Mr. Hay to Mr. Herdliska.

No. 10.]

Sir: The Department has received your No. 10 of July 10, 1901, submitting the application for a passport of Carl Schimaneck, and a presentation of his case by Consul Donzelman at Prague, who thinks the applicant is not entitled to protection as a citizen of the United States. It appears that he was born here; that his father had declared his intention of becoming a citizen of the United States before the son’s birth, but died before he secured naturalization; that the mother never secured naturalization as a citizen of the United States, and returned to Bohemia with the applicant when he was four years of age, and that he has himself never been in the United States since. He does not speak English, has married a Bohemian, is engaged in local business, and, as it would seem, is permanently settled in Bohemia. In considering the case, the question of the citizenship of the applicant’s parents is not material, as Consul Donzelman seems to think it is, because birth in the United States of itself confers United States citizenship under the provisions of our laws. In construing these provisions the legation has correctly followed the numerous rulings on the subject by this Department (see The American Passport, pp. 102, 104, 105), and the rulings are themselves in full consonance with the decisons of the Federal courts. (See notably 35 Fed. Rep., 354, and 169 U. S., 649.) If, therefore, the applicant were still in his minority, or were only temporarily abroad, there would be no doubt of his being entitled to the protection of a passport as a native citizen of the United States. The question really involved, however, is whether or not he has abandoned his right to that protection. The Department’s circular instruction of March 27, 1899, on the subject of “Passports for persons residing or sojourning abroad,” contained the following quotation from Secretary Fish:

When a person who has attained his majority removes to another country and settles himself there, he is stamped with the national character of his new domicile; and [Page 14]this is so, notwithstanding he may entertain a floating intention of returning to his original residence or citizenship at some future period, and the presumption of law with respect to residence in a foreign country, especially if it be protracted, is that the party is there animo manendi, and it lies with him to explain it.

Obviously, these remarks apply with equal force to one who remains in a foreign country after he has attained his majority. The circular further says:

When an applicant has completely severed his relations with the United States; has neither kindred nor property here; has married and established a home in a foreign land; has engaged in business or professional pursuits wholly in foreign countries; has so shaped his plans as to make it impossible or improbable that they will ever include a domicile in this country—these and similar circumstances should exercise an adverse influence in determining the question whether or not a passport should issue.

Each circumstance quoted above appears to be applicable to Mr. Schimaneck, with the additional fact that in applying for the passport issued him by your legation August 4, 1894, he swore that he intended to return to the United States, which he has not done, and in his pending application he makes the same promise, which there is strong reason for believing he will not keep. The circular also says:

If, in making application for a passport, he (the applicant) swears that he intends to return to the United States within a given period, and afterwards, in applying for a renewal of his passport, it appears that he did not fulfill his intention, this circumstance awakens a doubt as to his real purpose which he must dispel.

So far from the doubt having been dispelled in this case, it appears to have been confirmed. The Department is therefore of the opinion that, there being no additional facts to change the aspect of the case, Mr. Schimaneck’s application for a passport should not be granted and the applicant informed that he must renew his residence in the United States which was abandoned in his infancy, before he can expect to receive the protection of this Government while he is abroad.

I am, etc.,

John Hay.