Jure Sanguinis Help

[Swan14]

Hi, I am in the process of applying for Italian Dual Citizenship via Jure Sanguinis. I am applying through my maternal grandmother, so am trying to submit a 1948 Court of Rome case, but have run into quite a mess regarding my Grandmother's US Immigration File. I have all the required documents, but would like to get some advise before I proceed. I am hoping that somebody may have run into a similar situation and/or may have an idea that I did not think of.

-Maternal Grandmother born 1921 in Italy
-Her Father born 1884 in Italy, Came to US in 1923, Naturalized 1931
-Maternal Grandmother still living in Italy until 1937
-Her father died in Feb 1937, My Grandmother arrived in US in Aug 1937
(This scenario in theory eliminates her from Derived Citizenship, because you are supposed to be living in the US, as a minor, and in the custody of your Naturalized parent to be eligible for Derived US citizenship).
-Grandmother entered US with Visa code showing she was a daughter of US Citizen.
-Grandmother was granted Green Card in 1940, showing her as an Italian Citizen, (She had the same A#, so US Immigration knew she was the daughter of a US Citizen, and still approved a green card, so it confirms they thought she was not eligible for US Derived Citizenship.
-Grandmother granted a renewed green card in 1958, also showing Italian Citizen
-Grandmother applies for Naturalization in US in 1968
(At this time, all her children were adults, my grandmother was still considered Italian by the US Government, and thus her children should also retain their right to Italian Citizenship.)
-This is where things get screwed up.
-Approximately 1970, INS sends my grandmother a letter that she MAY have derived Citizenship from her father, so recommended she apply for Derived Citizenship first.
-1972 She applies for Derived US Citizenship
-1973 Derived US Citizenship granted, then backdated to 1942 .
-Oath of Alliance signed 1974

First, she was no longer eligible for Derived US Citizenship, due to arriving after her father's death, never living with him on US soil, and not submitting the paperwork as a minor.

Second, INS considered her an Italian until 1973

Third, If she was going to get Derived US Citizenship, then it should have been backdated to 1937, not 1942, which is the date she arrived in the US.

1942 would be correct as the year she would first be eligible to apply for Naturalization, as you have to wait 5 years. It was 5 years to the day, so that was their thinking, but the date of Naturalization would be after the date of the application and not backdated 30 years before. So they seemed to combine both Naturalized and Derived rules. Bottom line is she should have been Naturalized in 1968.

Also, derived citizenship is for minors, and the 1942 backdate puts her at 21 years old, which is most likely why they had to have her sign her own oath, because her father's oath could no longer apply to her.

I have consulted with about 6 lawyers in Italy. They all said I have the most unique case they have ever seen, and that in their opinion I deserve to receive it, but are worried about the judge only seeing the 1942 date and denying my application.

The problem is that due to the backdated 1942 date of Citizenship, the Italian courts may consider my grandmother a US citizen as of 1942, and ignore the fact she was considered an Italian Citizen by the USA until 1972, and thus retroactively stripping my grandmother's children of their right to claim Italian citizenship, as they were all fully adults by 1968 and my grandmother's oath would not apply to them. They also never renounced Italian Citizenship themselves. To retroactively strip her children of their right to claim Italian Citizenship would be totally unfair, and quite possibly illegal.

Has anybody ever gone through anything similar or heard of such a scenario, and may have some advise on how I can pass this hurdle with high chances of success.

I really want to start my case, but will only commit if I have a very high chance of success and can justify the high price tag.

Thanks.

[mler]

The only issue I see is that “in the custody of the naturalized parent” refers to citizenship law TODAY. Your gm would have been subject to the citizenship laws in place during the time she arrived. The INS knows its laws, so I suspect that, during that period, the simple fact of her father’s naturalization during her minority allowed her to take the oath when she reached her majority.

Citizenship laws changed frequently in the US as they did in Italy. I’ve yet to find the specific law in place during that period, but that is where your research should focus. The law at the time will help you determine whether or not it is wise to continue.

[mler]

Perhaps this will help:

https://www.ilrc.org/sites/default/file ... 0-7-14.pdf

Note, though, that the “legal and physical custody of the citizen parent” requirement does not appear until 2001.

[Swan14]

Hi, Thanks so much for your reply, and thanks for your link. It is a nice quick reference guide. I am aware of the changes they made to the INA. Considering my grandmother tried to Naturalize in 1968, we would assume they would go by the 1952-1978 rules. However, I still see numerous issues.

-First my grandmother wasn't a permanent resident until 1940 when she was 19 years old and no longer a minor. The rule says she must have begun residing in the US as a permanent resident by her 18th birthday. I received her file, so have all the forms and when they were approved.

(Also, keep in mind that she arrived in the US in 1937, after her father died, and didn't file for permanent residency with INS until 1940. This is very unique and I admit is a gray area and I can't find a precedent of what they are supposed to do for the circumstance of the naturalized parent dying before the child's arrival.)

-The second issue I see is that they backdated her date of citizenship to 1942 not 1940, and by then she was 21 years old and also married, which the rules state you can't be married.
-Third, it states both parents must have naturalized, or be separated and the child must be in the custody of the Naturalized parent. Her father died before she arrived in the United States. My grandmother was also always in the custody of her mother in Italy, and her parents weren't ever separated. Her mother also never naturalized, and was always Italian.

I also have her N600, which was included in the file. The immigration officer said they gave her derived citizenship, because as of 1942 she was a Lawful Permanent Resident and under 21 years old. However, she was over 21 years old, and married in 1942. He then goes on to say he finds her eligible after completing 5 years of permanent residency, which is the rule for Naturalization. If that is the case her citizenship date should have been 1973, not 1942 and it should have been through Naturalization.

The process was completely botched in my opinion, and she should have been Naturalized between 1968-73, when she filed her paperwork. The problem is how do I make the Italian Court understand that.

I am so frustrated about this mess.

Thank you so much for taking the time to help me, and if you can think of anything else I would welcome the help.

[mler]

Those are all good arguments, but there are other things you must consider.

Just like Italy applies historical rules to actions taking place in a specific historical period, the US does the same. Thus, it would not be the 1952 rules that applied, but rather the rules of 1937, the year she arrived in the US. Those rules required that the minor child lawfully reside in the US for five years. In 1940, she was still a minor according to both US and Italian law (the age of majority then being 21).

According to the laws based on the period during which she arrived and during which she obtained permanent residency, marriage was not a factor since the process began before she reached her majority.

It is for these reasons, I believe, that the INS considered her eligible to take the oath and become a citizen. It seems to me that this would not be derivative citizenship but rather naturalization because derivative citizenship is obtained automatically.

I’m not discounting your analysis; but I believe a careful reading of US law does provide a reason for the awarding of citizenship in 1942.

This doesn’t mean you cannot be successful in a 1948 lawsuit, but the 1942 issue seems to be a definite negative factor. The problem is that Italian courts focus on Italian law; their knowledge of US law is limited. That’s why we submit documents, apostilled and translated.

Were I in your position, I would contact as many lawyers as possible to get their perspectives. They are in the best position to guide you. In the meantime, you may want to explore other possible citizenship lines.

I hope it works out for you.

[Swan14]

Thank you so much for taking the time to respond, and yes I agree derivative citizenship is given automatically.

The whole case seems to revolve around the 30+ years between arriving and being recognized as a US citizen. If they notified her in 1942, then there would obviously be no case. The fact that INS kept renewing her green card for 30 years and listing her as an Italian Citizen until her children were fully adults should be considered. For example, She wasn't able to vote, etc. For Italy to recognize a backdated citizenship date over an application date thus retroactively stripping a persons right to citizenship seems like a contradiction to their statements of wanting to draw Italians back to Italy. Especially, since, from my understanding, the whole thing that strips a person of their Italian citizenship is taking the US Oath, renouncing foreign citizenships? The fact that my grandmother had to take a new Oath in 1974, because she was no longer a minor in 1942, so her father’s Oath could no longer apply to her, should be greatly considered by the Italian court with regards to her children who were fully adults, in turn making her 1974 Oath not apply to them either, and in theory continuing the bloodline. In my opinion, Italy should focus on the 1974 Oath, which is what caused the loss of citizenship to begin with, rather than the 1942 backdated citizenship date. There is always a way to win, but too many variables in that you never know what judge will be looking at the case or what their opinions are, etc.

It just boggles my mind that if she had never applied for naturalization in 1968 she would have remained an Italian citizen to the USA until her death, because she was documented as Italian on all permanent resident applications until she tried to naturalize. It is also amazing that they could go by rules from the time of arrival rather than the time of application, but the most frustrating thing to believe is that Italy could recognize a retroactive date of citizenship and thus strip her children of their right to claim citizenship.

Thank you so much for your insight. I know I have a case, but the thing that is unclear are my odds. At the moment, It is looking very risky to try this, and I don’t know if the odds of success are high enough to justify spending so much money. It seems like it would be the same as buying a lottery ticket. The Italian lawyers had a similar opinion. They said I definitely had a case, but said the odds of success are a toss up that may require an appeal and a well written argument. They also said that since the process is more clerical than court that they may focus on the 1942 date and not look at everything and overlook key facts, and they would only be able to submit a statement and not be there in person to point things out in real time that could greatly increase the chances of success.

Thanks again.

[mler]

I understand your arguments, but the major problem is that you would be, in effect, asking the Italian courts to override a decision made by the US.

May I suggest that you post this situation on the Tapatalk Italian Citizenship forum. There are several members there who may be able to offer suggestions.

[mler]

https://www.tapatalk.com/groups/italiancitizenship/

[qualdom]

I've seen it a lot with people from Panama, they enter the USA as a permanent resident with an i-551, then after many years they decide to naturalize only to discover they were eligible for derivative citizenship the entire time. That's why immigration paperwork today asks if your parents were ever US citizens to try to eliminate these issues.

I don't want to deter you, anything is possible with a compelling legal argument, but it will be challenging to convince the Italian courts that a 1942 derivate citizenship is fundamentally different from a 1942 naturalization. Especially since the person in question was an adult, agreed to the 1942 date, and participated in some sort of oath of allegiance ceremony.

But I do understand your point...between 1942 and 1974, your grandmother only had rights as Italian citizen. It doesn't seem fair to treat her as a US citizen during those years when she didn't have the rights and protections (other than any potential retroactive benefits).

Maybe you could establish an interesting precedent!

[Swan14]

Thank you mler for all your help and taking the time to discuss this with me. I really appreciate it, and you were very helpful. I will definitely check out your link, and try to post on the other forum.

Thank you qualdom! I know I would be able to win, but the problem is that there doesn’t seem to be a precedent, since this is a very unique case, and some mistakes were made on the US side. Any time a decision can be interpreted based on a Judge’s opinion of the law, there is a chance the judge won’t see it your way, even if you have proven your case. The Italian lawyers said there is no way to research for any previous precedent. I offered to pay them to perform the research, but they said it wasn’t possible. It sounds like it would be denied and most likely have to go to appeal, which would make the expenses and wait time hard to justify.

My grandmother did agree to sign the oath, but that oath was in 1974, which to my understanding is what officially stripped her Italian citizenship. She spoke very little broken english, so in speculation, maybe they were trying to do her a favor by going for a derivative rather than naturalization process. Her file has many discrepancies on the part of US immigration, and it is hard to get further details because she is deceased and her kids don’t remember. They just remember her having trouble traveling to and from Canada, which probably initiated the late 1960’s immigration activity. The gray area is just very frustrating.

I have been over this subject with many Italian lawyers trying to explain the difference between derived and naturalized, but they don’t get it or are stubborn and told to treat it the same.

Thanks again for everyone’s time and help.

[mler]

Do try that link…you never know.

Don’t worry about precedent because Italian courts do not follow precedent as is done in the US. Many many people are applying for dual citizenship, and the lawyers and courts are very busy. Some may be reluctant to take a difficult case when they can make easy money submitting straightforward ones.

I’m wondering if the naturalization date is listed on the oath your gm signed.

[Swan14]

Yes, that makes sense. It seems like there are lots of demand for Italian Citizenship at the moment. I figured that is why a lot of them don't want to touch my case, because I noticed one of the ways they use to attract business over their competitors is by boasting their high success rates. I want to stay away from those type of lawyers anyway, and am hoping for an expert that can fully explain how he will win and what legal argument he will use to do it.

To answer your question, I am looking at her Oath of Allegiance right now, and I do not see any date of Naturalization. It only lists the Oath in the beginning of the document, has my grandmother's signature, then underneath says "Subscribed & sworn to before me, a designated representative of the INS this 10th day of January, 1974 at (location)". It then is signed by the Immigration officer & their title is listed, then it repeated Jan 10 1974, and says "I hereby certify that I have this day received original certificate of citizenship of which this is a duplicate." It then once again has her signature. The issue date listed on the actual Certificate of Citizenship is December 1973, so she signed the Oath about a month after they produced the Certificate.

My grandfather received Derivative Citizenship too, and his whole process went completely by the book, and his Oath of Citizenship lists that he is provided with a Derivative Certificate of Citizenship.

Thanks again

[mler]

That “I received an original Certificate of Citizenship” messed up my thought that you could just submit the Oath. Sorry.

BTW, Certificate of Citizenship means derivative citizenship not naturalization, adding to the confusion.

[Swan14]

Yes, Agreed. Certificate of Citizenship is Derived. Naturalization certificates say Naturalization on it. I think the certificate of citizenship was to show proof of citizenship for those who had no proof of citizenship. I think my grandfather’s was different and stated Derivative on it. It will also list on the Certificate of Citizenship what part of the INA they based their decision on. My grandmother’s derivative citizenship was granted based on section 341, which I think was a person claiming to have derived from a US citizen parent. My grandfather’s, since he was very clear cut derived, was through section 339 I think. It was helpful when I started my research, because I had my grandparent’s original documents, but had no idea what INS was thinking, so looked up the law they were basing their decisions on. Unfortunately, now that I have the actual file it shows a very sloppy mess, and made things worse and not better. I wish it could have resolved it one way or the other in the Italian’s eyes.
Thanks.