Petition of Acchione ( 1954 )

213 F.2d 845

Petition of ACCHIONE.

No. 11234.

United States Court of Appeals
Third Circuit.

Argued May 17, 1954.
Decided June 10, 1954.

Robert J. Spiegel, Philadelphia, Pa. (W. Wilson White, U.S. Atty., Philadelphia, Pa., William B. Taffet, District Counsel, Immigration and Naturalization Service, Philadelphia, Pa., on the brief), for appellant.

Fillindo B. Masino, Philadelphia, Pa. (Abraham E. Freedman, Freedman, Landy & Lorry, Philadelphia, Pa., on the brief, for appellee.

Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges.

PER CURIAM.

1

In this repatriation case the district court granted the application and the Government appeals.

2

The facts are substantially undisputed. Appellee's father, now deceased, became a naturalized citizen of this country on June 26, 1905. Appellee was born in Italy, January 23, 1913, acquiring American citizenship at birth. R.S. Sec. 1933, 8 U.S.C. §§ 1431-1433. In October, 1915, the father returned to Italy where he remained until his death. On October, 18, 1917, he reacquired Italian nationality by virtue of Italy's Nationality Law of 1912, Article 9(3). He was deemed to have expatriated himself on that date by our State Department. Appellee voted in the 1946 Italian election. Until some time in 1948 she had no knowledge of her father's prior United States citizenship or of possibility on her part of a right to American citizenship. Within a month thereafter she applied to the United States Consul at Rome for a passport presenting at the time her father's 'citizen paper'. Later she furnished the Consul other documents and a photograph requested by him. The latter said that as soon as he received an answer from Washington he would let her know. The application was not acted upon until 1951 when she was notified that she had lost her United States citizenship by having voted in the 1946 Italian election. In March, 1953, the Consul advised her that she was eligible to proceed to this country to seek repatriation. She came here May 7, 1953. Her petition under Section 402(j) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1435 note, was filed July 22, 1953.

3

The Government concedes that under the 1952 statute voting in the 1946 Italian election would not bar appellee's petition. It urges, however, that the application must be denied under the 1940 Nationality Act. Section 401(a) of that Act, 8 U.S.C. § 801(a)* provides in part:

4

'That a person who has acquired foreign nationality through the the naturalization of his parent or parents, and who at the same time is a citizen of the United States, shall, if abroad and he has not heretofore expatriated himself as an American citizen by his own voluntary act, be permitted within two years from the effective date of his (sic) chapter to return to the United States and take up permanent residence therein, and it shall be thereafter deemed that he has elected to be an American citizen. Failure on the part of such person to so return and take up permanent residence in the United States during such period shall be deemed to be a determination on the part of such person to discontinue his status as an American citizen, and such person shall be forever estopped by such failure from thereafter claiming such American citizenship.'

5

The argument is made that the above law deals wholly with the objective fact. Therefore even though appellee had no knowledge of her right to American citizenship until 1948 since she did not come to America within two years of January 13, 1941 (the effective date of the Act) she committed an overt act of expatriation and should be considered as having elected to remain a citizen of Italy. This contention is squarely opposed to our decision in Perri v. Dulles, 3 Cir., 1953, 206 F.2d 586. In that case under quite similar facts we held in 206 F.2d at page 591:

6

'that the two years period of limitation must also be regarded as not beginning to run until the plaintiff learned that he had a claim to American citizenship. For to provide that a citizen 'shall be forever estopped' from claiming citizenship by his failure to return to the United States at a time when he was wholly unaware of his citizenship would certainly be to deprive him of it arbitrarily and without his knowledge, much less his concurrence.'

7

The order of the District Court will be affirmed.

*

Now Immigration and Nationality Act, Sec. 349, 8 U.S.C.A. 1481(a)