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The proposed Code, herewith, represents a studied effort to draft a measure which would conform to th. constitutional requirement that the rule of naturalization be “uniform,” and facilitate the naturalization of worth t candidates, while protecting the United States against adding to its body of citizens persons who would be. potential liability rather than an asset.
The provisions of Chapter IV, Loss of Nationality, are of special importance. Loss of nationality is in t cases to result from the existence of stated facts. In this relation mention may be made of the provision section 501, in which diplomatic and consular officers are required to send to the Department of State report ti concerning persons found by them to have committed acts resulting in loss of American nationality under t! provisions of Chapter IV of the proposed act. It is important to note that such reports are intended merely ir the information of the Department of State, the Department of Labor, and any other branches of the Governme: which may be interested.
Chapter V, Miscellaneous, in addition to the provision of section 501, mentioned above, contains a pri vision (sec. 502) for the issuance of certificates of nationality, for use in foreign states in cases of American nation: other than naturalized citizens.
The most important changes in the existing laws proposed in the annexed code are as follows:
(1) The provision of section 201 (g) requiring that, in order that a person born abroad may acquire citizer ship of the United States at birth when only one of his parents is a citizen of the United States, the latter mus have resided 10 years in the United States. The requirement of the existing law concerning residence in the Unite States as a condition to retention of citizenship has been modified for the benefit of children of persons representin. the Government or American commercial or other interests;
(2) The provisions of chapter III concerning the facilitating of naturalization under special conditions, an in particular the following:
The provision of section 311 for the naturalization, without prior residence in the United States, of the alier spouse of a citizen of the United States residing abroad in the employment of this Government or of organization: of certain specified classes;
The provision of section 314 for the naturalization of a person under 18 years of age upon the petition of citizen parent, and the similar provision of section 315 for the naturalization of an adopted child;
The provision of section 317 for facilitating the entry into the United States and naturalization, without the usual requirements concerning residence in the United States, of a person who was formerly a citizen of the United States but who became expatriated while residing in a foreign country through the naturalization of a parent therein;
(3) The provisions of chapter IV concerning loss of nationality, especially the following:
The provisions of section 402 concerning loss of nationality by a naturalized citizen as a result of the following acts:
(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;
(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.
Special mention may also be made of the provision in section 337 of the Code for the revocation of naturalization in the case of a person who takes up a permanent residence in his native land or some other foreign country within 10 years (instead of 5 years, as provided in the existing law) after the date of his naturalization.
The problem of the child born abroad to parents of different nationalities was the subject of extended consideration by the committee and finally resulted in the draft of section 201 (g) referred to above which confers American citizenship at birth upon a person born abroad if one of his parents is an American citizen. Prior to the Citizenship Act of May 24, 1934, only the children of American fathers acquired citizenship at birth if they were born abroad. This, however, was changed by the 1934 act so that a woman retaining citizenship after marriage to an alien also transmitted citizenship to her children. In enacting this measure Congress apparently took into consideration the fact that persons born in foreign countries whose fathers were nationals of those countries would be likely to have stronger ties with the foreign country than with the United States, and consequently annexed as a condition for retaining citizenship a 5-year period of residence in this country between the ages of 13 and 18. This condition was equally applicable irrespective of whether the citizen parent was a or a mother.
It has been recognized, however, that these residence requirements will impose great hardship in some cases. This is especially true where the head of the family is a salaried person residing abroad as a representative of the American Government or some American commercial or other organization. The committee has therefore
recommended that in cases of this character the conditions relating to residence during minority shall no longer be imposed. If the citizen parent does not represent the American Government or an American educational, scientific, philanthropic, religious, commercial, or financial organization, the foreign-born child, in order to retain American citizenship, is required under section 201 (g) to reside in the United States 5 years between his thirteenth and his twenty-first birthdays. The committee recommends strengthening the 1934 act in another respect, however, by restricting the right of transmitting citizenship in a case of this kind, through the requirement that the citizen parent should have resided at least 10 years in the United States prior to the birth of the child.
Mention is made above of section 317 of the Code. While probably the majority of former American nationals who have been naturalized in foreign states through the naturalization of their parents therein continue to reside in such foreign states, some of them return to the United States to reside, and it seems only reasonable to adopt special provisions to enable the latter to recover their American citizenship if they so desire.
None of the various provisions in the Code concerning loss of American nationality, such as those applicable to children born abroad to parents only one of whom has American nationality and persons who, after obtaining American nationality through naturalization, establish a residence abroad, is designed to be punitive or to interfere with freedom of action. They are merely intended to deprive persons of American nationality when such persons, by their own acts, or inaction, show that their real attachment is to the foreign country and not to the United
States. : Important reasons for terminating American nationality in cases of persons who reside in foreign countries
and have to all intents and purposes abandoned the United States lie in the fact that it will prevent them from transmitting American nationality to their foreign-born children having little or no connection with the United States, and embroiling this Government in controversies which they may have with the governments of the foreign countries in which they reside. The mere presumption of expatriation provided for in section 2 of the act of - March 2, 1907, in cases of naturalized citizens residing for 2 years in the foreign states from which they came or : 5 years in other foreign states, has proven inadequate. In general the right to protection should be coexistent
with citizenship, and a law under which persons residing abroad are denied the protection of this Government, : although they remain citizens of the United States and transmit citizenship to children born abroad, is deemed
inconsistent and unreasonable. The admission of an alien to the privilege of American citizenship is subject to : the condition that he intends to reside permanently in the United States and perform the duties of citizenship. When a naturalized citizen abandons his residence in the United States and takes up residence in the state of which he was formerly a national, definite termination of his American citizenship should follow.
Further explanations of the various provisions of the Code submitted herewith may be found in the comment on the various articles-appendix 1 herewith. In addition to the Code and appendix 1, we also submit herewith the following:
Provisions of the Code and corresponding provisions of the existing nationality laws, arranged in parallel columns (appendix 2), and constitutional, statutory, and treaty provisions relating to nationality (appendix 3).
Your committee, in the light of the experience of the interested departments in handling cases presented to : them for action, is convinced that it is most desirable to have the nationality laws of the United States revised,
and embodied in a single Code, the meaning of which may be readily understood. We feel that there is no branch of the law of more importance to the country, or requiring more careful attention, than that branch which governs nationality, determining, as it does, what classes of persons shall compose the national society itself.
The proposals contained in the accompanying draft Code are to be regarded merely as suggestions for the use of the appropriate committees of Congress. When the matter is to be considered by these committees, the undersigned will be glad to designate members of their respective departments whose duties involve the handling of citizenship cases to confer with the committees, if that is desired. Respectfully,
Secretary of State. Homer CUMMINGS,
Attorney General. FRANCES PERKINS,
Secretary of Labor. Enclosures: Draft Nationality Code and appendices 1, 2, and 3, as above.
EVISION AND CODIFICATION OF THE NATIONALITY
LAWS OF THE UNITED STATES
PART 1 SECTIONS OF THE PROPOSED CODE WITH EXPLANATORY COMMENTS'
[The part printed in bold-face type shows the sections of the proposed Code; the part printed in
Roman shows the explanatory comments of each section)
CHAPTER 1. DEFINITIONS
States and Sweden, signed at Stockholm, January 31, 1933, Treaty Series No. 890.
With reference to the above, particular attention is called to the treaty restoring friendly relations with Germany, signed August 25, 1921, the preamble of which contains a quotation from the joint resolution of Congress, approved by the President July 2, 1921, declaring the state of war between the United States and Germany to be at an end, including the following clause in section 2 thereof:
Sec. 101. For the purposes of this Act
(a) The term "national” means a person owing permanent allegiance to a state. This term has come into common use in recent years with reference to the individuals who together compose the people of a sovereign state, regardless of the character of the government thereof. Where the state is represented by a personal sovereign the term “subject” may also be used, and where the government of a state is democratic in form the term "citizen" may likewise be used, but the broader term “national” covers both. This term, with the corresponding term “nationality” has been in use in modern times not only in standard works on international law and nationality (3 Moore, Digest of International Law, 273-276; 1 Hyde, International Law, 610-611; Hall, International Law, 8th ed., pp. 275-276; 1 Oppenheim, International Law, 4th ed., 524-526; Borchard, Diplomatic Protection, pp. 7-24; Cockburn, Nationality; see also McGovney, D. O., American Citizenship, 11 Columbia Law Review, 231; Scott, J. B., Nationality; Jus Soli or Jus Sanguinis, 24 American Journal of International Law (1930), p. 58), but in treaties to which the United States is a party, including the treaty establishing friendly relations with Austria, signed at Vienna, August 24, 1921, Treaty Series No. 659 (Malloy, Treaties, Conventions, etc., vol. III, p. 2493); the treaty restoring friendly relations with Germany, signed at Berlin, August 25, 1921, Treaty Series No. 658 (Malloy, op. cit., p. 2596); the treaty establishing friendly relations with Hungary, signed at Budapest, August 29, 1921, Treaty Series No. 660 (Malloy, op. cit., vol. III, p. 2693); treaty between the United States and Bulgaria, signed at Sofia, November 23, 1923, Treaty Series No. 684; treaty between the United States and Czechoslovakia, signed at Prague, July 16, 1928, Treaty Series No. 804; treaty between the United States and Norway, signed at Oslo, November 1, 1930, Treaty Series No. 832; treaty between the United
SEC. 2. That in making this declaration, and as a part of it, there are expressly reserved to the United States of America and its nationals any and all rights, privileges, indemnities, reparations, or advantages, together with the right to enforce the same, to which it or they have become entitled under the terms of the armistice signed November 11, 1918, or any extensions or modifications thereof; or which were acquired by or are in the possession of the United States of America by reason of its participation in the war or to which its nationals have thereby become rightfully entitled; or which, under the Treaty of Versailles, have been stipulated for its or their benefit; or to which it is entitled as one of the principal allied and associated powers; or to which it is entitled by virtue of any act or acts of Congress; or otherwise.
Article I of this treaty contains the following important provision:
ARTICLE I. Germany undertakes to accord to the United States, and the United States shall have and enjoy, all the rights, privileges, indemnities, reparations, or advantages specified in the aforesaid joint resolution of the Congress of the United States of July 2, 1921, including all the rights and advantages stipulated for the benefit of the United States in the Treaty of Versailles which the United States shall fully enjoy notwithstanding the fact that such treaty has not been ratified by the United States (Malloy, op. cit., p. 2598).
The treaties establishing friendly relations with Austria and Hungary, referred to above, contain provisions similar to those quoted above from the treaty with Germany. It may be added that the Treaty of Versailles, referred to in article I of the treaty restoring friendly relations between the United States and Germany, signed August 25, 1921, also uses the term “nationals” to indicate all persons owing permanent allegiance to the respective states (Malloy, op. cit., appendix, pp. 331 et seq.).
* Submitted with report of Committee of Advisers August 13, 1935 ; subsequently amended with reference to amended sections of the Code.
The nationals of a state owe permanent allegiance same protection abroad as nationals who are citizens
. , . ) discussed by Chief Justice Waite in rendering the oz. l
Before its adoption the Constitution of the t'i until terminated at the end of the 10-year period States did not in terms prescribe who should be citizens of prescribed in the act of Congress of March 24, 1934. United States or of the several States, yet there were net It was permanent allegiance which was referred to by sarily such citizens without such provision. There cannot be Justice Iredell, in Talbot v. Jansen, 1795, 3 Dall. 133,
nation without a people. The very idea of a political e
munity, such as a nation is, implies an association of pers 164, when he said:
for the promotion of their general welfare. Each one of ! By allegiance I mean the tie by which a citizen of the United persons associated becomes a member of the nation formed States is bound as a member of the society.
the association. He owes it allegiance and is entitled to
protection. Allegiance and protection are, in this connecti (b) The term "national of the United States"
reciprocal obligations. The one is a compensation for the othe means (1) a citizen of the United States, or (2) allegiance for protection and protection for allegiance. a person who, though not a citizen of the United For convenience it has been found necessary to give a na States, owes permanent allegiance to the United to this membership. The object is to designate by a title i States.
person and the relation he bears to the nation. For this pr
pose the words "subject,” "inhabitant,” and “citizen" have bet The term "national of the United States," as used used, and the choice between them is sometimes made to de in the proposed code, is applicable to any person who
pend upon the form of the government. Citizen is now more owes permanent allegiance to the United States,
commonly employed, however, and as it has been considered be ,
ter suited to the description of one living under a republica whether or not he is a "citizen of the United States,"
government, it was adopted by nearly all of the States upo as that term is used in the Constitution and in various
their separation from Great Britain, and was afterwards statutes. The corresponding term “nationality” refers adopted in the Articles of Confederation and in the Constitu to the status of any persons owing permanent allegiance
tion of the United States. When used in this sense it is under to the United States and is broader in scope than the
stood as conveying the idea of membership of a nation, and
The decision just mentioned was rendered before the are nationals who are not citizens of the United States. expansion of the United States by the acquisition of Reference is made to the inhabitants of the various
its insular possessions. Since that time it has been outlying possessions who owe permanent allegiance to
necessary, as indicated above, to use a broader tern the United States but have not the status of citizens of
than the word “citizen” to describe persons owing the United States (Coudert, F. R., Jr., Our New Peo
permanent allegiance to the United States, and the ples, Citizens or Aliens, 3 Columbia Law Review, 13,
word “national” has thus come into use. (With re17; Burdick, C. K., The Law of the American Consti
gard to the status of the outlying possessions and their t tution, ch. XI, 318-328). This includes citizens of the
inhabitants, see 3 Moore, Digest of International Law. Philippine Islands, natives of the Panama Canal Zone, ch. X, Nationality, especially pp. 315-318; Van Dyne. and inhabitants of American Samoa and Guam owing Citizenship of the United States, 160-230; Maxson, permanent allegiance to the United States.
Citizenship, 193–208; Downes v. Bidwell, 1900, 182 i This view was expressed by Judge Parker, umpire U. S. 244; De Lima v. Bidwell, 1900, 182 U. S. 1; Gonin the Mixed Claims Commission, United States and
zales v. Williams, 1903, 192 U. S. 1; Coudert, F. R., Germany in an opinion of October 31, 1924, in which Jr., op. cit.) he said:
The use of the term "national" as meaning any per
son owing permanent allegiance to the United States The term "American national" means a person wheresoever
does not, as will be seen, involve abandonment of the domiciled owing permanent allegiance to the United States of
term "citizen of the United States” where the latter is
T America, and embraces not only citizens of the United States but Indians and members of other aboriginal tribes or native
th peoples of the United States and of its territories and pos- The terms "American citizen" and "American citizensessions (Administrative Decision No. 5, p. 193).
ship” have been in common use since the early days of
th From the standpoint of international law noncitizen the Republic, although they are not found in the Consti
C. nationals have the same status and are entitled to the tution of the United States. Originally, these terms