Acheson v. Maenza, 11369.

Decision Date12 February 1953
Docket NumberNo. 11369.,11369.
Citation202 F.2d 453,92 US App. DC 85
PartiesACHESON, Secretary of State, v. MAENZA.
CourtU.S. Court of Appeals — District of Columbia Circuit

Murry Lee Randall, Atty., Dept. of Justice, Washington, D. C., pro hac vice by special leave of Court, with whom Charles M. Irelan, U. S. Atty., Joseph M. Howard and William R. Glendon, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellant.

Charles R. Richey, Washington, D. C., for appellee.

Before CLARK, WILBUR K. MILLER and PROCTOR, Circuit Judges.

CLARK, Circuit Judge.

This action was brought by appellee under the Federal Declaratory Judgment Act1 and under Section 503 of the Nationality Act of 19402 for a determination of his right to United States citizenship. An appeal was taken by the Government from a District Court judgment declaring that appellee "has been at all times since his birth and now is" a citizen and a national of the United States.

Appellee Rosario Maenza was born in Cleveland, Ohio, on July 29, 1912, the son of alien Italian parents. Under familiar principles of international law and of the municipal law of the United States and of Italy, he possessed dual nationality from time of his birth; he was a citizen of the United States by virtue of nativity in this country, Amendment XIV, § 1, and a subject of the King of Italy because of his Italian parentage.3 Appellee spent his childhood in Italy and it was not until 1925 that he was brought back to the United States to live with his father in Cleveland. In 1932, Mr. Maenza received a letter from the Italian government requesting him to report for duty with the armed forces of Italy but he was able to avoid military service by securing an exemption from the Italian consulate in Cleveland. The exemption was readily granted because it was not then the policy of the Italian authorities to insist on service by their nationals living abroad.

Several months later, at the height of the depression, appellee, finding it impossible to obtain gainful employment, decided to leave the United States and to return to Italy. He testified that it was his purpose to visit his grandmother there, apparently in the hope that she might support him on her farm. The Government contends, on the other hand, that it was his intention even at that time to enlist in the Italian army and there is some evidence to support the Government's view. However, when appellee did arrive in Italy, he did not volunteer for military service but instead retained his civilian status for a period of almost two years. He contacted the American consular authorities at least once during that time in an effort to obtain a passport and possibly funds for a return trip to the United States. On April 6, 1935, more than eighteen months after his arrival, Mr. Maenza was drafted into the armed forces of Italy pursuant to that country's universal military training and service law.

There is a great deal of confusion in appellee's testimony as to the actual circumstances surrounding his entry into service. He claims that before reporting for duty he made an effort to contact the American consulate in Palermo to enlist the aid of American authorities; he further asserts that he was forcibly thrust into military service by the Italian police and threatened with imprisonment in jail or in a concentration camp if he refused to obey the summons; and finally, he tells several conflicting stories as to whether he took an oath of allegiance to the King of Italy, and if so, whether such oath was the result of coercion. At the trial, appellee testified that he never pledged allegiance to Italy, explaining that it was customary to administer the oath to all recruits in a body at the time of the organization of the regiment: since he initially refused to report for duty he arrived at his unit too late for the swearing-in ceremonies.

After discharge from the army on September 19, 1936, appellee again visited the American Consulate in Palermo seeking a passport for return to the United States but the consulate refused to issue any travel papers to him on the ground that he had expatriated himself by taking an oath of allegiance to a foreign state. Thereafter, he again served on three occasions in the Italian armed forces: in 1939, in 1940, and from 1941 to 1943.

The Government urges that appellee became expatriated either under the Expatriation Act of March 2, 1907,4 by taking an oath of allegiance to the State or the King of Italy when he joined the Italian army in 1935; or under the Nationality Act of 1940,5 by serving in the armed forces of Italy after the effective date of that statute. The court below made no express finding with respect to the first alleged expatriating act beyond the oral statement that the Government had failed to sustain the burden of proof required of it on this issue. The trial court did find specifically that appellee was conscripted and inducted into the Italian army and it concluded as a matter of law that the involuntary nature of such conscription precluded his losing United States citizenship on that ground.

We will deal first with the problem presented by the alleged oath of allegiance which was particulary stressed by the parties on this appeal. Section 2 of the Expatriation Act of 1907, provided that "* * any American citizen shall be deemed to have expatriated himself * * * when he has taken an oath of allegiance to any foreign state". The Government relies primarily on two facts to buttress its contention that appellee in fact took the oath required under the statute. It is asserted (1) that appellee stated in a sworn Application for Certificate of Identity which he executed in 1950 to secure admission to the United States that he was "forced to take some kind of oath" in connection with his military service, and (2) that the Italian Regulations of Military Discipline of December 2, 1872 — which presumably were still in effect in 1935 — required all persons entering the army to pledge loyalty to the King of Italy and to the laws of the State.

Appellant's argument fails to take account of the degree of proof required of the Government in a case of this character. American citizenship is perhaps the most precious right known to man today; it is not easily granted nor should it be lightly taken away. In denaturalization cases, the Government has always been held to a strict degree of proof; it is usually required to prove its case by clear, unequivocal and convincing evidence, not by a bare preponderance which leaves the issue in doubt. Knauer v. United States, 1946, 328 U.S. 654, 66 S.Ct. 1304, 90 L.Ed. 1500; Baumgartner v. United States, 1944, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525; Schneidman v. United States, 1943, 320 U.S. 118, 125, 63 S.Ct. 1333, 1336, 87 L.Ed. 1796. We can see no reason for imposing a lighter burden on the Government if it seeks to show the expatriation of a native-born citizen. Certainly the annihilation of the right is equally disastrous to the person affected in one case as in the other. Cf. Bauer v. Clark, 7 Cir., 1947, 161 F.2d 397.

Here, the trial court held the Government to no more than the burden of proving its case by a preponderance of the evidence and it found that there had been a failure to carry such burden. The record fully sustains the District Court's conclusion. Appellee's admission that he was forced to take "some kind of oath" does not indicate compliance with the statutory command that the alleged expatriate take an "oath of allegiance". In the first place (as we shall develop in somewhat more detail below) expatriation can be accomplished only by a voluntary act. Were we to accept appellee's statement that he took an oath in connection with his army service, we might also give credence to the amplification that he was compelled to do so, particularly since the Government failed to introduce any evidence to contradict or negative appellee's assertion.6 In any event, the statute does not impose the condition that an oath be taken or some kind of oath but that the citizen to be pronounced expatriate take an oath of allegiance. Nothing in appellee's admission or the Government's explanations indicates that the oath taken by appellee, if any, was of the quality required by the Act. The 1872 Military Regulations which were introduced to cure this fatal weakness in the Government's case merely add an element of conjecture and speculation to a field where proof is required. No substantial evidence was forthcoming that the regulations were still in effect when appellee entered the army or that appellee complied with them even if they were still applicable. There must be more than inference, hypothesis or surmise before a natural-born citizen of the United States can be stripped of his rights and privileges of citizenship and be adjudicated an expatriate.

While we are not unaware of the rule that the spirit and meaning of the oath is decisive rather than its form,7 and while we are fully cognizant of the fact that the Government is faced with considerable difficulties in obtaining the necessary proof in cases of this kind, still, there can be no waiver of the requirement of competent evidence of the taking of an oath which has the quality and the dignity of an oath of allegiance and is thus incompatible with the duties and obligations imposed by American citizenship. On a review of all the facts the court below was not persuaded, and neither are we, that appellee actually took such an oath.

The second alleged expatriating act is appellee's service in the Italian army. Section 401 of the Nationality Act of 19408 provides in pertinent part: "A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: * * * (c) Entering, or serving in, the armed forces of a foreign state unless expressly authorized by the laws of the United States, if he has or...

To continue reading

Request your trial
26 cases
  • US v. Schiffer
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • September 8, 1993
    ...involuntary service by demonstrating that he protested military service on the grounds of United States citizenship. See Acheson v. Maenza, 202 F.2d 453 (D.C.Cir. 1953); Podea v. Acheson, 179 F.2d 306 (2d Cir.1950); Dos Reis ex rel. Camara v. Nicolls, 161 F.2d 860 (1st Cir.1947); Moldoveanu......
  • Perez v. Brownell
    • United States
    • U.S. Supreme Court
    • March 31, 1958
    ...60 L.Ed. 297; Bauer v. Clark, 7 Cir., 161 F.2d 397, certiorari denied 332 U.S. 839, 68 S.Ct. 210, 92 L.Ed. 411. Cf. Acheson v. Maenza, 92 U.S.App.D.C. 85, 202 F.2d 453. 17 See Laws Concerning Nationality, U.N.Doc. No. ST/LEG/SER.B/4 (1954). 18 See, generally, Laws Concerning Nationality, op......
  • Tuaua v. United States
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • June 5, 2015
    ...697 (1970).8 “In the United States, nationality may be predicated either on jus soli ... or on jus sanguinis....” Acheson v. Maenza, 202 F.2d 453, 459 (D.C.Cir.1953) (the latter is conferred statutorily).9 The case before us pertains only to the permissibility of designating American Samoan......
  • Survey of the Law of Expatriation, 02-9
    • United States
    • Opinions of the Office of Legal Counsel of the Department of Justice
    • June 12, 2002
    ... ... the oath was voluntary"). See also Mandoli v ... Acheson, 344 U.S. 133, 135 (1952) (noting Attorney ... General's conclusion that "[t]he choice of taking ... Duress cannot be inferred from the mere fact of ... conscription ... Acheson v. Maenza, 202 F.2d 453, 458 (D.C. Cir ... 1953) (footnote omitted). See also United States v ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT