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Mr. FLOURNOY. Section (f) seems to require no explanation. It is: A child of unknown parentage found in the United States, until shown not to have been born in the United States
In effect it merely says that a foundling, a person discovered in the United States, is presumed to have been born in the United States. Mr. REES. Is that the present law?
Mr. FLOURNOY. Well, a child born in this country, a foundling, if you could say he was born here, is not certainly a citizen under the fourteenth amendment to the Constitution. This only raises the presumption that the foundling was born in the United States, until it is proven that he was not born here.
The CHAIRMAN. Well, what would you do in a case-this just comes to my mind-where a child, let us say, is illegitimate, is dropped on the doorstep of somebody; no one knows where it was born; under this section would it be a citizen of the United States?
Mr. FLOURNOY. It would be presumed to have been born here if found here. It is a minor provision.
The next subsection, (g), is more important. It will cover many
A person born outside the United States and its outlying possessions of parents one, of whom is a citizen of the United States who has had 10 years' residence in the United States or one of its outlying possessions, the other being an alien.
Then these next proviso state what he must do in order to retain his citizenship. We discussed that last week, and I called attention to the fact that it is very similar to the existing section 1993, as amended by section 1 of the act of May 24, 1934, except in the State Department we think that it is better than the existing provision, because of this requirement that the citizen parent must have resided at least 10 years in the United States in order to transmit citizenship to children born abroad. That is, in case the other parent is an alien.
Mr. REES. One parent must have resided in the United States for a period of at least 10 years in order that the child may claim citizenship in the United States?
Mr. FLOURNOY. Yes; the citizen parent.
Mr. REES. And that child, in order to claim citizenship, must make that claim for citizenship between the ages of 13 and 21 years?
Mr. FLOURNOY. The child will lose its citizenship, and in order to retain its citizenship it must reside here 5 years between the ages of 13 and 21 years, and must take an oath of allegiance within 6 months after reaching majority. The original provision, we agreed upon in the committee, was that both parents must have American nationality in order that citizenship should be transmitted in the case of a child born abroad. That was changed later, on account of objections made in the Department of Labor.
Mr. REES. Pardon me. Let us clear that a little. Tell us briefly how this provision changes the present law, if it does.
Mr. FLOURNOY. I have mentioned that the citizen parent must have lived here 10 years. Under existing law he may have been here 1 day, taking the infant in arms and being brought up in a foreign country; may be 30 years old and married an alien, and his children will be born citizens.
Mr. REES. Is the provision concerning the period of 5 years between 13 and 21 changed?
Mr. FLOURNOY. Yes; it is changed somewhat. The present law requires he must have lived here 5 years before reaching the age of 18. There is not much difference.
Mr. REES. Then the next point you are making is that there was some discussion in the committee in writing this particular section, and there were some in the group who felt that both parents should be American citizens, in order to transmit American citizenship to the child, even under these circumstances. Is that correct?
Mr. FLOURNOY. That is unanimous, with one exception: In the original committee of advisers, we thought that otherwise we would be conferring citizenship on thousands of people born abroad and who would not be really Americans at all. There was one exception. The representative of the Department of Justice-not the member who is here today, but a person who was then representing the Department of Justice on that committee-took exception to that, but he took exception to practically everything.
Mr. REES. Regardless of that, let me get this straight anyway: Is it your opinion, or-if you want to put it the other way-the opinion of the State Department, or your opinion, that this should be changed so that in order that a child may become an American citizen who is born abroad, he must have American parentage on both sides? Is. that your opinion? Or do you want to express an opinion on that point?
Mr. FLOURNOY. I think it would be much better to express it as my personal opinion, but my Department is back of this bill, as I understand it, because it represents, perhaps, the best compromise we have been able to reach.
The CHAIRMAN. Where is the compromise?
Mr. REES. Because of this, Mr. Chairman: Under the old law, either one of the parents could have resided in the United States, if he is an American citizen, for any length of time just so he is a citizen. Now, there is another group who thinks that both parents should be citizens of the United States, so they agreed on a compromise whereby if one citizen had been a resident for at least 2 years, then the child could become a citizen, if he complies with the requirements.
The CHAIRMAN. In other words, both parents do not have to reside here?
Mr. REES. Yes.
Mr. FLOURNOY. One parent may be an alien.
The CHAIRMAN. That is what I thought. I thought the other way would be too harsh.
Mr. REES. That is the question that came up. He said the State Department felt that both parents should be citizens of the United States. Now, that is just the question.
Mr. FLOURNOY. I say that at present the position of the State Department is that we want to try to get the law through, and we think this is better than existing law. It may not be in all respects what some of us would like, but this is preferable to the existing law.
Mr. REES. Now, while we are discussing this section, you have an opinion on that for the Department of Justice, do you not, Mr. Butler? Mr. BUTLER. I would like to go back a little.
Mr. REES. Without going back, can you tell us offhand whether or not you are favorable to this, or do you think, or does your Department
feel that both parents should become citizens, should be citizens of the United States in order to transmit that citizenship to the child?
Mr. BUTLER. No; my Department is on record as of the view that that is too harsh and too much of a departure from the present law. Congress has enacted this law, section 1993, the last expression of Congress, saying that citizenship can be derived from one parent, and our instructions from the President were to prepare a code and to cure existing discrepancies, not run wild.
Mr. FLOURNOY. Mr. Chairman, may I say, for example, one of the standard requirements of citizenship in the United States is that all persons in order to be naturalized must be of the white race, African nativity, or African descent. Now, I think we all agree that that is a rather poor rule, because it makes only the white race and the black race competent to get citizenship in the United States. The intermediate races, men of high class-Hindus, Japanese, Chinese-cannot get naturalized, but we felt in preparing this code that we had no authority to change that rule, and we did not attempt to change the rule, and the rule is in the code because of the limitations placed on us by the President, and that is one of the reasons why my Department did not think we ought to depart from section 1993.
Mr. REES. You also feel, as you have previously said, that it is a little harsh?
Mr. BUTLER. Yes.
Mr. FLOURNOY. Mr. Chairman, I would like to make a remark about this. I do not think anyone in the State Department is inclined to run wild. What we have been trying to do is to define the qualifications for citizenship of the United States and prevent it being scattered all over the face of the earth among thousands of people who are not Americans at all. Furthermore, the order of the President calls for not only codification but revision.
Mr. REES. We discussed that pretty thoroughly the other day.
Mr. FLOURNOY. Unless some changes are made in the law, we will not be considering that.
Mr. REES. Well, let us see. Who else here wants to comment on that particular feature? You commented on that the other day, Mr. Shoemaker?
Mr. SHOEMAKER. Yes; I did.
Mr. REES. Is there anything further now on section (g)?
The CHAIRMAN. May I comment a moment along that same line? In other words, the State and Justice Departments are separated on this particular question?
Mr. BUTLER. No; I do not think we are. I think that from the letters of the three heads of the Departments submitting this, we are a unit on this.
The CHAIRMAN. Well, you are talking about one side. He is talking about the other.
Mr. BUTLER. But if we are going in and develop the differences, the arguments on the various sections of this code, we are not going to get anywhere.
Mr. REES. We appreciate that; but we are still entitled to your opinion as to what should or should not be done. If you come in here and just say: "Here is the code and we have agreed on it. That is all there is to it," that is one thing. The other thing is that we would
like to take this code and go over it and discuss it and find out what changes have been made, the reasons therefor, because this is not entirely a code, but there are changes. A code is nothing but putting together the present laws, as I understand it, and probably taking out some discrepancies. But you have written some new laws here. You have changed the law, and I have no objection to it, but what I want to do-and maybe I am alone in this-I want to go over this thing and find out what changes have been made. I would also like to know why these changes have been made where the State Department thinks the changes are all right, or where it may have been different.. I understand it is a compromise, and we all agree on that, but that does not make any difference. Let us find out where these changes have been made, and if one Department thought it ought to be different, let us find out your views. That is all. I think that is fair. Do you not think so?
Mr. BUTLER. Well, I think it is going to open up an interminable argument on it.
Mr. REES. NO; I do not want to do that.
Mr. BUTLER. If we are going to debate every section in this proposed code
Mr. REES. It does not make any difference to me. I am just sitting here as a member of the committee to find out what it is all about. Mr. BUTLER. I think we are all entirely willing to give you the views of our Department on every section.
Mr. REES. Well, maybe I am all wrong about it, but you see, we have got to present this thing to Congress, and somebody on this committee has got to handle it on the floor, and we want to know about these things, and if we cannot get the information from you, we must get it somewhere else.
Mr. BUTLER. I do not want to be put in the position of declining to give information. I am going to give you any information I possibly can.
Mr. ŘEES. I know, and we are glad to have your suggestions. You know more about this in 5 minutes than I do in all day, and I would' like to have your information.
Now, are we through with subsection (g)? Is there anything else you want to say about subsection (g)?
Mr. FLOURNOY. Nothing of special importance.
Mr. REES. Does any other member of this group want to talk further about subsection (g)? If not, let us take up subsection (h). Mr. FLOURNOY. The foregoing provisions of subsection (g), con-cerning retention of citizenship, apply to a child born abroad subsequent to May 24, 1934. In a sense, that makes it retroactive. Mr. REES. Do you change the present law there?
Mr. FLOURNOY. Well, it is hard to see how-you say that the provisions of subsection (g) concerning retention of citizenship-it is only those relating to retention of citizenship. Those provisions are made applicable to a child born abroad subsequent to May 24, 1934, as well as to one born abroad before that.
Mr. SHOEMAKER. I would say that unquestionably it changes existing law.
Mr. REES. In what respect?
Mr. SHOEMAKER. Because the child, unless the parent had lived in the United States for 10 years, never would have gotten citizen-
ship. In other words, if the child's parent, for instance, had never lived in the United States for 10 years, that child would not have gotten citizenship. Under existing law he would.
Mr. REES. Now, then, he has to be a citizen of the United States. for 10 years?
Mr. FLOURNOY. This only relates to the retention of citizenship; not to the question of acquiring citizenship.
Mr. SHOEMAKER. The question you asked was, "Will it change existing law?" They could not retain it unless they got it. Mr. REES. Yes. Now, section 202.
Mr. FLOURNOY (reading):
All persons born in Puerto Rico on or after April 11, 1899, subject to the jurisdiction of the United States, residing on the effective date of this Act in Puerto Rico or other Territory over which the United States exercises rights of sovereignty and not citizens of the United States under any other Act, are hereby declared to be citizens of the United States.
There have been a number of acts passed relating to children born in Puerto Rico since annexation, and if I am not mistaken, this practically amounts to a restatement of what is now the law. I do not think there is any substantial change made there.
Mr. FLOURNOY (reading):
SEC. 203. Unless otherwise provided in section 201, the following shall be nationals, but not citizens, of the United States at birth:
(a) A person born in an outlying possession of the United States of parents one of whom is a national, but not a citizen, of the United States.
That last, obviously, because if he is a citizen of the United States, the child is born a citizen. This infers nationality without citizenship of the United States.
Mr. REES. Let me ask you this says:
A person born in an outlying possession of the United States of parents one of whom is a national, but not a citizen, of the United States.
That is all. He has to be a national. That is the only qualification, and then the child is born a national.
Mr. FLOURNOY. Born a national; yes.
Mr. REES. That is the same rule, practically, that we now have under present law regarding citizens abroad. No, I beg pardon. I am mistaken. This is the outlying possessions.
Mr. FLOURNOY. We have had various acts passed with regard to different outlying, unincorporated possessions, but this is to make the law uniform on the subject.
(b) A person born outside the United States and its outlying possessions of parents both of whom are nationals, but not citizens, of the United States, and have resided in the United States or one of its outlying possessions prior to the birth of such person.
So that under that, we have the principle that both parents-or the rule, rather-that both parents must be naturalized in order to transmit American nationality in the case of a child born in a foreign coun
Mr. REES. You are recognizing that in order to be a national, both parents must be nationals.
Mr. FLOURNOY. Yes.
Mr. REES. But you do not recognize that in order to be a citizen, both parents must be citizens.
Mr. FLOURNOY. Yes.