Mandoli v. Acheson
| Decision Date | 24 November 1952 |
| Docket Number | No. 15,15 |
| Citation | 97 L.Ed. 146,344 U.S. 133,73 S.Ct. 135 |
| Parties | MANDOLI v. ACHESON, Secretary of State |
| Court | U.S. Supreme Court |
Mr. Jack Wasserman, Washington, D.C., for petitioner.
Mr. Oscar H. Davis, Washington, D.C., for respondent.
This case presents but a single question, upon which petitioner and the Government are substantially agreed that the judgment of the Court of Appeals should be reversed.1 Does a United States citizen by birth who by foreign law derives from his parents citizenship of a foreign nation lose his United States citizenship by foreign residence long continued after attaining his majority?
Petitioner Mandoli was born in this country, of unnaturalized Italian parents. These circumstances made him a citizen of the United States by virtue of our Constitution and a national of Italy by virtue of Italian law. While he was a suckling, his parents returned to Italy taking him with them. At about the age of fifteen, he sought to come to the United States; but permission was refused by the American Consul at Palermo upon the ground that he was too young to take the journey unaccompanied.
In 1931, Mandoli saw brief service in the Italian army. In 1937, being 29 or 30 years of age, he attempted to come to the United States, but was rejected because of such army service. He renewed the effort in 1944, with the same result. In 1948, he was granted a certificate of identity which permitted him to enter the United States for prosecution of an action to establish his citizenship.
Judgment in the District Court went against him on the ground that expatriation had resulted from two causes: first, contrary to his contentions, it found that his service in the Italian army was voluntary and that he then took an oath of allegiance to the King of Italy; second, that he continued to reside in Italy after attaining his majority, thereby electing between his dual citizenships in favor of that of Italy.2
The Government abandoned the first ground because the Attorney General ruled that such service in the Italian army by one similarly situated could 'only be regarded as having been taken under legal compulsion amounting to duress.' He said, 'The choice of taking the oath or violating the law was for a soldier in the army of Fascist Italy no choice at all.'3 The Court of Appeals, however, relying largely on Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320, affirmed upon the ground that failure to return to the United States upon the attainment of his majority operated to extinguish petitioner's American citizenship.4 We conclude that Mandoli has not lost his citizenship.
It would be as easy as it would be unrewarding to point out conflict in precept and confusion in practice on this side of the Atlantic, where ideas of nationality and expatriation were in ferment during the whole Nineteenth Century. Reception of the common law confronted American courts with a doctrine that a national allegiance into which one was born could be renounced only with consent of his sovereign. Europen rulers, losing subjects (particularly seamen) to the New World, adhered fiercely to the old doctrine. On the other hand, the United States, prospering from the migrant's freedom of choice, became champion of the individual's right to expatriate himself, for which it contended in diplomacy and fought by land and by sea. However, this personal freedom of expatriation was not always recognized by our own courts, because of their deference to common-law precedent. Finally, Congress, by the Act of July 27, 1868, declared that 'the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness' and that 'any declaration, instruction, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government.'5
But this statute left unanswered many questions as to the overt acts that would effect a voluntary expatriation by our own citizens or would cause an involuntary forfeiture of citizenship. Prior to 1907, courts and administrators were left to devise their own answers.
Preparatory to legislative action on the subject, Congress sought and received a report of a special citizenship board. Reviewing judicial decisions, this report concluded that the courts recognized well-established doctrines of election in cases dealing with rights of person with dual citizenship. This board recommended that Congress follow what it assumed to be established decisional law and enact, among other things, that expatriation be assumed as to any citizen who became domiciled in a foreign state, with a rebuttable presumption of foreign domicile from five years of residence in a foreign state.6 This was proposed as to all citizens and not merely those possessing dual citizenship. Congress, however, instead of accepting this broad doctrine of expatriation, by the Expatriation Act of 1907 limited the presumption of expatriation from foreign residence to the case of naturalized but not of nativeborn citizens.7
If petitioner, when he became of full age in 1928, were under a statutory duty to make an election and to return to this country for permanent residence if he elected United States citizenship, that duty must result from the 1907 Act then applicable. In the light of the foregoing history, we can find no such obligation imposed by that Act; indeed, it would appear that the proposal to impose that duty was deliberately rejected.8
The Nationality Act of 1940,9 though not controlling here, shows the consistency of congressional policy not to subject a citizen by birth to the burden and hazard of election at majority. This comprehensive revision and codification of the laws relating to citizenship and nationality was prepared at the request of Congress by the Departments of State, Justice and Labor. The State Department proposed a new provision requiring an American-born national taken during minority to the country of his other nationality to make an election and to return to the United States, if he elected American nationality, on reaching majority. The Departments of Justice and Labor were opposed and, as a consequence, it was omitted from the proposed bill. This disagreement between the Departments was called to the attention of the Con- gress.10 While in some other respects Congress enlarged the grounds for loss of nationality, it refused to require a citizen by nativity to elect between dual citizenships upon reaching a majority.11
The Court of Appeals, however, applied such a rule because it understood that this Court, in Perkins v. Elg, supra, had declared it to be the law. Miss Elg was American-born, of naturalized parents Swedish in origin. They took her to Sweden when she was but four years old, where she remained during her nonage. By virtue of a Swedish-American Treaty of 1869, this resumption of residence in Sweden repatriated the parents, which...
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...... Richards, 752 F.2d at 1419; Stipa v. Dulles, 233 F.2d 551, 555 (3d Cir.1956); Lehmann v. Acheson, 206 F.2d 592, 594-95 (3d Cir.1953). A claim of involuntariness or duress is an affirmative defense to be proved by the party opposing expatriation. ... duress'" and that "`the choice of taking the oath or violating the law was, for a soldier in the army of Fascist Italy, no choice at all.'" Mandoli v. Acheson, 344 U.S. 133, 135, 73 S.Ct. 135, 136, 97 L.Ed. 146 (1952). . 13 The Government questions the continued viability of ......
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...Id. at 224. The Supreme Court has also recognized a citizen's statutory right to expatriate. See Mandoli v. Acheson , 344 U.S. 133, 135–37, 73 S.Ct. 135, 97 L.Ed. 146 (1952) (discussing statutes Congress enacted to effectuate "the individual's right to expatriate," of which the United State......
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