307 U.S. 325 (1939), 454, Perkins v. Elg

Docket Nº:No. 454
Citation:307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320
Party Name:Perkins v. Elg
Case Date:May 29, 1939
Court:United States Supreme Court
 
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Page 325

307 U.S. 325 (1939)

59 S.Ct. 884, 83 L.Ed. 1320

Perkins

v.

Elg

No. 454

United States Supreme Court

May 29, 1939

Argued February 3, 1939

CERTIORARI TO THE COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

Syllabus

1. A child born here of alien parentage becomes a citizen of the United States. P. 328.

2. As municipal law determines how citizenship may be acquired, the same person may possess a dual nationality. P. 329.

3. A citizen by birth retains his United States citizenship unless deprived of it through the operation of a treaty or congressional enactment or by his voluntary action in conformity with applicable legal principles. P. 329.

4. It has long been a recognized principle in this country that, if a child born here is taken during minority to the country of his parents' origin, where his parents resume their former allegiance, he does not thereby lose his citizenship in the United States provided that, on attaining majority, he elects to retain that citizenship and to return to the United States to assume its duties. P. 329.

Expatriation is the voluntary renunciation or abandonment of nationality and allegiance. P. 334.

5. This right of election is consistent with the naturalization treaty with Sweden of 1869 and its accompanying protocol. P. 335.

6. The Act of March 2, 1907, in providing "That any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws, . . . " was aimed at voluntary expatriation, and was not intended to destroy the right of a native citizen, removed from this country during minority, to elect to retain the citizenship acquired by birth and to return here for that purpose, even though he may be deemed to have been naturalized under the foreign law by derivation from the citizenship of his parents before he came of age. P. 342.

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This is true not only where the parents were foreign nationals at the time of the birth of the child and remained such, but also where they became foreign nationals after the birth and removal of the child.

7. Recent private Acts of Congress for the relief of native citizens who have been the subject of administrative action denying their rights of citizenship cannot be regarded as the equivalent of an Act of Congress providing that persons in the situation of the respondent here have lost the American citizenship which they acquired at birth and have since duly elected to retain. P. 349.

8. Threats of deportation by the Secretary of Labor and immigration officials, and refusal by the Secretary of State to issue a passport, upon the disputed ground that the person affected has lost his native citizenship and become an alien wrongfully in the country, involve an actual controversy affording basis for a suit for a declaratory judgment that he is a citizen and for an injunction. P. 349

9. In such a suit, the Secretary of State is properly included in the declaratory provision of the decree, that he may be precluded from refusing to issue the passport solely upon the ground that the citizenship has been lost. Id.

69 App.D.C. 175, 99 F.2d 408, modified and affirmed.

Certiorari, 305 U.S. 591, to review the affirmance of a decree sustaining, as to the Secretary of State, and overruling, as to the Secretary of Labor and the Acting Commissioner of Immigration and Naturalization, a bill brought by Marie Elizabeth Elg for a declaratory decree establishing her status as an American citizen, and for injunctive relief against the respondents. There were cross-appeals to the court below.

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HUGHES, J., lead opinion

MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.

The question is whether the plaintiff, Marie Elizabeth Elg. who was born in the United States of Swedish parents then naturalized here, has lost her citizenship and is subject to deportation because of her removal during minority to Sweden, it appearing that her parents resumed their citizenship in that country but that she returned here on attaining majority with intention to remain and to maintain her citizenship in the United States.

Miss Elg was born in Brooklyn, New York, on October 2, 1907. Her parents, who were natives of Sweden, emigrated to the United States sometime prior to 1906, and her father was naturalized here in that year. In 1911, her mother took her to Sweden, where she continued to reside until September 7, 1929. Her father went to Sweden in 1922, and has not since returned to the United States. In November, 1934, he made a statement before an American consul in Sweden that he had voluntarily expatriated himself for the reason that he did not desire to retain the status of an American citizen and wished to preserve his allegiance to Sweden.

In 1928, shortly before Miss Elg became twenty-one years of age, she inquired an American consul in Sweden about returning to the United States and was informed that, if she returned after attaining majority, she should seek an American passport. In 1929, within eight months after attaining majority, she obtained an American passport which was issued on the instructions of the Secretary of State. She then returned to the United States, was admitted as a citizen and has resided in this country ever since.

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In April, 1935, Miss Elg was notified by the Department of Labor that she was an alien illegally in the United States, and was threatened with deportation. Proceedings to effect her deportation have been postponed from time to time. In July, 1936, she applied for an American passport, but it was refused by the Secretary of State upon the sole ground that he was without authority to issue it because she was not a citizen of the United States.

[59 S.Ct. 887] Thereupon she began this suit against the Secretary of Labor, the Acting Commissioner of Immigration and Naturalization, and the Secretary of State to obtain (1) a declaratory judgment that she is a citizen of the United States and entitled to all the rights and privileges of citizenship, and (2) an injunction against the Secretary of Labor and the Commissioner of Immigration restraining them from prosecuting proceedings for her deportation, and (3) an injunction against the Secretary of State from refusing to issue to her a passport upon the ground that she is not a citizen.

The defendants moved to dismiss the complaint, asserting that plaintiff was not a citizen of the United States by virtue of the Naturalization Convention and Protocol of 1869 (proclaimed in 1872) between the United States and Sweden (17 Stat. 809) and the Swedish Nationality Law, and Section 2 of the Act of Congress of March 2, 1907, 8 U.S.C. § 17. The District Court overruled the motion as to the Secretary of Labor and the Commissioner of Immigration and entered a decree declaring that the plaintiff is a native citizen of the United States but directing that the complaint be dismissed as to the Secretary of State because of his official discretion in the issue of passports. On cross-appeals, the Court of Appeals affirmed the decree, 69 App.D.C. 175, 99 F.2d 408. Certiorari was granted, December 5, 1938, 305 U.S. 591.

First. On her birth in New York, the plaintiff became a citizen of the United States. Civil Rights Act of 1866,

Page 329

14 Stat. 27; Fourteenth Amendment, § 1; United States v. Wong Kim Ark, 169 U.S. 649. In a comprehensive review of the principles and authorities governing the decision in that case -- that a child born here of alien parentage becomes a citizen of the United States -- the Court adverted to the

inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship.

United States v. Wong Kim Ark, supra, p. 668. As municipal law determines how citizenship may be acquired, it follows that persons may have a dual nationality.1 And the mere fact that the plaintiff may have acquired Swedish citizenship by virtue of the operation of Swedish law on the resumption of that citizenship by her parents does not compel the conclusion that she has lost her own citizenship acquired under our law. As at birth she became a citizen of the United States, that citizenship must be deemed to continue unless she has been deprived of it through the operation of a treaty or congressional enactment or by her voluntary action in conformity with applicable legal principles.

Second. It has long been a recognized principle in this country that, if a child born here is taken during minority to the country of his parents' origin, where his parents resume their former allegiance, he does not thereby lose his citizenship in the United States provided that, on attaining majority he elects to retain that citizenship and to return to the United States to assume its duties.2

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This principle was clearly stated by Attorney General Edwards Pierrepont in his letter of advice to the Secretary of State Hamilton Fish, in Steinkauler's Case, 15 Op.Atty.Gen. 15. The facts were these: one Steinkauler, a Prussian subject by birth, emigrated to the United States in 1848, was naturalized in 1854, and in the following year had a son who was born in St. Louis. Four years later, Steinkauler returned to Germany, taking this child, and became domiciled at Weisbaden, where they continuously resided. When the son reached the age of twenty years, the German Government called upon him to report for military duty, and his father then invoked the intervention of the American Legation on the ground that his son was a native citizen of the United States. To an inquiry by our Minister, the father declined to give an assurance that the son would return...

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