by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts."
Petitioner claims that these statements are mere dicta as applied to his claim and not entitled to consideration. But the Supreme Court in that case went fully into the whole question of citizenship in all of its aspects and this court could not ignore the carefully expressed opinions of the Supreme Court, even if this court should differ from that opinion.
On the question of derivative citizenship, the statute under which petitioner claims that he is entitled to a certificate of naturalization (8 U.S.C.A. § 399c (a) provides: "Any individual over twenty-one years of age who claims to have derived United States citizenship through the naturalization of a parent * * * may * * * make application to the Commissioner of Immigration and Naturalization * * * for a certificate of citizenship. Upon proof to the satisfaction of the commissioner that the applicant is a citizen and that the alleged citizenship was derived as claimed, * * * such individual shall be furnished a certificate of citizenship by the commissioner."
If the petitioner were a citizen under section 2172, Rev.Stat. (8 U.S.C.A. § 7) by reason of his mother having never lost her citizenship, he would not be entitled to the certificate which he seeks under section 399c (a) of 8 U.S.C.A., above quoted, for the certificate is to issue only to those who claim through the naturalization of a parent.
But his claim to a certificate of citizenship by virtue of his mother's repatriation is based upon more solid grounds.
Act March 2, 1907, § 5 (8 U.S.C.A. § 8) provides: "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 parent, where such naturalization or resumption takes place during the minority of such child. The citizenship of such minor child shall begin at the time such minor child begins to reside peramently in the United States."
In this case petitioner's mother resumed her American citizenship in 1923, when petitioner was a minor, and had brought petitioner with her. It would seem that he clearly comes within the provision of the statute; but respondents claim that the word "parent" does not include a mother, who had not been divorced nor was a widow. Petitioner's parents had separated by mutual consent, under an agreement in which the custody of petitioner was given to his mother. She established her domicile in this country and continued to live here with her child, and there is nothing on the face of the statute to support the contention of the respondents.
In 1934, the act last cited was amended to read as follows: "A child born wighout 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: And provided further, That the citizenship of such minor child shall begin five years after the time such minor child begins to reside permanently in the United States. (As amended May 24, 1934, c. 344, § 2, 48 Stat. 797.)" (Italics supplied.) 8 U.S.C.A. § 8.
In reporting this act to the Senate the committee made this comment: "Section 2 clarifies the present uncertainties of the law so that naturalization of an alien mother will confer United States citizenship upon her minor children born abroad who are admitted for permanent residence in the United States during their minority. The present law appears to confer United States citizenship upon such children but the uncertainty in the law makes necessary the clarifying language of the present bill."
I think that the amended act was passed not to change the former law but to clarify it, by expressing more clearly the intent of Congress. It is true of course that an act passed for the purpose of clarifying a former act does not change the law as it had theretofore existed, and could not divest parties of rights which had been acquired under the original act, but here the respondents had acquired no rights under the original act. They are merely agencies through which the intent of Congress as expressed in its statutes is carried out, and it would seem to be incumbent upon them to respect the construction which Congress has put upon its statutes.
I think that under the law petitioner became a naturalized citizen upon the resumption of citizenship by his mother. The facts are admitted by the demurrer, so that for the purposes of the hearing on the demurrer there can be no question as to the evidence before the Commissioner having been satisfactory to him. Under the facts admitted by the demurrer it would be his plain ministerial duty to issue the certificate.
No declaratory judgment will be needed, if the writ of mandamus shall issue.
The demurrer to the traverse should be overruled.
© 1992-2004 VersusLaw Inc.