have some form of conscription, and many have universal military training. The point is that from the individual's perspective the draft may not be such an impelling motive that he is forced to serve despite a firm purpose to avoid it. Whether from a resigned sense of duty, or with genuine enthusiasm, "military service is frequently performed willingly, freely, even voluntarily, although technically there is no enlistment but conscription under a 'compulsory' service law." Acheson v. Maenza, 92 U.S.App.D.C. 85, 202 F.2d 453, 458 (1953). Hence the Supreme Court's recognition that the Government might meet its burden of proof even though the plaintiff was conscripted under a system providing penal sanctions for evasion. Id., 356 U.S. at 141, 78 S. Ct. at 619, Frankfurter, J., concurring.
In attemping to prove voluntariness in the sense outlined above, the Government cannot plumb Cafiero's past thoughts in the face of his testimony that he served unwillingly. It can only establish his state of mind inferentially by evidence of what steps he did or did not take in connection with his conscription. Ibid.
As jurists, the majority in Nishikawa doubtless were aware of this evidentiary problem; their direction should not be read as a demand that the Government attempt the impossible. Therefore, I am of the view that where the clear, convincing weight of evidence shows plaintiff made no real attempt to avoid the service in question, though several avenues were open which might at least have been explored, voluntariness may be sufficiently established within the judicial gloss upon Section 349(a) to discharge the Government's burden.
With this framework in mind, we turn to the circumstances surrounding plaintiff's induction. Under Italian law, Cafiero was entitled to petition a civil court to challenge his draft enrollment for inter alia, reasons of age or citizenship. Such a petition is a normal statutory procedure and Cafiero would not be subject to any penalty. If he could not retain counsel, the local Bar Association would have provided legal aid as a public service.
Cafiero made no such petition. Nor did he protest his conscription to the American Consulate at Naples which was only 20 miles away or attempt to obtain permission of the Secretary of Defense to serve without losing his American citizenship. There would have been no penalty for a dual national like Cafiero seeking such assistance. Moreover, his family apparently was well acquainted with the availability of this Consulate and had frequently gone there to explore problems of citizenship and travel.
Furthermore, an Italian citizen is not subject to conscription as long as he remains abroad. Yet Cafiero never chose to come to America even when he knew or should have known that conscription was imminent.
Such failure to protest his conscription or to seek the assistance of the United States Consul is a pertinent factor in judging voluntariness. United States ex rel. Marks v. Esperdy, supra, 203 F. Supp. at 394. In Nishikawa v. Dulles, supra, the petitioner's failure to make such protests were held insufficient to establish voluntariness. However, Nishikawa had already been told by the American Consulate that such protests would be of no avail and there was substantial reason to fear physical violence in reprisal. 356 U.S. at 137, 78 S. Ct. at 617. Indeed most of the recorded cases involving the question of expatriation for military service on behalf of a foreign sovereign concerned service in the totalitarian armies of Japan, Italy and Germany, directly preceding or during the Second World War. In such cases, where dual nationals had been faced with ugly threats of physical violence and compulsion, the courts' typical reaction was that "[The] law does not exact a crown of martyrdom as a condition of retaining citizenship." Tomasicchio v. Acheson, 98 F. Supp. 166, 174. (D.D.C.1951). Cafiero's service, performed during peacetime in Italy when it was a military ally of the United States and a democratic partner in the North Atlantic Treaty Organization, is clearly a distinguishable situation which must be examined on its own facts.
Each of these circumstances presents strong proof of plaintiff's willingness to serve in the Italian armed forces despite his American citizenship. Collectively, they are indicia which I find constitute "clear, convincing and unequivocal evidence" that the plaintiff failed to take advantage of the opportunities which existed to challenge and avoid that service, and which cannot be said to have been clearly futile. The Government, therefore, has met its burden of demonstrating that Cafiero's service was a voluntary act of expatriation within the meaning of Section 349(a)(3), 8 U.S.C. § 1481(a)(3).
Nor is this result changed by the fact that Cafiero was a dual national, whose non-American nationality was that of the country in whose armed forces he served. In Nishikawa v. Dulles, supra the applicable statute was Section 401(c) of the 1940 Immigration and Nationality Act, the predecessor provision of Section 349(a)(3) of the 1952 Act. Section 401(c) limited the expatriating effect of service in the armed forces of another country to those who were dual nationals of that country and of America, either before or by virtue of such service.
Addressing this change, the Court in Nishikawa noted that
"The present provision, Immigration and Nationality Act of 1952, § 349(a)(3) * * * 8 U.S.C. § 1481(a)(3), eliminates the necessity that the expatriate have or acquire the nationality of the foreign state." 356 U.S. at 130, n. 1, 78 S. Ct. at 614, 2 L. Ed. 2d 659.
The implication is unmistakable that while expatriation for such service is no longer limited to dual nationals in Cafiero's position, they are still subject to its operation. Compare Jalbuena v. Dulles, 254 F.2d 379 (3rd Cir. 1958); Dulles v. Katamoto, 256 F.2d 545 (9th Cir. 1958); Tanaka v. Immigration & Naturalization Service, 346 F.2d 438, 448 (2nd Cir. 1965) Judge Kaufman dissenting.
Since the Court finds that plaintiff Antonino Cafiero has lost his American citizenship under the provision of Section 349(a)(3) of the Nationality Act by reason of his voluntary service in the armed forces of Italy, his application for a declaratory judgment of citizenship and non-deportability must be denied. Moreover, since this finding is based on the voluntary character of that service as a matter of fact, the Court does not reach and expresses no opinion on the constitutionality of Section 349(b) of the Act, 8 U.S.C. § 1481(b).
Wherefore, in light of the foregoing and for all the reasons discussed therein, plaintiff's action for a declaratory judgment against the Attorney General of the United States of America is dismissed.
Let an appropriate order be submitted.