CUNNEY

Interim Decision *1327

MATTER OF CIINNZI

In SECTION 341 Proceedings

Al2377300

Decided by District Director

Approvecl by Assistant Commissioner Marc& '9,1964

Voluntary voting in the political elections of a foreign state (Ireland) constitutes

an overt act manifesting clearly and unambiguously a decision to accept the

nationality or such roreign state which was previously acquired by operation

of law and, consequently, results in loss of United States citizenship under

section 2, Act of March 2, 1907.

The applicant, born in Ireland on December 10, 1940, has applied for

a certificate of citizenship, claiming to have acquired citizenship at

birth under section 1993, R.S., as amended, by virtue of her mother's

naturalization on December 23, 1929, and prior residence in the United

States?

The applicant's mother was born in Ireland on February 14, 1898,

and arrived in the United States on May 5, 1922. She was naturalized

on December 23, 1929, in the Superior Court at Salem, Massachusetts.

She returned to Ireland in 1931, married the applicant's father on

August 24, 1932, and continued to reside in Ireland until February 7,

1960, when she was admitted to this country as an immigrant.

Whether or not the applicant acquired citizenship at birth depends

upon whether her mother was still a citizen of the United States on the

date of the applicant's birth, or whether she had been expatriated

prior thereto under the provisions of the Act of March 2, 1907, by

being naturalized as a citizen of the Irish Free State. 2

2 48 Stat. 797. "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. * * *."

2 See. 2 of the Act of March 2, 1907 (44 Stat. 1228) provides in part: "That

any American shall be deemed to have expatriated himself when he has been

naturalized in any foreign state in conformity with its laws, * * *."

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Interim Decision #1327

Shortly after the mother's arrival in the United States, the Irish

Free State Constitution of December 6, 1922, granted citizenship of

that State to persons born in Ireland and who were domiciled within

the jurisdiction of the Irish Free State at that time.' The applicant's

mother, then residing in the United. States, was not so domiciled and

did not acquire Irish citizenship thereby. Subsequently, the Irish

Nationality and Citizenship Act of 1935 granted Irish citizenship to

every person not a citizen by virtue of the Irish Constitution, who was

born before December 6, 1922, in Ireland, if permanently residing in

the Irish Free State at that time.' Clearly, the applicant's mother

acquired citizenship of the Irish Free State under the provisions of this

Act, being then married and residing in the Irish Free State with her

husband.

Where one automatically acquired a foreign citizenship by operation

of foreign law, there is a naturalization within the literal coverage

of the Act of March 2,1907,' and the applicant's mother was natural-

ized in the Irish Free State within the meaning of that Act. How-

ever, section 2 of the 1907 Act applies only to voluntary expatriation,

and where a citizen of the United States acquires a foreign nationality

through operation of law, and not upon his own application, his United

States citizenship is not lost under the 1907 Act unless he indicates

acceptance of the foreign nationality by some voluntary affirmative

act. The naturalization by operation of law is regarded as in effect

a continuing offer, the acceptance of which completes the act of natu-

ralization in a. foreign state made expatriating by said Act. Such an

act of acceptance must be an overt voluntary act which manifests

3 "Article 3. Every person, without distinction of sex, domiciled in the area of

the jurisdiction of the Irish Free State (Saorstat Eireann) at the time of the

coming into operation of this Constitution who was born in Ireland or either of

whose parents was born in Ireland or who has been ordinarily resident in the

area of the jurisdiction of the Irish Free State (Saorstat Eireann) for not less

than seven years, is a citizen of the Irish Free State (Saorstat Eireann) and shall

within the limits of the jurisdiction of the Irish Free State (Saorstat Eireann)

enjoy the privileges and be subject to the obligations of such citizenship:Provided

that any such person being a citizen of another State may elect not to accept the

citizenship hereby conferred; and the conditions governing the future acquisition

and termination of citizenship in the Irish Free State (Saorstat Eireann) shall

be determined by law."

' Irish Nationality and Citizenship Act of 1935. Sec. 2—(4) : "Every person

who is nob a citizen of Saorstat Eireann by virtue of Article 3 of the Constitution

but was born before the 6th day of December 1922 either in Ireland or of parents

of whom at least one was born in Ireland shall . . . (a) if sueh person is at the

passing of this Act or becomes thereafter permanently resident in Saorstat

Eireann be deemed to be a natural born citizen of Saorstat Eireann."

5 Op. Atty. Gen., Matter of Picone, Int. Dee. #1259.

485

Interim Decision #1327

clearly and unambiguously a decision to accept the foreign nationality

previouslyaoquired by operation of law .°

Did the mother perform such an act of acceptance of the Irish

nationality conferred upon hers She has testified that she voted in

Irish elections commencing in 1937 and 1938, and continuing up until

1957; that such elections were for a president and members of the

government body; that she voted because representatives of the can-

didates came to her and asked her to vote; that she was told that she

was on the Irish registry and entitled to vote so she voted; that no

one compelled her, or used any pressure upon her to vote; and that

she did not think there was anything wrong with it. The record

establishes further that when she voted, she knew that she was a citizen

of the United States because she had gone to Ireland as a citizen; she

had "the paper"; and that when requested to vote, had raised a question

as to whether she could vote because she was an American citizen.

It was her belief that only Irish citizens were entitled' to vote. Such

belief is supported by the Irish constitution and Irish law.'

The applicant's mother having voluntarily performed an act for

which only citizens of the Irish Free State were eligible, it remains

to be determined whether the acts of voting clearly and unambiguously

manifested a decision to accept the Irish nationality which had been

conferred upon her by operation of law . 8 Voting has been character-

ized as indicating:

* • = a desire on the part of the participant to make himself a part of a govern-

ment by assisting in the choice of those who are, by this mandate, to govern its

affairs. The participation in an election is merely one method of expressing

one's allegiance to the State in which the election is held,

" Ibid.

' Article 16.1.2 of the Irish Constitution declares, "Every citizen without

distinction of sex who has reached the age of twentynne years who is not dis-

qualified by law and complies with the provisions of the law relating to the

election of members of Dail Eireann, shall have the right to vote at an election

for members of Dail Eireann."

The Consulate General of Ireland has informed this Service that :

"The Electoral Act, 1923 provides in Paragraph 1, of Part 1 that every person

without distinction of sex who is an Irish citizen and has attained the age of

twenty-one years and is not subject to any legal incapacity is entitled to be

registered once as a Dail elector in one but not more than one constituency in

Ireland. Paragraph 3 of Part 1 declares that every person registered as a Dail

elector for a constituency, shall, while so registered, be entitled to vote at any

Dail election for the constituency, and also to vote in that constituency at every

Referendum."

In this connection, it is to be noted that citizenship is generally a prerequisite

to the right to vote. BarasanU v. Acheson, 103 F.Supp. 1011, aff'd 200 F.2d 562.

Voting in a foreign election prior to January 13, 1941, was not, of itself, an

act of expatriation under then existing law. Matter of M—, 1 I. & K. Dee. 537.

9 Uyeno v. Acheson, 96 F.Supp. 510, 514.

486

Interim Decision #1327

Further,

taking an active part in the political affairs of a foreign state by voting in a

political election therein is believed to involve a political attachment and prac-

tical allegiance thereto which is inconsistent with continued allegiance to the

United States. * *

In the face of such expressions as to the nature of the aot of voting

in a political election, it can only be concluded that voting in the politi-

cal elections of a foreign state is an overt act manifesting clearly and

unambiguously a decision to accept a foreign nationality previously

acquired by operation of law. Since the record establishes that the

applicant's mother voted voluntarily in the Irish elections in 1937 and

1938, at a time when she was aware that she was a citizen of the United

States,11 it is concluded that she was expatriated In 1937 12 under the

Act of March 2, 1907, and was not a citizen of the United States when

the applicant was born.

ORDER : It is ordered that the application for a certificate of

citizenship herein be and the same hereby is denied.

"Perez v. Brownell, 356 U.S. 44, 54 ; 78 S.Ct. 568.

u Of, Matter of C—S—. 9 I. & N. Dec. 670.

"Matter of Di—P—, 9 L & N. Dec. 660.

487