Monaco v. Dulles, 142
| Decision Date | 15 February 1954 |
| Docket Number | No. 142,Docket 22913.,142 |
| Citation | 210 F.2d 760 |
| Parties | MONACO et al. v. DULLES, Secretary of State. |
| Court | U.S. Court of Appeals — Second Circuit |
COPYRIGHT MATERIAL OMITTED
Caputi & Caputi, New York City, (Sebastian P. Caputi, New York City, of counsel), for plaintiffs-appellants.
J. Edward Lumbard, U. S. Atty. for the Southern Dist. of N. Y., New York City (Harold R. Tyler, Jr., New York City, of counsel), for defendant-appellee.
Before FRANK, MEDINA and HINCKS, Circuit Judges.
The government1 concedes that Gennaro Monaco was a citizen. Accordingly, the government had the burden of proving that he had expatriated himself. We agree with Acheson v. Maenza, 92 U.S.App.D.C. 85, 202 F.2d 453, 456, which held that the burden in such a case is like that in a denaturalization proceeding, i. e., the evidence of expatriation must be "clear, unequivocal and convincing".2 We think such evidence was wanting here. The crucial issue was whether Gennaro Monaco took the oath of allegiance to the Kingdom of Italy. The proof offered by the government consisted of the following:
(a) Exhibit H is a document, conceded by plaintiffs to report "the law of Italy showing the requirement for taking an oath," which, inter alia, states this:
(b) Exhibit L is a letter from an Italian Colonel which states:
(c) Exhibit M is a letter from an American Vice Consul asking, inter alia, the Commander of the Military District in Salerno, Italy, "whether in your opinion it can be possible that the class with which Monaco was assembled had already taken the oath when Monaco reported to arms...
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Reyes v. Neelly, 17435.
...burden being the same as that in denaturalization proceedings. See also, Augello v. Dulles, 2 Cir., 1955, 220 F.2d 344; Monaco v. Dulles, 2 Cir., 1954, 210 F.2d 760, 762; Lehmann v. Acheson, 3 Cir., 1953, 206 F.2d 592, 598-599; Gensheimer v. Dulles, D.C.N.J. 1954, 117 F.Supp. 836, 839; Ruef......
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Rosasco v. Brownell
...by clear, convincing and unequivocal evidence. Nishikawa v. Dulles, supra; Augello v. Dulles, 2 Cir., 1955, 220 F.2d 344; Monaco v. Dulles, 2 Cir., 1954, 210 F.2d 760. Voluntariness is an element of the expatriating act, and as such must be proved by the Government. If voluntariness is not ......
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Fletes-Mora v. Rogers, 138-57.
...v. Dulles, 1955, 96 U.S.App.D.C. 337, 226 F.2d 243, 246-247; Chin Chuck Ming v. Dulles, supra, 225 F.2d at page 853; Monaco v. Dulles, 2 Cir., 1954, 210 F.2d 760. That plaintiff is a "dual citizen" is a forceful consideration which argues this conclusion. Born in the United States of parent......
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Soccodato v. Dulles, 12108.
...88 L.Ed. 1525 and Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L. Ed. 1796.7 We now add a reference to Monaco v. Dulles, 2 Cir., 210 F.2d 760, 762, in which the court explicitly agreed with Acheson v. Maenza, to the effect that the burden in an expatriation case is like th......