The defendant urges, however, that in addition to the plaintiff's prolonged residence in a foreign state, she procured a German passport in 1936, while a resident of England. It is argued that this was tantamount to a voluntary renunciation of her United States citizenship. We cannot agree. 'The concept of dual citizenship recognizes that a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both. The mere fact that he asserts the rights of one citizenship does not without more mean that he renounces the other.' Kawakita v. United States, supra, 343 U.S. 723 and 724, 72 S. Ct. 956. We think it should be noted further that the plaintiff procured the passport after she had been erroneously advised at the office of the American Consular Service, in 1933, that she had lost her United States citizenship when she acquired derivative German citizenship upon the naturalization of her mother.
Nationality Act of 1940.
The defendant apparently does not rely on Section 401 of the Nationality Act of 1940, 8 U.S.C.A. § 801,
but we have nevertheless considered the rights of the plaintiff in the light of its pertinent provisions, which read as follows:
'A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:
'(a) Obtaining naturalization in a foreign state, either upon his own application or through the naturalization of a parent having legal custody of such person: * * *: Provided * * *, That a person who has acquired foreign nationality through the naturalization of his parent or parents, and who at the same time is a citizen of the United States, shall, if abroad and he has not heretofore expatriated himself as an American citizen by his own voluntary act, be permitted within two years from the effective date of this chapter to return to the United States and take up permanent residence therein, and it shall be thereafter deemed that he is elected to be an American citizen. Failure on the part of such person to so return and take up permanent residence in the United States during such period shall be deemed to be a determination on the part of such person to discontinue his status as an American citizen, and such person shall be forever estopped by such failure from thereafter claiming such American citizenship;'. (Emphasis by the Court.)
The proviso is in terms applicable to the plaintiff; it is admitted that she failed to 'return and take up permanent residence in the United States' within two years after the effective date of the statute, to wit, January 13, 1941. The statutory estoppel, however, may not be invoked to defeat her present claim to United States citizenship. Podea v. Acheson, 2 Cir., 179 F.2d 306, 308, 309; Perri v. Dulles, 3 Cir., 206 F.2d 586, 590, 591; Hichino Uyeno v. Acheson, D.C., 96 F.Supp. 510, 520; Lee Hong v. Acheson, D.C., 110 F.Supp. 60, 63, 64. The plaintiff made diligent efforts not only to return to this country but also to establish her claim to citizenship prior to the enactment of the Nationality Act of 1940, and subsequent to the enactment and prior to the expiration date, to wit, January 13, 1943. These efforts were thwarted by the Department of State under a mistake of law.
The conduct of the plaintiff while resident in a foreign state evinced an intention to retain her citizenship and return to the United States. She visited the office of the American Consular Service in 1934 to ascertain her status, and thereafter on April 5, 1939, October 11, 1939, and August 1, 1941, applied to the Department of State for a passport. The passport applications were denied under a mistake of law. We are of the opinion that the plaintiff did all that she could have been expected to do under the circumstances. (See the cases cited in the preceding paragraph).
Burden of Proof.
The plaintiff proved that she was a citizen of the United States at and by birth under Section 1993 of the Revised Statutes, supra. The burden was then upon the defendant to prove 'by clear, unequivocal and convincing evidence' that she either expatriated herself voluntarily or was expatriated by operation of law. Acheson v. Maenza, supra, 202 F.2d 456; Bauer v. Clark, 7 Cir., 161 F.2d 397, 400, 401; Pandolfo v. Acheson, supra, 202 F.2d 40, 41. The defendant failed to sustain this burden.
The plaintiff was a citizen of the United States at and by birth under the express provisions of Section 1993 of the Revised Statutes, supra. There is no evidence that she either voluntarily expatriated herself or was expatriated by operation of law. The plaintiff is therefore a citizen of the United States, notwithstanding her acquisition of derivative German citizenship by the naturalization of her mother under the laws of Germany.