A-8082127, A-8082128
Decided by the Board November 13, 1953
Cancellation of naturalization — Effect on members of family admitted as citizens of the United States.
Where the children of a naturalized United States citizen were admitted to this country on November 1, 1948, as citizens thereof under the then prevailing view that revocation of the parent's naturalization for presumptive fraud did not extinguish derivative rights (which view was overruled in the case of Battaglino v. Marshall, 172 F. (2d) 979 (C.A. 2, 1949) cert. den., 338 U.S. 829), they are now regarded as having been lawfully admitted to the United States for permanent residence as aliens at the time of their arrival provided they are entirely innocent parties and have been placed in their present predicament through no fault of their own. Therefore, deportation proceedings are terminated.
CHARGE:
Warrant: Act of 1924 — No immigration visa (both aliens).
BEFORE THE BOARD
Discussion: This is an appeal from an order of the hearing officer finding the respondents deportable but granting them the privilege of voluntary departure. Counsel requests that action in the case be postponed pending final disposition of action on private bills now pending in behalf of the respondents.
The respondents are brother and sister, both natives of Italy. The male respondent was born on May 4, 1930. The female respondent was born on March 26, 1932. Their only entry into the United States occurred at the port of New York on November 1, 1948, as passengers on the S.S. Vulcania at which time they were admitted as United States citizens upon presentation of a United States passport. The record shows that their father, P---- G----, was naturalized as a United States citizen on April 20, 1928; that he returned to Italy, his native country, in August 1928 and came back to the United States on August 11, 1930, on a United States passport; and that he again left the United States on June 12, 1931, and took up permanent residence in Italy. On March 14, 1938, his naturalization was canceled by the United States District Court, Brooklyn, N.Y., on the ground of presumptive fraud. The respondents herein were issued a United States passport by the consul general of the United States at Palermo, Italy, on September 14, 1948. The hearing officer has found them to be deportable on the ground that the cancellation of their father's naturalization nullified ab initio any claim to United States citizenship which they acquired through his naturalization, and since they were not entitled to United States passports they were immigrants without visas at the time of their entry.
Apart from the revocation of the father's naturalization, it appears that a certificate of expatriation was executed by the vice consul of the United States at Palermo, Italy, on July 24, 1935, wherein he stated that P---- G---- became domiciled in Italy about August 19, 1928, and expatriated himself about August 1930 after 2 years residence in Italy under article IX (3) of the Italian nationality law of June 13, 1912; and that his voluntary acceptance of Italian nationality was manifested by his joining the Fascist Party on July 31, 1933. The vice consul concluded that G----, who was born before the alleged expatriation of his father, acquired United States citizenship at birth but that A----, who was born thereafter, did not acquire such citizenship since her father was no longer a United States citizen at her birth.
The record reflects that after returning to Italy on August 19, 1928, the respondents' father came back to the United States on August 11, 1930, less than 2 years later, with a United States passport; and that he did not leave the United States for Italy permanently until June 12, 1931. It therefore appears that he was not expatriated under the Italian nationality law of 1912 until 2 years after his return to Italy for permanent residence, or June 1933. Since both respondents were born prior to that time, their status as United States citizens was not affected by the father's expatriation. The only issue therefore concerns the effect of the revocation of the father's naturalization upon the status of the respondents.
Matter of V----, VP-372844, B.I.A. July 14, 1949, 3 IN Dec. 671.
Haaland v. Attorney General, 42 F. Supp. 13 (D.C. Md., 1941); Ex parte Gilroy, 257 Fed. 110 (S.D., N.Y., 1919).
The father's naturalization was canceled under section 15 of the Naturalization Act of June 29, 1906, based upon his resumption of permanent residence in Italy within 5 years of his naturalization. At one time a decree of revocation obtained under this section was construed to extinguish, retroactively, the rights flowing from the naturalization, depriving the children of the naturalized person of the citizenship which they had acquired. Subsequently there were cases which held that revocation for presumptive fraud did not extinguish derivative rights. However, in the case of Battaglino v. Marshall, 172 F. (2d) 979 (C.A. 2, 1949, cert. den. 338 U.S. 829) it was held that revocation of citizenship on the ground of presumptive fraud under the Naturalization Act of 1906 rendered such naturalization a nullity ab initio and deprived the son of the naturalized person of the United States citizenship which he had acquired at birth. It appears that the respondents were admitted as United States citizens in accordance with the view prevailing prior to the decision in the Battaglino case. We note parenthetically that the revocation of naturalization in proceedings begun on or after January 13, 1941, the effective date of the Nationality Act of 1940, does not deprive the wife or minor child of the naturalized person of the citizenship rights acquired through such naturalization unless the revocation was a result of actual fraud.
The pertinent part of the statute is found in the second paragraph of sec. 15. "* * * If any alien who shall have secured a certificate of citizenship under the provisions of this act shall, within 5 years after the issuance of such certificate, return to the country of his nativity, or go to any other foreign country, and take permanent residence therein, it shall be considered prima facie evidence of a lack of intention on the part of such alien to become a permanent citizen of the United States at the time of filing his application for citizenship, and, in the absence of countervailing evidence, it shall be sufficient in a proper proceeding to authorize the cancellation of his certificate of citizenship as fraudulent, * * *." ( 34 Stat. 601).
36 Op. Atty. Gen. 446 (Mariani, 1931).
In re Bolter, 66 F. Supp. 566 (D.C. Calif., 1946); In re Findan, 4 F. Supp. 189 (D.C.R.I., 1933).
Sec. 338 (d), act of October 14, 1940 (8 U.S.C. 738 (d)).
Under the present administrative view, where children acquiring United States citizenship on the basis of their parent's naturalization were admitted as United States citizens and the parent's naturalization has been subsequently cancelled, the children are regarded as having been lawfully admitted to the United States for permanent residence as aliens unless they knowingly participated in the unlawful naturalization or had knowledge thereof prior to their admission into the United States. This practice is followed to alleviate the hardship resulting to persons who were admitted to the United States as citizens under the interpretation of section 15 of the act of 1906 prevailing prior to the Battaglino case. In view of the fact that the respondents were entirely innocent parties and have been placed in their present predicament through no fault of their own, we will apply this view and consider them as having been lawfully admitted to the United States as aliens for permanent residence. It follows that the proceedings should be terminated.
Order: It is ordered that the respondents be regarded for all purposes as having been lawfully admitted to the United States for permanent residence as aliens at the time of their entry on November 1, 1948, at the port of New York.
It is further ordered that the proceedings be terminated.