Mr. Wharton to Mr. Phelps.

No. 276.]

Sir: I have to acknowledge the receipt of your No. 289, of the 1st instant, in regard to the various forms of application for passports. For convenience, your inquiries will be enumerated in their order and answered accordingly.

(1) Is the form of application for a “native” or for a “person claiming citizenship through the naturalization of * * * parent,” the latter requiring the production of the father’s certificate of naturalization, to be used in the case of a child born in the United States of a naturalized father?

In this relation you inclose the application of Christian Henne, who, it appears, was born in California in 1873, of a naturalized father.

Your use of the “native” form in this case was correct.

(2) In this connection is it material whether the birth of the child took place within the United States before or after the naturalization of the father; and, if so, what proof can be required of the correctness of statements in regard to the relative dates of these events?

The practice of the Department is to issue a passport to all applicants as natives where they swear to their birth in the United States, whether prior or subsequent to their father’s naturalization.

This practice has doubtless grown up in view of section 1992 of the Revised Statutes, which declares that—

All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.

[Page 516]

You ask, “What proof can be required of the correctness of the statements in regard to the relative dates of these events?” viz, whether the birth was before or after naturalization.

The Department does not require any proof. It trusts to the oaths of the applicant and his witnesses, as in reality it is obliged to do, unless extraneous circumstances suggest the statement to be false. The issuance of a passport is largely discretionary, and the Department is compelled to use its best judgment in every case, and so is a minister. It is not doubted that courts of this country, which are exclusively charged with the subject of granting certificates of naturalization, have been imposed upon by unscrupulous persons, and that, even where the production of such a paper to the Department has, for all practical purposes, decided the status of the person as entitled to a passport, the Department has frequently been imposed upon. So also in similar cases have our legations. But where one’s best judgment is exercised in each particular instance, it is not perceived that more can be required in the absence of strong suggestion of fraud.

(3) In considering the form of application to he used and its requirements, is it material whether the child horn in the United States of a naturalized parent leaves the United States before he is twenty-one?

Here again the question is to be decided by the special circumstances surrounding each case. Much necessarily depends upon the applicant’s own statements and the features that attend the case, or that may be naturally deduced by reason of certain statements made or omitted.

A child born in the United States subsequent to the naturalization of the father is a citizen of the United States by exclusive right, and it is held that in such case the removal of the father with the minor child to the country of the father’s origin does not affect the right of the child to citizenship, even should the father resume his original status during the child’s minority. But in the case of a child born in the United States prior to the father’s naturalization there may be a question should the father resume his original allegiance, taking the minor child with him. In such cases the child is held to have a choice of citizenship on reaching his majority. You will find several instructions on file in your legation dealing with this point.

In this connection you will recall the case of Miss Gudeman, which formed the subject of my instruction No. 262, of June 27, 1891.

In that it was alleged that Miss Gudeman was born in the city of New York of a naturalized father, and that you declined to issue the passport for which she had applied unless she should produce the certificate of her father’s naturalization. After briefly reviewing the facts as they were reported in her case, the conclusion was reached that she was entitled to a passport, provided they should be found to be as stated. I then added:

While it is apparent that the Department does not make the exhibition of the certificate of naturalization of Miss Gudeman’s father a condition precedent to the issuance of a passport, she having been born in the United States and being domiciled here, the Department is not to be understood as holding that in such a case as hers the claims of this Government to the citizenship of a person born here of foreign parents are, in the absence of the naturalization of the parent, exclusive.

The production of the father’s certificate of naturalization is never required by the Department of an applicant who swears he was born in the United States. It is, however, invariably required of persons born abroad who claim citizenship through the subsequent naturalization of the parent in the United States.

[Page 517]

(4) In the sense of the Department, does the child born in the United States of a naturalized parent claim citizenship through such naturalization or through his American birth.

Section 1992 of the Revised Statutes of the United States, to which I have heretofore referred, covers your inquiry, and the child becomes an American citizen, under that provision of law, in virtue of his or her birth in the United States.

It is not practicable to lay down fixed or arbitrary rules for the government of every case, but the foregoing general principles will, it is thought, while answering your several inquiries, aid you in dealing with future cases.

I am, etc.,

William F. Wharton,
Acting Secretary.