Petition of Zogbaum

• Decision Date: 13 May 1929
• Parties: Petition of ZOGBAUM.
• Court: U.S. District Court — District of North Dakota

32 F.2d 911 (1929)

Petition of ZOGBAUM.

District Court, D. South Dakota.

May 13, 1929.

J. P. Creeley, District Director of Naturalization, amicus curiæ.

ELLIOTT, District Judge.

The record is without issue upon questions of fact.

The petitioner arrived at the port of New York, N. Y., on the steamship Bergensfjord, from Norway, on March 31, 1925. At the time of her arrival she was in possession of a Norwegian passport issued to her as a subject of Norway. She obtained admission to the United States for a specified period, which period was later extended upon her application. It further appeared, without dispute, that she was born December 5, 1871, at Rushford, Fillmore county, Minn., and as a child was taken to South Dakota, where she was reared and educated; that on December 30, 1896, she was married, in Norway, to Wilhelm Zogbaum, and resided there with him until he died in 1921, and in the spring of 1925 returned to the United States, where she has ever since been; that on May 14, 1928, she filed her petition in this court with a certificate of her arrival made a part thereof, under the Act of September 22, 1922 (8 USCA §§ 9, 10, 367-370).

This petition had for its purpose the determination of her status, and it is conceded that this petition is not in compliance with the statutes, in that the filing of a valid certificate of arrival showing entry for permanent residence is a mandatory prerequisite to a valid petition for naturalization. The filing of such petition, though not valid, as a petition for naturalization, gives this court jurisdiction to determine the status of the petitioner, and I am of the opinion that the practice of filing a petition for naturalization, where there is doubt as to the applicant's status, is a proper method of testing the status of the petitioner.

It appeared upon the hearing that the petitioner was married prior to the Act of March 2, 1907 (34 Stat. 1228); that she never was naturalized in a foreign country to which she went with her husband, and never took an oath of allegiance to any foreign state. The sole question presented is: Was the petitioner expatriated by her marriage prior to March 2, 1907, to an alien, and her residence in a foreign country until his death?

The status of this petitioner under the facts as they appear in this case is not a matter of first impression with me. Practically the same situation has been considered in more than one case in this jurisdiction. Having in view the provisions of the Act of March 2, 1907, the Act of September 22, 1922, and the fact that there was no legislation prior to that time, it has been, and is, my view that this petitioner did not lose her citizenship upon her marriage, long prior to March 2, 1907. It is suggested that petitioner's admission by immigration officials as an alien nonimmigrant for a temporary period is inconsistent with her status as an American citizen, she at the time of her admission having in her possession a passport as an alien, and it being conceded that she presented no proof of her birth in the United States, or her marriage to an alien, and made no showing and presented no claim of her possible expatriation under the provisions of the Act of March 2, 1907.

Considering the lack of knowledge by the petitioner of the elements that naturally or necessarily enter into the determination of her status, and that in making this petition for admission she simply followed the form and requirements as suggested by officials, I am not disposed to consider the record as there made as an admission that should be seriously considered against her in determining her status.

I recognize that there has been a marked difference of opinion relative to the effect upon the citizenship of a woman marrying an alien, and, as stated in L. R. A. note to Comitis v. Parkerson, (C. C.) 56 F. 556, 22 L. R. A. 148:

"The effect of marriage on wife's status as an alien is a question which has not been definitely solved, and the contrariety of opinion upon it shows it to be difficult of solution."

The fact remains, however, that, prior to the enactment of...