person, Carmen Coscia, did violate section 53-31 of the General Statutes. There is no further description or specification of the acts committed. The respondent pleaded guilty to the substituted information on April 14, 1959. The section of law under which the respondent was convicted, section 53-31 of the General Statutes of Connecticut, is entitled "Encouraging the Commission of Abortion" and provides: Any person who, by publication, lecture or otherwise or by advertisement or by sale or circulation of any publication, encourages or prompts to the commission of the offenses described in sections 53-29 [Attempt to Procure Miscarriage] or 53-30 [Abortion or Miscarriage] who sells or advertises medicines or instruments or other devices for the commission of any of said offenses, except to a licensed physician or to a hospital approved by the State Department of Health, or who advertises any so-called monthly regulator for women, shall be fined not more than $500 or imprisoned for not more than one year or both. It is noted that the section of law of which the respondent was convicted is a broad, divisible statute which enumerates several acts, the commission of which may or may not involve moral turpitude. The record of conviction, which includes the charge (information or indictment), plea, verdict and sentence, does not throw any light upon the nature of the crime committed inasmuch as the substituted information merely charged the commission of the crime by reference to the section of the law involved. The trial attorney urges that recourse may be had to the remarks of the State's Attorney to the court at the time of sentencing but we concur with the special inquiry officer that the established authority is to the contrary.1 We do not believe that the case of Marinelli v. Ryan assists the Service. In that case, while the record before the criminal court did. not contain a copy of the "information", the court remarked that the substance of the information appeared in the judgment of that court and from the counts specified in the judgment the court was able to determine that the crime involved moral turpitude. The appellate court found it unnecessary to reconsider what it had laid down in United States ex rel. Zaffarano v. Corsi, 63 F.2d 757; i.e., that in reviewing an order of deportation, the court may not look beyond the indictment, the plea, the verdict and the sentence and, therefore, the question did not arise as to whether the evidence before the court that sentenced the alien might be examined to ascertain whether the sentence brought him within the deportation statute. The special inquiry officer has noted that in the case of the co-defendant of this respondent, who was convicted of the same offense, the 1 1 Mylius v. Uhl, 210 Fed. 860 (2d Cir., 1914); United States ex rel. Robinson v. Day, 51 F.2d. 1022 (2d Cir., 1931); United States ex rel. Zaffarano v. Corsi, 63 F.2d 757 (2d Cir., 1933). 2285 F.2d 474 (2d Cir., 1961). proceedings were terminated upon a finding that upon the record the Service had failed to bear its burden of establishing that the respondent was deportable by evidence which was reasonable, substantial and probative. We concur with the conclusion of the special inquiry officer in the instant case that from the record of conviction it is not possible to establish that the crime of which respondent was convicted necessarily involves moral turpitude. The special inquiry officer properly terminated the proceedings. The appeal of the trial attorney will be dismissed. ORDER: It is ordered that the appeal by the trial attorney from the special inquiry officer's decision of September 26, 1962 terminating the proceedings be and the same is hereby dismissed. Matter of C-, A-10029078 (May 1, 1962). MATTER OF PICONE In EXCLUSION Proceedings A-12323330 Decisions by Board April 27, 1962 and July 12, 1962 An overt voluntary act manifesting clearly and unambiguously a decision to accept a foreign nationality previously acquired by operation of law, even though such act in and of itself may not constitute a statutory ground of expatriation, results in the loss of United States citizenship under section 2 of the Act of March 2, 1907, and the loss of citizenship dates from the time of the act of acceptance [Matter of Di P—, Int. Dec. #1215, upheld]. APPLICATION: Admission as United States citizen. BEFORE THE BOARD The special inquiry officer ordered the applicant admitted as a United States citizen and certified the case to the Board for final decision. We shall reopen proceedings. Applicant, born in Italy on January 15, 1932, claims to be a United States citizen through birth to Giuseppe Picone who in 1922 became a United States citizen by naturalization. The Service contends that applicant's father lost United States citizenship by later becoming naturalized in Italy before applicant was born. The Department of State has ruled that as a matter of law Giuseppe Picone could not have lost United States citizenship in the manner relied upon by the Service. Pertinent portions of relevant statutes follow: That any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws, or when he has taken an oath of allegiance to any foreign state. (Section 2, Act of March 2, 1907, 34 Stat. 1228) There shall be recovery of Italian citizenship by one who having ceased to be an Italian citizen owing to the acquisition of foreign citizenship, has been resident in the kingdom for two years. (Article 9(3), Italian Nationality Law, June 13, 1912, UNITED NATIONS PUBLICATION, LAWS CONCERNING NATIONALITY, July 1945, 269) These are the facts of record. The exclusion hearing reveals that applicant's father was naturalized in the United States on March 16, 1922, that he secured a United States passport on March 27, 1922, that he went to Italy to marry, that he returned to the United States in October 1923 (his wife never came), that he next went to Italy on December 17, 1925 on a United States passport issued on October 20, 1925, and that he remained in Italy until his death in 1958. An affidavit executed by Giueseppe Picone on February 6, 1953 reveals that he left behind no property in the United States when he returned to Italy, but in Italy owned farm land and three houses valued at about 15,000,000 lire, that part of the property was inherited and part purchased from 1922 to 1947, that property tax was paid in Italy but no taxes were paid to the United States, that on April 18, 1928, he was issued an Italian Identity Card No. 2179 by the Commune of Carini, that the card showed his nationality as Italian, that he is of the belief that he voted in 1934 and in all the following elections held in Italy from 1946 to 1952 but remembers well only having voted in 1951 and 1952, that he announced his American citizenship to local authorities, that he had never renounced his American citizenship, that he did not know that naturalized citizens were supposed to return to the United States before October 15, 1946, and that he had not been in contact with the Consulate at Palermo, Italy since his arrival in Italy. The affidavit shows that applicant's father stated it was his intention to establish United States citizenship because his son, the applicant, wished to come to the United States. This affidavit and another executed the same day reveal that Giuseppe Picone's return to Italy in 1925 was for the purpose of taking his father to the United States, because his father had been left alone after the death of his wife (1920), that two brothers were residing in the United States, that his father's death in 1941 and the circumstances which arose subsequently caused his protracted residence in Italy, and that it was his intention to return to the United States to reside permanently if he were authorized to do so. On February 16, 1953, the Vice Consul at Palermo issued a certificate of expatriation finding the applicant's father had lost United States citizenship under section 2 of the Act of March 2, 1907 by having been naturalized as a subject of Italy under article 9(3) of the Italian Nationality Law of June 13, 1912 and having manifested a voluntary acceptance of such nationality. This certificate was approved by the Secretary of State on September 9, 1953. Applicant's father died in Italy on March 23, 1958. The applicant requested a review of his case. On February 23, 1961, the American Consul at Palermo informed the Department of State that a review of Giuseppe Picone's case resulted in the determination that the naturalization granted by operation of Italian law may not have expatriated applicant's father under the provisions of section 2 of the Act of March 2, 1907 but that he did become expatriated (after applicant's birth) by voting in elections held in Italy in 1951. The Department of State concurred in the finding that the applicant's father had not lost United States citizenship by accepting the Italian naturalization and had not lost United States citizenship until he had voted in 1951. The applicant was, therefore issued a United States passport. The action of the Department of State in reversing its former finding that the applicant's father had lost United States nationality by accepting the Italian naturalization is based on the following reasoning: The Department of State, after the most careful consideration and study in the light of recent important court decisions, has reversed its long standing policy that expatriation under the first paragraph of section 2 of the Act of March 2, 1907 may be based upon the fact that a person has acquired a foreign nationality solely by operation of law (as, for example, under section 9(3) of the Italian Nationality Law of June 13, 1912), followed by overt acts voluntarily performed, which may be regarded as "acceptance" of the foreign nationality. Underlying this determination was the Department's belief, particularly in the light of the Supreme Court decision in the case of Nishikawa v. Dulles [356 U.S. 129 (1958)] that an administrative decision that a person has lost United States citizenship will be upheld by the courts only if the decision is based upon an act which must be both voluntary and specifically made expatriating by statute. (Ex. 5) The special inquiry officer, in a most comprehensive opinion, points out that the Service had the burden of establishing (by evidence that was clear, convincing, and unequivocal) that applicant's father had accepted Italian nationality. The special inquiry officer found that the Service had not borne its burden. The special inquiry officer held that the prolonged residence in Italy had been partially explained away by the applicant's father, and that in any event, it did not constitute an acceptance of Italian nationality. The special inquiry officer held that the obtaining of an identity card, without eliminating the possibility that it was procured under duress, necessity, or ignorance, did not constitute an acceptance; and that the voting concerning which there is certainty (the voting in 1951 and 1952) is too remote to establish that in 1927, some 24 years earlier when Italian nationality had become available, the applicant's father had formed the intention of accepting Italian nationality. In a letter dated December 20, 1961, counsel asks that the order of the special inquiry officer be confirmed and that the position of the State Department be fully considered. At oral argument the Service representative contended that the applicant was not a United States citizen at birth because his father had ex |