Rosasco v. Brownell

• Decision Date: 13 June 1958
• Docket Number: Civ. No. 16635.
• Parties: Andrew ROSASCO, Plaintiff, v. Herbert BROWNELL, Jr., Attorney General of the United States, Defendant.
• Court: U.S. District Court — Eastern District of New York

163 F. Supp. 45

Andrew ROSASCO, Plaintiff, v. Herbert BROWNELL, Jr., Attorney General of the United States, Defendant.

Civ. No. 16635.

United States District Court E. D. New York.

June 13, 1958.

COPYRIGHT MATERIAL OMITTED

William Canton, New York City, for plaintiff.

Cornelius W. Wickersham, Jr., U. S. Atty., Brooklyn, N. Y., for defendant.

Margaret E. Millus, Asst. U. S. Atty., Brooklyn, N. Y., of counsel.

ZAVATT, District Judge.

This action and Maria Lagomarsino Rosasco v. Brownell, Civil No. 16636, are separate actions by plaintiffs Andrew Rosasco (hereafter referred to as Andrew) and Maria Lagomarsino Rosasco (hereafter referred to as Maria) which have been consolidated for the purposes of trial because of common questions of law and fact. This decision will dispose of both cases.

Maria was born in Italy in November, 1890 and first came to the United States in June, 1909, where she married Andrew Rosasco, Sr. in July, 1909. At the time of the marriage Andrew Rosasco, Sr. was an Italian citizen. He became an American citizen by naturalization on April 8, 1916, and it is conceded that Maria thereby derived American citizenship by virtue of the Act of February 10, 1855, R.S. § 1994¹. Maria and her husband resided in the United States continuously from the date of their marriage until 1921. In that year Maria and her husband went to Italy, where Maria remained continuously until 1950. In 1925 Andrew Rosasco, Sr., unaccompanied by Maria, traveled to the United States on on American passport. He returned to Italy in the same year. It appears that while he was in this country during that year his American passport expired and that he returned to Italy upon an Italian passport when an American passport for which he had applied was not issued to him immediately. There is evidence that there was urgency about his returning to Italy at this time, and counsel for the plaintiffs claims that an American passport was issued to him subsequently, but there is no evidence as to this. Andrew Rosasco, Sr. remained continuously in Italy from the date of his return to Italy in 1925 to 1950.

Plaintiff Andrew is the son of Maria and Andrew Rosasco, Sr., and was born in Genoa, Italy, on September 3, 1928. If his father was an American citizen at the time of Andrew's birth, Andrew derived American citizenship by virtue of Section 1993 of the Revised Statutes².

In 1950, Maria and her husband traveled to the United States on separate Italian passports, the arrangements for which had been made by the husband. Andrew Rosasco, Sr. was the owner of some real property in this country which had been managed by his brother under a power of attorney. The purpose of the trip in 1950 was to straighten out some business matters in connection with this property. The couple remained in this country for five months on this trip and then returned to Italy because of the severe illness of Andrew Rosasco, Sr. It is perhaps significant that at the time of his illness Andrew Rosasco, Sr. desired to be with his family in Italy. He died in Italy on March 19, 1952.

Maria testified that during the period of her residence in Italy she held herself out to be an American citizen³. She did not vote in Italy. On cross-examination she stated that she and her husband were not interned as enemy aliens during World War II; that she obtained a ration book during the war, but that its issuance was not restricted to citizens of Italy; and that neither she nor her children born in Italy were registered as American citizens at a consulate of the United States. The Government offered nothing to show that there was a requirement that Maria or her children be so registered. Andrew Rosasco owned real property in Italy, and at the time of his death owned no property, real or personal, in the United States.

Andrew came to the United States in June, 1952, upon an Italian passport. As will be set forth below, he commenced his efforts to come to this country in August, 1951. Andrew returned to Italy in June, 1952 because of the death of his father. He has not served in the Italian army, nor has he voted in an Italian election.

Maria commenced her current stay in the United States on August 30, 1953. She traveled to this country upon an Italian passport, and was admitted as a nonimmigrant visitor on a nonimmigrant visa for a temporary period of six months. Andrew's current stay was begun on September 16, 1953. He traveled to the United States upon an Italian passport, and was admitted as a nonimmigrant visitor on a nonimmigrant visa for a temporary period of three months. Since their arrival here in 1953, both of them have executed a number of applications to extend the time of their temporary stay and have made the following statements in such applications:

"My foreign residence which I have no intention to abandon is * * * Genova, Italy * * *"

"I am a citizen or subject of Italy * * *"⁴

Maria testified that her last trip to the United States was made for the purpose of visiting friends and that her house and furniture in Italy have been rented to someone.

Both plaintiffs now seek the declaratory judgment of this court that they are citizens of the United States, and ask that the court order that the Attorney General issue certificates of citizenship to them. The complaints allege that the jurisdiction of the court is invoked pursuant to Section 360 of the Immigration and Nationality Act of 1952, 8 U.S.C.A § 1503⁵. Andrew alleges that in 1951 he attempted to obtain a passport as an American citizen at the American Consulate in Genoa, Italy, and that "the American Consulate refused to recognize plaintiff as a citizen of the United States". He further alleges that in 1954 he applied to the Immigration and Naturalization Service of the Department of Justice for a certificate of citizenship and that such a certificate was denied in 1956 "on the grounds that the plaintiff had failed to establish that he was of the class of persons to whom a certificate of citizenship may be issued". Maria's complaint contains a like allegation of the denial of a certificate of citizenship to her in 1956. Her complaint was amended upon the trial to allege that in 1953 she attempted to obtain a passport as an American citizen at the American Consulate in Genoa, Italy, "and that the American Consulate refused to recognize plaintiff as a citizen of the United States".

There appears to be no dispute, and the court is satisfied, that in 1954 the plaintiffs, while in the United States as temporary visitors, claimed certificates of citizenship from the Immigration and Naturalization Service of the United States Department of Justice, which claims were denied in 1956, while the plaintiffs were in the same status, upon the ground that they were not nationals of the United States. I find, however, that Andrew has failed to prove that in 1951 he was denied a claimed right to a passport at the American Consulate in Genoa upon the ground that he was not a national of the United States.⁶ As to Maria the record is likewise insufficient to establish that she was denied a passport at the American Consulate in Genoa in 1953 upon the ground that she was not a national of the United States. Nonetheless, it will be assumed for the purpose of the following discussion that the denial of all four of the claimed rights on the statutory grounds has been established by the plaintiffs. Such being the case, the court is immediately faced with serious questions concerning its jurisdiction:

(1) Concerning the assumed denial of a passport to Maria in 1953, may this denial in Italy of the claimed right of a national be the basis of an action for declaratory judgment under 8 U.S.C.A. § 1503(a)?

(2) Was the denial of certificates of citizenship to both plaintiffs, who were physically within the United States in 1956, the denial of "a right or privilege as a national of the United States" within the comprehension of said subsection?

(3) If so, were the plaintiffs, as temporary visitors in a nonimmigrant status, persons "within the United States" within the meaning of said subsection?

(4) Concerning the assumed denial of a passport to Andrew in 1951, may this denial in Italy of the claimed right of a national be the basis of an action for declaratory judgment under either 8 U.S. C.A. § 1503(a) or Section 503 of the Nationality Act of 1940, 8 U.S.C. § 903 (1946 ed.)?

The Jurisdiction of the Court

(1) A denial of a passport application of Maria in Italy in 1953 upon the ground that she was not a national of the United States cannot serve as the basis of a suit for declaratory judgment under 8 U.S.C.A. § 1503(a). For such an action to lie the denial of the claimed right or privilege must have occurred within the United States and not prior to entry into the United States. Ferretti v. Dulles, D.C.E.D.N.Y.1957, 150 F.Supp. 632, affirmed, 2 Cir., 1957, 246 F.2d 544; D'Addino v. Dulles, D.C.E.D. N.Y.1954, 136 F.Supp. 417; Strupp v. Dulles, D.C.S.D.N.Y.1957, 163 F.Supp. 790; Aiko Matsuo v. Dulles, D.C.S.D. Cal.1955, 133 F.Supp. 711; Correia v. Dulles, D.C.R.I.1954, 129 F.Supp. 533. The court is aware that Puig Jiminez v. Glover, 1 Cir., 255 F.2d 54, permits an action under § 1503(a) where the claimed denial took place outside of the United States. But there it appeared that plaintiff's permanent residence was in Puerto Rico, and that she was "within the United States" upon a Spanish quota immigrant visa. I agree with the conclusion stated by Judge Palmieri in Strupp that the result reached in Puig Jiminez represents a justifiable exception from the general rule, in favor of quota immigrants. In any event, the decision in Puig Jiminez is tempered by the fact that the plaintiff was denied a claimed right as a national while within the United States subsequent to the claimed denial in Spain, and the court there noted that the action could be grounded upon this second denial "if it is necessary to read into § 360(a) the...