EFFECT OF PARENTS' NATURALIZATION ON INFANTS [§ 367

until the child begins to reside permanently within the United States, although such residence may commence, if during infancy, after the naturalization of the parents. Thus a foreign-born alien child cannot gain American citizenship by a temporary sojourn in the United States, whether at the time of, or subsequent to, the naturalization of its parents; 2 nor can it do so if it fails to begin its permanent residence in the United States during infancy.3

That an alien child may be naturalized as a consequence of the naturalization by marriage of its widowed mother to an American citizen, or by the resumption of citizenship by the mother after the termination of the marital relation (as in the case of a woman who had relinquished her American citizenship by marrying a foreigner), appears to be clear. It is believed that the Act of March 2, 1907, is sufficiently comprehensive to effect the naturalization of an illegitimate alien child through the naturalization of the mother, whether by marriage or otherwise.

That a citizen of the United States cannot, by adopting a child

of or resumption of American citizenship by the parent; Provided, That such naturalization or resumption takes place during the minority of such child: And provided further, That the citizenship of such minor child shall begin at the time such minor child begins to residé permanently in the United States."

1 Mr. Hay, Secy. of State, to Mr. Harris, Minister to Austria-Hungary, Jan. 22, 1900, in the Case of Anton Maček, For. Rel. 1900, 13-15, Moore, Dig., III, 470, citing Mr. Blaine, Secy. of State, to Mr. Phelps, Minister to Germany, Feb. 1, 1890, For. Rel. 1890, 301; Zartarian v. Billings, 204 U. S. 170, decided Jan. 7, 1907, construing § 2172, Rev. Stats. Respecting § 5 of the Act of March 2, 1907, see United States v. Rodgers, 185, Fed. 334.

See, also, Moore, Dig., III, 464-472, and documents there cited; Van Dyne, Naturalization, 200-218.

See in this connection Delaware, L. & W. R. Co. v. Petrowsky, 250 Fed. 554, 558.

2 As to the law in this regard, prior to the enactment of the Act of March 2, 1907, see Mr. Frelinghuysen, Secy. of State, to Mr. Kasson, Minister to Germany, Jan. 15, 1885, For. Rel. 1885, 394, 395; Van Dyne, Naturalization, 214-215.

3 Case of Young v. Peck, 21 Wend. 389, and 26 Wend. 613, Van Dyne, Naturalization, 201.

4 Correspondence with Germany respecting the Case of John Haberacker, For. Rel. 1891 and 1892, Moore, Dig., III, 473-483; Mr. Hay, Secy of State, to Mr. Harris, Minister to Austria-Hungary, Jan. 22, 1900, For. Rel. 1900, 13-15. See, also, United States v. Rodgers, 144 Fed. 711, and other cases cited in Van Dyne, Naturalization, 220-223.

The Act of March 2, 1907, § 5, refers expressly to the "resumption of American citizenship by the parent.'

Hence it is believed that in case the mother were naturalized by marriage, the naturalization of the child would not be dependent upon showing that the husband of the mother was its reputed father, or in case he was, upon establishing that marriage served to legitimate the child as well as to naturalize the mother. That the child becomes an American citizen under the latter circumstances according to § 2172, Rev. Stats., see Van Dyne, Naturalization, 223, citing Mr. Hay, Secy. of State, to Mr. White, March 3, 1899.

of foreign nationality, confer upon it American citizenship appears to be accepted doctrine.1

h

Naturalization Partially Ineffective as to Absent Family

(1)

§ 368. Application to Wives and Infant Children.

The naturalization of an alien in the United States is partially ineffective as to his absent family. Thus, his minor children, until they begin to reside permanently in the United States, under circumstances heretofore observed, undergo no change of nationality.2

With respect, however, to his absent wife, there long appears to have been doubt as to the effect of the naturalization of the husband. For some time past the Department of State has consistently held that the wife gains the benefit of her husband's naturalization and prior to her entering the United States.1

(2)

§ 369. Good Offices for Emigration.

The United States does not assert any right of interposition to secure the emigration from the State of origin of the non

1 Mr. Fish, Secy. of State, to Mr. Rand, Jan. 6, 1872, 92 MS. Dom. Let. 142, Moore, Dig., III, 484; Mr. Frelinghuysen, Secy. of State, to Mr. Willis, M. C., Feb. 21, 1884, 150 MS. Dom. Let. 86, Moore, Dig., III, 484; Mr. Adee, Second Assist. Secy. of State, to Mr. Goepel, Sept. 13, 1888, 169 MS. Dom. Let. 657, Moore, Dig., III, 485.

That a child born of Chinese parents in China cannot be permitted to enter the United States as an American citizen because of its adoption by a temporary resident of China who is a citizen of the United States, see For. Rel. 1906, I, 288-290; also id., II, 1015.

2 Effect of Parents' Naturalization on Infants, supra, § 367.

Mr. Buchanan, Secy. of State, to Mr. Rosset, Nov. 25, 1845, 35 MS. Dom. Let. 330, Moore, Dig., III, 487; Mr. Trescot, Assist. Secy. of State, to Mr. Capelle, June 18, 1860, 52 MS. Dom. Let. 358, Moore, Dig., III, 487.

66

'This rule a fortiori applies to other relations, such as that of mother or sister." Moore, Dig., III, 487, citing Mr. Olney, Secy. of State, to Mr. Torrey, June 17, 1896, 210 MS. Dom. Let. 686; Same to Mrs. James, July 18, 1896, 211, id., 410.

3 Mr. Seward, Secy. of State, to Mr. Tinelli, April 1, 1868, 78 MS. Dom. Let. 275, Moore, Dig., III, 485; Mr. Foster, Secy. of State, to Mr. Thompson, Minister to Turkey, Feb. 9, 1893, For. Rel. 1893, 598, Moore, Dig., III, 486; Mr. Gresham, Secy. of State, to Mr. Watrous, Jan. 23, 1895, MS. Dom. Let. 346, Moore, Dig., III, 487. See, also, Burton v. Burton, 26 How. Pr. 474, Van Dyne, Naturalization, 234.

For the statement in the text the author acknowledges his indebtedness to Mr. R. W. Flournoy, Jr.

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

i

Impeachment of Naturalization

$370. American Law.

(1)

The Act of June 29, 1906, makes apt provision for the impeachment of naturalization obtained by fraud.3 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

[§ 371

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.

(2)

$ 371. Rule of International Action.

1

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.