The opinion of the court was delivered by: SMITH
This matter is before the Court on an application filed under Chapter 321 of Public Law 114, approved August 16, 1951, which provides: 'A person who, while a citizen of the United States, has lost citizenship of the United States solely by reason of having voted in a political election or plebiscite held in Italy on June 2, 1946, * * * , and who has not subsequent to such voting committed any act which, had he remained a citizen, would have operated to expatriate him, may be naturalized by taking,prior to two years from the enactment of this Act, before any naturalization court specified in subsection (a) of section 301 of the Nationality Act of 1940, as amended, * * *, the oaths prescribed by section 335 of the Nationality Act of 1940, as amended.' 65 Stat.191. (Emphasis by the Court.) The rights of the applicant under this provision will expire on August 17, 1953.
The application is opposed by the Designated Naturalization Examiner on the ground that the applicant expatriated himself prior to June 2, 1946 by his continuous residence in Italy, his native country, for a period of more than two years. The opposition is based on Section 2 of 'An Act In reference to the expatriation of citizens and their protection abroad', 34 Stat. 1228, 8 U.S.C.A. § 17, approved March 2, 1907. This section provides: 'When any naturalized citizen shall have resided for two years in the foreign state from which he came, * * * it shall be presumed that he has ceased to be an American citizen, * * * : Provided, however, That such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, under such rules and regulations as the Department of State may prescribe'. (Emphasis by the Court.)
The applicant, a native and formerly a national of Italy, was admitted to the United States citizenship in the Court of Common Pleas, Ocean County, New Jersey, on March 27,1919, while a member of the United States Army.
The applicant thereafter resided in this country August of 1930,when he returned to Italy 'for the purpose of being with his family.' He thereafter resided in Italy continuously until January of 1947,when he returned to this country. The application filed herein discloses that the applicant now resides in New Jersey, New Jersey.
While resident in Italy the applicant visited the Office of the United States Consul on three occasions, in 1932,1939 and 1945. He testified before the examiner, and the testimony is not here disputed, that the 'first visit was for the purpose of ascertaining whether it was necessary to renew his citizenship; the second was for the purpose of ascertaining whether he could go back to the United States; and the third, in 1945, for the purpose of obtaining a passport for the return to the United States.' See Proposed Findings of Fact and Conclusions of Law submitted by Examiner, 'Exhibit 'G-2.'
The applicant voted in a political election or plebiscite held in Italy on June 2,1946. There is no evidence that he performed any other act not consistent with his allegiance to the United States of America, either prior or subsequent thereto.
After the hearing was closed the applicant submitted to the Court two additional documents: a photostat of an 'Honorable Discharge from the United States Army,' dated April 19, 1919, and a certificate awarded by Field-Marshal H. R. Alexander, Supreme Allied Commander, Mediterranean Theatre. These documents are received in evidence conditionally and subject to the right of the Examiner to move to strike the exhibits on any valid ground. We adopt this ...