Haaland v. Attorney General of the United States, 1249.

• Decision Date: 26 November 1941
• Docket Number: No. 1249.,1249.
• Citation: 42 F. Supp. 13
• Parties: HAALAND v. ATTORNEY GENERAL OF THE UNITED STATES.
• Court: U.S. District Court — District of Maryland

42 F. Supp. 13

HAALAND v. ATTORNEY GENERAL OF THE UNITED STATES.

No. 1249.

District Court, D. Maryland.

November 26, 1941.

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Webster C. Tall and George W. Della, III, both of Baltimore, Md., for petitioner.

Bernard J. Flynn, U. S. Atty., and T. Barton Harrington, Asst. U. S. Atty., both of Baltimore, Md., for the Attorney General.

COLEMAN, District Judge.

This is a proceeding in the nature of a suit against the Attorney General of the United States to obtain a declaratory judgment that the petitioner, Ole Haaland, is a citizen of the United States, brought pursuant to the provisions of Section 503 of the Nationality Act of 1940, 8 U.S. C.A. § 903.

The material and undisputed facts are as follows: Petitioner's father, Christian O. Haaland, was born in Norway in 1872, and emigrated to the United States in 1892 where he became, on August 27th, 1897, a naturalized citizen through naturalization proceedings in the State of Iowa. On October 7th, 1905, the father married one Olava Hanen in Iowa, she also having been born in Norway. Christian O. Haaland and his wife returned to Norway in November, 1907, where they have ever since resided, never having returned to the United States. In Norway, on October 6th, 1908, their son, Ole Haaland, the present petitioner, was born, and he resided there with his parents until May, 1929, that is to say, until a few months before he reached the age of twenty-one years, when he came to the United States upon a United States passport, issued to him by the United States Consul at Oslo, Norway, after having recorded, as he testified and which is not denied by the Government although not supported by documentary proof, his intention to become a resident and to remain a citizen of the United States and after having taken the oath of allegiance to the United States. Since his arrival in the United States on May 25th, 1929, the petitioner has followed the sea as his means of livelihood, but when not so engaged has resided in New York City, and more recently in Baltimore. On July 8th, 1937 there was issued to him by the United States Department of Commerce, Bureau of Navigation and Steamboat Inspection, a license as chief engineer of ocean steam vessels of unlimited tonnage, which certificate recites the facts in connection with petitioner's parentage and birth, as above stated.

Subsequently, that is on or about November 19th, 1938, the petitioner, desiring to visit his parents in Norway, applied to the Department of State for an American passport for that purpose, but this was denied him on the ground that he had not established to the Department's satisfaction, his American citizenship. Thereupon, because of a deep filial desire to see his parents, he applied for and obtained a Norwegian permit on which he went to Norway and returned to the United States on February 19th, 1939, as an alien immigrant. He has since taken out his first naturalization papers and also has registered as an alien under the Alien Registration Act, 1940, 8 U.S.C.A. §§ 451-459, which action, as he has explained, he took because of his deep-seated desire to establish his right to be declared an American citizen, and because no other avenue appeared to be open to him. After his unsuccessful efforts to obtain a favorable ruling from the Department of State, the petitioner presented his case formally to the Department of Justice (the Immigration and Naturalization Service of The United States having been placed under the Department of Justice by the Nationality Act of 1940); a hearing was had, and on June 24th, 1941, the Department notified him of its conclusion that he "is to be regarded as an alien." Thereupon, petitioner brought this proceeding.

The position of the Government as set forth in the answer filed on behalf of the Attorney General and assumed at the hearing, is that at the time of petitioner's birth in Norway, his father was not an American citizen, having returned to Norway in 1907 with the intention of resuming his residence in that country and with no intention of returning to the United States; and that therefore petitioner has never been an American citizen, because such status in his case was absolutely conditioned upon the father being an American citizen at the time of petitioner's birth.

The Government relies upon the Act of March 2nd, 1907, c. 2534, §§ 6 and 7, 8 U.S.C.A. § 6, and upon Article 3, of the Protocol to the Treaty between the United States, Sweden and Norway, of May 26th, 1869, 17 Stat. 809, this Treaty being one of a series of treaties with similar terms which our Government negotiated with various countries between 1868 and 1872. The statute is as follows: "All children born out of the limits and jurisdiction of the United States, whose fathers may be at the time of their birth citizens of the United States, are declared to be citizens of the United States; but the right of citizenship shall not descend to children whose fathers never resided in the United States. All such children 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. Duplicates of any evidence, registration, or other acts required by this section shall be filed with the Department of State for record."

The Treaty provision is as follows: "It is further agreed that if a Swede or Norwegian, who has become a naturalized citizen of the United States, renews his residence in Sweden or Norway without the intent to return to America, he shall be held by the government of the United States to have renounced his American citizenship.

"The intent not to return to America may be held to exist when the person so naturalized resides more than two years in Sweden or Norway."

The Government contends that both of the aforegoing apply to the present situation, the statute, because the petitioner was born outside of the United States after his father had been naturalized and because there was no other statute in effect at the time of petitioner's birth embracing such a situation; and the Treaty, because it obviously covers a status such as that of the petitioner's father, since he had renewed his residence in Norway. While the statute was amended in 1933 and 1934 (Executive Order 6166, § 14, June 10, 1933, and Act of May 24, 1934, chap. 344, § 1, 8 U.S.C.A. § 6), and was repealed by the Nationality Act of 1940, 8 U.S.C.A. §§ 601(c), 713 and 807, that Act expressly declares that nationality already lawfully acquired is not lost, and nationality already lost is not restored, by the repeal, 8 U.S.C.A. § 904. And that Act further provides, Section 347, 8 U. S.C.A. § 747, that it shall not be construed "to affect the validity of any declaration of intention, petition for naturalization, certificate of naturalization or of citizenship, or other document or proceeding which shall be valid at the time this chapter shall take effect; or to affect any prosecution, suit, action, or proceedings, civil or criminal, brought, or any act, thing, or matter, civil or criminal, done or existing, at the time this chapter shall take effect; but as to all such prosecutions, suits, actions, proceedings, acts, things, or matters, the statutes or parts of statutes repealed by this chapter, are hereby continued in force and effect," and by Section 410, 8 U.S.C.A. § 810, that nothing contained in it "shall be applied in contravention of the provisions of any treaty or convention to which the United States is a party upon October 14, 1940."

Thus, if we assume that the Act of March 2nd, 1907, as well as the Treaty controls, as we believe we must, for the reasons which we will set forth fully in a subsequent part of this opinion, the question in the present proceeding, upon the answer to which mainly depends the petitioner's right to be successful in this proceeding, is this: Was the petitioner's father a citizen of the United States at the time of the petitioner's birth? He was such by naturalization prior to his return to Norway in 1907, less than a year before his son, the petitioner, was born. Also, there is no doubt but that petitioner's father has lost his American citizenship by his long and uninterrupted resumption of residence in Norway. When did he first lose his citizenship? Whether he had already lost it at the time his son was born is a question of fact to be determined by his intentions. As the Treaty above quoted provides, there is a presumption that the father did not intend to return to America after he had resided more than two years in Norway. However, he had resided there less than one year when his son was born. The Government, nevertheless, maintains that petitioner's father must be considered to have renounced his naturalization in the United States upon his return to Norway.

At this stage of the inquiry it is pertinent to make note of another provision contained in the statute of March 2nd, 1907, c. 2534, §§ 2 and 7, 8 U.S.C.A. § 17, which is similar to the Treaty provision quoted, and is as follows: "When any naturalized citizen shall have resided for two years in the foreign State from which he came, or for five years in any other foreign State it shall be presumed that he has ceased to be an American citizen, and the place of his general abode shall be deemed his place of residence during said years. Such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, under such rules and regulations as the Department of State may prescribe. Duplicates of any evidence, registration, or other acts required by this section shall be filed with the Department of State for record." Under the ...