DEPARTMENT OF STATE,

Hon. WILLIAM B. BANKHEAD,

Committee on Rules, House of Representatives.

Washington, March 21, 1934.

MY DEAR MR. BANKHEAD: It is understood that efforts are being made to obtain early action in the House of Representatives upon H.R. 3673, entitled "A bill to amend the law relative to citizenship and naturalization, and for other purposes", which has for its purpose the removal of certain discriminations between the sexes in nationality matters and in particular to confer citizenship of the United States under certain conditions upon a child hereafter born out of the limits and jurisdiction of the United States whose father or mother at the time of birth of such child is a citizen of the United States, upon an alien-born child under certain conditions whose father or mother is naturalized or resumes American citizenship, providing for the expeditious naturalization of the alien spouse of an American citizen, and making provision under certain limitations for the formal renunciation of citizenship of the United States before a court having jurisdiction over the naturalization of aliens.

In view of the responsibility of this Department in connection with the protection of American nationals residing or sojourning abroad, the subject of the amendment of the nationality laws is to it one of very great interest. It has, therefore, examined with much care the provisions of H.R. 3673 and in view of its experience in handling citizenship and protection cases and of recommendations of the diplomatic and consular officers of the United States who handle these cases abroad, it considers that it would be remiss in the performance of its duties if it should fail to call to your attention the serious objections it sees to the adoption of the bill under discussion. I am, therefore, enclosing for your information a memorandum prepared in the office of the Legal Adviser of the Department on May 19, 1933, calling attention to certain features of H.R. 3673 and the objection thereto of the Department. It may be added that copies of this memorandum were on May 31, 1933, furnished to Senator Marcus A. Coolidge, chairman of the Senate Committee on Immigration, and Representative Samuel Dickstein, chairman of the Committee on Immigration and Naturalization of the House of Representatives.

Aside from any objections which may be made to the provisions of H.R. 3673, I am not aware of any situation which seems to require special haste in revising the nationality laws with regard to the various features covered by the bill. Consequently, in view of the Executive order of April 25, 1933, in which "The Secretary of State, the Attorney General, and the Secretary of Labor are designated a committee to review the nationality laws of the United States, to recommend revisions, particularly with reference to the removal of certain existing discriminations, and to codify those laws into one comprehensive nationality law for submission to the Congress at the next session", I am of the opinion that it would be particularly desirable to postpone action upon any matters relating to the nationality laws of the United States until the recommendations of the committee shall have been placed before the Congress through the President. I may add that subcommittees appointed by the three Cabinet officers mentioned in the Executive order of April 25, 1933, have been engaged in a careful study of the nationality laws of the United States, definite proposals have been made with regard to various nationality matters, particularly with respect to the removal as far as may be practicable of discriminations between the sexes, and the final draft of its recommendations is being prepared. It is expected that in the not distant future the recommendations of the committee appointed by the President will be placed before the Congress.

For this reason I feel justified in making the request that in view of the important bearing which the extension of American nationality to persons born abroad has upon the foreign relations of the United States, particularly in connection with the extension of diplomatic protection to the cases of persons born with dual nationality and the expousal of claims, action upon any and all bills relating to the nationality laws of the United States be held in abeyance pending the submission to Congress of the recommendations of the committee appointed by the President.

Sincerely yours,

CORDELL HU L.

(Enclosures: Copy of this letter; copy of memorandum; Executive order.)

H.R. 3673, "TO AMEND THE LAW RELATIVE TO CITIZENSHIP AND NATURALIZATION, AND FOR OTHER PURPOSES", REPORTED TO THE HOUSE OF REPRESENTATIVES BY THE COMMITTEE ON IMMIGRATION AND NATURALIZATION MAY 15, 1933

There are several provisions in this bill which seem objectionable from the standpoint of the Department of State. In view of its responsibilities in connection with the extension of protection to Americans residing or sojourning abroad and in the issuance of passports, it is deemed important to call attention to these objections.

The first section of the bill reads as follows:

"SEC. 1993. Any child hereafter born out of the limits and jurisdiction of the United States, whose father or mother at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States: Provided, That if one parent is an alien such alien is not of a race ineligible to citizenship; but the rights of citizenship shall not descend to any such child unless the citizen father or citizen mother, as the case may be, has resided in the United States previous to the birth of such child and unless the child, previous to his eighteenth birthday, returns to the United States and resides therein for at least 5 years continuously."

Particular attention is called to the last clause of the section just quoted, according to which, a child born abroad to parents, one of whom is a citizen of the United States, does not become a citizen of the United States "unless the child, previous to his eighteenth birthday, returns to the United States and resides therein for at least 5 years continuously."

The meaning of the passage last quoted is not entirely clear. It is assumed, however, that the word "returns" in the passage just quoted was used inadvertently, since there is nothing to indicate that the child shall have previously been in this country. No doubt the word "comes" would have expressed the meaning intended. It is also assumed that the 5 years' residence in the United States must be begun, but need not be completed, before the child reaches his eighteenth birthday.

The first clause of this provision gives the impression that citizenship is conferred at birth, but, when the section has been read as a whole, it becomes apparent that this is not the case and that the child only acquires citizenship by coming to the United States before he reaches his eighteenth birthday and residing for at least 5 years continuously in the United States. Thus, the child is not born a citizen but becomes a citizen through a form of naturalization. Such being the case, the provision practically eliminates jus sanguinis from the law of the United States.

The act of Congress of March 26, 1790, conferring citizenship of the United States upon children born abroad to parents who were citizens of the United States, was one of the first acts passed by the Congress of the United States. It provided that "the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States." * * * It is believed that this provision was based upon sound reasons of policy and natural human instincts. No doubt it has always seemed reasonable and natural to parents who were citizens of the United States and who had not abandoned this country that their children born anywhere should acquire citizenship of the United States at birth. It would probably be abhorrent to such parents that their children should be born aliens, and it is not believed that the Congress of the United States has ever had a deliberate intention of eliminating jus sanguinis from the law.

The language of the act last mentioned was modified somewhat by an act of Congress of January 29, 1795 (1 Stat. 114). It was further amended by an act of April 14, 1802 (2 Stat. 153-155), which was poorly drafted and, according to its express terms, applied only to "children of persons who now are, or have been, citizens of the United States." It made no mention of children born abroad to persons subsequently acquiring American nationality. In an act of February 10, 1855 (10 Stat. 604), this defect was rectified. The present existing law on the subject, found in section 1993 of the Revised Statutes, was taken from the statutory provision last mentioned. (For a discussion of this legislation see the opinion of Chief Justice Taft in Weedin v. Chin Bow 274 U.S. 657: Van Dyne, Citizenship

of the United States, ch. 2.) It is believed that a principle so deeply imbedded in the legal system of the United States should not be lightly abandoned.

The most serious objection to the proposed measure is that, under its provision, a child born abroad to parents both of whom are citizens of the United States is in no better situation than one who is born abroad to parents only one of whom is a citizen of the United States. It is apparent that in the first case, as in the second, the child only becomes a citizen by coming to the United States and residing five years continuously in this country. This will, of course, cause serious inconvenience to children born abroad to American parents and to the parents themselves.

For example, it will be impossible to include a child born abroad to American parents in a passport issued to one of his parents until the child shall have come to the United States and become naturalized by residing in this country 5 years. The child will not be entitled to the protection of this Government and will have to enter the United States as an alien. Under this provision children born to American parents in many countries—that is, countries which have not the jus soli in their law of nationality-would have no nationality.

Attention is also called to the remarkable fact that this bill makes it much more difficult for a child born abroad of American parents to acquire citizenship of the United States than it will be for a child born abroad of alien parents, one of whom obtains naturalization after the child's birth. The former will be obliged, under the provision of section 1, to reside in the United States 5 years before he acquires citizenship, while the latter, under the provision of section 2, amending section 5 of the act of March 2, 1907, will acquire citizenship "at the time such minor child begins to reside permanently in the United States." There is no sound reason for such an extraordinary discrimination.

It seems possible that the committee assumed that the expression "the rights of citizenship" has a meaning different from the term "citizenship", but such is not the case. Weedin v. Chin Bow (274 U.S. 657). In this case it was held, in view of the provision of section 1993 of the Revised Statutes, that "the rights of citizenship shall not descent to children whose fathers never resided in the United States", that a child born in China to a father who was born in that country to a native American father did not acquire citizenship of the United States after birth, when his father had acquired a permanent residence in this country. The court held that it was the intent of the statutory provision in question that citizenship should be acquired at birth, if at all.

It is important to note that the provision of the first section of this bill would be applicable to children born abroad to American Diplomatic and Consular officers as well as children born abroad to Americans representing private interests, and it is believed that its adoption would cause great distress to many Americans who are residing or sojourning abroad for legitimate objects, without accomplishing any good end whatsoever. There is no apparent reason why the law of the United States should not continue to confer the citizenship of this country at birth upon children born abroad to parents, both of whom are citizens of the United States.

If such children also acquire the nationality of the country of birth, under the law thereof, thus having dual nationality, it might be well to consider the adoption of a reasonable measure under which citizenship of the United States would be terminated after attainment of majority if the perons in question should continue to reside in the other country of which they are nationals. Since it is clearly impossible at the present time to obtain uniformity in the laws of all countries concerning acquisition of nationality at birth, some of the existing laws being based primarily upon jus soli and others primarily or entirely upon jus sanguinis and many embodying both principles in one form or another, the only feasible solution of the problem of dual nationality lies in a provision for the termination thereof after attainment of majority. It does not lie in the abandonment of jus sanguinis, which would cause far more trouble and inconvenience than the continuance of dual nationality.

Section 2 of the bill reads as follows:

"SEC. 2. Section 5 of the act entitled 'An act in reference to the expatriation of citizens and their protection abroad', approved March 2, 1907, as amended, is amended to read as follows:

"SEC. 5. That a child born without the United States of alien parents shall be deemed a citizen of the United States by virtue of the naturalization of or resumption of American citizenship by the father or the mother: Provided, That such naturalization or resumption shall take place during the minority of such child: