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left the United States and the environment which would make American citizens of them, or do we want to follow a policy which it seems to me is a desirable policy; should we try to rid ourselves of these people who leave the United States and apparently have given up their interest in the United States, or should we try to extend the protection of the United States Government to them just as long as they will allow us to?" It seems to me that is the question, not, "What is the law?" but, "Which is the desirable course?" For my part I have no hesitancy in saying, from the information I have, it seems to me we should rid ourselves of the liability as quickly as we can. I don't know how soon that can be, but it seems to me the effort should be to get rid of the liabilities. I don't think anybody is an asset simply because their name is on some court record or some birth-registration record in the United States, who has gone out of the United States and grown up with the customs and conditions of a foreign nation. I don't think they are any asset to our Nation and I don't see any reason for keeping them any longer than we have to, and it seems to me that is our question, whether we want to follow that policy or not. Maybe we can't follow that policy. Maybe there are constitutional inhibitions against it. I know we can't change the Constitution, but shouldn't we first decide whether we want to or not? That seems to me to be the question we are discussing right now, whether we want to do it or not.
Mr. SHOEMAKER. I could read this whole opinion to you, but it discusses in part the question of dual nationality. What is dual nationality? Allegiance to two countries. When a person, for instance, is born here, he is a citizen under the fourteenth amendment to the Constitution. He may at some time, by virtue of the laws of a foreign jurisdiction be a subject or a citizen of that foreign jurisdiction. Therefore, the dual allegiance. When he leaves the United States he can, for instance, manifest his adherence to the foreign allegiance and be a national of that foreign country, without a particle of trouble. Mr. FLOURNOY. He is already a national.
Mr. SHOEMAKER. All right, but he can manifest it, and then when he manifests it he shows clearly enough what his status is.
Mr. POAGE. The question now is "What is the advisable policy?" What do you think about the policy? Should we try to get rid of him as a citizen as quickly as we can, or try to hang onto him as long as we can?
Mr. SHOEMAKER. That is a matter for you gentlemen to determine.
Mr. SHOEMAKER. If you feel it is a question where jus soli should control, that is a matter for you to determine.
Mr. POAGE. We have to admit that it does control.
Mr. SHOEMAKER. We can't deny that a child born here is a citizen. Then we have the statutory provision that a person born abroad is a citizen.
Mr. POAGE, Yes.
Mr. SHOEMAKER. If you feel the statutory provision should be drawn tighter and not enlarged, that is a matter for you gentlemen to decide.
Mr. POAGE. That, to my mind, is the question; whether we want to draw that tighter or extend it to take in everybody we can. But isn't that the difference of viewpoint here?
Mr. SHOEMAKER. I haven't any different viewpoint on the point I wanted to clear up.
Mr. POAGE. I am not so much interested in what they were trying to do as in what should be done.
Mr. SHOEMAKER. Mr. Poage, you have a wonderful opportunity hereto use your own discretion, and certainly there isn't the slightest idea in the minds of the Department of Labor that you should not exercise your own discretion. We do not have the idea, in telling you anything, except to give you such light as we have on the subject. That is our whole idea and none other.
Mr. POAGE. If possible, will you give us in a general way why you think we should make the provisions of the law as liberal as we could. to those who live abroad?
Mr. SHOEMAKER. I should say if you don't that it is certainly going: to work many a hardship in the case of children whom the parent wishes to bring to the United States or wishes to have indoctrinated with the American citizenship standard. So therefore I think that the Congress might well enact this code as it is drawn, because I think the code as drawn will not do any harm to American citizenship, but on the whole will certainly keep from working many a hardship on a child who happens to be born abroad to parents, one of whom at least is a citizen of the United States.
Mr. POAGE. Well, you have given us your views anyhow. That is. what I want.
Mr. SHOEMAKER. That is what I thought you wanted, and I am giving them to you.
Mr. POAGE. Whether I agree with them or not, I want to know why you think these things.
Mr. SHOEMAKER. Did I answer your question?
Mr. POAGE. That is right; yes. I admit I don't agree with you.
Mr. POAGE. I do admit you have given us your views on it. That is where I think you gentlemen can be helpful to us, because you know more about these problems, and if you tell us why you think these things, we can at least act with the facts before, but if you don't give us your views and simply say that the departments think this or that is right, we haven't got anything to go on.
Mr. SHOEMAKER. I want to add to this, while I don't want to read all this decision, that I hope the Congressmen will read it.
Mr. POAGE. Give it to me, and I will read it.
Mr. SHOEMAKER. And I think you will find dual nationality exists, as shown there.
Mr. POAGE. I will read it.
Mr. FLOURNOY. I would like to ask Mr. Shoemaker a question.
Mr. FLOURNOY. Suppose we have a child that is born in this country of, let us say, Chinese parents, and who has lived in China most of its life, has lived there, say 2 years since he has reached his majority. He comes back to this country. Can you keep him out of this country as an alien?
Mr. SHOEMAKER. I would say this, Mr. Flournoy, in answer to that question; that it would be a close question whether we could keep him out after 2 years, but if that man had manifested abroad—and that is what the representatives of the State Department are abroad for-that he had adhered to China and had given up his American citizenship, you could keep him out of the United States, and I would be perfectly willing to try the case myself and I would expect to win it, too.
Mr. FLOURNOY. He is born under the Constitution a citizen of the United States, without a statute saying how to lose his citizenship. It is my opinion that no officials of the Immigration Service or the State Department or any other department could make rules as to loss of citizenship. That is the reason we want a code. We want people to know where they stand and we want to know where they stand, and not have any vague theories.
Mr. SHOEMAKER. There are no vague theories. I resent the statement.
Mr. FLOURNOY. We tried that election. We have had many cases in the past years in the State Department in matters of protection. We would say, "Well, he has indicated a practical election of a foreign nationality, and we want to give him protection," but we would have to have a very extreme case, and even then we never said he had lost his citizenship, because I see no authority for it. If the Constitution says he is born a citizen, we can't say he has lost his citizenship unless we have some statutory authority. It is for Congress to say how he is to lose his citizenship, not for the State Department or the Labor Department or any other Department.
Mr. HAZARD. Mr. Poage, on the matter of residence, as to what constitutes residence in the United States; section 104 defines residence for the purpose of this second chapter as the place of general abode. That is at the top of page 6.
Mr. POAGE. I see. "Place of general abode" is about as broad a definition as I have ever seen.
Mr. HAZARD. Well, we have had a lot of trouble with it.
Mr. POAGE. Our court in Texas has allowed a man to have an intent to make a place his residence, and they will hold it to be his residence if he has that intention. I don't know what his general abode would be. But that is possibly as good a definition as you could give.
Mr. REES. The committee will adjourn now until 10 o'clock Tuesday morning, February 20.
TO REVISE AND CODIFY THE NATIONALITY LAWS OF THE UNITED STATES INTO A COMPREHENSIVE NATIONALITY CODE
TUESDAY, FEBRUARY 20, 1940
HOUSE OF REPRESENTATIVES, SUBCOMMITTEE OF THE COMMITTEE ON IMMIGRATION AND NATURALIZATION, Washington, D. C.
The subcommittee met at 10:30 a. m., Hon. Samuel Dickstein (chairman) presiding.
There were present before the subcommittee: Mr. R. W. Flournoy, assistant to the legal adviser, Department of State; Mr. Henry B. Hazard, Director of Research, Information, and Education, Immigration and Naturalization; Mr. Thomas B. Shoemaker, Deputy Commissioner of Immigration and Naturalization; Mr. B. W. Butler, Department of Justice.
The CHAIRMAN. The committee will be in order. You may proceed, Mr. Flournoy.
STATEMENT OF R. W. FLOURNOY, ASSISTANT TO THE LEGAL ADVISER, DEPARTMENT OF STATE
Mr. FLOURNOY. Mr. Chairman, we were discussing the provisions of chapter 2 in the bill, page 5, nationality at birth, beginning on page4. I believe when the session ended last week we were discussing subsection (g) of section 201.
I am not sure whether I mentioned a peculiar situation which existsnow with reference to a case coming under subsection (e), and before going on with (g) and the following, I would like to call attention to that. It provides that citizenship of the United States shall require the birth, in the case of a person born in an outlying possession of the United States, of parents, one of whom is a citizen of the United: States, who resided in the United States or one of its outlying possessions prior to the birth of such person.
The case came up recently, relating to a person who was born in one of the outlying possessions, perhaps the Philippine Islands-I do not recall which one it was-of a father who was a citizen of the United States and had resided in this country. We have been holding in the State Department for years that, notwithstanding the peculiar language of section 1993 of the Revised Statutes, which relates to a child born outside the territory and jurisdiction of the United States, we have been holding that that is applicable to a child born in one of the outlying possessions; otherwise those children would be aliens.. It seems a manifest absurdity that a child should be an alien if born
to one of our Army officers or civil servants in the Philippine Islands or in one of the other outlying unincorporated possessions, yet if the child were born in Tibet, he would be a citizen of the United States. However, there is still a difference of opinion on that question. I merely mention that to illustrate the importance of having these nationality laws codified and have the status of these persons made certain. Otherwise these disputes will go on indefinitely. They will never end, and thousands of persons do not know whether they are citizens of the United States or not.
Mr. REES. May I interrupt you there? Do I understand that under the present law and regulations a person born in the Philippine Islands, whose father is an American citizen, is not a citizen of the United States?
Mr. FLOURNOY. In the State Department we have held that under section 1993 of the Revised Statutes, such a person is born a citizen of the United States, but one of the other departments seems to differ from us on that.
The CHAIRMAN. What is the other department?
Mr. SHOEMAKER. The Labor Department takes that same view. The CHAIRMAN. Suppose the child was born in the Philippine Islands?
Mr. SHOEMAKER. We would hold that that child born in the Philippines of an American father was a citizen of the United States. Mr. FLOURNOY. That was questioned recently. It may have been another department. I do not say it was the Department of Labor. Mr. SHOEMAKER. I understand that. But we took that view.
Mr. FLOURNOY. The question has been raised because, in order to hold that the person is a citizen of the United States, the construction is required. The law says: "Persons born outside the territory and jurisdiction of the United States," and the argument has been made and was made in a case just recently that a person born in the Philippines or born in Guam or Samoa is not born outside of the jurisdiction of the United States, and therefore is a citizen. I just mention that in order to show the importance of having the law clarified.
Mr. REES. This is to clear up the situation so that you can say that a person that is born of an American father is an American citizen? Mr. FLOURNOY. Yes.
Mr. REES. What about an American mother?
Mr. FLOURNOY. Now it applies also to the mother.
Mr. REES. So if the father or mother is a citizen of the United States, then the child is a citizen of the United States, if born in the Philippine Islands or Guam or one of the possessions?
Mr. FLOURNOY. This makes it entirely clear. It puts it beyond any shadow of doubt that such a person is a citizen.
The CHAIRMAN. Then there is no amendment necessary there? Mr. FLOURNOY. This is just a restatement in clearer language, so there will be no mistake about it. This statement is clearer than the provision you have now in existing law, section 1993, Revised Statutes, as amended.
Mr. REES. Is that all about section (e) now?
Mr. FLOURNOY. Yes.
Mr. REES. Is there anyone here present who wants to comment on section (e) any differently? Now go ahead to section (f).