would be assignment to ships destined to the Indian Ocean, and denial of scholarships for higher education.

It also has been judicially determined that economic proscription so severe as to deprive a person of all means of earning a livelihood may amount to physical persecution. However, the respondent concededly does not base his claim to physical persecution on utilitarian sanctions. In his own words: "He was doing rather well for himself at the time he jumped ship and gave up a career with considerable potential ***." This aspect of the case, then, speaks for itself and requires no further comment.

3

It has further been ruled that imprisonment for illegally deserting a vessel is a criminal sanction reconcilable with generally accepted concepts of justice, and not physical persecution within the purview of this section of the law. The court later modified this ruling, however, to the extent of holding that an alien threatened with long years of imprisonment, perhaps even a life sentence, for attempting to escape a communist dictatorship would be entitled to a stay of deportation on the ground of physical persecution." And still subsequently it decided that possible incarceration for one (1) or two (2) years resulting from illegally deserting a ship is not physical persecution.o

7

In our opinion, the facts of this record, applied in the light of the foregoing precedents, do not call for reversal of the special inquiry officer. The respondent has submitted an affidavit by a qualified expert on Yugoslav law. Specifically, the affidavit points out (p. 4) that the abandonment of his ship by a Yugoslav crewman is, theoretically, a disciplinary offense punished pursuant to Article 48 of the "Decree Concerning the Crews of the Merchant Marine of September

* Dunat v. Hurney, 297 F.2d 744 (C.A. 3, 1/24/62).

3 1st two sentences, last ¶, p. 6-Brief on Appeal.

*Diminich v. Esperdy, 299 F.2d 244 (C.A. 2, 12/29/61); cert. den. 4/9/62-82 S. Ct. 875.

5

6

Sovich v. Esperdy, 31 L.W. 2585, 13 Ad. L. 2d 619 (C.A. 2, 5/15/63).

* Zupicich v. Esperdy, C.A. 2, 6/28/63, 319 F.2d 773. 'Exhibit 3.

Branko M. Peselj, Esq.-member of the Yugoslav bar and a practicing attorney in that country (1931-1945)-research assistant, Free Europe, Inc., in charge of the office of the Library of Congress working on various international, legal, social and political problems (1950-1955)-member of D.C. bar and local practicing attorney (since 1955)-special attorney, U.S. Dept. of Justice, Office of Alien Property, Foreign Law Section (1956-1958)—USIA, Voice of America, Yugoslav Service (present)-Adjunct Professor of Law, Georgetown Univ., lecturing on Socialist Law and the Socialist Legal System (present)—publisher of, inter alia, THE SOCIALIST CHARACTER OF YUGOSLAV LAW, "Review" Vol. 1, No. 2, London, 1961; and "Contemporary Croatia in the Yugoslav Federation: Its Constitutional Status and Socioeconomic Position," Journal of Croatian Studies, Vol. 11 (1961) pp. 80-133.

353

17, 1949." It further sets forth that the penalties for such desertion thereunder are reprimand, fine, and loss of earned wages, but ordinarily not jail. This, certainly, does not support a claim of possible long imprisonment for "jumping ship."

Respondent's attempts to nevertheless bring himself within the scope of the Sovich case (, ante), on the theory that his conduct aboard ship, as herein before described, would bring him within Article 118 of the Yugoslav Code of Criminal Procedure providing for imprisonment up to 12 years in the case of a person who "represents the social political conditions in the country maliciously and untruthfully," is mere conjecture on his part. The success of his career as a merchant mariner, as outlined above, deprives such an assumption of any validity whatsoever. As a matter of fact, as indicated previously, he has himself stated that the worst that could happen to him would be assignment to ships destined to the Indian Ocean and the denial of scholarships for higher education.

Finally, on this point, the respondent was not persecuted during all the years that he lived in Yugoslavia or served aboard its ships. His mother and sister still live in Yugoslavia and no showing has been made that they have been subjected to physical persecution either. Again, these matters speak for themselves.

Actually, what the respondent seeks on appeal is a delay in the time for his voluntary departure until he can legalize his status by taking advantage of a nonquota visa petition filed by his citizen wife and approved by the Service on May 20, 1963. In effect, then, the respondent desires an extension of the time for his voluntary departure. But this is a matter properly for the consideration of the District Director having jurisdiction over respondent's place of residence, not this Board. Accordingly, and in view of the foregoing, the special inquiry officer's decision of April 29, 1963, is hereby approved.

ORDER: It is ordered that the appeal be and the same is hereby dismissed.

'He asserts that immigration procedures via the United States Embassy in Dublin, Ireland, have been initiated.

MATTER OF AMICO

In SECTION 341 Proceedings

A-11577150

Decided by District Director

Approved by Assistant Commissioner September 3, 1963

(1) Where an oath of allegiance is taken during minority, nationality loss under section 2, Act of March 2, 1907, occurs as of the date after attaining majority and prior to January 13, 1941, of the performance of an act confirmatory of the oath of allegiance taken during minority, unless precluded by the proviso to section 2 relating to expatriation during World War I.

(2) Alleged mandatory service from April 2, 1939, to June 19, 1939, in the Italian army by a dual national after attaining majority was involuntary and cannot be regarded as confirmatory of an oath of allegiance taken during monority in the absence of evidence to establish that such service was voluntarily performed and in view of the well-known ruthlessness of the Fascist regime which, even as early as 1935, would hardly have tolerated resistence to its draft laws by an admitted national of Italy.

The above-named has applied for a certificate of citizenship, claiming to have acquired citizenship at birth in Italy on September 7, 1939, to a citizen father and an alien mother.

The pertinent statute in effect when the applicant was born was section 1993, R.S., as amended by the Act of May 24, 1934, providing that:

Any child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States; but the rights of citizenship shall not descend to any such child unless the citizen father or citizen mother, as the case may be, has resided in the United States previous to the birth of such child. In cases where one of the parents is an alien, the right of citizenship shall not descend unless the child comes to the United States and resides therein for at least five years continuously immediately previous to his eighteenth birthday, *

The latter part of this section concerning retention of citizenship was changed by the provisions of section 201 (g) of the Nationality Act of 1940 (54 Stat. 1138-39), effective 1/13/41, and these in turn

were affected by section 301 (b) and (c) of the Immigration and Nationality Act, effective December 24, 1952 (8 U.S.C. 1401), quoted below:

Any person who is a national and citizen of the United States at birth under paragraph (7) of subsection (a), shall lose his nationality and citizenship unless he shall come to the United States prior to attaining the age of twenty-three years and shall immediately following any such coming be continuously physically present in the United States for at least five years: Provided, That such physical presence follows the attainment of the age of fourteen years and precedes the age of twenty-eight years.

Subsection (b) shall apply to a person born abroad subsequent to May 24, 1934: Provided, however, That nothing contained in this subsection shall be construed to alter or affect the citizenship of any person born abroad subsequent to May 24, 1934, who, prior to the effective date of this Act, has taken up a residence in the United States before attaining the age of sixteen years, and thereafter, whether before or after the effective date of this Act, complies or shall comply with the residence requirements for retention of citizenship specified in subsection (g) and (h) of section 201 of the Nationality Act of 1940, as amended.

The record discloses that the applicant entered the United States on January 18, 1959, when 19 years of age. No issue with regard to applicant's retention of United States citizenship arises out of the fact that he was over 16 years of age when he came to the United States, the taking up of physical presence in this country prior to 23 years of age still being timely for such purposes under section 301 (b).

The applicant's father was born on January 28, 1918, in Trenton, New Jersey, of Italian parents. He resided in the United States until 1920, when his father took him to Italy. In 1953, he emigrated to Canada, and on May 27, 1958, he was admitted to the United States as an alien, in possession of an immigrant visa. On November 8, 1937, when only 19 years of age, he voluntarily enlisted in the Italian army for a period of two years, and took an oath of allegiance in connection with such military service. This volunteer status in the Italian army was terminated on October 10, 1938. He was recalled to military service on April 2, 1939, and discharged on June 19, 1939, "for end of enlistment." He was again recalled to active duty in the Italian army on June 21, 1941, and was discharged on November 28, 1944. He voted in Italy in political elections in 1946, 1947, and 19948.

The question presented is whether the applicant's father was a citizen of the United States at the time of the applicant's birth.

The father was a dual national at birth, having acquired United States citizenship by virtue of the XIVth Amendment to the Constitution, and Italian citizenship under the Italian Nationality Law of 1912, which recognizes the principle of jus sanguinis. The expatriation statute in effect at the time of the applicant's birth was section 2 of the Act of March 2, 1907, providing in pertinent part:

That any American citizen shall be deemed to have expatriated himself *** when he has taken an oath of allegiance to any foreign state. *** And provided also that no American citizen shall be allowed to expatriate himself when this country is at war.

As pointed out above, the applicant's father took such an oath of allegiance in connection with his entry into the Italian armed forces when he was 19 years of age. It has long been settled by both administrative practice and judicial decision that a citizen by birth, who has not yet attained his majority, cannot expatriate himself under the Act of March 2, 1907, by taking an oath of allegiance to a foreign state (Perri v. Dulles, 206 F. 2d 586; U.S. ex rel Baglivo v. Day, 28 F. 2d 44; Augello v. Dulles, 220 F. 2d 344). However, a minor may by clear and unequivocal acts after reaching his majority indicate a desire to confirm an oath of allegiance taken during his minority and thereby complete his loss of nationality under that Act (DiGirolamo v. Acheson, 101 F. Supp. 380; Matter of L—, 2 I. & N. Dec. 789; Matter of W―,4 I. & N. Dec. 22).

In analogous situations, the Service has followed the "relation back” theory in fixing the date upon which nationality was lost. Thus, it had been held that an act manifesting acceptance of a foreign nationality previously involuntarily acquired related back to the date of acquisition of foreign nationality, thereby resulting in loss of nationality as of the earlier date (Matter of V—, 3 I. & N. Dec. 671). Similarly, where persons who had acquired both United States and foreign nationalities during minority elected the foreign nationality, the act of election related back to the attainment of majority (Matter of G-, 1 I. & N. Dec. 329). In Matter of S-, 8 I. & N. Dec. 604, where an oath of allegiance, not expatriating because taken during a period when the United States was at war, was subsequently confirmed, nationality was determined to have been lost as of July 2, 1921, the date of termination of the war period.

This "relation-back" principle has recently been reconsidered. In a case involving acceptance of a foreign nationality previously acquired by operation of law (Matter of DiP-, Int. Dec. No. 1215), the Board of Immigration Appeals ruled that the retroactive feature should be modified, stating as follows:

There is, therefore, no longer any justification for indulging in the fiction that the act showing acceptance of Italian nationality invariably also shows a voluntary acceptance of Italian nationality as of the first possible moment such acceptance could be made. In the interval within which it was possible to make the choice of becoming an Italian national and the actual making of the choice, the individual may have been indifferent, undecided, or even hostile to the acceptance of Italian nationality.

In Matter of Picone, Int. Dec. No. 1259, also involving acceptance of a foreign nationality previously acquired, the Attorney General