Immediately after the war, the mother states that her intention continued to be to leave Hungary:
'Continuing my resolve to leave the country which had subjected me to such unspeakable persecution and which immediately fell under a dictatorship of a different hue, I could hardly wait to leave the blood stained soil and made every effort to depart at the earliest possible moment. I finally succeeded * * * early in 1947, and arrived in the United States in May 1947 resolved never to return to Hungary under any circumstances.'
The son became a United States citizen in 1952. The mother did so in 1954. Both have resided in the United States continually from their arrival in 1947. They arrived in 1947 on visitors' visas.
Given these facts, were plaintiffs 'domiciled in, or a subject, citizen or resident of' Hungary within the meaning and purpose of the International Claims Settlement Act? All of the words in that definition imply some reciprocal duties and obligations between the person and the country. The facts as outlined above demonstrate conclusively that plaintiffs had a firm and continuing intent to leave Hungary forever before March 13, 1941, the date Executive Order 8389 was applied to Hungary. In addition, they lost their home, they had no rights in law, they could not vote. Clearly, they were involuntarily in Hungary. They therefore cannot be considered either domiciled in, or subjects, citizens or residents of Hungary for purposes of a suit under 22 U.S.C. § 1631f(a). Congress could not have intended so inequitable a result, and Congress has specified that, in proceedings under this section, this Court sits as a court 'in equity.' Ibid.
This is apparently a case of first impression under this statute, since the only other reported case wad dismissed because the claimant failed to allege that she was not a 'national' of her country of origin, Rumania. Schrager-Singer v. Attorney General of the United States, 106 U.S.App.D.C. 258, 271 F.2d 841 (1959). There are, however, cases under section 9(a) of the Trading with the Enemy Act, 50 App.U.S.C.A. § 9(a), which are analogous, and support the Court's conclusion. See McGrath v. Zander, 85 U.S.App.D.C. 334, 177 F.2d 649 (1949); Kaku Nagano v. McGrath, 187 F.2d 759 (7th Cir., 1951); Guessefeldt v. McGrath, 342 U.S. 308, 72 S. Ct. 338, 96 L. Ed. 342 (1952). 'Our concept of a citizen is one who has the right to exercise all the political and civil privileges extended by his government * * *. Citizenship conveys the idea of membership in a nation.' Kaku Nagano, supra, 187 F.2d at 768. "'Resident within the territory' * * * connotes something different from and more than living within the specified areas. It is rather indicative of a settled and permanent place of abode, volitionally acquired and voluntarily assumed. * * *" McGrath v. Zander, 85 U.S.App.D.C. at 337, 177 F.2d at 652. 'Such legislation strongly counsels against literalness of application. It favors a wise latitude of construction in enforcing its purposes.' Guessefeldt, 342 U.S. at 319, 72 S. Ct. at 344, 96 L. Ed. 342.
The defendant's motion will therefore be denied.
© 1992-2004 VersusLaw Inc.