Born a Citizen - Mother Naturalized

Are you eligible for Italian Citizenship jure sanguinis?

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Born a Citizen - Mother Naturalized

Postby JRG » Mon Jun 07, 2010 3:33 pm

After hearing all sides of the story and also learning about some developing case law that might be helpful, I thought it would be a good idea to see if anyone is going through the same experience.

In short:

1. Mom born Naples, Italy 1941 as a citizen.
2. Me born Naples, Italy 1968 - mom still a citizen, dad American.
3. Mom takes US citizenship early/mid 1980's - I WAS STILL A MINOR ( this is the key issue!)
4. The law a the time said that I lost my citizenship as well, although non-consenting.
5. The law had since changed but is it retroactive?
6. Despite all this, I've been advised by contacts at the UN that my birth in Italy to an Italian citizen should easily get my citizenship as others have done the same or - "you need to talk to someone else if refused."

I don't mind spending the money and going to court but would like to know my chances. If anyone had been through this or knows anyone who has, I'd appreciate to hear about it. I also am seeking an attorney in Italy who can help. My paperwork is all ready - I just need to have it pushed through. Thanks for listening.

Jim
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Re: Born a Citizen - Mother Naturalized

Postby Em » Tue Jun 08, 2010 10:21 am

Unfortunately, the people at the UN are unlikely to know much about Italian citizenship law. The odds of having your citizenship restored through a simple visit to the consulate are slim at best. To Italy, naturalization is renunciation, and parents had the right to make this decision on behalf of their minor children. Between the years 1992 and 1997, former citizens who lost their citizenship through naturalization had the opportunity to reclaim it at the consulate. This is no longer an option.

HOWEVER, it is quite easy to reacquire your citizenship today (although not as easy as a simple visit to the consulate). You can go to the consulate and complete a form indicating your intent to reacquire your citizenship through residency (bring with you your birth certificate and your--your mom's--naturalization papers). You then have a year to return to Italy and establish residency. Once in Italy, you report to the appropriate office (the consulate will tell you which) and tell them where you are now residing. Once the officials confirm your residency status, you can obtain your passport.

Formerly, the law required a one-year period of residency, but recently, citizenship has been obtained by most in under a month.
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Re: Born a Citizen - Mother Naturalized

Postby JRG » Tue Jun 08, 2010 11:11 am

Thanks for the quick response. My take on the comments from the UN folks is that you just need to get to the right person of influence. I'm sure that in their world a few calls can make a difference.

I was not aware of the modification to the one year residency as this presents an interesting option. Is this residency requirement merely a formality? As much as I would like to, I am not in the position to actually move to Italy now but I do have plenty of family there for purposes of establishing an address. If this is simply an exercise of going through the motions then it appears to be a fairly simple solution.

Is this new residency requirement and actual change in law or just part of a more recent trend?

I appreciate your help. This is really great information.

Jim
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Re: Born a Citizen - Mother Naturalized

Postby Em » Tue Jun 08, 2010 9:34 pm

Don't count on a few calls to do it. Many people are born in Italy to Italian citizens. This only means you obtained citizenship at birth; it does not mean you retained that citizenship. Nor does it give you an advantage over those whose citizenship was never renounced. The consulates, and the comune, are well aware of the citizenship laws, and because interest in dual citizenship has increased exponentially, they have become even more insistent on following the letter of the law (sometimes unfortunately even beyond the letter of the law).

My husband is also in your situation. I thought my husband could apply through marriage after my citizenship was recognized, but that was not permitted. He (and you) did not take advantge of the five-year window generously provided by the Italian government--and both you and he were adults when this option became available--so now you'll have to do it their way.

The process is not onerous. You'll have to do more than simply give them your address, however. It is my understanding that they actually send someone to check to see if you're actually living there, and this is where family contacts may help because they may be able to expedite this check. Some people report waiting less than two weeks so you may be able to accomplish this during a vacation trip.

I would strongly suggest that you do this while your children (if you have any) are still minors. Your minor children will obtain citizenship with you. Not so your children who have already reached their majority.
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Re: Born a Citizen - Mother Naturalized

Postby CPA21 » Wed Jun 09, 2010 1:17 am

You were already a US citizen when your mother naturalized. You have US citizen as a birthright through your father. You are in the same position as the US born child of an immigrant who is born before the immigrant naturalizes.

I would strongly suggest taking your arguments to the Italian consulate that services your area. Collecting the necessary documents will be relatively easy. You should have a State Department certificate of birth for someone born abroad. That documents that you were born an American citizen. Your mother's naturalization papers will demonstrate that she naturalized after your birth. What do you have to document your mother's Italian citizenship? Her passport? You will also need your parent's marriage certificate.

With these documents you should be able to obtain recognition of your Italian citizenship!
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Re: Born a Citizen - Mother Naturalized

Postby JRG » Wed Jun 09, 2010 7:04 am

Em - I am prepared to go to Naples and follow your suggestions if that's what it takes. I have plenty of family and friends that would be able to assist and I am overdue for a trip anyway. I made arrangements to go to the Italian Consulate in New York this morning. A close family friend does business with them on a regular basis so hopefully it will cut down some wait time. So the ball starts rolling today thanks to you.

CPA21 - I have been arguing your points for some time now. I do believe there has to be some independent basis of evaluation for those who did not require their parent's naturalization in order to obtain US citizenship. As I explained to the consulate - "it's not like I needed to take an oath to become a US citizen...". There seems to be greater emphasis on me being a minor when mom naturalized. In the US, this would be considered a loophole - not in Italia. This is why I was advised to knock on different doors or to seek an attorney. I have all my documents including mom's original Italian passport so I am all set. Have you known anyone to have success with this argument? I am sure it is pretty common.

Thanks again for all the great feedback and information. I'll see if I get any more useful direction today. Either way, I'll report back for anyone else's reference.
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Re: Born a Citizen - Mother Naturalized

Postby Em » Wed Jun 09, 2010 3:10 pm

JRG, if your father was a U.S. citizen when you were born and registered your birth with the U.S. consulate, CPA21 is indeed correct. You should have a U.S. birth certificate as well as an Italian one. If you do, you were, as CPA21 notes, unaffected by your mother's naturalization. If you cannot provide proof that you were a U.S. citizen at birth (and perhaps this is what the consulate is seeking), you may have to go the alternate route.

BTW, this is in no way a loophole. According to Italian citizenship law, if you acquire another citizenship through birth, you do not lose your Italian citizenship. It seems to me that the consulate is doubting your acquisition of US citizenship at the moment of birth, and you may have to provide proof of this.
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Re: Born a Citizen - Mother Naturalized

Postby JRG » Wed Jun 09, 2010 3:59 pm

That's correct, EM. Dad was stationed at the NATO naval base in Napoli so I was issued a Report of a Citizen Born Abroad along with an Italian birth certificate at birth. I was also issued a SS# and a US passport at birth. I guess I am getting mixed messages on whether my mother's naturalization while I was a minor caused my Italian citizenship to extinguish regardless of my US status. Hopefully, the consulate shares your view. My experience is that they do not.


Speaking of which, I had an interesting experience today. I was told to call the $2.95 per minute appointment service for the NY consulate. On that call, I was advised that I had to wait a year from an appointment. I responded by explaining that I had all my documents in hand and ready to go. Suddenly, I was given an appointment for next Tuesday morning. We'll know then which path I'll need to follow.

Many thanks again for the input. The last 48 hours have really set things in a positive direction.
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Re: Born a Citizen - Mother Naturalized

Postby CPA21 » Wed Jun 09, 2010 5:00 pm

Be sure to post a report on your meeting with the NY consulate on this website.

You are an easy case for the consulate to review. All the names are spelled the same way and all the documents are available.

I expect you to have a successful day. Do not disappoint us!
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Re: Born a Citizen - Mother Naturalized

Postby JRG » Wed Jun 09, 2010 5:04 pm

I hope not to disappoint. You'll hear from me soon...
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Re: Born a Citizen - Mother Naturalized

Postby Em » Wed Jun 09, 2010 8:32 pm

This is a no-brainer. Since you have proof of U.S. citizenship from birth, you can easily show that you were in no way affected by your mother's naturalization. (I apologize for leading your down the wrong path, and thank you CPA21 for noting my error). The people at the NY Consulate have a reputation for being difficult, but they thoroughly understand Italian citizenship law.

I have no doubt at all that your application will be received favorably.

I obtained citizenship (in NY) through my U.S.-born father whose own father naturalized when he was six years old. My father's name was included on my grandfather's petition, but it was not an issue because a U.S. citizen cannot naturalize. Many, many, newly recognized citizens have similar stories. Naturalization of a minor is only an issue when the child is not a citizen of the country in which his parent naturalizes. In that case, he obtains citizenship with his naturalizing parent and--before 1992--loses Italian citizenship.

Best of luck.
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Re: Born a Citizen - Mother Naturalized

Postby JRG » Thu Jun 10, 2010 1:40 am

I appreciate your encouragement and hope you can participate in my celebratory toast. You have been my most useful resource in this endeavor.
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Re: Born a Citizen - Mother Naturalized

Postby uwlaw » Thu Jun 10, 2010 10:51 pm

Unfortunately, I think that Em's initial analysis was correct.

The reason that a child ordinarily lost Italian citizenship when his parents naturalized under the 1912 law was not by virtue of the parent deciding to naturlize the child as well (even though it's frequently discussed colloquially in those terms). Rather, it is by virtue of the second paragraph of Article 12 of the 1912 law.

That provision of the law provided that the minor non-emancipated children of those who lose Italian citizenship shall lose their own Italian citizenship if two conditions both apply: [1] the child lives with the parent exercising patria potesta or legal guardianship (that being the parent who has lost Italian citizenship), and [2] the child himself acquires a foreign citizenship: <<I figli minori non emancipati di chi perde la cittadinanza divengono stranieri quando abbiano comune la residenza col genitore esercente la patria potestà o la tutela legale, e acquistino la cittadinanza di uno Stato straniero. Saranno però loro applicabili le disposizioni degli articoli 3 e 9.>>

The term "acquires", as used in that law, has been interpreted to apply not only when the child "acquires" a foreign citizenship, but also whenever the child already possessed a foreign citizenship. As stated in Circolare K 31.9 del 27 maggio 1991: <<l'inciso "quando acquistino la cittadinanza di uno Stato straniero" va inteso carne comprendente anche il caso che la cittadinanza straniera sia già posseduta>> And as stated in Circolare n. 9 del 04.07.2001: <<tenendo presente che "l’acquisto" includeva la situazione del precedente possesso>>

The reason why these laws ordinarily did not result in loss of citizenship for many of us on this message board is due to the operation of Article 7 of the Law of 1912. That provision provided that an Italian citizen jure sanguinis (through his parents) who was also a citizen of a foreign country jure soli (by virtue of being born in the foreign country), was allowed to retain both Italian and foreign citizenship unless they voluntarily decided to renounce Italian citizenship once reaching the age of majority. <<Salvo speciali disposizioni da stipulare con trattati internazionali il cittadino italiano nato e residente in uno stato estero, dal quale sia ritenuto proprio cittadino per nascita, conserva la cittadinanza italiana, ma divenuto maggiorenne o emancipato, può rinunziarvi.>>

Authorities have consistently held that Article 7 trumps all other provisions of the Citizenship Law of 1912. Thus, for example, the Minister stated in Circolare n. K 31.9 del 27 maggio 1991 that the potential for losing citizenship under Article 12 does not apply to those who fall under the rules of Article 7, namely those born abroad to an Italian parent who are regarded by their country of birth as citizens ab origine under the principle of jure soli: <<Si [Consiglio di Stato] soggiunge che l'illustrato regime di perdita della cittadinanza derivato dal disposto di cui all'art. 12, secondo comma, della legge n. 555/1912 non si estende, come si esaminerà in dettaglio più avanti, a coloro i quali siano destinatari della disciplina ex art. 7 della medesima legge n. 555/1912, vale a dire per quanti, nati all'estero da genitore italiano o divenuto tale durante la loro minore età, siano considerati dallo Stato di nascita propri cittadini "ab origine" per nascita nel territorio dello Stato secondo il principio dello "ius soli".>> There are many other authorities which substantiate this rule. See, e.g., Circolare N. K.28.1 del 8.4.1991, Circolare n. 9 del 04.07.2001, and "La Cittadinanza Italiana: La Normativa, Le Procedure, Le Circolari" published by the Ministero dell’Interno.

I think that the problem in this case is that Jim was not born abroad, but rather in Italy. As such, his US citizenship is not jure soli, but rather jure sanguinis (i.e., it derives from being born to a US parent, not from being born in US territory). As such, the protections of Article 7 do not apply, and the loss of citizenship under Article 12 likely does.

I really don't mean to rain on anyone's parade, and for Jim's sake I hope that someone proves me wrong, but I think this is probably why he has been getting a negative message from the Consulate. It's also good for him to have a clear understanding of the law when he meets with the Consulate in the future.
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Re: Born a Citizen - Mother Naturalized

Postby Em » Fri Jun 11, 2010 10:48 am

The intricacies of the law can make our heads spin. I understand your analysis, and it does appear to present a problem. However, there may be other factors to consider. JRG's father was stationed at the NATO air base. Was that where he was born? If so, technically not in Italy.

This is a fine point in the law, and one that I doubt is encountered frequently. Keeping my fingers crossed that it won't be an issue, but you're right, uwlaw, it's best to understand the various possibilities.
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Re: Born a Citizen - Mother Naturalized

Postby JRG » Fri Jun 11, 2010 1:44 pm

Thank you for the brief on the applicable law, uw. My understanding of laws pertaining to military base status is that they are considered sovereign American territories. There is some argument over lease vs. owned land but generally the rights and privileges extended to the families of servicemen are the same as if US soil. Of course, this is the perspective from the US and not necessarily accepted by the Italian government. Em's point is worth noting - technically my feet first "landed" in the US Naval Hospital in Naples. My birth registration in Italy did not occur until after we left the hospital.

In the end, it is a grey area in which the outcome will be ultimate determined by the person reviewing my file. I think this is why I was advised to keep knocking until the right response. I am hoping the consulate approves my status as a practical matter. Not that I mind a trip to Italy, but if it's just to file more paperwork to ultimately get to the same place, it would seem silly to make me go through it when the law can accommodate even if by a stretch of interpretation. The again, I know my people very well...

I am hoping on more positive momentum stemming from getting an appointment at the consulate in less that a week and I also just got my father's birth certificate with apostille from Texas in one day.

We have a friend of the family who helps to administer pension paperwork for Italians and interacts with the consulate as a result. He seems to believe that one's professional status is heavily weighted in their consideration i.e. doctor/lawyer v. "nonskilled" - so treat it like a job interview.

For anyone who has been through this can you tell me what to expect at this of meeting?
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