Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 6, 1910
File No. 136.2/31.
The Secretary of State to the Danish Minister.
Washington, December 30, 1910.
Sir: I have the honor to transmit herewith, in accordance with the desire of the Acting Secretary of Commerce and Labor, a copy of his letter of the 27th instant replying to your legation’s note addressed to that department and inclosing, as requested therein, 10 copies of a recent opinion of the Attorney General in regard to the “expatriation act construed for purposes of immigration act.”
Accept, etc.,
The Acting Secretary of Commerce and Labor to the Secretary of State.
Washington, December 27, 1910.
Sir: This department has been requested by the Danish Legation to furnish 10 copies of a recent opinion of the Attorney General, published in a Department of Commerce and Labor decision (No. 119). There are transmitted herewith the number of copies mentioned, with request that they be forwarded to the Danish Minister in regular manner. There is also inclosed a copy which may, if you desire, be retained in the files of your department.
In this connection attention is directed to the fact that a decision was handed down on November 29 by the district court of the United States for the District of Massachusetts, construing section 1994 of the Revised Statutes, and holding that an alien woman can not acquire citizenship by marriage to an American citizen until such woman has been admitted to and acquired a residence within the United States. The case is entitled “In re Avedis S. Kaprelian.” The same question is now under consideration by the Circuit Court of Appeals, Second Circuit, in three cases recently argued: In re Thakla Nikola, William Williams, etc., appellant; William Williams, etc., appellant, v. United States ex rel Paris Hohannessian; and William Williams, etc., appellant, v. United States ex rel Berthe Gendering.
Respectfully,
Department of Commerce and Labor—Decision No. 119.
To whom it may concern:
The following opinion expressed to this department by the Attorney General is published for the information and guidance of immigration officials and others concerned.
expatriation act construed for purposes op immigration act.
Washington, December 1, 1910.
Sir: I beg to acknowledge the receipt of your letter of the 17th ultimo, requesting my opinion upon the question therein presented, as follows:
Jebran Gossin, a native of Syria, was naturalized in the United States in 1905. Thereafter, about 1907, he returned to his native country and was married to a Syrian woman. After remaining in that country for more than two years he came back to the United States, bringing his wife. Nazara Gossin, with him. Upon reaching the port of New York the 10th of this month, the man was admitted, but it was found that the woman had trachoma, and she is being detained pending a determination of her right to enter, which seems to hinge upon the question whether her husband is now a citizen of the United States. If he is, then, under section 4 of the Expatriation Act of March 2, 1907 (34 Stat., 1228), it would appear that his wife is a citizen, and, as such, is not subject to exclusion under the immigration laws. Looking merely at the letter of section 2 of the act referred to, it would seem that, being a naturalized citizen and having resided for more than two years in the country from which he came, there is raised the presumption that he has ceased to be an American citizen, which presumption has not been rebutted in accordance with the proviso contained in that section, and his wife, being an alien, is subject to exclusion.
However, in view of the title of the act, and the fact that the proviso requires that the presumption shall be overcome by presenting certain evidence to a “diplomatic or consular officer of the United States, under such rules and regulations as the Department of State may prescribe,” I am in doubt as to whether the statute applies to a person who is now in the United States or who may be seeking admission as a citizen after having resided for more than two years in the country from which he came.
I have the honor to request, therefore, that you favor me with an expression of your opinion as to the citizenship status of the above-named Nazara Gossin. Inasmuch as the person concerned is being detained in the meanwhile at Ellis Island, an opinion at an early date will be appreciated.
Section 1994 of the Revised Statutes provides:
Any woman who is now or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen.
Nothing to the contrary appearing, I assume that Nazara Gossin “might herself be lawfully naturalized,” and hence is to be deemed a citizen upon her marriage to a citizen of the United States. (27 Op. A. G., 507, and cases cited.) Her present citizenship status depends, therefore, upon that of her husband; and, under the facts presented, he is now a citizen unless his citizenship has been forfeited under the act of March 2, 1907. (34 Stat., 1228.)
That act is entitled “An act in reference to the expatriation of citizens and their’ protection abroad.” The second section of the act provides:
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 other 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.
Pursuant to the last paragraph of the section quoted, the Department of State has issued a circular to diplomatic and consular officers of the United States, dated April 19, 1907, reading as follows:
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.
I infer from your statement of the facts that, before leaving Syria, Jebran Gossin did not make proof before a consular or diplomatic officer of the United States as provided by the regulations of the State Department. The question, then, is whether the presumption as to noncitizenship raised by the act by reason of his residence abroad continues notwithstanding his return to the United States.
In my judgment the act was not intended to apply to a case of this kind, but its operation is limited to naturalized citizens while residing in foreign countries. The purpose of the act is, I think, simply to relieve the Government of the obligation to protect such citizens residing abroad after the limit of two or five years, as the case may be, when their residence there is not shown to be of such a character as to warrant the presumption that they intend to return and reside in the United States and thus bear the burdens as well as enjoy the rights and privileges incident to citizenship. [Page 422] Until the time limit has expired, the presumption is that they intend to return; after that time it is presumed that they do not intend to return, and it becomes necessary, in order that they may continue to have this Government’s protection, to show affirmatively, in accordance with the regulations of the State Department made in pursuance of the act, that it is their bona fide intention to return to the United States to live. Obviously, therefore, the essential thing under the act is the intention to return to and reside in the United States. The highest proof of such an intention is the actual return and residence of such a person, amounting as it does to a demonstration. It is not to be held, therefore, that the act would apply to a case of this kind unless the language used or the circumstances attending its passage compel such a conclusion. The title, language, and history of the act, however, support the views just stated as to its construction.
As above stated, the act is entitled “An act in reference to the expatriation of citizens and their protection abroad,” and it appears that it was passed at the instance of the Department of State. In reporting the bill to the House, the Committee on Foreign Affairs said (H. Rept. No. 6431, 59th Cong., 2d sess.):
This bill follows in its general lines the recommendations of the Department of State.
* * * * * * *
Perhaps the most important provision of the bill is desired by the State Department to guard against complications in which this country has often been involved. All desire that the flag of this country should protect an American citizen to the fullest extent. But none of us desire that some foreigner who does not intend to cast his lot permanently with us should endeavor to avail himself of the flag as a fraudulent protection. Many foreigners come here, become naturalized, and then return to their own countries or migrate to other parts of the world without any intention of returning to this country. They have not become citizens in good faith, but they seek to avail themselves of the protection of our citizenship in avoiding responsibility to which they may be subjected in other parts of the world.
This is not right. The citizenship of the United States should not be sought or possessed for commercial or dishonest ends. To guard against this evil, this bill provides that a naturalized citizen who leaves this country and dwells elsewhere continuously for five years shall be presumed to have abandoned his citizenship. This presumption can be overcome, but such a provision as this would be of great assistance to the Department of State, would avoid possibilities of international complications, and will prevent those who are not entitled to its protection from dishonestly hiding under the American flag.
As further showing the purpose of the act, the remarks of Mr. Perkins, who reported the bill from the committee and had charge of it in the House, are pertinent. In the course of debate it was said (Congressional Record, vol. 41, pt. 2, p. 1466):
Mr. Bennet of New York. Mr. Speaker, I entirely agree with the gentleman from Colorado [Mr. Bonynge] as to section 3 [2]. I think it is too broad. In addition to the consideration that he urged upon the House, there is also the consideration of property rights and of property rights inhering in American born citizens who might take through these foreign-born naturalized citizens. This bill will apply to a man who has now been abroad four years and eleven months, and if he remain abroad the other month he would be forced, under this statute, to become no longer a citizen of the United States, but a citizen of the country where he was.
Mr. Perkins. Allow me to correct the gentleman. That certainly is not the result of the statute at all.
Mr. Bennet of New York. Why not?
Mr. Perkins. The statute provides that having remained there five years continuously, there shall be a presumption which, unless he satisfies the officers of the State Department, their consuls, or ministers to the contrary, would authorize the State Department to refuse to extend him protection. It can not affect any other rights, which, of course, he can present in court. No presumption is conclusive on a court. It is a mere presumption, but the presumption would protect the State Department. That is the object of the bill and the result of the bill and the only result of it.
The fact that the act only authorizes the submission of proof for the purpose of overcoming the presumption as to noncitizenship raised thereby to diplomatic and consular officers of the United States, who necessarily reside abroad, and makes no provision in respect to naturalized citizens coming within the purview of the act who return to the United States, is a further evidence that Congress did not intend the act to apply to a case of this kind. To hold that it did would produce the absurdity of a naturalized citizen seeking to reenter the United States being held to have ceased to be such, and possibly denied admission, because he had failed to make proof before the proper diplomatic or consular officer abroad of his intention to return to the United States.
As above shown, the presumption as to noncitizenship raised by the act is created for the purpose of relieving the State Department of protecting naturalized citizens abroad when the conditions are apparently such as to indicate that they have no bona fide intention to return to and reside in the United States. When a citizen returns to the United States the necessity for such protection no longer exists, and it is fair to assume that with the cessation of the necessity the presumption created by the act also ceases.
In my opinion, therefore, under the facts stated, Jebran Gossin has not lost his citizenship, and his wife, Nazara Gossin, upon the assumption above stated that she herself might be lawfully naturalized, is also to be deemed a citizen.
Respectfully,
Attorney General.
The Secretary of Commerce and Labor.