It seems to me the object of that is fairly clear. A foreign state has some position in its government which can be held only by its citizens and an American accepts such a position and serves the foreign state and loses his American nationality. That is intended particularly for cases of persons of dual nationality, and there are not a great many of those cases. There are not many thousands of them. Mr. REES. I cannot imagine an American citizen getting a job with a foreign government as such. Can you? Mr. FLOURNOY. Oh, yes. Mr. REES. Employed as a government employee? Mr. FLOURNOY. Employed as a specialist in some lines. This is intended particularly for those cases of dual nationality. Say an American is born here and he goes to and is living in Mexico and he takes a position in the Mexican Government, that is regarded as equivalent to a choice of his citizenship and he loses his American nationality. Mr. REES. All right. Subsection (e). Mr. FLOURNOY (reading): Voting in a political election in a foreign state or participating in an election of plebiscite to determine the sovereignty over foreign territory; or (f) using a passport of a foreign state as a national thereof. Most of these cases would be particularly applicable to persons of dual nationality. If he chooses to travel on the passports of the foreign states that is also regarded as a choice of the foreign nationality. Mr. REES. Isn't it true, if he travels on a foreign passport he claims thereunder he is a citizen of that state? Mr. FLOURNOY. Yes; and it seems reasonable to regard that as an election on his part. Mr. REES. All right. Subsection (g). Mr. FLOURNOY (reading): Making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State. At present these dual nationality people may want to give up their American nationality. There may be no provision in the law of the foreign state under which they can take an oath of allegiance to that state, and this is a very simple provision that they should make a formal declaration that they give up their nationality: (h) Deserting the military or naval service of the United States in time of war provided he is convicted thereof by a court martial. We have a corresponding provision in the existing law, section 1998of the Revised Statutes, found on page 66 of part 2. That says that: Every person who hereafter deserts the military or naval service of the United States or who, being duly enrolled departs the jurisdiction of the district in which he is enrolled or goes beyond the limits of the United States, with intent to avoid any draft into the military or naval service, lawfully ordered, shall be liable to all the penalties and forfeitures of section nineteen hundred and ninetysix of the Revised Statutes of the United States and so forth. It is not necessary to read all of this. That provided for loss of citizenship. That refers back to another provision in the Revised Statutes which does not say flatly he loses his citizenship, but loses rights of citizenship and his right to acquire citizenship. We have held in the State Department that the only sensible construction of that means loss of citizenship. Why should you take all the rights of citizenship away from a man and yet leave him a citizen? We have followed that construction. The provision here is definite. In other words, he loses his citizenship by desertion, provided he is convicted. It does not leave it to the officials to determine whether he has deserted, but he has a right to be tried. The proviso: Provided, however, (1) That, except as provided in subsection (h) hereof, no national can expatriate himself, or be expatriated under this section while within the United States or any of its outlying possessions, but expatriation shall result from the performance within the United States or any of its outlying possessions of any of the acts or the fulfillment of any of the conditions specified in this section, if and when the national thereafter takes up a residence abroad. The idea there is that if the person remains in the United States it is illogical and unreasonable to take his citizenship away. If you want to punish him, you may execute him if it is serious enough or you may imprison him if it is not quite so serious. In other words, you can apply some criminal penalty, but to take citizenship away and have the man remaining in the country does not seem reasonable. Mr. REES. What do you mean then by taking his citizenship away from this individual who deserted the military forces? What is his position? Is he just a man without a country? Mr. FLOURNOY. Yes; if he has left the United States. Mr. REES. Deserting the military forces may not be leaving the United States. He may not have left the United States. Mr. FLOURNOY. That is the point. This only applies to a case where he has left the United States? Mr. REES. Yes. Mr. FLOURNOY. And the theory here is that if he remains in the United States it does not seem quite consistent to take his nationality away. If you want to punish him, then go ahead and punish him in some other way. Mr. REES. No national can expatriate himself, or Mr. FLOURNOY. Or be expatriated under this section while within the United States or any of its outlying possessions, but expatriation shall result from the performance within the United States or any of its outlying possessions of any of the acts or the fulfillment of any of the conditions specified in this section, if and when the national thereafter takes up a residence abroad. In other words, one important element of expatriation is being out of the country. That applies not only to desertion, but it applies to these other things, too-taking the oath of allegiance to a foreign state, and so on. Mr. REES. Do I understand that a man who deserts the armed forces of the United States loses his citizenship, even though he stays in the United States? Mr. FLOURNOY. No, sir. He loses it in none of these cases unless he has left the United States. If he remains here, you can punish him in some other way. If it is serious enough, you can execute him. This is the exception, Mr. Chairman, to all of these various rules on expatriation; that is, that expatriation involves leaving the country. Shall I go ahead? Mr. REES. Yes, sir. Mr. FLOURNOY (reading): (2) That no national under eighteen years of age can expatriate himself under subsection (b to h), inclusive. That is, a person who is under 18 is not supposed to have the capacity or is not sufficiently mature to perform any act of his own which would result in his expatriation. Mr. REES. All right. Section 402. Mr. FLOURNOY (reading): SEC. 402. A person who has become a national by naturalization shall lose his nationality by: (a) Residing for at least two years in the territory of a foreign state of which he was formerly a national or in which the place of his birth is situated, if he acquires through such residence the nationality of such foreign state by operation of the law thereof. That refers particularly to the laws of Italy, Norway, and Sweden. There may be one or two other countries, but to those three at least, according to whose laws a naturalized citizen, a person who was formerly a citizen of one of those countries, and who has obtained naturalization in a foreign country, goes back to his native country and lives there 2 years, automatically reacquires citizenship. So if a Swede comes over here and is naturalized and then goes back and lives 2 years in Sweden, he automatically reacquires Swedish citizenship. Mr. REES. But if he resides in Norway for a year and Sweden for a year he does not lose his nationality? Mr. FLOURNOY. No. It is only by residing there 2 years. Mr. FLOURNOY. We haven't any law that corresponds exactly with that. The next thing to it we have is a provision of section 2 of the act of March 2, 1907, which says that when a naturalized citizen resides for 2 years in the foreign state from which he came he shall be presumed-it is that old presumption we talked about before. That means a loss of his right of protection but not a loss of nationality. (b) Residing continuously for three years in the territory of a foreign state of which he was formerly a national or in which the place of his birth is situated, except as provided in section 404 hereof. Section 404 sets forth a number of exceptions, such as relating to persons residing there to represent the Government or to represent some American commercial or other organization. I think we might discuss those exceptions a little later on. Mr. REES. All right. Mr. FLOURNOY. This, Mr. Chairman, I should say is the most important proposed change in the whole code, and may be the subject of some controversy. We in the State Department, and so far as I know those in the other Departments, think that it is a reasonable and most desirable provision. We have every day in the State Department cases of persons applying to us for passports or protection, or asking us to support claims, who have been naturalized in the United States and then have gone back and settled down in their native countries and resided there for years. We think there should be some point at which such person should lose not only his right to protection but his citizenship itself. We consider it very undesirable that we should have persons who are not entitled to the protection of our Government and yet remain as citizens of the United States. It makes it difficult for us to extend the effect of protection to those who are really citizens and have maintained connections with the United States, to have these people retaining their citizenship. You will find over on page 72 a number of actual examples. I do not want to take up your time to read all of these, but if you do not mind I would like to read two or three of them. These are actual cases that have been presented to the Department, these people applying for passports or appealing for protection. Case No. 1, N. S., a native of Hungary emigrated to the United States in 1887 or 1888, was naturalized as a citizen of the United States May 2, 1893, thereafter visited Hungary in the years 1893, 1899, 1901, 1903 or 1904, 1908, and 1911, and finally returned to Hungary to live in the spring of 1914. He remained in Hungary until his return to the United States in 1929 with a passport which had been issued for his immediate return to the United States. Shortly after his return, he appealed to this Government to present a claim on his behalf against the Government of Hungary because of the alleged confiscation of funds by Hungary in the year 1920. The Department refused to present the claim on the ground that, at the time of the actions upon which the claim was based, Mr. S. was not in a position to overcome the presumption of loss of citizenship under the second paragraph of section 2 of the act of March 2, 1907, and has consistently maintained that position since that time. Attention is called to the following paragraph in a statement of November 23, 1925 by the counsel at Budapest on the reverse side of Mr. S.'s affidavit to explain protracted foreign residence and to overcome presumption of noncitizenship: The applicant has no statement to make other than those made by him when he applied for a passport on July 22, 1919, through the Royal Spanish consulate at Budapest. He claims that since 1920 he was seriously ill, though he failed, however, when called upon to submit documentary evidence, to substantiate this statement. During the course of his interrogation he frankly admitted that he came to Hungary in 1913 with the purpose of remaining there permanently, having sold his business in the United States and transferring the receipts of his sales in the amount of $200,000 to Hungary. The only plea he had to make was that he was not well, and from my own personal experience for years in handling passport matters I can testify that that is a very favorite excuse in these cases. They say they are unwell and frequently they get some doctor's certificate. I suppose almost anyone has some kind of an ailment, and they put up some plea of that sort, and in 9 cases out of 10 there is nothing to it. We think that such a person should certainly lose his citizenship. Mr. REES. Do I understand that the reason that he has not or did not seem to lose his citizenship is because he claims that the presumption is not against him; is that it? Mr. FLOURNOY. Oh, no. Mr. REES. The present law provides, as I understand it, that if a man goes abroad or goes back to the country from which he came and stays for a period of 3 years, it is presumed that he loses his citizenship? Mr. FLOURNOY. That is right. Mr. REES. Here is a man who is gone for many years and yet he claims that he is still a citizen of the United States? Mr. FLOURNOY. Yes, sir; and the courts have upheld that, that the law does not mean loss of citizenship. Mr. REES. What? Mr. FLOURNOY. The courts have held in a number of cases that this presumption never ripens into actual expatriation. It is merely a presumption and merely affects his right to protection. Mr. REES. It does not affect his citizenship? Mr. FLOURNOY. No, sir. You will find cases cited on page 70, in the second column Nurge v. Miller (286 Fed. 982); Miller v. Sinjen (289 Fed. 388); United States v. Eliasen (11 F. (2d) 785); Camardo v. Tillinghast (29 F. (2d) 527). In all of these cases the courts adopted the view and agreed with an opinion rendered by Attorney General Wickersham back in 1910, in which he held that this did not mean loss of citizenship. So I think that that is entirely established now, and so when these people want to come back to the United States they can come as citizens of the United States, and the courts have held that cannot keep them out, no matter what you have against them. They may not be very loyal or may have a criminal record, or one thing and another, but if they are citizens they can come back into the United States. you Mr. REES. Putting it in simple terms, if a man comes from a foreign country to the United States and becomes a citizen, he can go abroad and stay abroad just as long as he wants to and still retain his citizenship in the United States provided he does not become a citizen of another country. Mr. FLOURNOY. Yes. Unless he obtains naturalization or takes an oath of allegiance abroad. The mere long residence does not result in a loss of citizenship. Mr. REES. Our first proposition here is this, that any individual who becomes a citizzen through naturalization and goes back and resides in the country from which he came for a period of 2 years Mr. FLOURNOY. Two years, he thereby acquires citizenship in that country. It only applies to a few countries. Mr. REES. Yes. If he acquires citizenship in that country, then he loses citizenship here. Mr. FLOURNOY. After 2 years. Mr. REES. And the second proposition is that if he resides out of the United States for a period of 3 years Mr. FLOURNOY. In his native land. Mr. REES. In his native land, then he does lose his citizenship. Mr. FLOURNOY. Even though he does not acquire the citizenship of that country. Mr. REES. Yes. He just goes back to the land from which he came and stays for a period of 3 years, whether it is continuous or not, he loses his citizenship. Mr. FLOURNOY. Yes, sir. Unless he comes under one of these exceptions which we mentioned. Mr. REES. All right. Mr. FLOURNOY. I would like to call attention to one other concretecase because it will give us a picture of the situation. N. C. was born in Italy on March 7, 1872, emigrated to the United States in 1903, obtained naturalization as a citizen of the United States on January 24, 1908, and has since resided partly in the United States and partly in Italy, where he had left his wife when he came to this country. |