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August 3, 1966

Antonino CAFIERO, Plaintiff,
Robert F. KENNEDY, Attorney General of the United States, Defendant

The opinion of the court was delivered by: COOLAHAN

 I. This is a declaratory judgment action brought pursuant to 28 U.S.C. § 2201, for a determination of plaintiff's citizenship.

 On February 6, 1956 Antonino Cafiero entered the United States as a non-immigrant crewman and has remained here ever since. On June 14, 1957 deportation proceedings were instituted under Section 241(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1). [Hereinafter "The Nationality Act].

 As a bar to deportation, the plaintiff asserted American citizenship by virtue of his father having been a United States citizen at the time of plaintiff's birth. His American citizenship at birth was conceded, but the Special Inquiry Officer nonetheless found that Cafiero had expatriated himself by serving in the armed forces of Italy from May 5, 1953 through July 1, 1955 without the authorization of the United States Government. Section 349(a)(3) of the Nationality Act, 8 U.S.C. § 1481(a)(3). *fn1"

 To establish expatriation under Section 349, the Government must prove the commission of an expatriating act listed therein by "clear, convincing and unequivocal evidence." Nishikawa v. Dulles, 356 U.S. 129, 133, 78 S. Ct. 612, 615, 2 L. Ed. 2d 659 (1958). Cafiero's admission that he performed the aforesaid military service discharges that burden. Cafiero's defense was that his service had been involuntary since he was conscripted under the draft laws of Italy then in effect.

 Loss of citizenship can only be a consequence of conduct which is voluntary. Mackenzie v. Hare, 239 U.S. 299, 311-312, 36 S. Ct. 106, 60 L. Ed. 297 (1915). Since Cafiero's averment of conscription injected the issue of voluntariness, Lehmann v. Acheson, 206 F.2d 592 (3rd Cir. 1953), the Government has the same heavy burden of establishing by "clear, convincing and unequivocal evidence" that the expatriating act was performed voluntarily. Nishikawa v. Dulles, supra; Perez v. Brownell, 356 U.S. 44, 78 S. Ct. 568, 2 L. Ed. 2d 603 (1958).

 At the hearing no determination was made as to whether his service in the Italian Navy was in fact "voluntary" in the sense required for constitutional expatriation. Rather, the Special Inquiry Officer expressly relied on the conclusive presumption of voluntariness prescribed in certain circumstances by Section 349(b) of the Nationality Act, 8 U.S.C. § 1481(b). *fn2" Indeed, the bulk of the hearing and the rehearing was concerned with adjudicating the facts necessary to trigger this presumption, i.e. Cafiero's dual nationality, and his ten year residence in Italy prior to military service.

 The finding of deportability was affirmed by the Board of Immigration Appeals, and on September 16, 1960 Cafiero was ordered to leave the country or face deportation. Having exhausted his administrative remedies, Cafiero instituted this action in the District Court for the District of Columbia. *fn3" He seeks a judicial determination that he has not lost his American citizenship as a result of his service, and that the Government consequently lacks the fact of alienage necessary for deportation. He contends that the conclusive presumption of Section 349(b), as construed and applied to him, unconstitutionally predicates the very fact of voluntariness which is the sina qua non of valid expatriation, even though his service was actually involuntary.

 Therefore, he seeks a judgment declaring: 1) that the finding of alienage based on that presumption is in violation of the Due Process clause of the Fifth Amendment to the United States Constitution; 2) that plaintiff is still an American citizen; and 3) that he is not subject to enforcement of the deportation order.

 II. The constitutionality of expatriation under Section 349(a) itself was first upheld in regard to voting in foreign elections. Perez v. Brownell, supra. *fn4" A companion case, Nishikawa v. Dulles, supra, dealt with expatriation for service in foreign armed forces, but the majority never reached the constitutionality of the predecessor provision of § 349(a)(3). *fn5" The constitutionality of § 349(a)(3) was affirmed later, in United States ex rel. Marks v. Esperdy, 203 F. Supp. 389-396 (S.D.N.Y.1962), affirmed on opinion below on question of constitutionality, and alienage, 315 F.2d 673, 675 (2nd Cir. 1963), affirmed 377 U.S. 214, 84 S. Ct. 1224, 12 L. Ed. 2d 292 (1964) (equally divided court), rehearing denied, 377 U.S. 1010, 84 S. Ct. 1904, 12 L. Ed. 2d 1059 (1964). *fn6" The Marks case also distinguished Section 349(a)(3) from the provision expatriating wartime deserters which had been struck down as a cruel and unusual punishment prohibited by the Eighth Amendment in Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958).

 The constitutionality of the conclusive presumption of voluntariness in Section 349(b), has not yet been judicially determined. In the administrative hearing, the question was noted but not considered. The Special Inquiry Officer simply found the presumption operative in Cafiero's case and felt obliged to apply it without going any further into the facts of his service than that section required. *fn7"

 The Court's present duty is a different matter, Plaintiff here seeks not merely a decree that an administrative ruling of deportability is void. He seeks the Court's affirmative imprimatur on his claim to United States citizenship. Hence the necessary scope of inquiry is broader than the statutory limits which bound the administrative officers to apply § 349(b). In accordance with established doctrines of constitutional litigation, this Court must first decide if Cafiero's service in the Italian Navy was voluntary as a matter of fact (apart from the operation of § 349(b).) Only if the Government cannot establish the voluntariness of his service by "clear, convincing and unequivocal" evidence, need the conclusive presumption of § 349(b) be relied upon to validate his expatriation, and only then will it be necessary to reach the constitutionality of that presumption. Such considerations of the statute's constitutionality should be deferred if the resolutions of other issues may permit disposition of the litigation on non-constitutional grounds. Ashwander v. T.V.A., 297 U.S. 288, 345-348, 56 S. Ct. 466, 80 L. Ed. 688 (1936), Brandeis, J., dissenting. *fn8"

 Plaintiff was born in Sorrento, Italy on May 15, 1932. At that time his father, who had been born in America, was an American citizen and the plaintiff, therefore, acquired both American and Italian nationality at birth. At the age of 18, he served as a commercial seaman for approximately a year on an Italian oil tanker which traveled European and Middle Eastern ports. As a result, he was not called with his draft class of 1932 but was "aggregated" or called to active duty a year later with the class of 1933. *fn9" He entered the Italian Navy on June ...

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