The opinion of the court was delivered by: BYERS
This matter is before the court on the objection of the Immigration and Naturalization Service to the granting of the petition filed June 12, 1956, under Section 327 of the 1952 Nationality Act, 8 U.S.C.A. § 1438.
By application dated February 12, 1957, petitioner has sought leave to amend the said petition to bring it under Section 317(c) of the 1940 Act.
Under date of March 26, 1957, the Acting Regional Commissioner for this region made and filed findings of fact and conclusions of law that the petitioner is an alien, and may not be naturalized under either of these statutes.
The findings of fact have not been questioned in the hearing before this court on December 19, 1957, nor in the brief filed for the petitioner, which was received together with the Government's brief on January 30, 1958.
The sole question for decision is whether the procurement of a visa by petitioner from an American consul in Milan, Italy in connection with an Italian passport previously issued to him brought him within the savings clause of the 1952 statute quoted below.
He testified before the examiner in this proceeding, concerning the procurement of that visa:
'Q. Did you ever try to get an American passport to come back to the United States after the war? A. Yes, after the war was over, I went to the American Consul in Milan in 1945 and asked him to give me an American passport as a citizen of the United States, they told me that I would have to fill out an application and then they would determine whether I had lost my American citizenship. After that I kept going to the American Consulate in Milan about twice a year, but they kept asking me for one document or another, but they never gave me anything straight. Then on December 12, 1952, they made me fill out a new application for a visa to come to the United States and have my citizenship definitely settled.
'Q. Did you fill out the application for a visa? A. Yes, they granted me a visa. (Petitioner presents Italian passport which was issued to him on June 22, 1950. It shows his admission into the United States in March, 1953 as a non-quota immigrant under Section 317(c).'
The foregoing is assumed to mean that the petitioner then asserted that his projected trip to the United States was for the purpose, as he says, of having his citizenship 'definitely settled.'
The petitioner was born in the United States of Italian parents who were never naturalized, on April 1, 1915. His parents returned to Italy in 1924, taking him with them. He remained in that country 29 years or until March 16, 1953; he states that thereafter (date not stated) he applied to the Naturalization Office in Detroit, but since he could not speak English, he was told to come back when he was able to do that.
For convenience the important dates affecting the petitioner are tabulated:
July 12, 1935 He was drafted into the Italian Army and apparently released.
April 15, 1936 Recalled for service.
May 14, 1936 Furloughed for convalescence.
September 23, 1936 Recalled for service but ...