AMERICAN LAW

[§ 370 resident alien wife or children of a naturalized American citizen.1 The Department of State has, however, frequently instructed American diplomatic representatives (especially those accredited to Turkey), to exert their good offices on proper occasions, to secure permission for the departure of such persons for the United States upon satisfactory assurance of their possession of funds sufficient to defray the expenses of the journey.2

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Impeachment of Naturalization

§ 370. American Law.

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The Act of June 29, 1906, makes apt provision for the impeachment of naturalization obtained by fraud. To that end three distinct yet coördinated means are employed:

First, the duty is imposed upon the United States district attorneys, "upon affidavit showing good cause therefor", to

1 Mr. Wharton, Acting Secy. of State, to Mr. Terzian, May 14, 1891, 182 MS. Dom. Let. 9, Moore, Dig., III, 488.

2 Report of Mr. Olney, Secy. of State, to the President, Jan. 22, 1896, For. Rel. 1895, II, 1471-1473, Moore, Dig., III, 489; Same to Same, Dec. 7, 1896, id., 1896, lxxxix, Moore, Dig., III, 491; Mr. Hay, Secy. of State, to Mr. Straus, Minister to Turkey, Feb. 24, 1899, MS. Inst. Turkey, VII, 323, Moore, Dig., III, 491; also other documents cited in Moore, Dig., III, 488-492.

Indicating unwillingness to solicit permission for the emigration from Turkey of a minor brother, see Mr. Moore, Assist. Secy. of State, to Mr. Greene, May 14 and May 24, 1898, 228 MS. Dom. Let. 486, 227, id., 589, Moore, Dig., III, 490. "Personal good offices were used in the case of an intended wife." Moore, Dig., III, 490, citing Mr. Hay, Secy. of State, to Mr. Straus, Minister to Turkey, Feb. 20, 1899, MS. Inst. Turkey, VII, 322.

3 § 15, 34 Stat. 601, U. S. Comp. Stat. 1918, § 4374. Sustaining the constitutionality of the Act of June 29, 1906, and upholding the right of Congress to authorize direct proceedings to attack certificates of citizenship on the ground of fraud and illegality, see Johannessen v. United States, 225 U. S. 227. Concerning the practice under prior laws, see Van Dyne, Naturalization, 138-141, and cases cited.

That an order or decree cannot be impeached collaterally, see Campbell v. Gordon, 6 Cranch, 175; Spratt v. Spratt, 4 Pet. 393, and other cases in Moore, Dig., III, 499-501. That a judgment admitting to citizenship one who is ineligible therefor may be regarded as void or attacked collaterally, see In re Yamashita, 30 Wash. 234; In re Hong Yen Chang, 84 Cal. 163; In re Gee Hop, 71 Fed. 274; Opinion of McKenna, Atty.-Gen., 21 Ops. Attys.-Gen., 581, all cited in Moore, Dig., III, 499 and 501.

PROOF OF NATURALIZATION. Respecting the proof of naturalization before American Courts, see Van Dyne, Naturalization, 129-134, and cases there cited; also § 28, and par. 2, § 15, of the Act of June 29, 1906, establishing a Bureau of Naturalization, 34 Stat. 596. Concerning the practice of the Department of State where a person seeks to establish his naturalization by other than the ordinary proofs, see Moore, Dig., III, 498-499, and documents there cited.

institute proceedings for the purpose of setting aside and canceling certificates of citizenship on the ground of fraud.1

Secondly, if any alien who, under the provisions of the Act, secures a certificate of citizenship, and within five years thereafter goes to and makes his permanent residence within any foreign country, his conduct is considered prima facie evidence of a lack of intention on his part to become a "permanent citizen of the United States" when he filed his petition for citizenship, and in the absence of countervailing evidence it suffices to authorize the cancellation of his certificate as fraudulent.2

Thirdly, it is made the duty of American diplomatic and consular officers to furnish the Department of Justice through the Department of State, with the names of persons within their respective jurisdictions who have such certificates of citizenship, and who have taken such permanent residence abroad; and such statements when duly certified are made admissible in proceedings to cancel certificates of citizenship.3

These measures appear to be designed also to lessen the danger

1 Concerning the necessity of the affidavit, see Van Dyne, 138.

2 Commenting on § 15 of the Act of June 29, 1906, it was declared by Mr. Justice Van Devanter, in Luria v. United States, 231 U. S. 9, 23: "These requirements plainly contemplated that the applicant, if admitted, should be a citizen in fact as well as in name - that he should assume and bear the obligations and duties of that status as well as enjoy its rights and privileges. In other words, it was contemplated that his admission should be mutually beneficial to the Government and himself, the proof in respect of his established residence, moral character, and attachment to the principles of the Constitution being exacted because of what they promised for the future, rather than for what they told of the past."

See United States v. Wursterbarth, 249 Fed. 908, where the respondent, a native of Germany, had been admitted to citizenship in 1882, under Rev. Stat. § 2165, requiring an applicant for admission to make oath that he would support the Constitution of the United States, and that he absolutely adjured and renounced all allegiance to any foreign prince or sovereignty. Proof that when the United States and Germany engaged in war in 1917, the respondent desired the success of Germany, and recognized an allegiance to Germany superior to that due to the United States, was held, while unexplained, to warrant cancellation of his certificate of citizenship on the ground that it was procured by fraud, in that his oath to renounce allegiance to any foreign Sovereignty was false, and excepted the land of his nativity.

See, also, United States v. Swelgin, 254 Fed. 884, where in a suit to cancel a certificate of naturalization on the ground that at the time the holder was naturalized and during the five-year period immediately preceding, he was not attached to the principles of the Constitution of the United States or well disposed to the order and happiness of the same, and that he had been and was a member of an organization commonly called the I. W. W., the evidence was held to show that that organization advocated anarchy and the overthrow of established order, and to warrant the annulment of the certificate of naturalization, where the holder of it admitted adherence to the principles of the organization.

3 Circular instructions of Mr. Root, Secy. of State, to American diplomatic and consular officers, April 19, 1907, respecting "Reports of Fraudulent Naturalization", For. Rel. 1907, I, 9.

RULE OF INTERNATIONAL ACTION

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of international controversy produced by the acquisition by an alien of American citizenship for the sole and fraudulent purpose of enabling him to resume residence in the State of his origin, immune from common burdens imposed upon its nationals.

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§ 371. Rule of International Action.

The Department of State "possesses no power to vacate decrees of naturalization; but it exercises, under the direction of the President, plenary jurisdiction over the conduct of foreign relations." In so doing, the Department found it possible, prior to the enactment of the existing statutory law, to repudiate naturalization which had been improperly obtained in the United States.

The United States, whether or not itself a party to the naturalization proceedings,2 cannot with reason deny the right of a foreign State, not a party thereto, to contest the validity of the naturalization of one who relies upon a decree obtained by fraud, or otherwise in defiance of the law. By acting accordingly, the Department of State does not attempt to denationalize an American citizen, but simply declines to give support to the pretences of him who claims to be such. It does not necessarily admit that

1 Statement by Prof. Moore, Dig., III, 501, where it was added: "In the exercise of this jurisdiction, the Department, as has often been held, will, so far as any action of its own is concerned, treat as invalid a certificate of naturalization that has been improperly obtained.

"The grounds on which the Executive so acts have perhaps never been stated more concisely, nor yet with greater clearness and profundity of reasoning, than by the Commander Bertinatti, as umpire of the Costa Rican Commission, 3 Moore, Int. Arbitrations, 2586-2589." Id.

Illustrative of the practice of the United States, see Mr. Fish, Secy. of State, to Mr. Maynard, Minister to Turkey, No. 40, Feb. 11, 1876, MS. Inst. Turkey, III, 163, Moore, Dig., III, 503; Mr. Bayard, Secy. of State, to Mr. Scruggs, Minister to Colombia, May 16, 1885, For. Rel. 1885, 211, Moore, Dig., III, 510; Same to Mr. McLane, Minister to France, Dec. 8, 1888, For. Rel. 1888, I, 565, Moore, Dig., III, 511; Mr. Olney, Secy. of State, to Clerk of Common Pleas, New York City, Jan. 13, 1897, 215 MS. Dom. Let. 202, Moore, Dig., III, 512; Mr. Day, Assist. Secy. of State, to Mr. Stewart, Nov. 11, 1897, 222 MS. Dom. Let. 359, Moore, Dig., III, 513.

2 Through § 11, of the Act of June 29, 1906, the United States exercises the right to appear in naturalization proceedings, and to oppose the granting of any petition.

3 See, in this connection, Mr. Evarts, Secy. of State, to the Spanish Minister at Washington, March 4, 1880, respecting the Case of Fernando Dominguez, before the Spanish Claims Commission, under agreement of Feb. 11-12, 1871, Moore, Arbitrations, 2599.

Compare Mr. Blaine, Secy. of State, to Mr. Durant, American Advocate for the United States, Nov. 30, 1881, respecting the Case of Pedro D. Buzzi, before the Spanish Claims Commission, under agreement of Feb. 11-12, 1871, Moore, Arbitrations, 2618.

the United States is without power to naturalize an alien by a process other than that prescribed by the general law; it merely concedes that he who claims the benefit of that law must not perpetrate a fraud upon it, or otherwise hold it in contempt.1

The United States does not, however, admit the right of a foreign government to pass judgment on the validity of a decree of naturalization, reserving to itself the right, and manifesting also the disposition, in all proper cases, to inquire into the regularity of a judgment that is open to impeachment.2

If the validity of the naturalization of an individual claimant (or of one through whom a claim is derived) is challenged in a case before an international tribunal, the Department of State appears to recognize the reasonableness both of the right of contest and of the decision of the question by the arbitral court.3 The consent to its jurisdiction is believed to be implied from the agreement for the submission of claims. Such tribunals have not hesitated to impeach certificates of naturalization when the evidence warranted such action.4

1 Opinion of Commander Bertinatti, in the Medina Case, American-Costa Rican Commission, Convention of July 2, 1860, Moore, Arbitrations, III, 2586. 2 Mr. Fish, Secy. of State, to Mr. Nelson, Minister to Mexico, Feb. 13, 1872, For. Rel. 1872, 387, Moore, Dig., III, 513; Mr. Bayard, Secy. of State, to Mr. Bluhdorn, Aug. 21, 1888, MS. Notes to Austrian Legation, VIII, 575, Moore, Dig., III, 514; Mr. Gresham, Secy. of State, to Mr. Tripp, Minister to Austria-Hungary, Sept. 4, 1893, For. Rel. 1893, 23, 25, Moore, Dig., III,

515.

3 Instructions of Mr. Frelinghuysen, Secy. of State, to Mr. Suydam, advocate for the United States, before the Spanish Claims Commission, Feb. 25, 1882, in which it was declared: "The true rule to govern the commission is, that when an allegation of naturalization is traversed and the allegation is established prima facie by the production of a certificate of naturalization, or by other competent and sufficient proof, it can only be impeached by showing that the court which granted it was without jurisdiction, or by showing, in conformity with the adjudications of the courts of the United States on that topic, that fraud, consisting of intentional and dishonest misrepresentation or suppression of material facts by the party obtaining the judgment, was practiced upon it, or that the naturalization was granted in violation of a treaty stipulation or of a rule of international law." Moore, Arbitrations, III, 2619, 2620. This rule was accepted by the commissioners for both the United States and Spain.

Concerning generally the question before the Spanish Claims Commission, see Moore, Arbitrations, 2590-2621, Moore, Dig., III, 506–509. Concerning the Disposition of Fraudulent Certificates, Moore, Dig., III, 516-518.

With respect to Crimes and Offenses against the Naturalization Laws of the United States, see Van Dyne, Naturalization, 189-194.

4 Case of Medina, United States-Costa Rican Commission, Convention of July 2, 1860, Moore, Arbitrations, III, 2583-2589; Cases before Spanish Claims Commission, Agreement of Feb. 11-12, 1871, id., 2621-2647; Cases before French-American Commission, Convention of Jan. 15, 1880, id., 2647-2655; Flutie Cases before American-Venezuelan Commission, 1903, Ralston's Report, 38.

See, also, Case of Rita L. Ruiz, before Spanish Treaty Claims Commission, under Act of Congress, March 3, 1901, 37, published also in Van Dyne, Nat

That a child may at birth become the object of a double claim of allegiance is the natural consequence of the fact that States may without impropriety rely upon either the jus sanguinis or the jus soli as the source of national character, and the necessary result whenever a State, such as the United States, bases its laws. upon both principles. Nevertheless, this very reliance upon both aids in the solution of the conflict by necessarily imputing to such State respect for the nature of the claim of that other within whose territory the child happens to be.2 The latter is able to exact allegiance from him so long as he is deemed incapable of making any choice, and remains within its control. The power of the territorial sovereign and the incapacity of the child combine to fortify the claim.

When, however, the child attains his majority, emigrates to a foreign country, acquires by naturalization its nationality, and returns to the State of his origin, it will be seen that, according to the view of the United States, the doctrine of double allegiance is not applicable. Naturalization by the adult, capable of making a choice, is regarded as impressing upon him a new and solitary national character, entitled to general respect until he expatriates himself.3

uralization, 144, in which it was held that the Commission, although established by Act of Congress, was sitting as an international tribunal, and as such was empowered to impeach for cause an American certificate of naturalization. 1 Mr. Lansing, Secy. of State ad interim, to Senator H. C. Lodge, June 9, 1915, American White Book, European War, II, 149; Department of State, Circulars Relating to Citizenship, etc., 1916, p. 75. See, generally, Moore, Dig., III, 518–519; Oppenheim, 2 ed., 383-386; Westlake, 2 ed., I, 221-225. 2 Opinion of Mr. Hoar, Atty.-Gen., 13 Ops. Attys.-Gen., 89, 91, Moore, Dig., III, 519; Report of Mr. Fish, Secy. of State, to the President, Aug. 25, 1873, For. Rel. 1873, II, 1186, 1191-1192, Moore, Dig., III, 519; see, also, Westlake, 2 ed., I, 223. See, also, Mr. Wilson, Acting Secy. of State, to Mr. Pierrepont, Chargé at Santiago, Aug. 3, 1910, For. Rel. 1910, 195.

Obviously a State cannot justly exact allegiance of a resident not born within its territory and the child of alien parents; for such an attempt would defy the principle that claims of allegiance, in order to be just, must be derived from recognized sources. Herein is illustrated the fact that the propriety of the action of the individual State in respect to nationality, as in all other matters, finds its ultimate test in an international rather than a domestic standard, and in one manifest in the practice of enlightened States.

3 Declares Professor Moore: "It is sometimes stated that a double allegiance also exists where a person born in one country afterwards emigrates to and becomes a citizen of another country. That a person in such a situation may be subject to the claims of allegiance in two countries, is in point of