The Secretary of State to the British Ambassador (Howard)
Excellency: I have the honor to acknowledge the receipt of your Embassy’s note of December 531 making further inquiry concerning the question which was the subject of your Embassy’s notes of August 9 and October 17, 1928,32 that is, the question whether naturalized citizens of the United States who brought upon themselves the presumption of the loss of citizenship through protracted residence abroad, under the provision of the second paragraph of Section 2 of the Act [Page 41]of March 2, 1907, will be admitted to the United States as citizens thereof upon deportation from Great Britain. It is assumed that the inquiry relates to persons whose protracted foreign residence has not been due to one of the causes set forth in the regulations prescribed by the Department whereunder the statutory presumption may be overcome and whose proposed return to this country is due not to their own free will but to the action of the British authorities in deporting them.
Section 2 of the Act of March 2, 1907, reads as follows:
“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.”
Enclosed herewith are duplicate copies of the Department’s Order of March 6, 1928,33 in which the rules whereunder the statutory presumption may be overcome are prescribed. Particular attention is called to Rule (g), according to which the statutory presumption of loss of citizenship may be overcome by naturalized citizens upon their presenting to diplomatic or consular officers of the United States satisfactory evidence “that they have made definite arrangements to return immediately to the United States permanently to reside”. This rule has relation to naturalized citizens who, after having brought upon themselves the statutory presumption through protracted residence abroad and having failed to overcome such presumption under the other rules, have determined of their own free will to return to the United States for permanent residence and have made definite arrangements to do so immediately. It was not prescribed with reference to cases of persons who are sent back to this country under compulsion. Thus the intent of the individual concerned appears to be a factor which must be taken into account in determining his status under the law. It may be observed that this question of intent is emphasized by the Attorney General in the opinion concerning the case of Jabran Gossin, mentioned in the Embassy’s note of August 9. [Page 42]The matter of intent has also been emphasized by the courts in decisions involving the application of the statutory provision in question. See especially Ex parte Gilroy, 257 Fed. 110, Nurge v. Miller, 286 Fed. 982, and Miller v. Sinjen, 289 Fed. 388. The cases mentioned related to persons who had actually returned to the United States of their own free will. I regret to say that there seem to be no decisions of the courts concerning the question of the citizenship of persons who, having brought upon themselves the presumption mentioned, are unable to overcome it under the rules prescribed in pursuance of the statute, and are still residing abroad.
For the reasons mentioned the Department is not in a position to assure the Embassy that persons of the class mentioned would, upon deportation from Great Britain, be admitted to the United States as citizens thereof. If and when a concrete case involving this question arises, and it is brought to the attention of the Department, the question whether a passport of the United States or consular registration certificate may be granted to the deportee will be considered.