The opinion of the court was delivered by: HOLTZOFF
This is an action against the Secretary of State for a declaratory judgment and incidental relief to adjudicate that the plaintiff is a citizen of the United States and has not lost her nationality as a result of alleged expatriation.
The matter is presented at this time on cross-motions for summary judgment predicated on the administrative record of the Department of State, as well as affidavits and other similar material. None of the facts are in dispute. Both parties concede that there is no material issue of fact and that the litigation should be determined on the question of law, whether on the uncontested facts the plaintiff had become expatriated and thereby lost her citizenship.
The plaintiff was born in Switzerland on July 16, 1927. In 1939 at the age of 12, she was brought to the United States by her parents, who emigrated to this country at that time. On June 11, 1944, her father was naturalized as a citizen of the United States and the plaintiff thereby automatically acquired derivative citizenship. She lived in the United States continuously from her arrival in 1939 until March 1953, when she went to Europe to engage in activities relating to the theater and motion pictures. On October 7, 1953, she married a citizen of Italy. She continued to live in Italy but from time to time renewed her American passport at the American Consulate in Rome. She returned to the United States on February 2, 1956 and remained here until April 21, 1956 -- a period of almost three months. She then went back to Italy. Later she made another visit to the United States, which lasted from November 1 to November 24, 1957, and then again departed for Italy.
On July 8, 1958, the American Consul in Rome denied her application for a further renewal of her American passport and determined that she had become expatriated and had lost her citizenship by what he deemed to be a continuous residence abroad for over five years. His action was sustained by the Board of Review of the Department of State, which even denied her application for the issuance of a passport to travel to the United States to prosecute her appeal before the Board. Thereupon this action for a declaratory judgment was brought.
It is well established that an action for a declaratory judgment under the general Declaratory Judgment statute, may be maintained to secure an adjudication that the plaintiff is a citizen of the United States, if a justiciable controversy exists as to that question, as is obviously the case here.
The special statutory proceeding, which is confined to a limited group of cases, does not supersede the general remedy, Tom Mung Ngow v. Dulles, D.C., 122 F.Supp. 709. A person claiming to be a citizen of the United States may not be finally deprived of his nationality by a determination of an administrative official, but may always have recourse to the courts. It is inconceivable that Congress could have intended anything else.
The pertinent statute on which this controversy hinges is 8 U.S.C.A. § 1484(a) (2):
'(a) A person who has become a national by naturalization shall lose his nationality by --
'(2) having a continuous residence for five years in any other foreign state or states, except as provided in sections 1485 and 1486 of this title, whether such residence commenced before or after the effective date of this chapter.'
The term 'residence' as used in the foregoing provision is defined in 8 U.S.C.A. § 1101(a)(33), as follows:
'(33) The term 'residence' means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent. Residence shall be considered continuous for the purposes of sections 1482 and 1484 of this title where there is a continuity of stay but not necessarily an uninterrupted physical presence in a foreign state or states or outside the United States.'
It is important to note that the element of intent is expressly eliminated by the statute in determining whether the person under consideration is residing in the United States or in a foreign country. The question must consequently be described solely on the basis of external facts. The matters are, therefore, clearly susceptible to an adjudication on motions for summary judgment, if the salient facts are admitted or at least uncontroverted.
The definition of continuity contained in the second sentence of the statutory provision is somewhat vague and ambiguous. It requires a 'continuity of stay' but not necessarily 'an uninterrupted physical presence' in a foreign state. Under what circumstances an interrupted physical presence is consistent with a continuity of stay and how the two may be reconciled may be a perplexing and even a baffling problem. For the reasons later discussed, any doubt or uncertainty must be resolved in favor of the person who claims citizenship.
It is claimed by the plaintiff that her sojourn in the United States on two occasions, at one time of almost three months' duration, and another of almost one month, broke the continuity of her residence abroad and that, therefore, she is not affected by the expatriation statute. On the other hand, the Department of State urges that her trips to the United States did not ...