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the fine was imposed for bringing an immigrant without an
unexpired immigration visa ***.
Subsequent to the arrival of the vessel at Halifax, Nova Scotia, the Canadian authorities paroled this passenger and she subsequently obtained a consular immigration visa from the American consul in Canada in order that she could proceed to her home in the United States.
In a report dated August 11, 1949, from the Acting District Director of Immigration and Naturalization, St. Albans, Vt., it is set forth that the alien passenger was in fact destined to the United States but she was not in possession of a valid immigration visa and the validity of the reentry permit which she held had expired prior to her embarkation in Europe. If the line's agent at the port of embarkation had examined the reentry permit, and reasonable diligence would have so required, it could have been ascertained quite readily that this passenger was inadmissible to the United States because she was not in possession of the requisite documents pursuant to statute.
Counsel in behalf of the line involved relies upon a decision of this Board in the Matter of Plane CF TFH TCA 208, decided April 12, 1950, File F-4847, unreported. That decision was distinguished by the Assistant Commissioner of Immigration and Naturalization in his decision as aforesaid from the present case in that the alien passenger there involved one, E-— S▬▬▬ D▬▬▬▬, was in fact destined to Canada for business prior to entering the United States and that fact was known prior to embarkation and his passage to Canada was booked accordingly. It was not until after completion of his business in Canada that he proposed to proceed to the United States. This Board affirms the distinguishing features of the D case from that in the present case.
After careful consideration of all of the evidence of record as well as all of the representations of counsel both on the protest and on the appeal, it is the conclusion of this Board that a violation of section 16 of the Immigration Act approved May 26, 1924 (supra), has been established in that the passenger transported was an immigrant not in possession of an unexpired immigration visa or valid permit to reenter the United States which fact could have been ascertained by the exercise of reasonable diligence, the line's agent having failed to inspect the permit to reenter the United States, the validity of which permit had expired prior to the alien's embarkation and, further, that the alien was not in possession of an unexpired immigration visa.
Order: It is ordered, That the appeal from the decision of the Assistant Commissioner of Immigration and Naturalization be and the same is hereby dismissed.
IN THE MATTER OF G——
In VISA PETITION Proceedings
Decided by Board May 19, 1950
Decided by Board January 27, 1950
Citizenship-Expatriation-Foreign military service-Section 401 (c) of the Nationality Act of 1940-Voluntary service-Evidence.
A native and citizen of Italy, naturalized here in 1929, was found to have established on the basis of the evidence presented that his service in the Italian Armed Forces in 1941 was of an involuntary nature (it having been previously found that he had not expatriated himself in 1931-32 by taking an oath of allegiance in connection with his service during that period in the Italian Armed Forces). [See, 3, I. & N. Decs. 558, 586, 701, and 890.] (Also see, 41 Op. Atty. Gen. No. 16, May 8, 1951.)
BEFORE THE BOARD
(May 19, 1950)
Discussion: This case is before us on motion of counsel for reconsideration of our previous order, dated January 27, 1950, wherein we dismissed the appeal from a finding of expatriation below. Counsel now presents additional documentary evidence, together with another brief, in support of his prayer for an order modifying the above order approving the visa petition for petitioner's wife and six children.
The facts may briefly be summarized as follows: On March 1, 1941, petitioner was recalled by the Italian Army and served until October 1, 1941. It was previously determined that petitioner's prior taking of an oath of allegiance and consequent military service from October 1, 1931, to October 1, 1932, occurred involuntarily and did not serve to divest him of his United States citizenship. Because petitioner was granted a 2 months' convalescent leave upon initial recall (petitioner was again allegedly suffering from the nervous stomach condition, which had troubled him during his military service in 1931), petitioner alleged that he believed that he would not actually be inducted for service. During this period of 2 months, petitioner testified that he protested to the American consul at Palermo, where he was al
legedly told that the best thing to do was to serve. At the end of the convalescent leave, petitioner was informed that he must serve immediately, whereupon he stated that he protested to the Italian military authorities, but was reportedly told that if he refused to serve he would be arrested and his family sent to a concentration camp. (With regard to the American consul's alleged refusal to take action in petitioner's behalf, it is noted that the State Department has consistently held that, since persons who have a basis for refusal to serve in the Italian Army can apply to the Italian authorities for exemption, if their name has been automatically and erroneously listed on the rolls, the American consulate is powerless to obtain an exemption for these persons and these American citizens must take the affirmative action themselves to prove to the Italian authorities that they are actually unwilling to serve.)
In our order of January 27, 1950, it was determined that petitioner not only chose to remain in Italy in the face of impending war, but also served in a foreign army under circumstances which were not proved as extraordinary and amounting to true duress as defined by the courts. It was, therefore, concluded that "petitioner expatriated himself by voluntarily acting in a manner inconsistent with his American citizenship" (sec. 401 (c), Nationality Act of 1940). Our prior conclusion was based upon the premise that present allegations of duress in connection with foreign military service standing alone are not sufficient to negative expatriation, for additional evidence in collaboration is required. The best evidence is a contemporaneous protest, but this type of proof is oftentimes unavailable. Therefore, we have found it expedient to accept evidence of conditions existing in a given country, which render plausible the story now related.
Upon reconsideration of the record and in the light of the latest presentation of the case to the Board, we believe the latter requirement has been met. Hence, even though we cannot agree with the broad premises which counsel advances in his brief, we feel that
1 'Counsel posed several contentions in his brief which are worthy of comment. (1) Counsel stated that petitioner's refusal to serve in the Italian Army would have subjected him to criminal prosecution. In Matter of De M, VP-412127 (March 27, 1950), we took notice of the habit of Italian tribunals to hand down such sentences in abstentia. However, it appears that such severe and extreme penalties, as were invoked in the De M― case, occur chiefly when the subject departs or hides immediately prior to the time of his liability for a draft call, and do not generally take place in this manner if the subject has been long absent from Italy.
In passing, we wish to deal with counsel's unqualified statement that “It has been held that if a United States citizen serves in a foreign army, expatriation does not result, if refusal to serve in said armed forces is punishable criminally (citing Matter of Podea, 56129/480, February 28, 1944, Adjudications Office)." In both this decision of the Assistant Commissioner in 1944 and the
petitioner has now sustained the burden of proving that his military service in 1941 was under duress. He has affirmatively established and sustained by evidence the credibility of his defense. Thus, we conclude that the motion for reconsideration should be granted and we, therefore, find that petitioner's visa petition in behalf of his wife and alien children should be approved.
Order: It is hereby ordered that the motion be granted and the visa petition approved.
BEFORE THE BOARD
(January 27, 1950)
Discussion: This case is before us on appeal from a decision of the Assistant Commissioner dated July 15, 1949, directing that the petition be denied. Petitioner filed a petition for nonquota status under section 4 (a), act of 1924, for his wife and 6 children (4 sons, aged 13, 11, 7, and 5, and 2 daughters, aged 9 and 6). The Assistant Commissioner found that petitioner had expatriated himself under section 2, act of 1907, by taking an oath to the King of Italy while serving in the Italian Army during 1931 and 1932 and therefore the beneficiaries were not entitled to nonquota visas.
Petitioner was born in Italy in 1902 and entered the United States on August 23, 1923, aboard the S. S. Conte Verde. He was natural
recent court decision by Judge Augustus Hand (Podea v. Acheson, C. A. 2, January 10, 1950) (179 F. (2d) 306), this contention was disregarded and did not serve as the basis for the determination that Podea retained his United States citizenship. The court concluded that Podea was not expatriated under either sec. 2 of the 1907 act or sec. 401 (c) of the Nationality Act of 1940, since his acts were not voluntary but "were required by the situation in which he found himself and were primarily caused by the erroneous advice of the State Department and were fartherest from his real purpose."
(2) Counsel also stated that under Italian law, petitioner was considered an Italian citizen and compelled to serve. In view of the provisions of art. 8 of the Italian Nationality Law of 1912 (entitled "Loss of Citizenship") and petitioner's naturalization in 1929, petitioner's acquisition of United States citizenship was recognized at the time he performed military service in Italy and he was not then regarded as an Italian citizen. However, because petitioner was 27 years old at the time he relinquished his Italian citizenship, his liability for military service in Italy had already accrued and the State Department has had occasion to state that military service obligations which accrue prior to foreign naturalization of Italian citizens are enforced upon the person's later return to Italy.
(3) Counsel contends that the Matter of S—, (VP-385381, August 3, 1949) (3, I. & N. Dec. 701) controls the present appeal. It is our opinion that counsel has extended the ruling in that case beyond the boundaries indicated by us. Futhermore, the existence of a draft law in a given case is only one of the factual elements to be considered, not the sole factor involved. Ropers v. Shaughnessy (S. D., N. Y., November 9, 1949).
ized on September 23, 1929, in the District Court for the Eastern District of Michigan. On September 4, 1931, petitioner departed for Italy to visit his parents; he alleges that he planned to stay only a year's time, but before leaving he closed out his bank account of $500 and left no property in this country. Petitioner testified that 2 weeks after his arrival in Salemi (Sicily), the Italian Police served him with an induction notice (they had allegedly been awaiting his return since 1924, when he became liable for military service) and took him to the military center. Petitioner stated that he protested to the military authorities that he was a United States citizen, but not to the American consul. He was inducted into the Italian Army on October 1, 1931, and served until October 1, 1932. According to Italian law, the oath of allegiance is administered 3 months after induction and all inductees are required to take it. However, petitioner stated that he did not take the oath to the King of Italy, but pretended to be sick with a nervous stomach and was later punished for his nonattendance; two of his fellow soldiers stated in affidavits that petitioner did not take the oath. Petitioner testified that he wrote his father to protest his induction to the Italian Ministry of War; no proof of this protest has been produced. Petitioner was home on furlough from December 23 to January 1, but failed to contact the American consulate; petitioner explained that he was under the impression that the consulate was closed for the holidays.
In September 1933, he was married and in December 1933, he obtained a renewal of his United States passport; petitioner failed to reveal his service in the Italian Army to the American consul at Palermo. About this time, petitioner opened a perfume shop in Salemi, which was allegedly run by his wife due to his illness with a nervous stomach condition; petitioner stated that he suffered from this stomach condition while in the Army and was thus prevented from returning to the United States because of it.
On March 1, 1941, petitioner was recalled by the Italian Army and served until October 1, 1941. Petitioner testified that he protested at the American consulate at Palermo, where he was allegedly told that the best thing to do was to serve; petitioner also testified that he protested to the Italian military authorities, but was reportedly told that if he refused to serve he would be arrested and his family sent to a concentration camp. On October 18, 1944, petitioner made application for registration as a United States citizen and also applied for a United States passport; at that time, petitioner failed to disclose that he had served in the Italian Army and was granted a passport on June 15, 1946. Petitioner returned to this country on July 16, 1946, arriving at New York aboard the S. S. Vulcania.
According to the provisions of section 2 of the act of March 2, 1907, a native-born citizen is expatriated upon taking an oath of allegiance