ice, dated March 19, 1947, had not as yet been obtained and that it was doubtful it could be obtained in the near future, in view of the failure of the Yugoslavian Government to cooperate. Information has now been obtained from the Library of Congress, so that a final determination can be made as to subject's citizenship status.

The question presented is whether subject lost her United States nationality in any manner, particularly by voluntary acceptance of a foreign nationality which she may have acquired involuntarily subsequent to her birth.

The record discloses that subject was born at Clarksburg, West Virginia on August 13, 1881, of native-born citizens of the United States. She was married on August 13, 1902, in Paris, France, to her husband, SY—G—. She has testified that her husband was born in Belgrade, Serbia, on February 14, 1871; that Serbia became Yugoslavia after the First World War; that her husband was a diplomat; that he was a citizen of no other country than Serbia and Yugoslavia; and that he died on March 23, 1937, in London, England. She gave her testimony before a representative of this Service on March 10, 1942.

Subject further testified that she was a citizen of Yugoslavia, having acquired citizenship by marriage; that she took no voluntary steps to acquire such citizenship but that she had dual citizenship by reason of her marriage. She exhibited a Yugoslavian diplomatic passport issued March 11, 1941, which was endorsed indicating that she had been admitted to the United States at New York on June 30, 1941, under section 3 (2) of the Immigration Act of 1924 as a visitor for 6 months. The passport was also endorsed showing that its validity had been extended by the Yugoslavian Legation until November 21, 1942.

The subject testified that she intended to remain in the United States for the duration of the war and then to return to Yugoslavia if she could; that if the war went against Yugoslavia it might be necessary to remain in the United States but that she intends to return to her home in her adopted country. She further testified that she considers herself to be a citizen of Yugoslavia but that she is as much an American at heart as if she never went away. She testified further that after her birth, she remained in the United States until she was 15 years of age; that she then went to England and remained there until 1898, when she went to Greece where she remained until 1902. In 1902 she married her husband in Paris and remained there for 13 months, he being then a diplomat; in 1903 she visited the United States for 3 months and then returned to Belgrade, where she remained with her husband until 1905. From 1905 to 1907 they were in Russia; from 1907 to 1914 they were in England; during this time she visited the United States for short visits almost annually. In 1914 they returned

to Serbia; in 1916 they went to Switzerland; in 1918 her husband came to the United States as Minister and remained here until November 1922 when he returned to Yugoslavia. He retired from service in 1929 and then resumed service again in 1934, acting as a diplomat in London until his death in 1937.

Subject further testified that in 1938 she paid a visit to the United States and that thereafter she visited various countries in Europe until 1941 when she came to the United States with the expectation of remaining here until the end of the war. When asked whether any of her visits to the United States were made for the purpose of retaining American citizenship, she testified that the visits were strictly for pleasure and to retain her American contacts. She stated that she at no time appeared before an American consul for the purpose of declaring her intention to retain her American citizenship; that she took no oath of allegiance to the United States; that on all of her trips subsequent to her marriage she traveled on a Serbian and later Yugoslavian passport; that she is still entitled to such passport as the widow of a diplomat; and that she is grateful for the hospitality and refuge which this country is giving her.

The file of the New York office contains a letter dated August 12, 1942, from the Yugoslavian consul general with respect to the subject's possible repatriation. The consul general stated that the subject does not wish to lose her Yugoslavian citizenship. The file also contains a letter dated October 2, 1942, from the subject addressed to the New York office in which she states that she does not wish to be repatriated as an American-born citizen for personal and property reasons.

In July 1945, the subject communicated with the San Francisco field office with regard to her citizenship status. After consideration of her case by a field officer, a letter was written to her by the San Francisco field office on July 24, 1945, in which she was advised that it was the view of this Service that her marriage in 1902 to her alien husband did not cause expatriation in the absence of a treaty between the United States and Serbia relating to loss of citizenship. However, the letter further stated that during her residence in Europe she may have performed other acts which would have resulted in a loss of the United States citizenship and that a determination with respect thereto could not be made without a personal interview. In response, she wrote the San Francisco office a letter dated October 2, 1945, advising that she had been issued a United States passport by the State Department and that the letter had concurred in the views of the San Francisco office that she was not expatriated by her marriage. In response to a request for information, the State Department advised the Central Office by letter dated February 4, 1947, that the subject was issued an American passport on September 27, 1945; that the issuance of the passport was predicated upon the conclusion by the San Francisco

260397-54---8

office in its letter of January 24, 1945, that the subject did not lose her American citizenship by her marriage and because it was determined that the subject had not otherwise expatriated herself.

Subject has further alleged that her passport which had been issued to her on September 27, 1945, had been renewed by the State Department in 1948 and that she made a visit to England with such passport. Section 48 of the Serbian Civil Code of 1844 which was in effect in 1902 when subject was married to her husband provided that:

An alien woman who marries a Serbian national shall acquire by the fact of the marriage itself all rights of Serbian nationality in all cases in which her foreign country grants similar right to a Serbian woman who marries a national of that country; likewise a Serbian woman who marries an alien shall lose all rights of her nationality in cases in which his country deprives of nationality women who marry Serbian nationals * *

This law remained in effect in Serbian provinces of Yugoslavia until the Yugoslavian law of September 21, 1928, took effect. This latter law became effective on November 1, 1928. Article 53 (1) provided that:

The following persons are considered to be subjects of the Kingdom at the date of entering into force of the present law:

Persons who at the date of the unification (December 1, 1918), were subjects of the former Kingdom of Serbia or of the former Kingdom of Montenegro, as well as such persons who at the date of the unification were subjects of the former Kingdom of Croatia-Slavonia and had not lost such nationality in accordance with the provisions of the treaty of peace.

As concluded by the San Francisco office, it would appear that, subject could not be regarded as having been expatriated solely by reason of her marriage in 1902 to a Serbian national in the absence of a "naturalization treaty" with Serbia (Central Office files 56107/314, December 22, 1943; 15-3976, April 7, 1941). However, it appears from the evidence of record that subject's husband was a Serbian national at the time of her marriage to him in 1902 and that in accordance with section 48 of the Serbian Civil Code of 1844 subject acquired Serbian nationality by virtue of her marriage to him. It further appears that both subject and her husband became Yugoslavian nationals in accordance with the provisions of article 53 of the Yugoslavian Law of Nationality of September 21, 1928. Thus, the record discloses that subject became a dual national subsequent to her birth. Subject has testified that on all her trips subsequent to her marriage she traveled either on a Serbian or Yugoslavian passport up to the time that she received an American passport in 1945. She has further stated that she at no time appeared before an American consul for the purpose of declaring her intention to regain her American citizenship and that prior to 1945 she came to the United States only on visits and such visits were made for the purpose of retaining her

American contacts and for pleasure. Both she and the Yugoslavian consul advised this Service that she did not wish to be repatriated or renounce her Yugoslavian citizenship and she has alleged that she expected to return to Yugoslavia for permanent residence. The record establishes that subsequent to subject's marriage in 1902, she always asserted that she was a Serbian or Yugoslavian national up to 1945. By her birth in the United States in 1881, subject acquired United States nationality which she did not lose upon her marriage to her husband in 1902. However, by such marriage she became a dual national, acquiring Serbian nationality. Since the Serbian nationality was acquired through marriage and not naturalization, the use of Serbian passports did not result in loss of United States nationality (In re L———— W—, A-7091654, February 20, 1948, 3, I. & N. Dec. 107.) However, under the provisions of article 53 (1) of the Yugoslavian law of September 21, 1928, effective November 1, 1928, both subject and her husband acquired Yugoslavian nationality. Consequently, on November 1, 1928, subject was a dual national of the United States and Yugoslavia.

In the case of LW (supra), it was held that a United States national woman who acquires a foreign nationality by marriage to a foreign national after September 22, 1922, is not required to make an election between United States and the foreign nationality. However, on the other hand, where a United States national woman, married to a foreign national after September 22, 1922, acquires foreign nationality by the naturalization of her husband after marriage, it has been held that such woman may lose her United States nationality by performing voluntarily an overt act manifesting a voluntary acceptance of the foreign nationality (30 Op. Atty. Gen. 412). Following the opinion expressed by the Attorney General, it was held in the case of J C▬▬ A▬▬▬ B (1204-1439, May 25, 1949) that a United States national woman, who acquired Canadian nationality through the naturalization of her husband in Canada in 1928, lost her United States nationality by voting in an election held in Canada in November 1933, such voluntary act being an overt act manifesting voluntary acceptance of the Canadian nationality acquired by her through operation of law. It has also been held that a dual national at birth who, by effective operation of a treaty conceived. primarily with the transfer of territory and not treating the ipso facto expatriation of United States citizens, validly acquired a new nationality while outside the United States, is deemed to have been naturalized in a foreign state, although involuntarily. By performing a voluntary overt act, manifesting a voluntary acceptance of the foreign nationality, such person could lose his United States nationality. Thus, in the case of JS (23/99896, September

29, 1943), a United States national, who was born in the United States of Austro-Hungarian parents and who acquired Yugoslav nationality under the Treaty of St. Germain-en-Laye, was held to have lost his United States nationality by voluntarily performing an overt act manifesting a voluntary acceptance of Yugoslav nationality; namely, the acquisition and use of a Yugoslav passport, after attaining majority and without a prior assertion of United States citizenship. (To same effect relating to the acquisition of other foreign nationalities by operation of law, see Hackworth, Digest of International Law, Vol. III, pp. 211-217).

The situation presented by the facts in this case in analogous to the case of J C— A- B— (supra), in that subject acquired Yugoslavian nationality by virtue of her husband's naturalization as a Yugoslav national in 1928. It is also analogous to the case of JS—— (supra), in that subject acquired in 1928, in her own right, Yugoslav nationality by operation of law. Consequently, the problem in this case resolves itself into a determination as to whether subject voluntarily performed an overt act manifesting a voluntary acceptance of the Yugoslav nationality bestowed upon her by operation of law in 1928.

Whether a particular act constitutes an overt act manifesting a voluntary acceptance of foreign nationality resulting in loss of United States nationality necessarily depends on the facts presented in each individual case. The use of a foreign passport is not always indicative of a voluntary acceptance of foreign nationality. Thus, it has been held that where the facts showed that an Italian passport was used to return to the United States, this did not by itself constitute an overt act of acceptance of Italian nationality (P- - C 0300297677). However, in the case of JS-, (supra), it was held that the voluntary acquisition and use of a Yugoslav passport, without a prior assertion of United States nationality, was a voluntary acceptance of the acquired Yugoslav nationality, resulting in loss of United States nationality. In the case of G- A— (C-348463, March 3, 1943), a United States national woman, who acquired Canadian nationality after birth through her father, was held to have elected the foreign nationality by her voluntary act in applying for and receiving a Canadian passport, her entry as a visitor to the United States and her request for an extension of stay.

The record discloses that subject considered herself to be a Yugoslav national to the exclusion of her United States nationality. Even as late as 1942, subject considered herself to be a foreign national and not a United States citizen. She at no time appeared before an American consul for the purpose of declaring her intention to retain her American citizenship. She traveled abroad after 1928 as a Yugoslav national and voluntarily obtained and used Yugoslavian passports in