45 F.Supp. 61, 64, 67; Nurge v. Miller, D.C., 286 F. 982, 984; United States ex rel. Anderson v. Howe, D.C., 231 F. 546, 548, 549. This construction would appear to be supported by the express language of the proviso, which states: 'such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States'.
A further aid to construction is found in the additional provisions of Section 2 of the 1907 Act, supra. These provisions prescribe the specific conditions under which any 'citizen shall be deemed to have expatriated himself.' The initial paragraph of the said section provides: '* * * any American citizen shall be deemed to have expatriated himself when he had been naturalized in any foreign state in conformity with its laws, or when he has taken an oath of allegiance to any foreign state.' We are of the opinion that if Congress intended that residence abroad for a prescribed period of time would effect the expatriation of a naturalized citizen, this additional condition would have been prescribed in clear and unequivocal language as were the other conditions.
We are inclined to agree with the opinion of Attorney General Wickersham, 28 Op.Attys.Gen. 504, 507, 508, in which he states: 'The purpose of the Act is, I think, simply to relieve the Government of the obligation to protect such citizens residing abroad after the limit of two or five years, as the case may be, when their residence there is not shown to be of such a character as to warrant the presumption that they intend to return and reside in the United States and thus bear the burdens as well as enjoy the rights and privileges incident to citizenship.' This opinion was rendered within a reasonably short time after the approval of the Act.
We assume that the Act of 1907 is applicable, notwithstanding our opinion to the contrary, and that the statutory presumption continues after the naturalized citizen has returned to the United States and has established a residence here. The presumption, in the language of the statute, is that the naturalized citizen 'has ceased to be (a) * * * citizen,' and not that he had expatriated himself. The presumption is rebuttable and may be overcome by evidence that the naturalized citizen intended to retain his citizenship and return to the United States for the purpose of permanent residence.
The Supreme Court, in discussing the presumption erected on the fact of residence, stated: 'His place of residence was an element in making him a citizen, it might be regarded as an element in continuing him a citizen and presumptions could be erected upon it, and we are prompted to say it is a presumption easy to preclude, and easy to overcome. It is a matter of option and intention.' (Emphasis by the Court.) United States v. Gay, 264 U.S. 353, 358, 44 S. Ct. 388, 389, 68 L. Ed. 728. This is some indication as to the measure of proof required to overcome the statutory presumption. See the cases hereinabove cited.
We are of the opinion that the undisputed facts before the Court are sufficient to overcome the presumption that the applicant 'ceased to be an American citizen'. The conduct of the applicant while abroad evinced an intention to retain his citizenship and return to the United States. He visited the Office of the United States Consul on three occasions: first, to ascertain whether it was necessary to renew his citizenship; second, to inquire as to his right to return to the United States; and third, to make application for a passport. This conduct which was followed by the applicant's return to the United States is sufficient in our opinion to rebut the presumption that he 'ceased to be' a citizen.
The applicant voted in the political election or plebiscite held in Italy on June 2, 1946, and thus expatriated himself under the express provisions of Section 401(c) of the Nationality Act of 1940, 8 U.S.C.A. § 801(e). There is no evidence that subsequent thereto he 'committed any act which, * * *, would have operated to expatriate him.' The present application must therefore be granted.
The Act of March 2,1907, entitled 'An Act In reference to the expatriation of citizens and the protection abroad', supra, is not applicable for the reasons herein stated.
The applicant was a naturalized citizen of the United States until June 2, 1946, when he voted in the political election or plebiscite in Italy. There is no evidence that he committed any other act which would operate to expatriate him. The applicant is therefore entitled to the benefits of Chapter 321 of Public Law 114, supra.
If the Act of 1907, supra, is applicable, the evidence before the Court is sufficient to overcome the presumption that the applicant 'ceased to be an American citizen.' The applicant is therefore entitled to the benefits of Chapter 321 of Public Law 114, supra.
The present application will be granted for the reasons herein stated.
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