Rueff v. Brownell, Civ. No. 756-51.

• Decision Date: 17 November 1953
• Docket Number: Civ. No. 756-51.
• Citation: 116 F. Supp. 298
• Parties: RUEFF v. BROWNELL, Atty. Gen.
• Court: U.S. District Court — District of New Jersey

116 F. Supp. 298

RUEFF v. BROWNELL, Atty. Gen.

Civ. No. 756-51.

United States District Court, D. New Jersey.

November 17, 1953.

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Riker, Emery & Danzig and Alan V. Lowenstein, Newark, N. J., Landis, Taylor & Scoll, David E. Scoll, New York City, for plaintiff.

William F. Tompkins, Newark, N. J., Edward V. Ryan, Asst. U. S. Atty., Jersey City, for defendant.

SMITH, District Judge.

This is a civil action under Section 503 of the Nationality Act of 1940, 8 U.S.C.A. § 903.¹ The plaintiff seeks a judicial declaration that she is a citizen and national of the United States. The defendant urges the dismissal of the action on the ground that the plaintiff voluntarily expatriated herself by her failure "to elect between dual citizenship" when she attained majority, and thereafter continued to reside in a foreign state. The essential facts are not disputed.

Facts.

I.

The plaintiff's parents were native born citizens of the United States who resided in this country previous to her birth. Her father, Charles M. Torrance, was born in Brookfield, Missouri, on June 26, 1876, and resided in this country until early in 1900, when he emigrated to Germany; her mother, Bertha E. Torrance, nee Regnier, was born in Atchison, Kansas, on September 28, 1881, and resided in this country until 1890, or a short time thereafter, when she emigrated to Germany with her parents. The plaintiff's parents were married in Germany and thereafter resided there, her father until his death in 1917 and her mother until the present time.

II.

The plaintiff was born in Frankfort on Main, Germany, on December 14, 1910, at which time both parents were still citizens of the United States. She resided with her parents in Frankfort on Main until the death of her father in 1917, and thereafter with her mother in Heidelberg, Germany, until June 1933, when the plaintiff emigrated to London, England. She established a residence in London and did not return to Germany except on occasional visits to her mother. It is admitted that on these visits she traveled on a German passport issued some years before, but which was renewed by her in 1931 and again in 1936. We note, however, that this passport was issued in 1926 on the application of the plaintiff's mother.

III.

The plaintiff's mother became a naturalized citizen of Germany on November 26, 1918, and the plaintiff, who was then a minor, acquired derivative citizenship under the naturalization laws of Germany. Thereafter the plaintiff was erroneously informed by her mother and other members of her family that she had thus lost her status as a citizen of the United States. This erroneous information was confirmed by others after she attained her majority. The testimony of the plaintiff that she was unaware of her rights until 1934 therefore seems credible.

IV.

When the plaintiff emigrated to England in 1933 she sought employment, and, as required by law, registered as a citizen and national of Germany. However, in the following year she made inquiry regarding the status of her citizenship at the office of the American Consular Service and was there erroneously informed that, having acquired derivative citizenship in Germany by reason of the naturalization of her mother, she was no longer a citizen of the United States. There is no record of this inquiry, but the testimony of the plaintiff is indirectly corroborated by the official action of the Department of State on later applications.

V.

The plaintiff took no further action until January of 1939, when she, intending to travel on her German passport, applied for a visitor's visa at the office of the American Consular Service at London. The consular officer, entertaining some doubt as to the status of the plaintiff's citizenship, denied the application but granted her a provisional visa which permitted her entry into the United States for the purpose of seeking a determination of her status. The plaintiff entered this country in February of the same year, and shortly thereafter consulted an attorney.

VI.

The plaintiff executed a formal passport application, which was filed in the Department of State on March 14, 1939. The Department of State, in a letter dated April 5, 1939, advised the plaintiff as follows: "This Department has consistently held that when an American parent acquires the nationality of a foreign state in conformity with its laws and his or her minor children also acquire the nationality of such foreign country under its laws, the parent and children must be held to have lost American citizenship under the provisions of the first paragraph of Section 2 of the Act of March 2, 1907 (U.S.Code, Title 8, Section 17). Accordingly, in view of your naturalization as a German citizen through your mother's acquisition of such citizenship, you must be regarded as having lost your American citizenship and are not entitled to receive a passport of this Government." (Exhibits P-13 and D-1).

VII.

The plaintiff again made an application for a United States passport on October 11, 1939, approximately four months after the Supreme Court decided the case of Perkins v. Elg, infra. This application, which was filed in the office of the American Consular Service at London, was denied by the Department of State. The denial of the application was apparently predicated on concommitant grounds: first, the failure of the plaintiff to elect United States citizenship, and second, her failure to establish residence in this country within a reasonable time after she attained her majority. (Exhibits P-14 and D-1).

VIII.

The plaintiff was advised by letter dated November 10, 1939, as follows: "In view of a recent decision of the Supreme Court of the United States bearing upon the question involved in Miss Torrance's case, the Department's practice in respect to the expatriation of a minor child through a parent has been modified to the extent that a minor, being a citizen of the United States, who acquires derivatively the nationality of a foreign state through the foreign naturalization of a parent will not, in the absence of specifically applicable treaty stipulations, be considered by the Department as having lost his or her citizenship of the United States Provided Shortly Before or Shortly After Attaining Majority the Person Concerned Manifests His or Her Election to Retain American Citizenship and to Return to the United States to Reside." (Emphasis by the Court).

IX.

The plaintiff filed a third application for a United States passport on August 1, 1941, approximately six months after the effective date of the Nationality Act of 1940, infra. This application, which was filed in the office of the American Consular Service at London, was denied by the Department of State on September 22, 1941. The Department of State confirmed its decision of November 10, 1939, and held that the plaintiff had expatriated herself. (Exhibit D-1).

X.

The plaintiff married one Henri Rueff, a citizen and national of Belgium, in Chelsea, England, on October 11, 1941. She thus acquired derivative Belgian citizenship under the laws of Belgium, but she did not make either a formal declaration of allegiance to Belgium or a formal renunciation of her allegiance to the United States; she therefore did not suffer expatriation under the laws of the United States. See Section 401 of the Nationality Act of 1940, 8 U.S.C.A. § 801.²

XI.

The plaintiff entered this country in 1945 in the company of her husband, who, as an official of the Belgian Economic Mission, came here on business; she traveled on a Belgian passport, which expired on August 4, 1951. Her husband resigned his position in 1948 and returned to Belgium; the plaintiff remained in the United States. The plaintiff's husband re-entered the United States in 1949 as a quota immigrant, and he and the plaintiff now reside in Montclair, New Jersey.

XII.

The plaintiff applied for a certificate of derivative citizenship on August 2, 1949. This application was denied by the Immigration and Naturalization Service on November 7, 1950. Thereafter deportation proceedings were initiated. The present action was commenced on August 3, 1951, and further action in the deportation proceedings has been held in abeyance.

XIII.

While the plaintiff was a resident of London, she made formal application to the Home Secretary for Naturalization to be naturalized under the laws of England. This application, which was filed in September 1938, was not processed prior to the advent of the war, and action thereon was therefore suspended during the war. The plaintiff abandoned the application and therefore did not make either a formal declaration of allegiance to England or a formal renunciation of her allegiance to the United States.

Discussion.

The plaintiff acquired United States citizenship at and by birth, under Section 1993 of the Revised Statutes,³ which, prior to its amendment by the Act of May 24, 1934, 48 Stat. 797, read as follows: "All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States." She acquired a derivative foreign citizenship under the laws of Germany upon the naturalization of her mother in 1918. Thereafter the plaintiff was a citizen and national of both the United States and Germany.

The citizenship acquired by the plaintiff under Section 1993 of the Revised Statutes, supra, is deemed to continue, notwithstanding her acquisition of a derivative foreign citizenship during minority, unless she has been deprived of it by either operation of law or voluntary action in conformity with applicable legal principles. Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320; Kawakita v. United States...