Lee You Fee v. Dulles, 11639.

• Decision Date: 26 September 1956
• Docket Number: No. 11639.,11639.
• Citation: 236 F.2d 885
• Parties: LEE YOU FEE, by Lee Q. Pon, his next friend, Plaintiff-Appellant, v. John Foster DULLES, as Secretary of State, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

236 F.2d 885 (1956)

LEE YOU FEE, by Lee Q. Pon, his next friend, Plaintiff-Appellant, v. John Foster DULLES, as Secretary of State, Defendant-Appellee.

No. 11639.

United States Court of Appeals Seventh Circuit.

September 26, 1956.

H. William Ihrig, Milwaukee, Wis., for appellant.

Edward G. Minor, U. S. Atty., by William J. Haese, Asst. U. S. Atty., Milwaukee, Wis., for appellee.

Before DUFFY, Chief Judge, and MAJOR and SWAIM, Circuit Judges.

SWAIM, Circuit Judge.

The plaintiff, Lee You Fee, by his next friend, Lee Q. Pon, his father, brought this action against the Secretary of State of the United States for a judgment declaring that the plaintiff is now and has been since birth a citizen and national of the United States, and directing the defendant to issue to the plaintiff a certificate of identity and other necessary papers which would constitute authorization to the plaintiff to travel and obtain transportation to the United States to enable plaintiff to present himself at an official port of entry of the United States to apply for entry therein.

The facts in this case are not disputed. Plaintiff was born in China on July 16, 1935, of a Chinese mother and a father who was a citizen of the United States. Plaintiff's father has been a permanent resident of the United States since 1926, and since 1936 has had his permanent residence in Milwaukee, Wisconsin. Plaintiff's grandfather was born in the United States. Plaintiff's father was born in China but came to the United States as a youth. He later visited China where he was married to plaintiff's mother. In 1936 plaintiff's father returned to the United States and during that year the plaintiff was taken by his mother from the province in China where he was born to the British Crown Colony of Hong Kong where he has since resided. On March 3, 1945, plaintiff's mother died and plaintiff thereafter was under the care of relatives of his mother.

The plaintiff insists that he and his father have made diligent efforts to bring plaintiff to the United States prior to his sixteenth birthday but that plaintiff was prevented from so coming to the United States by circumstances beyond his control. Those circumstances were that during World War II conditions were unsettled in China and in Hong Kong, and that neither the plaintiff nor his father could raise sufficient funds for plaintiff's transportation to the United States.

The District Court found that plaintiff's sixteenth birthday fell on July 16, 1951; that prior to that time plaintiff had not made application for the necessary travel papers to come to the United States; and that thereafter the American Consulate at Hong Kong formally informed the plaintiff that he was no longer a citizen of the United States due to the fact that plaintiff had not come to the United States prior to his sixteenth birthday as required by 8 U.S.C.A. § 601, 1942 Ed.¹ Section 601 provides:

"The following shall be nationals and citizens of the United States at birth:

* * * * * *

"(g) A person born outside the United States and its outlying possessions of parents one of whom is a citizen of the United States * * * the other being an alien: Provided, That, in order to retain such citizenship, the child must reside in the United States or its outlying possessions for a period or periods totaling five years between the ages of thirteen and twenty-one years: Provided further, That, if the child has not taken up a residence in the United States or its outlying possessions by the time he reaches the age of sixteen years * * * his American citizenship shall thereupon cease.

* * * * * *

"(h) The foregoing provisions of subsection (g) concerning retention of citizenship shall apply to a child born abroad subsequent to May 24, 1934." 8 U.S.C.A. § 601.

The Constitution confers citizenship only upon "persons born or naturalized in the United States, and subject to the jurisdiction thereof." Amendment XIV, Section 1. Clearly the plaintiff cannot claim citizenship under this provision of the Constitution. Plaintiff must therefore rely only on the provisions of such Acts as the Congress has passed under the authority of the Constitution.

As shown above, the Nationality Act of 1940 granted citizenship at birth to a child born in a foreign country to parents one of whom was a citizen of the United States, with certain residence requirements, and the other an alien. But this grant of citizenship was clearly made subject to the conditions subsequent that a person so born, to retain citizenship, "must reside in the United States or its outlying possessions for a period or periods totaling five years between the ages of thirteen and twenty-one years" and, further, that "if the child has not taken up a residence in the United States or its outlying possessions by the time he reaches the age of sixteen years * * * his American citizenship shall thereupon cease."

The Constitution of the United States, in Article I, Section 8, confers on the Congress the power to establish a uniform rule of naturalization. So long as the rule so established is uniform Congress may provide such conditions as it sees fit. In United States v. Wong Kim Ark, 169 U.S. 649, 668, 18 S.Ct. 456, 464, 42 L.Ed. 890, the Court said:

"Nor can it be doubted that it is 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.

"Both in England and in the United States, indeed, statutes had been passed at various times enacting that certain issue born abroad of English subjects, or of American citizens, respectively, should inherit, to some extent at least, the rights of their parents."

In the instant case the plaintiff was granted American citizenship at birth subject to the provision of the law that that citizenship would be lost by his failure to comply with the stipulated conditions. The plaintiff did fail to comply with these conditions and pursuant to the law he ceased to be a citizen of the United States.

As the trial judge pointed out, the 1940 statute, 8 U.S.C.A. § 601, made no exception, based on circumstances of hardship, to the requirement that a person, in a situation such as the plaintiff, in order to retain his citizenship was required to take up residence in the United States or its outlying possessions by the time he reached the age of sixteen years.

The plaintiff has cited two District Court decisions, Lee Bang Hong v. Acheson, 110 F.Supp. 48, and Lee Hong v. Acheson, 110 F.Supp. 60, and a decision of this court, Lee Wing Hong v. Dulles, 7 Cir., 214 F.2d 753, as supporting his contention that his citizenship was not lost by his failure to establish residence in the United States prior to his sixteenth birthday. But in each of those cases the plaintiff had made timely application and in each case the plaintiff's failure to reach the United States prior to his sixteenth birthday was due to the tardiness and unnecessary delay by officials of the consular office in issuing to the plaintiff the necessary travel orders. Certainly the Government should not be heard to contend that a plaintiff had been deprived of his citizenship because of the failure of the plaintiff to do something which the officials of the Government had carelessly or willfully prevented his doing. In the instant case the plaintiff did not make any application to come to the United States until after his citizenship had been lost because of his failure to comply with the condition that he establish his residence in the United States prior to his sixteenth birthday.

The plaintiff herein also insists that "Subsections (g) and (h) of section 201 of the 1940 Nationality Act, 8 U.S.C.A. § 601(g) and (h) are part and parcel of the expatriation provisions of such Act which...