A treatise on the law of naturalization of the United States

Front matter

THE LIBRARY OF

THE UNIVERSITY

OF CALIFORNIA

Preface

One of the most creditable achievements of the administration of President Roosevelt was the reformation of our naturalization laws.

These laws, substantially the statutes enacted more than a hundred years ago when our population was less than four millions, and when it was the policy of our government to invite immigration, were ill adapted to our modern conditions, with a population of eighty millions and an influx of foreigners of more than a million annually. Under these laws lax and unsatisfactory methods of naturalization had grown up, opening the way to gross frauds against our citizenship, including perjury, false impersonation, and traffic in false and counterfeit certificates of citizenship. Such certificates were sometimes sold to alien criminals to secure their admission to the United States, and frequently to procure protection against their home governments. Cases have actually occurred where aliens have landed on our shores for the first time, having in their possession certificates entitling them to the full rights of American citizenship. Our Presidents had on numerous occasions brought the subject to the attention of Congress and urged legislation, but without effect. At length, in March, 1905, President Roosevelt— at the suggestion, it is understood, of the Honorable Oscar Straus, now Secretary of Commerce and Labor — appointed, by Executive order, a special commission, composed of Milton D. Purdy of the Department of Justice, Gaillard Hunt of the Department of State, and Richard K. Campbell of the Department of Commerce

VI PREFACE

and Labor, to investigate the subject of naturalization, and recommend legislation. The Commission made a thorough investigation and report and submitted drafts of bills which the President transmitted to Congress. While the bills drafted by the Commission were not enacted into law, their recommendations formed the basis for the bill prepared and reported by the House Committee on Immigration and Naturalization, which, with some modifications, became a law on June 29, 1906.

This law effects a revolution in our system of naturalization, giving the Federal Government effective control of the matter through a central bureau in the Department of Commerce and Labor, and throws such safeguards around naturalization as will effectually prevent frauds if the law is enforced, — and no one who knows President Roosevelt and Secretary Straus can doubt that it will be faithfully and rigidly enforced.

Besides the numerous changes in our statutes made by this law, as shown in the text, still more recent legislation, making further modifications of importance and far-reaching consequences in our naturalization laws, has been enacted. In pursuance of a report of the House Committee on Foreign Affairs (H. Rep. No. 4,784, 59th Cong., 1st session), Secretary Root designated James B. Scott, Solicitor for the Department of State, David J. Hill, Minister to the Netherlands, and Gaillard Hunt, chief of the Passport Bureau (now the Bureau of Citizenship), to make an inquiry into the subjects of citizenship, expatriation and protection abroad, and to report with recommendations. The report of this board, which was embodied in House Document No. 326, 59th Cong., 2d session, together with recommendations of the board, was transmitted to Congress, and nearly all of the recommendations were incorporated in the law of March 2, 1907.

These numerous modifications of our laws, and the

PREFACE Vll

lack of any comprehensive work on the subject of naturalization, have influenced the writer to prepare, as a companion volume to his work "Citizenship of the United States," an independent treatise on Naturalization. While the recent legislation completely changes the method of naturalizing aliens, parts of the old laws remain in force. This work clearly indicates the changes made, and undertakes to show by an exhaustive analysis of the new legislation and by reference to and discussion of the judicial decisions and the opinions and rulings of the Executive and international claims commissions, what the law of naturalization now is.

The work is specially designed to meet the needs of judges and clerks of courts having jurisdiction in naturalization matters, of United States Attorneys who appear for the government in naturalization proceedings and in proceedings to set aside or cancel naturalization certificates, of diplomatic and consular officers and other officers in the various branches of the government service dealing with questions relating to citizenship and naturalization. It is believed that the work will also fill a real need in furnishing, in comprehensive and convenient form, to lawyers who desire to advise their clients seeking naturalization or to establish rights of citizenship, and to general readers and students wishing to be well informed, the complete law on this important subject. Executive and Departmental orders and regulations are included in their appropriate places and the book will be found to constitute an exhaustive manual.

In the preparation of the work considerable assistance was derived from the comprehensive report of the citizenship board referred to, as well as from the chapter on nationality in John Bassett Moore's monumental work, the International Law Digest, and the author desires to make due acknowledgment therefor.

Vlll PREFACE

By an order of the Secretary of State dated May 31, 1907, the designation of the Passport Bureau of the Department of State, to which numerous references are made in this worli, was changed to the Bureau of Citizenship. Since the Secretary's order was made too late for insertion in the text of this book, which had then gone to press, the change is noted in the Preface.

F. V.

Chapter I

NATURALIZATION IN PURSUANCE OF THE STATUTES OF THE UNITED STATES BY TAKING OUT FORMAL PAPERS.

Page.

Definition 5

Power to regulate 6

Naturalization a judicial function 9

Courts authorized to naturalize 11

— Courts of record . 13

— Common law jurisdiction 14

— State courts 17

— Judges 19

—Clerks 22

—Duties 22

As to declaration of intention 22

As to petition 24

As to notice of petition 25

As to witnesses 26

As to docketing petitions 26

As to duplicates of petitions 26

As to final hearing 26

As to aliens denied naturalization 26

As to certificates of citizenship 26

Blank certificates 26

Defaced or injured certificates 28

Accountability for certificates 28

Duplicates 29

Stub 29

Canceled certificates 29

Certified copies 30

(ix)

X TABLE OF CONTENTS

Courts authorized to naturalize — Continued: Page.

Records 31

Fees 31

United States District Attorneys 34

— Appearance in opposition to naturalization. ... 34

— Proceedings to set aside or cancel certificates. . 34

Bureau of Immigration and Naturalization 36

— Functions of Secretary of Commerce and Labor 36

— Functions of Bureau 38

— Commissioners of Immigration 39

— Disbursing clerk, Department of Commerce and

Labor 40

Who are capable of naturalization 40

— Chinese 42

— Japanese 43

— Burmese 44

— Hawaiians 45

— Indians 45

— Mexicans 46

— Porto Ricans and Filipinos 48

— Alien enemies 49

— Women 51

— Anarchists and Polygamists 53

Usual Legal Conditions 54

Time of making 55

Before whom made 55

Form 57

Difference between Act of 1906 and Rev. Stat.

2165 59

Porto Ricans and Filipinos 60

Exceptions to usual requirement 61

Army 61

Navy and Marine Corps 62

Widow and Children of Deceased Declarant. . 62

Minor Residents 62

TABLE OF CONTENTS XI

Declaration of Intention — Continued: Page.

In Hawaii 63

In Philippine Islands and Porto Rico 63

Rights conferred by Declaration of Intention. . 64

Under Federal laws 64

Under State laws 64

Citizenship not conferred by 64

Burnato's case 67

Koszta's case 68

Declaration of Intention and Residence 73

Declaration of Intention and Three Years Residence 74

Declaration of Intention and Service as Merchant Seaman 74

Status conferred on Minors by Declaration of

Intention of Parent 76

Petition for Naturalization 84

— Time of filing 85

— To whom made 85

—Form 85

Description of applicant 88

Allegations of petition 88

Signature of petitioner 90

Verification of petition 90

Witnesses 90

Notice of petition 92

Certificate of Department of Commerce and Labor 93

Residence 94

— Meaning of '' residence " 95

— " Continued residence " 95

— Constructive residence 105

Merchant seamen 105

In countries in which United States has extraterritorial rights 105

— Residence within State 106

— In the Philippines and Porto Rico 107

Xll TABLE OF CONTENTS

Residence — Continued: Page.

— In Hawaii 107

— Proof of residence 108

— Exceptions 109

Army 109

Navy and Marine Corps 110

Merchant seamen 110

Qualifications as to Age, Education and Moral

Character Ill

Final Hearing 119

—Time of 119

—Place 120

— Procedure 120

Appearance and examination of applicant and

witnesses 120

Appearance of United States 120

Proof of residence and behavior as of good

moral character 121

Renunciation of foreign allegiance 121

Renunciation of title or order of nobility. . . 122

Oath of allegiance to United States 123

Change of name 124

Certificate 124

—Under Act of March 3, 1903 125

—Under Act of June 29, 1906 126

—Form 126

—Duplicate 128

—Stub 128

— Blank certificates 129

— Proof of naturalization 129

The record 129

Where record has been destroyed or lost. . . . 132

Certificate of naturalization 133

— Naturalization not retroactive 134

Impeachment of Naturalization 134

— Before municipal courts 134

TABLE OF CONTENTS Xlll

Impeachment of Naturalization — Continued : Page.

Under Act of 1906 135

Under prior laws 138

— International practice 141

Executive Department of Government 141

Power to treat certificate as invalid 141

Right of foreign governments to impeach American certificate of naturalization

denied 142

International claims commissions 142

Spanish Claims Commission of 1871 142

Costa Rican Claims Commission of 1860. . 143

Venezuelan Claims Commission of 1903. . . 143

Spanish Treaty Claims Commission, 1905. . 144

Crimes and offenses against naturalization laws. , 189

Limitation of actions 195

Chapter II. Naturalization By Naturalization Of Parent

Section 2172 of the Revised Statutes 197

Meaning of phrase "dwelling in the United States" 198 — Where children are dwelling in United States at

time of parent's naturalization 198

— Where children are dwelling abroad at time of

parent's naturalization 200

Act of March 2, 1907 218

Mode of parent's naturalization immaterial 220

— By naturalization of father by treaty 220

— By naturalization of mother by marriage 220

Illegitimate children 223

Adoption 223

Effect of declaration of intention of parent during

minority of child 224

Naturalization not effective internationally as to

absent children 224

Xiv TABLE OF CONTENTS

Chapter III

Naturalization by Marriage. Page.

Women who may be naturalized by marriage 229

Time of marriage 231

Necessity of residence in United States 233

— Residence in United States held not to be necessary 234

— Residence in United States held to be necessary 234

Nature of citizenship acquired 238

Effect of death of husband on citizenship of alien

woman married to an American 240

— Instructions of Department of State 241

Citizenship of American woman married to an alien 243

—Under law prior to 1907 243

—Under Act of March 2, 1907 256

Instructions of Department of State 257

Case of Nellie Grant Sartoris 258

Effect of divorce 260

Declaration of intention of husband 262

CHAPTER IV. Collective Naturalization

Naturalization by Conquest 266

Allegiance of inhabitants of conquered state. . . . 266

Citizenship of inhabitants of conquered state. . . . 267

American ante-nati 272

Naturalization by Treaty 273

Power of United States to acquire territory by treaty and to prescribe terms on which it

will receive inhabitants 273

Treaties of Cession to which United States has

been a party 275

TABLE OF CONTENTS XV

Naturalization hy Treaty — Continued: Page.

—Treaty of 1794 with Great Britain 276

—Treaty of 1803 with France 276

Case of Egle Aubry 276

Case of Foucher 279

Case of De Baca 281

—Treaty of 1819 with Spain 283

—Treaty of 1848 with Mexico 284

—Treaty with Mexico of 1853 (Gadsden Treaty) 291

—Treaty with Russia of 1867 291

—Treaty with Spain of 1898 293

Insular cases 296

Status of Porto Ricans and Filipinos 309

Treaties with Indians 316

Naturalization by Special Act of Congress 317

On the acquisition of the Territory of Oregon. . 317

On the annexation of Hawaii 318

Readmission of Nellie Grant Sartoris to citizenship 318

Naturalization of Indians 319

Naturalization by Admission of Territory to

Statehood 321

Louisiana 321

States carved out of Northwest Territory 324

Florida 327

Texas 329

Nebraska 331

Power of Congress over Territories 330

CHAPTER V. Expatriation

Definition 333

Right of expatriation 333

How effected 336

XVI TABLE OF CONTENTS

Expatriation — Continued: Page.

Modes of expatriation 336

By Naturalization in a foreign State 337

By taking oath of allegiance to a foreign State 338

By residence in a foreign country 340

Exceptions : Expatriation not accomplished. . 355 — When residence abroad is due to ill health

or financial condition 355

— Agents of American enterprises 355

— Missionaries 356

— By desertion 357

— Military and naval service in foreign country. . . 358 — Accepting public office under foreign government 360

Engaging in diplomatic service 360

Engaging in consular service 360

Entrance into civil service of foreign

country 361

CHAPTER VI. Passports

Statutes 363

Rules and regulations 365

—In the United States 365

— In Insular Possessions 373

—Executive order of April 6, 1907 380

Forms 384

CHAPTER VII. Attitude of Foreign Governments Toward Their

Citizens Who Have Become Naturalized in the

United States.

Information relative to rules and regulations of

foreign countries compiled by Department of State 389

— Austria-Hungary 389

TABLE OF CONTENTS XVI 1

Attitude of Foreign Governments, etc. — Continued : Page.

—Belgium . 390

—Denmark 391

—France 392

— Germany = 394

— Greece 395

—Italy 396

—Netherlands 397

—Norway 398

—Persia 399

—Portugal 399

— Roumania 401

— Russia 401

— Servia 402

—Sweden 403

— Switzerland 404

—Turkey 405

Appendix

Laws of United States relating to Naturalization

AND Expatriation 409

— Sections of the Revised Statutes 409

— Later acts of Congress 416

Act of June 29, 1906, establishing a bureau of

Act of March 2, 1907, in reference to expatriation and protection 438

Naturalization Conventions to which the United

States is a party 441

— With Austria Hungary 441

—With Baden 444

— With Bavaria 447

—With Belgium 451

, —With Denmark 453

—With Great Britain 456

— With Haiti 461

XVm TABLE OF CONTENTS

Naturalization Conventions, etc. — Continued: Page.

—With Hesse 463

— With North German Confederation 466

— With Sweden and Norway 468

—With Wiirttemberg 472

Executive orders 475

Naturalization regulations 485

List of courts having jurisdiction to naturalize

ALIENS 493

List of foreign countries and rulers 507

NATURALIZATION.