Rare case

Over 25 million Italians have emigrated between 1861 and 1960 with a migration boom between 1871 and 1915 when over 13,5 million emigrants left the country for European and overseas destinations.
Dfio
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Rare case

Postby Dfio » 08 Oct 2015, 14:20

I will be applying for Italian citizenship but have received some conflicting feedback on my eligibility. Here's the facts:

-1950- father born to in Italy to Italian parents.

-1956- they emigrate to US

- 1967- grandfather naturalized

- 1973 - grandmother naturalized (father is now a married/emancipated adult)

-1980- I am born

-1997- my father naturalized. I have a copy of the certificate and it is a "certificate of naturalization." This is different from a certificate of citiZenship.

Here's the issue- Italian law apparently says if you were born in Italy and your father naturalized before 1992 and you were a minor, you also lost your Italian citizenship. That means my father lost his and so I'm ineligible. However, prior to 2000, American law stated BOTH parents had to naturalize for their minor kids to become citizens. Otherwise, the child would have to naturalize separately as adults. Obviously, my father did this in 1997 after I was born.

Am I eligible? There is a chance the consulate will get my grandfathers' records because a cousin is also applying and will need to supply them. His father was born in US so he doesn't have to worry about this legal quark. Just not sure how they will view my application after they see my grandfather'so naturalization certificate.

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Re: Rare case

Postby mler » 09 Oct 2015, 01:53

Don't make this more complicated than it is. Since your father has an Italian birth certificate and a naturalization certificate from 1997, you start your application with him. Since a 1997 naturalization did not cause him to lose Italian citizenship, all his children are Italian citizens as well.

You need his birth, marriage and naturalization certificates as well as your own documentation and those of your family.

This is an easy application. No need to mention grandparents at all.

Your cousin's application has no bearing on yours. Just go in with what you need. The 1997 naturalization certificate trumps everything. It proves he was not naturalized until that date. You cannot naturalize twice.

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Re: Rare case

Postby jennabet » 09 Oct 2015, 14:16

Sorry, I don't agree with the above advice to start the application with your father's naturalization in 1997 because your father's naturalization papers WILL include the date he emigrated to the USA. It was 1956 and your father was only six years old, which means he didn't arrive by himself. So the consulate will naturally ask if your father's father naturalized and when he did that in 1967 your father was also naturalized and lost his Italian citizenship. Any American law prior to 2000 has no bearing regarding loss of Italian citizenship. Only Italy can decide who and who is not an Italian citizen. Also, applicants who are evasive, not forthcoming with all the information or in other words try to pull a fast one on the consulates are what makes the burden of proof on others so stringent. In case you haven't heard, honesty is always the best policy.

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Re: Rare case

Postby Dfio » 09 Oct 2015, 14:28

His naturalization certificate has his birth date and the date of his naturalization. It does not have the date of his emigration.

I spoke to two others, one of which is an attorney recently. They both have had experience with these applications. They said this is indeed a rare case as most kids naturalized with the parents and as such, received non-Italian citizenship. Apparently, I am one of very few cases they know of where that did not happen. So, the minor child must receive derivative US citizenship to lose his Italian ciriZenship. My dad did not. He was not given US citizenship till 1997. Hence, his father's naturalization did not change his citizenship according to Italian law. Further complicating this is his mom did not naturalize until after he was 21. So, if he lost his Italian citizenship with his dad, he is essentially stateless until 1997.

I think both arguments are valid. If challenged in Italian court, I'm fairly confident I would win. I just don't want to have to go that route. So my father is bringing his docs to the consulate to get his passport. If they accept his application, that will tell the story.

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Re: Rare case

Postby Dfio » 09 Oct 2015, 14:30

Also, dad was born after 1948 which means Italian citizenship would have been conferred to him by both parents correct?

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Re: Rare case

Postby jennabet » 09 Oct 2015, 14:46

If your father is the legally recognized child of his father, your father's name along with the names of any other minor siblings would appear on your grand-father's naturalization records from 1967. The naturalization records consist of three parts: the Declaration of Intention, Petition for Naturalization and Oath of Allegiance. The consulate will want to see the entire package, which will contain the date of emigration. This would mean that those minor children did indeed lose their Italian citizenship when their father naturalized whether or not the USA recognized them as having been naturalized by derivation. The fact that your father's "Naturalization Certificate" does not contain an emigration date sounds like it is a Certificate of Naturalization by Derivation and the emigration date is on his father's records. Once you father lost his Italian citizenship through his father, he can't claim it through his mother.

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Re: Rare case

Postby Dfio » 09 Oct 2015, 14:54

Neither my father nor his siblings were listed on any of his documents. The certificate issued by derivation would be a certificate of citizenship, not a certificate of naturalization. This is what I was told by the attorney.

For my father to receive derivative citizenship- both parents would need to naturalize.

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Re: Rare case

Postby jennabet » 09 Oct 2015, 16:38

I'm not talking about your father's documents. When your grand-father naturalized in 1967, he was asked if he had a wife and children. If he named his children and your father is legally his son, then your father's name would be on your grand-father's naturalization papers. And those are the papers the consulate will want to see because as I said before, your father was six years old when he arrived in the USA and the first thing the consulate is going to do is ask about his parents and you will have to provide your grand-father's naturalization papers and go from there. The consulate is not going to let you proceed if you don't submit your grand-father's papers. By the way, the names of the siblings are not listed on the final naturalization certificate. They are listed on the papers your grand-father had to file before he took the oath of allegiance. It's a three step process. Declaration of Intention, Petition for Citizenship (siblings would be listed here, I think) and Oath of Allegiance.

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Re: Rare case

Postby Dfio » 09 Oct 2015, 16:44

I've emailed Luigi Paiano to see if I'll need to challenge a denial in court. I'll forward his response.

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Re: Rare case

Postby jennabet » 09 Oct 2015, 17:04

I would be interested to hear what Luigi has to say. I'm sort of stumped with what you have reported so far. I'm also curious as to where you got the information about being "stateless". Permanent residents in the USA are not normally stateless but there is a lot of mis-information available out there. Good luck.

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Re: Rare case

Postby Dfio » 09 Oct 2015, 17:20

Thanks. It is a tricky situation. One Italian consulate website states that minors do not automatically lose heir Italian citizenship. Others suggest, but do not outright the kids do lose it. I have read stories of both happening.

I think the country of origin does matter because that determines if the kids receive foreign citizenship. I'll let you know what Luigi say.

As for "stateless"- it's the fact that US law (during the time my father was a Minor) required both parents to naturalize. This can be found on the USCIS website.

Hence, because only his father did, my dad could not receive US citizenship. But If Italy revoked his Italian citizenship because his father, my dad is now neither a US or Italian citizen. Hence, he would be stateless. Legally residing in the US but stateless.

Ironically, Italy has law that deals specifically with stateless kids living in Italy. Being stateless is about citizenship, not residency.

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Re: Rare case

Postby mler » 09 Oct 2015, 18:50

If your father's naturalization papers indicate only the date of his birth and the date he naturalized, the consulate has no reason to request your grandparents' documents. The US says he naturalized in 1997, and in that year naturalization did not result in the loss of Italian citizenship.

It's true that minor children generally naturalize with their parents, but for some reason this did not happen for your father. If the US did not consider your father a US citizen until 1997--and the fact that he had a green card until that time is further evidence of this--he was still Italian and remains so today.

I understand the confusion, but I sincerely doubt your father will have a problem at the consulate. It is a genuinely interesting case. Let us know what happens.

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Re: Rare case

Postby jennabet » 09 Oct 2015, 23:42

Any person who has become a naturalized US citizen in his own right after having reached the age of majority would have been, at one time, an immigrant. I doubt there has ever been a case where an immigrant was allowed to file preliminary paperwork for US citizenship without having to produce PROOF of the date he entered the country. If Dfio's father cannot produce that date, he was NOT naturalized on his own in 1997. Possibly in 1997 he was recognized as having been naturalized through derivation in 1967. Where is it written that immigrants who gained citizenship through derivation would only receive a Certificate of Citizenship and NOT a Certificate of Naturalization. Derivative naturalization is STILL naturalization.

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Re: Rare case

Postby Dfio » 09 Oct 2015, 23:55

Two separate issues.... The question is when derivative citizenship was conferred, if at all. The US did NOT confer citizenship to him until 1997 because at the time he was a minor law requires BOTH parents to naturalize to confer derivative citizenship.

The fact that he moved here in 1954 is immaterial.

I have recently learned of people I. A similar situation that were successfull. I am eligible through my mother (she and I were born after 1948 and she would have gotten it through her grandfather- father- her to me). I just don't want to go back 4 generations.

See this page.

http://www.uscis.gov/us-citizenship/cit ... gh-parents


see the applicable section.

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Re: Rare case

Postby jennabet » 10 Oct 2015, 00:01

Like I said upthread, it doesn't matter what the USA did or did not do. The fact is that your father, born in Italy, was a minor when his father became a naturalized US citizen and they both lost their Italian citizenship at that time.


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