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Presumption of Cessation of Citizenship: Its Effect on International Claims

Published online by Cambridge University Press:  04 May 2017

Margaret Lambie
Margaret Lambie*
Affiliation:
New York State and District of Columbia
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Extract

Although the Constitution of the United States declares in the Fourteenth Amendment that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States, Congress has enacted legislation affecting the diplomatic protection of citizens abroad which makes a material distinction between persons born in the United States and those who have been naturalized in this country. This distinction has caused considerable discussion as to the political status of naturalized American citizens against whom the presumption of cessation of citizenship has arisen by virtue of the provisions of Section 2, Act of March 2, 1907, and recently has been interestingly illustrated before international claims commissions.

Type
Research Article
Information
American Journal of International Law , Volume 24 , Issue 2 , April 1930 , pp. 264 - 278
Copyright
Copyright © American Society of International Law 1930

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References

1 34 Stat. 1228.

2 The United States of America on behalf of Rothmann, Henry, claimant, v. Austria and Hungary, Docket No. 8, printed in this Journal , Vol. 23, No. 1, January, 1929, p. 182.Google Scholar

3 The United States of America on behalf of Margulies, Jacob, claimant, v. Austria and Hungary, Docket No. 7.Google Scholar

4 The United States of America on behalf of Costello, Lily J., Costello, Maria Eugenia and Costello, Ana Maria, claimants, v. The United Mexican States, Docket No. 3182, Opinions of Commissioners, Washington: Government Printing Office, 1929, p. 252. Also printed in this Journal, Vol. 23, No. 4, October, 1929, p. 875.Google Scholar

5 34 Stat. 1228

6 Tripartite Claims Commission, Jacob Margulies v. Austria and Hungary, Docket No. 7.

7 Tripartite Claims Commission, Henry Rothmann v. Austria and Hungary, Docket No. 8; also this Journal , Vol. 23 (1929), p. 184.

8 Opinions of Commissioners, supra, pp. 256-261, discussing the following: Opinion of Attorney General Sargent, 35 Ops. Atty. Gen. 399; United States v. Gay, 264 U. S. 353; Opinion of Attorney General Wickersham, 28 Ops. Atty. Gen. 504; Compilation of Certain Departmental Circulars Relating to Citizenship, Registration of American Citizens, Issuance of Passports, Etc., Department of State (1925), pp. 34, 45, 120; United States ex rel. Anderson v. Howe, 231 Fed. 546; Stein, et al. v. Fleischmann Co., et al., 237 Fed. 679; Thorsch v. Miller, 5 F. (2d) 118; Nurge v. Miller, 286 Fed. 982; United States v. Eliasen, 11 F. (2d) 785; Banning v. Penrose, 255 Fed. 159; Nelson v. Nielsen, et al., 113 Neb. 453; Sec. 21, Act of March 4, 1923 (42 Stat. 1516), Trading with The Enemy Act, as amended.

9 Opinions of Commissioners, supra, p. 256, citing 35 Ops. Atty. Gen. 404. The Attorney General also observed that clarifying legislation is desirable

10 Ibid., p. 261; also this Journal , Vol. 23 (1929), p. 882.

11 Section 2165, United States Revised Statutes (1878).

12 17 Stat. 833

13 Treaties, Conventions, International Acts, Protocols, and Agreements between the United States of America and Other Powers, 1910-1923, Washington: Government Printing Office (1923), Vol. III, p. 3232.

14 42 Stat. 1948. Also in Treaties, Conventions, International Acts, etc., supra, Vol. III , p. 2495

15 44 Stat. 2213.

16 See Borchard, Edwin M., The Diplomatic Protection of Citizens Abroad, New York (1915), p. 683.Google Scholar

17 Administrative Decision No. 1, Tripartite Claims Commission, May 25, 1927 (also printed in this Journal , Vol. 21, No. 3, July, 1927, p. 605), which incorporates pp. 175 to 194 of Administrative Decision No. V, Oct. 31, 1924, Mixed Claims Commission, United States and Germany, Consolidated Edition of Decisions and Opinions, Washington, Government Printing Office (1925), p. 189; Decision No. V, supra, also printed in this Journal , Vol. 19, No. 3, July, 1925, p. 626.

18 237 Fed. 682.

19 Diplomatic Protection of Citizens Abroad, supra, p. 713 et seq

20 See Opinions of the Commissioners, Claims Commission United States and Mexico, Washington, 1927, p. 230, where it was said in the Massey case with respect to the rule concerning apprehension and punishment of wrongdoers: “Neither the character nor the conduct of Massey can affect the rights of the United States to invoke that rule nor can they have any bearing on the obligations of Mexico to meet the requirements of the rule or on the question whether proper steps were taken to that end. In other words, the character and conduct of Massey have no relevancy to the merits of the instant claim under international law.” (Also this Journal , Vol. 21 (1927), p. 784.)

21 Opinions of Commissioners, supra, p. 263; also this Journal , Vol. 23 (1929), p. 884

22 Neuberger v. United States, 13 F. (2d) 541; Application of Piastro, 18 F. (2d) 147; In re Reichenberg, 238 Fed. 859; see also Miller v. Sinjen, 289 Fed. 388; Stein v. Fleischmann, supra; Banning v. Penrose, supra, and other cases

23 Compilation of Certain Departmental Circulars Relating to Citizenship, Etc., supra, pp. 9, 18, 62.

24 11 Fed. (2d) 786.

25 See United States Constitution: Art. I, Secs. 1, 8, clause 4; Art. II, Secs. 1, 2, clause 2; Art. III, Secs. 1, 2; Art. VI, clause 2; 14th Amendment, Sec. 1. See treaties applicable to the three cases herein discussed: Claims Agreement between United States and Austria and Hungary, supra, Treaty of Peace of Sept. 10, 1919, supra, Treaty Establishing Friendly Relations with Austria, supra, Naturalization Convention of 1870 between the United States and Austria-Hungary, supra, Claims Convention between the United States and Mexico, Sept. 8, 1923 (43 Stat. 1730), and convention extending the same, signed Aug. 16, 1927,70th Cong., 1st Sess., Stat. 1927-1928, Part 2, Treaties, p. 51. See Statutes: Secs. 3,15 and 23, Act of June 29, 1906 (34 Stat. 596); subdivisions 4 and 12, Sec. 4, Act of June 29, 1906, supra, as amended by Act of May 9, 1918 (40 Stat. 542) and Act of March 2, 1929 (Public No. 962); Secs. 2, 5, 6, 7, Act of March 2, 1907 (34 Stat. 1228). See also Compilation of Certain Departmental Circulars Relating to Citizenship, Etc., supra, p. 120.

26 Opinions of Commissioners, supra, pp. 261, 262; also this Journal , Vol. 23 (1929), pp. 883, 884.

27 Tripartite Claims Commission, Docket No. 8; also this Journal , Vol. 23 (1929), p. 185. See Opinion of Attorney General Wickersham, supra

28 Compilation of Certain Departmental Circulars, supra, pp. 34, 35, 97; Passport Regulations, Executive Order, Jan. 31, 1928, Rules Governing the Granting and Issuing of Passports, etc., Appendix E, 2 (g), Government Printing Office, p. 23.

29 The policy in the Department of State of allowing diplomatic and consular officers to issue to naturalized citizens, against whom a presumption of cessation of citizenship has arisen, emergency passports for their immediate return to the United States for permanent residence, thus removing such presumption, is upheld by the Attorney General in an Opinion rendered Feb. 8,1928 (35 Ops. Atty. Gen. 399). Such a rule was in force from Nov. 18,1911, to June 1, 1916; it was again adopted on Sept. 22, 1921, was discontinued on July 8, 1924, and on July 23, 1924, instructions were sent to diplomatic and consular officers that persons who could not overcome the presumption of noncitizenship must comply with requirements of the Immigration Act of 1924 when coming back to the United States. On Jan. 31, 1928, by Executive Order the rule permitting the issuance of emergency passports was again reinstated and is in force at the present time. Such variations in the policy of the Department of State appear to indicate the necessity for flexibility of departmental rules under more or less emergency situations or political conditions. While the changes effected by the above rules reveal variations in the Department΄s policy in respect to diplomatic protection, they do not affect American nationality as determined by constitutional and statutory provisions See Compilation of Certain Circulars, Etc., supra, pp. 35, 54, 97, 126; also PassportRegulations, Executive Order, Etc., supra, p. 23; and Departmental Order No. 438, Department of State, March 6, 1928.

30 289 Fed. 388.

31 29 F. (2d) 527.

32 Tripartite Claims Commission, Docket No. 7.

33 The Cable Act, Sec. 3, Act of Sept. 22, 1922 (42 Stat. 1021).

34 Opinions of Commissioners, General Claims Commission, supra, p. 261; also this Journal , Vol. 23 (1929), p. 882.

35 See footnote 8.