File No. 136/57a
The Secretary of State to all Diplomatic Representatives and Consular Officers (including Consular Agents)
General Instruction
Consular
Gentlemen: The rules under which the presumption of expatriation arising under the provision of the second paragraph of section 2 of the act of March 2, 1907, may be overcome are set forth in the circular instruction of April 19, 1907, entitled “Expatriation,”3 as amended by the circular instruction of May 14, 1908.4 Special rules applicable to special countries are laid down in other circular instructions. Attention is also called to the General Instruction No. 466 of June 1, 1916, entitled “Proposed Return to the United States of Naturalized Citizens Against Whom the Presumption of Expatriation has Arisen.”5 The present instruction is intended to amplify and explain, rather than to amend, previous instructions concerning this subject. In particular the Department desires to emphasize the importance of having expatriation cases more fully investigated by [Page 577] diplomatic and consular officers, and reported with greater particularity and care. In some instances it appears that the affidavits which naturalized citizens submit to overcome the presumption of expatriation are taken by diplomatic and consular officers and forwarded to the Department in a merely perfunctory way and without any real inquiry into the true facts and merits of the cases. Thus it sometimes happens that naturalized citizens who have brought upon themselves the presumption of expatriation by protracted foreign residence, and are not really residing abroad for any reasons which make it possible for them to overcome the presumption under the standing regulations, are allowed to evade the law by submitting affidavits in which the facts of their cases are concealed or misstated, while other persons similarly situated, who submit true statements as to the causes of their foreign residence, are cut off from the protection of this Government, under the statutory provision in question.
In endeavoring to ascertain whether the residence abroad of a naturalized citizen in his native land or elsewhere is of a permanent character it is pertinent to inquire whether he owns the house in which he is living or has leased it for a long term of years, or whether on the contrary he has rented it for a short term only or is merely boarding or visiting friends or relatives. It is also important to ascertain the nature of the occupation which the person concerned is pursuing abroad, with particular regard to the question whether such occupation appears to have the character of permanence.
When a naturalized citizen alleges that he is residing abroad to promote American trade and commerce an effort should be made to ascertain the real nature of the business in which he is engaged, and particularly whether the promotion of American trade and commerce is principally involved and forms the bulk of such business. The name and address of the American firm represented should be stated. In a case in which it is alleged that the firm represented is American, but the facts indicate that the firm’s domicile is abroad, the proportion of its capital owned by Americans should be stated and the nature of the business carried on by the concern should be explained. In doubtful cases an inspection of the place of business and the books of the concern may be necessary.
Among the most common excuses for protracted foreign residence are health, education, and the necessity of taking care of aged parents. As to the first, a certificate of a reputable physician should always be required, but it is obviously impossible to place absolute confidence in such certificates. Persons having perfectly sound health are rare, and nearly every person can obtain a certificate of a physician stating that he suffers from ill health of some kind. The general physical appearance of the person in question should be [Page 578] given some consideration, but it is quite important, in this regard also, to ascertain the nature of his occupation, and whether it is of a character which a person living abroad principally because of ill health could reasonably be expected to follow. It is also obviously important to consider whether the climatic or other conditions of the place where the person resides are especially beneficial to those who suffer from his particular complaint, or whether residence in the United States would not be quite as beneficial.
With regard to the matter of education it may be observed that the presumption of expatriation may be overcome by a person who shows that he is residing abroad temporarily to avail himself of special advantages, offered by the place of his residence, for the particular studies which he is pursuing. It may occasionally happen that a parent may satisfactorily explain his own protracted foreign residence by showing that he is living abroad to enable a child to pursue special studies in music, art, or some other branch of culture which can not be pursued in the United States; but as a rule it is not sufficient for a parent to show that he is residing abroad to educate his children in the ordinary courses of study, which could be followed just as well in the United States. Generally speaking such a reason for foreign residence would seem to strengthen, rather than overcome, the presumption of expatriation, for it is undoubtedly expedient as a rule that children who are to reside in this country and perform the duties of American citizenship should be brought up in this country and given an American education.
The Department has sometimes held that persons have overcome the statutory presumption of expatriation by showing that it was necessary for them to reside abroad to take care of aged and infirm parents and that they intended to return to the United States to reside when such necessity ceased to exist. In these cases the Department has held that “an unforeseen and controlling exigency” had prevented an earlier return to this country. It is important in a case of this kind to ascertain whether the parents are so situated that they actually need the son’s presence, whether the desire to care for them is the true, determining cause of the son’s protracted foreign residence, and whether he entertains a definite intention to return to the United States as soon as he can properly do so. It is essential to ascertain the attendant facts and circumstances in order to distinguish bona fide cases of the kind mentioned from cases of persons who return to reside with their parents merely for the purpose of inheriting property, or succeeding to the farming or other business carried on by their parents. In these cases, as well as the other cases referred to above, it is important to ascertain whether [Page 579] the persons concerned, upon going abroad, disposed of or retained such property or business as they might have acquired in the United States; also to ascertain whether, on the one hand, they left their families in this country or, on the other, have taken their families with them abroad or have married and begun to raise families since going abroad. The relevance of such facts hardly needs explanation.
When a person alleges that he will return to the United States when the present war is over special care should be exercised to ascertain whether the actual difficulties of travel or other conditions arising from the war prevent a return to the United States, or whether the war is seized upon as a convenient excuse to prolong the foreign residence.
When an applicant for an American passport or consular registration certificate is of military age his case should be examined with special care, with a view to ascertaining whether he has a true intention of returning to the United States and is temporarily residing abroad for some reason which brings his case within the scope of the rules whereunder the presumption of expatriation may be overcome, or whether the contrary is true and he wishes to obtain American protection merely to enable him to escape performance of military service in the country of his residence.
Diplomatic and consular officers in reporting expatriation cases to the Department should not only take pains to see that the pertinent facts are fully and correctly set forth, but should also be careful to state as definitely as possible their opinions as to whether the evidence is sufficient, under the rules, to overcome the presumption of expatriation. Unless expatriation cases are reported as indicated above it is difficult for the Department to make satisfactory decisions.
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