Mandoli v. Acheson

Decision Date10 January 1952
Docket NumberNo. 10958.,10958.
Citation193 F.2d 920
PartiesMANDOLI v. ACHESON, Secretary of State.
CourtU.S. Court of Appeals — District of Columbia Circuit

Jack Wasserman, Washington, D. C., for appellant.

Ross O'Donoghue, Asst. U. S. Atty., Washington, D. C., with whom George Morris Fay, U. S. Atty. at the time the brief was filed, and Joseph M. Howard and C. Frank Reifsnyder, Asst. U. S. Attys., all of Washington, D. C., were on the brief, for appellee.

Charles M. Irelan, U. S. Atty. at the time of argument, Washington, D. C., also entered an appearance on behalf of appellee.

Before EDGERTON, PROCTOR, and BAZELON, Circuit Judges.

EDGERTON, Circuit Judge.

Appellant was born in the United States of Italian parents. He therefore had dual citizenship at birth. When he was four months old his parents took him to Italy. He has lived there ever since. He speaks no English. After he came of age he made no attempt to return to the United States until 1937 when he was 29 or 30 years old. He is now 44. We think it follows from Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320, affirming 69 App.D.C. 175, 99 F.2d 408, that the District Court was right in denying his claim for a declaratory judgment that he is an American citizen.

Perkins v. Elg involved a former dual citizen whose conduct on coming of age was very different from the present appellant's. The Supreme Court said: "The question is whether the plaintiff, Marie Elizabeth Elg, who was born in the United States of Swedish parents then naturalized here, has lost her citizenship and is subject to deportation because of her removal during minority to Sweden, it appearing that her parents resumed their citizenship in that country but that she returned here on attaining majority with intention to remain and to maintain her citizenship in the United States. * * * In 1929, within eight months after attaining majority, she obtained an American passport which was issued on the instructions of the Secretary of State. She then returned to the United States, was admitted as a citizen and has resided in this country ever since." 307 U.S. at 327, 59 S.Ct. at page 886. Because of her act and intent in returning to America shortly after she became of age, the Court held she had not lost her American citizenship. The Court made it clear that the critical fact was her prompt return and that if she had voluntarily remained abroad for many years after she came of age she would have lost her American citizenship. The Court said: "It has long been a recognized principle in this country that if a child born here is taken during minority to the country of his parents' origin, where his parents resume their former allegiance, he does not thereby lose his citizenship in the United States provided that on attaining majority he elects to retain that citizenship and to return to the United States to assume its duties. * * * there is no basis for invoking the doctrine of expatriation where a native citizen who is removed to his parents' country of origin during minority returns here on his majority and elects to remain and to maintain his American citizenship." (Emphasis added.) 307 U.S. at pages 329, 334, 59 S.Ct. at page 887.

The Supreme Court referred in identical terms to the rights of a child, born here, "who may be, or may become" subject to dual nationality. 307 U.S. at page 334, 59 S.Ct. at page 889. (Emphasis added). The reasoning and the conclusions of the Court are equally applicable to either situation. We know of no reason why one who, like the appellant, is born Italian as well as American should have less need to elect American citizenship when he comes of age than one who is is born American and acquires dual citizenship during minority. We have not overlooked the fact that there have been administrative rulings and at least one judicial decision1 that a dual citizen from birth does not lose his citizenship by failing to claim it within a reasonable time after he comes of age. We think that view erroneous. We find no support for it in section 401(a) of the Nationality Act of 1940, 54 Stat. 1168, 8 U.S. C.A. § 801(a); even apart from the fact that the appellant had already expatriated himself by his conduct long before the Act was passed....

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11 cases
  • Gualco v. Acheson
    • United States
    • U.S. District Court — Northern District of California
    • July 29, 1952
    ...Under Immigration and Nationality Laws of the United States, respectively at pages 502, 496 and 685 (1943). 5 In Mandoli v. Acheson, 193 F.2d 920 (January 10, 1952), the Court of Appeals for the District of Columbia held that while the Nationality Act of 1940 does not impose any duty to ret......
  • Casey v. United States
    • United States
    • U.S. Supreme Court
    • June 9, 1952
    ...of affirmance being that methods of expatriation listed in the Nationality Act of 1940 were not exclusive. Mandoli v. Acheson, 1952, 90 U.S.App.D.C. 112, 193 F.2d 920, 922. In his memorandum in response to the Mandoli petition for certiorari, the Solicitor General, adhering to his position ......
  • Mazza v. Acheson, 29141.
    • United States
    • U.S. District Court — Northern District of California
    • April 21, 1952
    ...must be taken by returning to America for permanent residence before the individual reaches twenty-three years of age. Mandoli v. Acheson, D.C.Cir., 193 F.2d 920. Defendant has relied upon Title 8 U.S. C.A. § 801(b) and (c) as additional reasons for excluding plaintiff from the United State......
  • Alata v. Dulles
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • January 27, 1955
    ...was obliged to take when he was drafted into the Italian army, was in itself enough to expatriate him." Mandoli v. Acheson, 90 U.S.App. D.C. 112, 114, 193 F.2d 920, 922. ...
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