voluntary. Dos Reis ex rel. Camara v. Nicolls, 1 Cir., 1947, 161 F.2d 860, 863.
Although recognizing the rule laid down in Acheson v. Maenza, supra (202 F.2d 458), that 'duress cannot be inferred from the mere fact of conscription', this Court has nonetheless satisfied itself after a careful consideration of all the circumstances attending the Plaintiff's service in the Italian Army, and the reasonable inferences to be drawn therefrom, that the said army service was rendered under the compulsion of military sanctions, and was impelled by the influence of those who stood in a position of authority. Acheson v. Maenza, supra, Lehmann v. Acheson, supra, Pandolfo v. Acheson, 2 Cir., 1953, 202 F.2d 38, 40, note 3, 41 Op.Atty.Gen. No. 16.
Plaintiff shall prepare proper findings, conclusions, and judgment.
© 1992-2004 VersusLaw Inc.