99 F.2d 408 (D.D.C. 1938), 7096, Perkins v. Elg
| Citation | 99 F.2d 408 |
| Party Name | PERKINS, Secretary of Labor, et al. v. ELG. [*] ELG v. PERKINS, Secretary of Labor, et al. |
| Case Date | August 01, 1938 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — District of Columbia Circuit |
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Argued June 14, 1938.
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David A. Pine, U.S. Atty., and John H. Mitchell, Asst. U.S. Atty., both of Washington, D.C., for Frances Perkins and another.
Henry F. Butler, of Washington, D.C., for Marie E. Elg.
Before GRONER, Chief Justice, and MILLER and VINSON, Associate justices.
GRONER, C. J.
The main question in this case is whether appellee, a natural born citizen of the United States, has lost her citizenship involuntarily and by operation of law, by reason of her removal from the United States by her parents in her infancy and her residence in a foreign country until she was 21 years of age.
A secondary question is whether the suit is properly brought under the Declaratory Judgment Act, 28 U.S.C.A. 400.
The facts are these: Marie Elizabeth Elg was born October 2, 1907, in the city and state of New York, and at the time of bringing this suit was and now is a resident of Mt. Kisco, Westchester County, New York. Some years prior to her birth her parents emigrated from Sweden to the United States, and in September 1906 her father was naturalized in New York. In 1911, when four years of age, Miss Elg was taken by her mother to Sweden, where she resided until she was 21 years of age. Her father remained in the United States until 1922, at which time he too returned to Sweden, where he has lived ever since. Shortly before she attained her majority Miss Elg inquired of an American consul in Sweden what steps she should take when she reached legal age to return to the United States as an American citizen. As the result of this inquiry the Secretary of State of the United States issued instructions to the consul at Goteborg on Sweden to furnish Miss Elg an American citizen's passport, and in 1929 when 21 years of age, Miss Elg returned to the United States and was admitted at the port of New York as a natural born citizen of the United States. In April 1934-- , because investigation of her father's status by American consular officials developed the fact that he had no intention of returning to the United States and was willing to surrender his naturalization certificate,--Miss Elg was examined by the immigration service in New York; and in April 1935 she was notified that she was an alien illegally in the United States, and was ordered to leave the country and threatened with deportation if she did not. As the result of her protest, the Secretary of Labor and the Commissioner of Immigration, as a matter of grace, suspended action temporarily, but all the while insisting upon the validity of the holding that she was an alien illegally in the United States and all the while threatening to have her deported. In July 1936 Miss Elg applied to the Secretary of State for an American passport, which the Secretary refused on the ground that, because of the residence of her father in Sweden since 1922 without the intention of returning to the United States, the Department considered that he had renounced his American citizenship and reacquired Swedish nationality, and that because of her residence with her father she too had lost the one and acquired the other.
In January 1937 Miss Elg brought her suit in the United States District Court in the District of Columbia against the Secretary of Labor, the Commissioner of Immigration, and the Secretary of State. She prayed for a judgment declaring that she is a natural born citizen of the United States and entitled to all the rights and privileges of a citizen; and she prayed further that the Secretary of Labor and the Commissioner of Immigration be enjoined from carrying out the threat to deport her from the United States or
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from interfering with her residence therein; that the Secretary of State be enjoined from officially holding her not to be a citizen of the United States and refusing to issue her a passport; and for general relief. A show cause order was issued, and the case was heard on the return thereto and on a motion to dismiss the bill. The court held that plaintiff had not lost her American citizenship by her residence abroad during her minority; that when she elected to return and did return to the United States immediately after her emancipation she was entitled to be treated as a citizen of the United States; and that the deportation proceedings begun against her and suspended only by her suit, presented an actual controversy entitling her to a declaratory judgment. The court dismissed the bill as to the Secretary of State on the ground that the issuance of a passport involved discretion, but refused to dismiss as to the Secretary of Labor and the Commissioner of Immigration. All parties elected to stand on their pleadings, and the present cross appeals were duly effected.
We think the decision of the lower court is in all respects correct.
The law of England, as of the time of the Declaration of Independence, was that a person born in that kingdom owed to the sovereign allegiance which could not be renounced. Many early American decisions applied that as the common law in this country. All agreed that every free person born within the limits and the allegiance of a State of the United States was a natural born citizen of the State and of the United States. And this was undoubtedly the view of Mr. Justice Curtis in his dissenting opinion in the Dred Scott Case, 19 How. 393, 581, 15 L.Ed. 691, in which he said:
' * * * we find that the Constitution has recognized the general principle of public law, that allegiance and citizenship depend on the place of birth.'
This doctrine of citizenship by reason of place of birth is spoken of by the writers on the subject as the jus soli or common law doctrine. The Roman rule is different and is in effect in many of the continental European countries. This is called the jus sanguinis and depends upon the nationality of the parents and not upon the place of birth. Professor Bluntschild, in speaking of the latter doctrine, said:
'The bond of the family lies at the foundation of national and political life, and attaches the child to the people among whom he is born. The opinion that fixes upon the locality of nativity, instead of the personal tie of the family, as the cause of nationality, abases the person to be a dependence of the soil. ' 1
But this was not the common law. 2 United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890. When the Constitution was adopted the people of the United States were the citizens of the several States for whom and for whose posterity the government was established. Each of them was a citizen of the United States at the adoption of the Constitution, and all free persons thereafter born within one of the several States became by birth citizens of the State and of the United States. 3
The first attempt by Congress to define citizenship was in 1866 in the passage of the Civil Rights Act (Rev. St. Sec. 1992, 8 U.S.C.A. § 1). The act provided that:
'All persons born in the United States and not subject to any foreign power are declared to be citizens of the United States.'
And this in turn was followed in 1868 by the adoption of the Fourteenth Amendment, U.S.C.A. Const. Amend. 14, declaring:
'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.'
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As a result of the adoption of the amendment, whatever differences existed between statesmen and jurists on the general subject prior to the War Between the States was put to rest, and it may now be stated as an established rule that every person born within the United States (except in the case of children of ambassadors, etc.), whether born of parents who are themselves citizens of the United States or of foreign parents, is a citizen of the United States. In the Wong Kim Ark Case, supra, the whole question of citizenship is traced from its source and the subject is so elaborately considered as to make unnecessary any further reference to this phase of the question. But see generally on the subject: McCreery v. Somerville, 9 Wheat. 354, 6 L.Ed. 109; In re Look Tin Sing, C.C., 21 F. 905; Ex parte Chin King, C.C., 35 F. 354; Gee Fook Sing v. U.S., 9 Cir., 49 F. 146; Lynch v. Clarke, 1 Sandf. Ch., N.Y., 583; Opinion of Attorney General Black in 1859, 9 Op.Attys.Gen. 373; Opinion of Attorney General Bates in 1862, 10 Op.Attys.Gen. 394.
And this brings us to the second branch of the question, that is, whether appellee through the act of her parents has lost the rights of citizenship which she acquired at her birth. The question is not new. In circumstances such as these Attorneys General have for nearly a hundred years, and almost unanimously, answered it in the negative; and their views are supported by the decisions of many courts.
In this case it is agreed that appellee has done no act of her own showing an intention to surrender or forfeit her rights as a citizen of the United...
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