to a foreign state, if that oath is taken voluntarily. In the instant case, however, the evidence indicates that petitioner did not take an oath of allegiance in 1931, as an incident to his year's military service, and he is not considered as having expatriated himself on that occasion. In re Gogal, 75 F. Supp. 268 (W. D., Pa., 1947); Matter of C—, VP-361035 (April 22, 1949). Thereafter, although petitioner had adequate opportunity to leave Italy if he sincerely desired to do so, but instead he went into business in Salemi and, with war clouds threatening all over Europe, deliberately placed himself in a position to be recalled to duty in the Italian Army. And petitioner again served in the Italian Army for 7 months in 1941. On the basis of the facts. of record, petitioner's claim that this military service was under duress has not been established (Podea v. Marshall, 83 F. Supp. 216 (E. D.. N. Y., 1949); Matter of R—, A-7142292 (October 21, 1949)). Thus, petitioner lost his citizenship by virtue of military service in 1941 (sec. 401 (c), Nationality Act of 1940).

The burden of proving citizenship is on petitioner in a visa petition proceeding. Hence, it must be shown that extraordinary circumstances amounting to true duress existed at the time of the military service in 1941 (Doreau v. Marshall, 170 F. (2d) 721 (C. A. 3, 1948)). The present case does not parallel Matter of S-, VP-385381 (August 3, 1949) (3, I. & N. Dec. 701), as counsel suggests, since the cases are clearly distinguishable on the facts. Matter of C—, VP-361035 (April 22, 1949) (3, I. & N. Dec. 586) is not controlling in the instant case, for in the C case more affirmative evidence was presented, which was found to be sufficient to negative a finding of expatriation.

Therefore, since the period of military service in 1941 was not shown. as occurring under duress, it is concluded that petitioner expatriated himself.by voluntarily acting in a manner inconsistent with his American citizenship. (Savorgnan v. United States, 171 F. (2d) 155 (C. A. 7, 1949); Podea v. Marshall (supra).)

Order: It is hereby ordered that the appeal be dismissed.

Editor's note. In a letter to the Secretary of State dated November 1, 1950, from the Chairman of the Board of Immigration Appeals, in connection with the above case, the following appears:

"You ask to be advised as to the nature of the evidence which was submitted to the Immigration and Naturalization Service for the purpose of showing that Mr. G's service in the Italian Army from October 1, 1931, to October 1, 1932, was performed involuntarily. You also state that with reference to the second period of service from March 1, 1941, to October 1, 1941, it appears that no evidence was submitted other than the petitioner's testimony to the effect that he protested to the American consul at Palermo, who informed him that the best thing to do was to serve and that he thereafter protested to the Italian authorities but was told that if he failed to serve he would be arrested and his family sent to a concentration camp.

"The Board found that the evidence did not establish that petitioner took an oath of allegiance in connection with his military service in the Italian Army

in 1931, as required by sec. 2 of the act of March 2, 1907, upon which to predicate expatriation of his American citizenship, or that the second period of service was voluntary.

"The evidence established that Mr. G was born in Italy in 1902 and was admitted to the United States for permanent residence on August 23, 1923; that he was naturalized in this country on September 23, 1929. On September 4, 1931, he departed for Italy to visit his parents. His testimony indicated that two weeks after his arrival in Italy, he was served with notice of induction into the military service and he was taken to the military center. He testified that he protested to the Italian military authorities against service in the Italian Army on the ground that he was a citizen of the United States but not to the American consul. Nevertheless he was inducted into the Italian Army on October 1, 1931, and served until October 1, 1932.

"According to Italian law in such cases, the oath of allegiance is administered approximately 3 months after induction and all inductees are required to take such an oath. Mr. G—, however, testified that he did not take an oath to the King of Italy but pretended to be ill and was later punished for his nonattend

ance.

"Mr. G also deposed in a sworn affidavit that in connection with the second period of military service, he protested to the Italian military authorities displaying his United States passport but this action was of no avail and he subsequently protested to the American consul with the result already stated; that with respect to his second period of service the Italian military authorities went to his home and insisted that he report for service; that as a result of such enforced military service he became seriously ill and was hospitalized in the military hospital.

"In a sworn statement by S

P, it is stated that:

"GS of the deceased I- and of M——, M——, arrived as effective military to the 23d Infantry Regiment, Como Brigade, October 5, 1931, and at the taking of the oath, November 4, did not want to participate because he was an American citizen, and was severely punished. The military service class of 1910 was completed in 18 months, beginning April 1931 to November 1932, whereas G completed 12 months beginning October 5, 1931 to October 1, 1932.' "In another sworn statement by V-C, it is stated:

son of the deceased G

"I, the undersigned C- V and of CM- born at Salemi on February 18, 1911, and presently residing in Fontanbianca, declare under my own personal responsibility that I was a fellow soldier of the 4th Regiment Infantry at Gorizia, with G, S, son of the deceased I— of and of M, M; That Mr. G- did not take the oath in the

Italian army. Salemi, September 7, 1949.'

"As you know, the court in the case of Dos Reis ex rel. Camara v. Nicolls, 161 F. (2d) 860, ruled that a person who is a citizen of the United States and also a citizen of a foreign state loses his United States citizenship under the provisions of sec. 401 (c), Nationality Act of 1940, only if his entry or service in a foreign army is voluntary.

"Also, in the case of Bussa v. McGrath, decided by the United States District Court, Northern District of New York, on March 18, 1950, which involved the question whether Bussa lost his United States citizenship by reason of his continued residence in the country of his birth, the court ruled that he did not even though Bussa was the only witness in his behalf. The court accepted his explanations of his reasons why he remained in the country of his birth and why he participated in certain actions ordinarily inconsistent with retention of his American citizenship.

"In Petition of Nicola Lo Pomo (Petition for Nat. No. 191736) decided by the United States District Court, Eastern District of Pennsylvania, on June 7, 1950, the petitioner was born in the United States and taken to Italy by his parents in August of 1928, where he remained until October 25, 1948, when he returned to the United States. During his stay in Italy he was inducted into the Italian Army on May 11, 1937, and discharged August 18, 1938, reinducted September 4, 1939, demobilized in September 1943, and finally discharged on March 4, 1944. He took oath of allegiance about a month after his induction. In November 1933 he applied for an American passport and asked to be returned to this country, he then being without funds. This was found to be impracticable. He registered at the American Consulate in Naples, Italy, as an American citizen in 1938, 1942, and 1944, and applied for a passport but passport was denied on the ground that he became expatriated by taking an oath of allegiance to Italy after reaching majority.

"The court pointed out that the record established that petitioner offered no protest with respect to either induction or the taking of an oath. The record also contained statement by petitioner that such service was against his will. The court pointed out that under conditions then existing in Italy protest would have been futile and also protest under existing conditions would have resulted in reprisals and punishment. The court found that service and oath by petitioner were against his will. Citing Dos Reis ex rel. Camara v. Nicolls, 161 F. (2d) 860.

"Thus, on the basis of the uncontroverted evidence submitted in this case, together with the fact that in each instance, G― was inducted into the Italian Army, and the circumstances surrounding the service, together with the further fact of conditions existing in Italy at that time, and in the light of court rulings in substantially similar circumstances, the Board felt that its decision was justified beyond any question."

260397-54- -6

IN THE MATTER OF W

In DEPORTATION Froceedings

A-5908014

Decided by Board May 31, 1950

Reconsidered by Board July 13, 1951

Decided by Acting Attorney General May 6, 1952

Suspension of deportation; internee during World War II, exercise of discretion-Voluntary departure; Internees, eligibility for prior to deportation proceedings.

(1) An alien brought to United States for internment during the war may not be deported as an immigrant unless he has failed to avail himself of an opportunity afforded him to depart voluntarily.

(2) Discretionary relief in the form of suspension of deportation or voluntary departure with preexamination may be authorized in the case of an alien brought to this country as an internee when the alien has in the United States dependent family ties of citizen or legally resident alien wife or minor child. (3) Discretionary relief in the form of suspension of deportation may be authorized in the case of an alien brought to the United States as an internee, even though he has no family ties in this country, when the facts of the case indicate that deportation would result in undue hardship, it appearing that the alien has been in the United States for the past 10 years, is unable to return to the country wherein his last place of lawful residence was located and the alien has been absent for 29 years from the country of his origin and citizenship.

CHARGES:

Warrant: Act of 1924-No immigration visa.
Act of 1918, as amended-No passport.

BEFORE THE BOARD

(May 31, 1950)

Discussion: Respondent is 45 years of age, a native and citizen of Germany. He last entered the United States on January 13, 1942. At the time of his entry he was in the custody of the United States Army, being one of a number of persons who were brought by the Army to this country from South America for internment during the war. Respondent had migrated from Germany to Nicaragua in

1923. He was brought to the United States from Guatemala, where he had lived for nine years. He has no dependents or close relatives in the United Staes. He has a wife from whom he has been separated and children in Guatemala.

On June 24, 1947, the Commissioner found respondent to be subject to deportation on the charges stated in the warrant of having entered the United States without a visa and without a passport. Respondent was granted the privilege of voluntary departure within 60 days after notification of decision, and the order further provided that if he did not depart within the allotted time his deportation would be ordered. Counsel now asks for additional relief in the form of a grant of suspension of deportation.

Having had the opportunity to depart voluntarily and not having availed himself of this opportunity, respondent places himself within the rule of United States ex rel. Sommerkamp v. Zimmerman, 178 F. (2d) 645 (C. A. 3, 1949) (originally a companion case to the present one*) and United States ex rel. Scherrmeister v. Watkins, 171 F. (2d) 858 (C. A. 2, 1949). In those cases it was found that the persons who were brought into the United States as prisoners of war who have been given an opportunity to depart and had failed to depart, may be deported as "immigrants" who have not satisfied the requirements of law. In each of those cases, as in the present case, the alien was brought to the United States against his will. After a period of internment, proceedings against each alien as an alien enemy were terminated. In each case the alien was given an opportunity to depart voluntarily and failed to do so because of his inability to procure a passport from the country from which he had been removed. In accordance with the rule in those cases, respondent's deportability is now conceded.

The present proceeding is to determine respondent's eligibility for suspension of deportation under section 19 (c) of the Immigration Act of 1917, as amended, 8 U. S. C. 155 (c). That section provides that in the case of any alien who is deportable under any law of the United States and who has proved good moral character for the preceding 5 years, the Attorney General may (1) permit such alien to depart from the United States to any country of his choice at his own expense, in lieu of deportation; or (2) suspend deportation (with an exception not applicable here) of the alien, if he finds (a) that such deportation would result in serious economic detriment to a citizen or legally resident alien who is the spouse, parent or minor child of such deportable alien; or (b) that such alien has resided continuously in the United States for seven years or more and is residing

*Editor's note.-Unreported Matter of S., A-5907999, B. I. A., June 12, 1950, of like content as this Interim Decision.