File No. 1271.

[Untitled]

To the diplomatic and consular officers of the United States.

Gentlemen: Paragraph 144 of the Diplomatic Instructions and Consular Regulations, as amended by executive order of April 6, 1907, reads as follows:

144. Expatriation.—An American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws, or when he has taken an oath of allegiance to any foreign state. When any naturalized citizen shall have resided for two years in the foreign state from which he came, or for five years in any other foreign state, it shall be presumed that he has ceased to be an American citizen, and his place of general abode shall be deemed his place of residence during the said years: Provided, That such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, under such rules and regulations as the Department of State may prescribe.

An American citizen shall not be allowed to expatriate himself when this country is at war. (Act of Mar. 2, 1907, sec. 2.)

The text of the law is appended for your information.

Whenever it comes to the knowledge of a diplomatic or consular officer that an American citizen has secured naturalization in foreign state in conformity with its laws, or has taken an oath of allegiance to a foreign state, such diplomatic or consular officer [Page 4] should certify to the facts under his seal and should transmit the certification to this department. If the citizen who has thus acquired foreign naturalization was a naturalized citizen of the United States, the fact should be stated in the certification and the certificate of American naturalization should, if possible, be taken up and forwarded to the department with the certification. The form of the certification shall be as follows:

I, A. B. (name and rank of certifying officer), hereby certify that C. B., a citizen of the United States by birth (or naturalization), has secured naturalization as a citizen of ______, the proof of such naturalization being as follows:

(If he was a citizen of the United States by naturalization, a statement of the date and place of his naturalization in the United States should follow.)

In testimony whereof I have hereunto signed my name and affixed my seal of office.

[l. s.] ---------------------

When a naturalized citizen of the United States has resided for two years in the country of his origin, or for five years in any other country, this fact creates a presumption that he has ceased to be an American citizen, but the presumption may be overcome by his presenting to a diplomatic or consular officer proof establishing the following facts:

(a)
That his residence abroad is solely as a representative of American trade and commerce, and that he intends eventually to return to the United States permanently to reside; or,
(b)
That his residence abroad is in good faith for reasons of health or for education, and that he intends eventually to return to the United States to reside; or,
(c)
That some unforeseen and controlling exigency beyond his power to foresee has prevented his carrying out a bona fide intention to return to the United States within the time limited by law, and that it is his intention to return and reside in the United States immediately upon the removal of the preventing cause.

The evidence required to overcome the presumption must be of the specific facts and circumstances which bring the alleged citizen under one of the foregoing heads, and mere assertions, even under oath, that any of the enumerated reasons exist will not be accepted as sufficient.

Whenever evidence shall be produced to overcome the presumption of expatriation from residence abroad, as indicated in this instruction, the affidavit or affidavits must be made in duplicate, one copy thereof being sent forthwith to this department, and if the affidavits or other evidence have been presented to a consular officer he shall notify the embassy or legation in the country in which he is resident of the name of the person and of the facts concerning his residence abroad.

So much of this instruction as relates to residence abroad is not applicable to natural-born citizens of the United States. Their status, so far as their right to the protection of this Government is concerned, is governed by existing instructions of this department and especially by so much of the circular instruction of March 27, 1899, as applies to them, which is appended to this instruction for your information.

I am, gentlemen, your obedient servant,

Elihu Root.
[Page 5]

[Inclosure 1.]

Text of the law.

Section 2, act of March 2, 1907:

Sec 2. That any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws, or when he has taken an oath of allegiance to any foreign state.

“When any naturalized citizen shall have resided for two years in the foreign state from which he came, or for five years in any foreign state, it shall be presumed that he has ceased to be an American citizen, and the place of his general abode shall be deemed his place of residence during said years: Provided, however, That such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, under such rules and regulations as the Department of State may prescribe: And provided also, That no American citizen shall be allowed to expatriate himself when this country is at war.”

[Inclosure 2.]

Circular of March 27, 1899

[Extract.]

passports for persons residing or sojourning abroad.

To the diplomatic and consular officers of the United States.

Gentlemen: A condition precedent to the granting of a passport is, under the law and the rules prescribed by authority of the law, that the citizenship of the applicant and his domicile in the United States and intention to return to it with the purpose of residing and performing the duties of citizenship shall be satisfactorily established. One who has expatriated himself can not, therefore, receive a passport.

Expatriation has been defined by Mr. Hamilton Fish as “the quitting of one’s country, with an abandonment of allegiance and with the view of becoming permanently a resident and citizen of some other country, resulting in the loss of the party’s preexisting character of citizenship.” Thus a person “may reside abroad for purposes of health, of education, of amusement, of business, for an indefinite period; he may acquire a commercial or civil domicile there, but if he do so sincerely and bona fide animo revertendi, and do nothing inconsistent with his preexisting allegiance, he will not thereby have taken any step toward self-expatriation. But if, instead of this, he permanently withdraws himself and his property and places both where neither can be made to contribute to the national necessities, acquires a political domicile, and avows his purpose not to return, he has placed himself in the position where his country has the right to presume that he has made his election of expatriation.”

But even where expatriation may not be established, a person who is permanently resident and domiciled outside of the United States can not receive a passport. “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 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 upon him to explain it.” (Mr. Fish to the President, For. Rels., 1873, 1186, et seq.) If, in making application for a passport, he 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. (For. Rels., 1890, 11.)

The treatment of the individual cases as they arise must depend largely upon attendant circumstances. When an applicant has completely severed his relations with the United States; has neither kindred nor property here; has [Page 6] 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. On the other hand, a favorable conclusion may be influenced by the fact that family and property connections with the United States have been kept up; that reasons of health render travel and return impossible or inexpedient; and that pecuniary exigencies interfere with the desire to return. But the circumstance which is perhaps the most favorable of all is that the applicant is residing abroad in representation and extension of legitimate American enterprises.

I am, gentlemen, your obedient servant,

John Hay.