Who is a u. S. Citizen?” “The Evolution of Citizenship Law in The United States of America”



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THE EVOLUTION OF U.S. CITIZENSHIP LAW SINCE 1789




WHO IS A U.S. CITIZEN?”

The Evolution of Citizenship Law

in

The United States of America”

This is a brief history of U.S. citizenship law since the adoption of the U.S. Constitution in 1788, and the convening of the First U.S. Congress in 1789. It is also a brief history of some of the overseas American organizations that have been involved in trying to change these laws to make them more rational and humane. For U.S. citizens who live outside the United States, and whose children are born or adopted abroad, there are still important citizenship acquisition issues and other challenges that need to be addressed and redressed.


The information provided here has been collected from many different sources, in written publications, and via the Internet, and includes not only legislation and legal interpretations, but also some relevant international conventions and declarations. It is put in the “present tense” to help capture the thoughts of those involved at the time these events took place.
It is clear from reading through this history that the concept of “citizenship”, and to whom it should be granted, has never been a very simple matter, but rather one of great and continuing complexity. Your thoughts, comments and suggestions would be most welcome.

1790 THE “FIRST AMERICAN NATURALIZATION LAW”: On 26 March, the first Naturalization Law (1 Stat.103) provides the first rules to be followed by the U.S. Government in the granting of national citizenship. This law limits naturalization to immigrants who are "free white persons" of "good moral character". It thus leaves out indentured servants, slaves, free blacks, and later Asians. While women are included in the act, the right of citizenship does "not descend to persons whose fathers have never been resident in the United States" Citizenship therefore is inherited exclusively through the father. This is also the only statute that ever purports to grant the status of a “natural born citizen”. In order to address one's "good moral character," the law requires two years of residence in the United States and one year in the state of residence, prior to applying for citizenship. When these requirements are met, an immigrant can file a “Petition for Naturalization” with "any common law court of record" having jurisdiction over his residence asking to be naturalized. Once convinced of the applicant’s good moral character, the court will administer an oath of allegiance to support the Constitution of the United States. The clerk of court will make a record of these proceedings, and "thereupon such person shall be considered as a citizen of the United States."
CITIZENSHIP OF CHILDREN BORN ABROAD”: The Act also establishes the United States citizenship of children of citizens, born abroad, without the need for naturalization:
"And the children of citizens of the United States that may be born beyond the 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".
1795 THE “CITIZENSHIP ACT OF 1795”: On 29 January, Congress repeals and replaces the language of the earlier citizenship legislation of 1790. It increases the period of required residence from two to five years in the United States, and introduces the “Declaration of Intention” requirement, or "first papers", which creates a two-step naturalization process, and confers the status of “citizen” and not “natural born citizen”. The Act specifies that naturalized citizenship is reserved only for "free white person[s]." Immigrants intending to naturalize have to go to their local court and declare their intention at least three years prior to their formal application. In the declaration, the immigrant will also indicate his understanding that upon naturalization, he will take an oath not only of allegiance to the United States but also of renunciation of his former sovereign. In addition to the declaration of intention and oath of renunciation, the 1795 Act requires all naturalized persons to be "attached to the principles of the Constitution of the United States" and be "well disposed to the good order and happiness of the same." The provision relating to children born abroad is:
"And the children of citizens of the United States that may be born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States". (Act of January 29, 1795, Section 3, 1 Stat. 414, 415)
TALBOT V. JANSEN”: The Supreme Court rules that the jurisdiction of the court extends to the seas and that a citizen of the United States can also hold the citizenship of another nation (in the case of Talbot that second citizenship is in France). (3 U.S., 133 (1795))
1802 THE “CITIZENSHIP ACT OF 1802”: On 14 April, Congress overhauls U.S. citizenship legislation and all former laws are repealed. The new language pertaining to citizenship transmission overseas is as follows.
"The children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject by the Government of the United States, may have become citizens of any one of the said States under the laws thereof, being under the age of twenty-one years at the time of their parents being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States; and the children of persons who are now, or have been citizens of the United States shall, born out of the limits and jurisdiction of the United States, be considered as citizens of the United States : Provided, that the right of citizenship shall not descend to persons whose fathers have never resided within the United States." (Section 4, 2 Stat. 153, 144.)
It will subsequently be alleged, by some, that the provision concerning children born abroad is expressly limited to the children of persons who then were, or had been, citizens, and therefore does not include foreign-born children of any person who became a citizen following its enactment. The number of Americans living overseas is still quite small so this is not a major issue.
1855 THE “CITIZENSHIP ACT OF 1855”: On 10 February, Congress enacts a new law to clear up the allegation that during the half century, between 1802 and 1855, U.S. legislation did not allow U.S. citizen fathers, who had not become citizens of the United States before the act of 1802, to transmit U.S. citizenship to their children born abroad. The “Act of 1855”, like every previous act of Congress upon this subject, however, continues to restrict the right of citizenship transmission thereafter by citizen fathers born abroad unless they too subsequently become residents of the United States. The new language reads:


  • "All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States." (Section 1, 10 Stat. 604.)


1857 “DRED SCOTT V. SANFORD”; In the arguments made in this famous Supreme Court case upholding slavery, in regard to the "natural born citizen" clause, the dissent states that it is acquired by place of birth (jus soli), not through blood or lineage (jus sanguinis): "The first section of the second article of the Constitution uses the language, 'a natural-born citizen.' It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth." (The majority opinion in this case will be mostly overturned by the 14th Amendment.) (60 U.S. 393 (1857)):


  1. THE “14TH AMENDMENT”: On 28 July, the 14th Amendment to the Constitution is ratified by the legislatures of the requisite number of States. While it redefines the automatic acquisition of citizenship by birth in the United States, it does not touch upon the acquisition of citizenship by being born abroad of American parents; and leaves that subject to be regulated, as it has always been, by Congress, in the exercise of the power conferred by the Constitution to “establish a uniform rule of naturalization.” The first section states:




  • "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

THE DIFFERENCE A COUPLE OF WORDS MAKE”: If the opening words of this sentence had been slightly different, in the form “All persons born in or naturalized by the United States” many subsequent problems faced by children born abroad, who will eventually lose their citizenship for not returning to live in the United States for a requisite number of years, could have been avoided.


1878 THE “REVISED STATUTES OF 1878”: In this Statute, there are the same general provisions as the 1855 Act. (Section 1993, Revised Statutes of 1878.)
1898 “UNITED STATES V. WONG KIM ARK”: The Supreme Court rules that a person born within the jurisdiction of the U.S. to non-citizens who "are not employed in any diplomatic or official capacity" is automatically a citizen. (169 U.S. 649 (1898)).
Wong Kim Ark was born in San Francisco to Chinese parents around 1870 (the exact time is uncertain due to discrepancies among the various sources). In 1895, upon his return from a visit to China, he was refused entry by US customs officials, who asserted that despite his having been born in the US, he was a subject of the Chinese emperor and not a US citizen.
At this time, US law (the "Chinese Exclusion Acts") severely limited Chinese immigration and barred people of Chinese ancestry from becoming naturalized US citizens -- and it was argued, on this basis, that Wong was ineligible to be considered a US citizen, in spite of his having been born in the US.
The Supreme Court disagrees, ruling on a 6-2 vote that Wong Kim Ark was in fact a US citizen. The court cited the "citizenship clause" of the 14th Amendment, which states that all persons born (or naturalized) in the United States, and subject to the jurisdiction thereof, are citizens. Although the original motivation for this language in the 14th Amendment was to secure citizenship for the freed Negro slaves, the court holds that the clause clearly applies to "all persons", regardless of their race or national origin.
The court rejects outright the idea that the Chinese could be singled out for special treatment in this respect. "To hold that the fourteenth amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries," the majority write, "would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States."
As for the question of being "subject to the jurisdiction" of the United States -- i.e., the relationship between a person and a government whereby one "owes obedience to the laws of that government, and may be punished for treason or other crimes" -- the Supreme Court observes that English common law (legal tradition inherited from Britain by the US) has long recognized only two jurisdictional exceptions to the principle of ius soli (citizenship by birth on a country's soil): namely, (a) foreign diplomats, and (b) enemy forces in hostile occupation of a portion of the country's territory. Since neither of the above exceptions applied to Wong Kim Ark's parents, the court hplds that he was unquestionably a US citizen by virtue of his having been born in the US.
The fact that, under the Chinese Exclusion Acts, Wong's parents could not become US citizens -- or even that Wong himself would not have been eligible for naturalization in the US on account of his race -- is simply irrelevant in light of the 14th Amendment's citizenship clause. The Constitution was superior to statutes such as the Chinese Exclusion Acts; these acts of Congress, according to the Supreme Court, "cannot control [the 14th Amendment's] meaning, or impair its effect, but must be construed and executed in subordination to its provisions."
It should be noted, however, that the Supreme Court does not question the validity of the Chinese Exclusion Acts as such.
1907 THE “CITIZENSHIP ACT OF 1907”: On 2 March, Congress establishes new obligations on citizens born abroad to register their intentions to eventually become residents of the United States in order to remain U.S. citizens, and to also take an oath of allegiance upon attaining a certain age. The language is as follows:


  • "That all children born outside the limits of the United States who are citizens thereof in accordance with the provisions of section nineteen hundred and ninety-three of the Revised Statutes of the United States and who continue to reside outside the United States shall, in order to receive the protection of this Government, be required upon reaching the age of eighteen years to record at an American consulate their intention to become residents and remain citizens of the United States and shall be further required to take the oath of allegiance to the United States upon attaining their majority." (Act of March 2, 1907, Section 6, 34 Stat. 1228, 1229.)


1927 WEEDIN V. CHIN BOW”; The Supreme Court issues a ruling clarifying the inability of a U.S. citizen to transmit citizenship to a child born abroad if the parent has never lived in the United States prior to the birth of the child abroad. (This is still true today, although the specific statutes upon which the Supreme Court's ruling was based have changed since 1927.) The ruling states:


  • A child born outside the U.S. cannot claim U.S. citizenship by birth through a U.S. citizen parent who had never lived in the U.S. prior to the child's birth.” (274 U.S. 657 (1927))


1934 THE “CITIZENSHIP ACT OF 1934”: On 24 May, Congress makes a major change to the “citizenship law” to now enable U.S. citizen mothers to also transmit U.S. citizenship at birth abroad. But for the first time the law now also creates a new burden by imposing a mandatory “subsequent five year residence requirement” in the United States, prior to reaching age eighteen, and an “oath of allegiance requirement” within six months of the child’s twenty-first birthday, for any child born abroad to parents, one of whom is an alien. The new law states:


  • "Any child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of birth of such child is a citizen of the United States, is declared to be a citizen of the United States: 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. In cases where one of the parents is an alien, the right of citizenship shall not descend unless the child comes to the United States and resides therein for at least five years continuously immediately previous to his eighteenth birthday, and unless, within six months after the child's twenty-first birthday, he or she shall take an oath of allegiance to the United States of America as prescribed by the Bureau of Naturalization." (Section 1, 48 Stat. 797.)


1939 “PERKINS V. ELG”: Marie Elizabeth Elg was born in the US to Swedish parents, who took her back with them to Sweden when she was a baby. Shortly after her 21st birthday, she obtained a US passport and returned to the US.
Some years later, the US government attempted to deport her on the grounds that when her parents had taken her to live in Sweden, she had become a Swedish citizen (under Swedish law), and as a result had lost her US citizenship. It was argued that an 1869 citizenship treaty between the US and Sweden, providing for the orderly transfer of citizenship by immigrants, called for loss of US citizenship following Swedish naturalization. This was one of the so-called "Bancroft Treaties" enacted between the US and numerous other countries between 1868 and 1937.
The Supreme Court rules, unanimously, that the actions of Elg's parents in obtaining Swedish citizenship for their daughter could not prevent her from reclaiming US citizenship and returning to the US as an adult, provided she did so within a reasonable time after reaching adulthood. The Elg case is not, strictly speaking, a dual citizenship case, since the court's assumption is that once Elg had reached adulthood, she had the right to choose US citizenship instead of (not in addition to) Swedish citizenship -- i.e., that this right had not been taken away from her by actions her parents had taken when she was a child.
Further, the law as it existed at the time did not, in fact, require Elg (who was born on US soil) to make an "election" of US citizenship (i.e., swear allegiance to the US and return to live there) upon reaching adulthood. The Supreme Court later rules in “Mandoli v. Acheson” that a US-born dual US/Italian citizen could keep his US citizenship despite not having made any such declaration. The issue is not really central to the Elg case anyway, because Elg did get a US passport and move back to the US before her 22nd birthday.
Congress later amends the citizenship law so that a child whose parents gave up or lost their citizenship and moved abroad could keep his citizenship by moving back to the US prior to reaching age 25. However, this provision is eventually repealed altogether in 1978 (Public Law 95-432).
Frances Perkins is Secretary of Labor in the administration of Franklin D. Roosevelt. The reason Perkins is listed first in the citation of this case is that a lower court (the Court of Appeals for the D.C. Circuit) had ruled in Elg's favor, and the government is appealing that ruling. Whenever a case comes before the US Supreme Court, the first name listed is always the "petitioner" -- i.e., the party which lost in the lower court and appeals to the Supreme Court. (307 U.S. 325 (1939))
1940 THE “NATIONALITY ACT OF 1940”: U.S. citizenship legislation is changed again, this time adding a new “prior residence in the United States” requirement for a U.S. citizen parent married to a non-American of at least ten years, five of which after attaining the age of sixteen years. This will cause problems for U.S. citizen mothers or fathers who are younger than twenty-one years of age, if they are married to an alien and have a child born abroad. There is also a “subsequent residence requirement”, this time of five years between the ages of thirteen and twenty-one. Citizenship will now “automatically expire” once it is impossible to meet this subsequent residency requirement. The language of this new legislation is:


  • "Section 201. The following shall be nationals and citizens of the United States at birth:




  • "(g) A person born outside the United States and its outlying possessions of parents one of whom is a citizen of the United States who, prior to the birth of such person, has had ten years' residence in the United States or one of its outlying possessions, at least five of which were after attaining the age of sixteen years, the other being an alien: Provided, That in order to retain such citizenship, the child must reside in the United States or its outlying possessions for a period or periods totaling five years between the ages of thirteen and twenty-one years: Provided further, That, if the child has not taken up a residence in the United States or its outlying possessions by the time he reaches the age of sixteen years, or if he resides abroad for such a time that it becomes impossible for him to complete the five years' residence in the United States or its outlying possessions before reaching the age of twenty-one years, his American citizenship shall thereupon cease.




  • (h) The foregoing provisions of subsection (g) concerning retention of citizenship shall apply to a child born abroad subsequent to May 24, 1934." (Section 201, 54 Stat. 1137)


1948 THE “UNIVERSAL DECLARATION OF HUMAN RIGHTS”: The United States is one of the 48 countries in the U.N. General Assembly that votes to adopt this Declaration on 10 December. Among its commitments are the following:





  • "All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination." (Article 7)




  • "Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality". (Article 15)




  • "Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State." (Article 16).




  • "Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection." (Article 25)


1950SAVORGNAN V. UNITED STATES ET AL.”: The U.S. Supreme Court holds that a native-born American citizen who, in the United States, became an Italian citizen in 1940, and lived in Italy with her husband from 1941 to 1945, thereby lost her American citizenship even if, when she applied for and accepted Italian citizenship, she did not intend to give up her American citizenship. (338 U.S. 49 (January 9, 1950)
1952 THE “IMMIGRATION AND NATIONALITY ACT OF 1952”: The Congress amends U.S. citizenship transmission and retention requirements once again. For citizens married abroad to an alien, the prior “physical presence in the United States requirement” is changed to ten years, five of which after the age of fourteen. Nineteen year old Americans married to aliens can now transmit U.S. citizenship to their children born abroad. The “citizenship retention criteria” for children born abroad to a U,S, citizen and an alien parent is now changed to a requirement to come to the United States prior to age twenty-three, and remain physically present for a continuous five years period before attaining the age of twenty-eight. Otherwise citizenship will expire at mid-night on the 23rd birthday. The language of this new legislation is as follows:


  • "Section 301. (a) The following shall be nationals and citizens of the United States at birth:




  • "(1) a person born in the United States, and subject to the jurisdiction thereof;




  • "(7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States, who prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totalling not less than ten years, at least five of which were after attaining the age of fourteen years.




  • (b) Any person who is a national and citizen of the United States at birth under paragraph (7) of subsection (a), shall lose his nationality and citizenship unless he shall come to the United States prior to attaining the age of twenty-three years and shall immediately following any such coming be continuously physically present in the United State(s) for at least five years: Provided, That such physical presence follows the attainment of the age of fourteen years and precedes the age of twenty-eight years.




  • (c) Subsection (b) shall apply to a person born abroad subsequent to May 24, 1934: Provided, however, That nothing contained in this subsection shall be construed to alter or affect the citizenship of any person born abroad subsequent to May 24, 1934, who, prior to the effective date of this Act, has taken up a residence in the United States before attaining the age of sixteen years, and thereafter, whether before or after the effective date of this Act, complies or shall comply with the residence requirements for retention of citizenship specified in subsections (g) and (h) of section 201 of the Nationality Act of 1940, as amended." (66 Stat. 163, 235, 8 U.S. Code Section 1401 (b), June 27, 1952.)

CITIZENSHIP FOR CHILDREN BORN ABROAD “OUT OF WEDLOCK”: Sec. 1409 of this new 1952 citizenship legislation also makes a provision for a “child born abroad out of wedlock” to become a U.S. citizen. The law for the first time makes a distinction between the rights of unmarried U.S. citizen men and women to transmit citizenship to a child born abroad. It requires five years of prior residence in the United States for a father, but only one year of prior residence for a mother. The language of this legislation is as follows:




  • Section 1409 - (a) The provisions of paragraphs (c), (d), (e), and (g) of section 1401 of this title, and of paragraph (2) of section 1408 of this title, shall apply as of the date of birth to a person born out of wedlock if –


(1) a blood relationship between the person and the father is established by clear and convincing evidence,
(2) the father had the nationality of the United States at the time of the person's birth,
(3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and
(4) while the person is under the age of 18 years –
(A) the person is legitimated under the law of the person's residence or domicile,

(B) the father acknowledges paternity of the person in writing under oath, or

(C) the paternity of the person is established by adjudication of a competent court.
(b) Except as otherwise provided in section 405 of this Act, the provisions of section 1401(g) of this title shall apply to a child born out of wedlock on or after January 13, 1941, and before December 24, 1952, as of the date of birth, if the paternity of such child is established at any time while such child is under the age of twenty-one years by legitimation.
(c) Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person's birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year. (66 Stat. 163, 235, 8 U.S. Code Section 1409, June 27, 1952.)
KAWAKITA V. U.S.”: Tomoya Kawakita is a dual US/Japanese citizen (born in the US to Japanese parents). He was in Japan when World War II broke out, and because of the war was unable to return to the US. During the war, he actively supported the Japanese cause and abused US prisoners of war who had been forced to work under him. After the war, he returned to the US on a US passport, and shortly thereafter he was charged with (and convicted of) treason for his wartime activities.
Kawakita claims that he had lost his US citizenship by registering in Japan as a Japanese national during the war, and as a result he could not be found guilty of treason against the US. Presumably, the reason Kawakita fights so tenaciously not to be considered a US citizen is that he sees this as the only way to escape a death sentence for his treason conviction.
However, the Supreme Court rules that since Kawakita had dual nationality by birth, when he registered himself as Japanese, he was simply reaffirming an already existing fact and was not actually acquiring Japanese citizenship or renouncing his US citizenship.
The court acknowledges that a dual citizen, when in one of his countries of citizenship, is subject to that country's laws and cannot appeal to his other country of citizenship for assistance. However, even when the demands of both the US and the other country are in irreconcilable conflict -- such as in wartime -- a dual US/other citizen must still honor his obligations to the US even when in the other country.
Although Kawakita loses his appeal, his death sentence is eventually commuted by President Eisenhower. He is released from prison, stripped of his US citizenship, and deported to Japan.
The reason the respondent in this case (the second party named in the case's title) is the United States -- rather than a government official (such as the Secretary of Labor or the Secretary of State) -- is that the case started as a criminal prosecution rather than as a lawsuit. (343 U.S. 717 (1952))
MANDOLI V. ACHESON”: Joseph Mandoli is a dual US/Italian citizen by birth (born in the US to Italian parents). He left the US as an infant and moved to Italy with his parents. When he sought to return to the US in 1937, his claim to US citizenship was rejected because he had failed to return promptly to the US upon reaching the age of majority, and also because he had served briefly in the Italian army in 1931.
The Supreme Court rules that the law, as it then stood, did not permit natural-born US citizens to be stripped of US citizenship for failing to return to the US upon reaching adulthood.
The court does not base its ruling in this case on any overarching constitutional arguments. Rather, it examines the legislative history of the portions of US citizenship law, and concludes that Congress had consciously chosen to make these provisions applicable only to naturalized US citizens (see “Rogers v. Bellei” below).
In particular, the court notes that although US law at that time required certain US citizens with childhood dual citizenship (such as those born abroad to American parents) to make a specific "election" of US citizenship (i.e., a declaration of allegiance followed by a return to the US) upon reaching adulthood, no such requirement applies to a person who had US citizenship on account of having been born in the US. Lower courts had apparently interpreted the Supreme Court's earlier decision in “Perkins v. Elg” as imposing such an "election" requirement quite broadly.
The court also decides that Mandoli's foreign military service did not warrant loss of his US citizenship because, under Mussolini's Fascist government, he really had had no choice but to join the Italian army.
Dean Acheson (Dean was his first name, not a title) is Secretary of State during Truman's second term as President. (344 U.S. 133 (1952))
1956 “FEE V. DULLES”: The Supreme Court hears a case based upon the 1934 legislation concerning a child born abroad on or after May 24, 1934, who acquired U.S. citizenship through one citizen parent. The law mandated that the child had to comply with certain conditions for establishing American residence in order to retain his American citizenship. In “Fee v. Dulles”, the lower courts uphold the original administrative position that a person who had not complied with the conditions prescribed by previous statutes had lost his citizenship and derived no benefit from the more generous retention provisions of the 1952 act. However, upon consideration of this issue when it reaches the Supreme Court, the Solicitor General “confesses error”, taking the position that a person who could comply with the terms of section 301 (b) and (c) would retain his American citizenship, even though he had not fulfilled similar provisions of the earlier statutes. The Supreme Court reverses the lower court, and thus adopts the view projected in the Solicitor General's “confession of error”. (236 F.2nd 855 (C.A. 7, 1956), (355 U.S. 61)).Supreme Court in Fee v. Dulles (236 F.2nd 855 (C.A. 7, 1956), (355 U.S. 61)).
1956 THE “CITIZENSHIP ACT OF MARCH 16, 1956,” (70 STAT. 50).


  • "That section 301 (a) (7) of the Immigration and Nationality Act shall be considered to have been and to be applicable to a child born outside of the United States and its outlying possessions after January 12, 1941, and before December 24, 1952, of parents one of whom is a citizen of the United States who has served in the Armed Forces of the United States after December 31, 1946, and before December 24, 1952, and whose case does not come within the provisions of section 201 (g) or (i) of the Nationality Act of 1940".


1957 THE “CITIZENSHIP ACT OF SEPTEMBER 11, 1957” (71 STAT. 644).


  • "Section 16. In the administration of section 301 (b) of the Immigration and Nationality Act, absences from the United States of less than twelve months in the aggregate, during the period for which continuous physical presence in the United States is required, shall not be considered to break the continuity of such physical presence."


1958 “THREE SUPREME COURT CASES ON LOSS OF NATIONALITY”: On March 31, 1958, the U.S. Supreme Court rules on three cases regarding loss of nationality. The decisions demonstrate that on loss-of-nationality issues the Supreme Court has abandoned the Savorgnan precepts of the past and that every statute for involuntary expatriation is now in jeopardy:
NISHIKAWA V. DULLES”: The case involves loss of nationality for service in the armed forces of a foreign state. It concernsd a dual U.S.-Japanese citizen who had been held to have lost U.S. citizenship by serving in the Japanese army in World War II. The court deems it unnecessary to reach the constitutional issue and rules that the U.S. Government has not established, with the requisite certainty, that the military service was voluntary. The Court holds that when the issue of voluntariness is raised, the U.S. Government has the burden of proving the voluntariness of the potentially expatriating act and must do so by clear, convincing, and unequivocal evidence. 356 U.S. 129 (1958)
PEREZ V. BROWNELL”: The Supreme Court rules again on the loss of U.S. citizenship. Clemente Martinez Perez, born in El Paso, Texas, on March 17, 1909, resided in the United States until 1919 or 1920 when his parents took him to Mexico. In 1928 he was informed that he had been born in the State of Texas.
During World War II he applied and was admitted into the United States as a Mexican alien railroad worker. His application for such entry contained his recitation that he was a native-born citizen of Mexico. By 1947, however, Perez had returned to Mexico and in that year applied for admission to the United States, this time as a citizen of the United States. Upon his arrival in the United States he was charged with failing to register under the “Selective Service Laws” of the United States during World War II. Under oath, Perez admitted that between 1944 and 1947 he had remained outside the United States to avoid military service and had voted in an election in Mexico in 1946.
On May 15, 1953, he surrendered to Immigration authorities in San Francisco as an alien unlawfully in the United States but claimed that he was a “citizen of the United States by birth” and thereby entitled to remain. The U.S. District Court, however, found that Perez had lost his American citizenship, a decision that was affirmed by the court of appeals. The lower courts held that Congress can attach loss of citizenship only as a consequence of conduct engaged in voluntarily, even if there was no intent or desire to lose citizenship. This law was enacted as the Nationality Act of 1940 (54 Stat 1137), as amended).
In 1958, a divided United States Supreme Court (5-4) upholds these decisions because Perez "became involved in foreign political affairs and evidenced an allegiance to another country inconsistent with American citizenship, thereby abandoning his citizenship." Two central holdings of Perez v. Brownell find that:


  • The provision of 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," sets forth the two principal modes (but not the only ones) for acquiring citizenship, but nothing in the terms, the context, the history, or the manifest purpose of the Fourteenth Amendment warrants the inference of a restriction upon the power otherwise possessed by Congress to withdraw citizenship.




  • Congress, acting under the Necessary and Proper Clause of Art I, 8, cl 18, of the Federal Constitution, may attach loss of nationality to voting in a foreign political election, since the means, withdrawal of citizenship, is reasonably calculated to effect the end that is within the power of Congress to achieve, the avoidance of embarrassment in the conduct of foreign relations attributable to voting by American citizens in such elections, and the importance and extreme delicacy of the matters sought to be regulated demand that Congress be permitted ample scope in selecting appropriate modes for accomplishing its purpose.” (356 U.S. 44 (1958))

The holdings in the Perez case will be repudiated by the Supreme Court nine years later, in “Afroyim v. Rusk.” Herbert Brownell Jr. is Attorney General during Eisenhower's first term in office.


TROP V. DULLES“: Albert Trop, a native-born citizen, was convicted of desertion while a private in the US Army during World War II. He was sentenced to three years at hard labor and dishonorably discharged. Some years later, his application for a passport is rejected on the grounds that he had lost his citizenship due to his desertion.
The Supreme Court, by a 5-4 vote, strikes down the relevant provision in the Immigration and Nationality Act. In three separate concurring opinions, various justices propose that citizenship can not be taken away by Congress at all; or, even if it can sometimes be revoked, it is unacceptable to give such power to military authorities. (356 U.S. 86 (1958)). This renders Section 401(g) of Nationality Act of 1940 (54 Statutes at Large 1137), as amended, and INA Section 349(a)(x) invalid. The four dissenters in this suit comprise the remainder of the Perez majority, and they find the statute a reasonable and constitutional measure.
NEW CONGRESSIONAL LEGISLATION ON CITIZENSHIP”: Largely as a result of these loss of citizenship decisions of the Supreme Court, Congress will enact Section 349(c) INA creating a rebuttable presumption that a potentially expatriating act was performed voluntarily. Congress thereby modifies the Court’s decision concerning the burden-of-proof requirement in loss-of-nationality cases.
1959 “DECLARATION OF THE RIGHTS OF THE CHILD”: On 10 December 1959, the United Nations adopts General Assembly Resolution 1386 (XIV) entitled the “Declaration of the Rights of the Child”.
The Declaration states:
WHEREAS the peoples of the United Nations have, in the Charter, reaffirmed their faith in fundamental human rights and in the dignity and worth of the human person, and have determined to promote social progress and better standards of life in larger freedom,
WHEREAS the United Nations has, in the Universal Declaration of Human Rights, proclaimed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,
WHEREAS the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth,
WHEREAS the need for such special safeguards has been stated in the Geneva Declaration of the Rights of the Child of 1924, and recognized in the Universal Declaration of Human Rights and in the statutes of specialized agencies and international organizations concerned with the welfare of children,
WHEREAS mankind owes to the child the best it has to give,
Now, therefore, the General Assembly Proclaims
THIS DECLARATION OF THE RIGHTS OF THE CHILD to the end that he may have a happy childhood and enjoy for his own good and for the good of society the rights and freedoms herein set forth, and calls upon parents, upon men and women as individuals, and upon voluntary organizations, local authorities and national Governments to recognize these rights and strive for their observance by legislative and other measures progressively taken in accordance with the following principles:
Among the important provisions it the following:
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