Schaufus v. Attorney General of United States, 1523.

• Decision Date: 07 May 1942
• Docket Number: No. 1523.,1523.
• Parties: SCHAUFUS v. ATTORNEY GENERAL OF UNITED STATES.
• Court: U.S. District Court — District of Maryland

45 F. Supp. 61

SCHAUFUS v. ATTORNEY GENERAL OF UNITED STATES.

No. 1523.

District Court, D. Maryland.

May 7, 1942.

COPYRIGHT MATERIAL OMITTED

Webster C. Tall and Francis A. Michel, both of Baltimore, Md., for petitioner.

Bernard J. Flynn, U. S. Atty., of Baltimore, Md., for Attorney General.

WILLIAM C. COLEMAN, District Judge.

This is a suit against the Attorney General of the United States for a declaratory judgment that the petitioner, Henry Sidney Schaufus, 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.

Most of the pertinent facts have been stipulated into the case by agreement of counsel. Other facts, some of which are pertinent, appear in the rather lengthy testimony of the petitioner. Suffice it to take from the stipulation and this testimony the following chronology respecting the petitioner: His father was born in Denmark in 1862 and emigrated to the United States when he was thirty-seven years old, that is, in 1889, and seven years later, that is, in 1896, he was naturalized in St. Louis, Missouri, where three years previously he had married a native citizen of Germany. The father, accompanied by the mother, returned to Denmark in 1899 and the following year they went to Germany where, in the same year, the present petitioner was born, that is, on October 9th, 1900. Two years later, petitioner was brought to this country by his parents, but three years after that, that is, in 1905, they returned with him to Germany and neither his father nor his mother ever again returned to this country. In 1917 petitioner's father became a German citizen, and died in Germany in 1938. During the petitioner's minority he traveled with his parents to different European countries, but Germany remained his and their domicile. It was there he received both his general and technical education and was employed. Commencing in 1921, he made repeated efforts to obtain a German passport to come to the United States, but was unsuccessful until 1927. He never made any claim that he was an American citizen, but desired to come to America for the purpose of accepting a position which had been offered him here.

Arriving in this country in 1927, petitioner filed, in the same year, a declaration of intention to become an American citizen. But he allowed his rights under this petition to expire after seven years through failure to take the necessary subsequent steps for naturalization. In December, 1934, he left this country as a German subject and spent approximately fifteen days in Germany, returning to the United States in January, 1935, on a re-entry permit. He made no further attempt to become naturalized until January 28th, 1939, when he again petitioned to be naturalized. Proceedings under this petition are still pending. He has resided in Maryland since 1929, and has registered as an alien in compliance with the provisions of the Alien Registration Act of 1940, 8 U.S.C.A. §§ 451-459. On December 9th, 1941, following the state of war with Japan and Germany, petitioner was arrested and detained for fifteen days by the Federal Bureau of Investigation for examination and was then given his liberty, conditioned upon periodically reporting to the local Bureau of Immigration and Naturalization, — a restriction such as was imposed upon others having a like apparent enemy alien status. Such action is claimed by petitioner to have been in derogation of his constitutional rights as an American citizen.

Petitioner claims that he has been an American citizen from birth because of the previous naturalization of his father. In support of this contention he relies upon Act March 2, 1907, §§ 6, 7 as amended in 1933 and 1934, 8 U.S.C.A. § 6, as recently construed by this court in Haaland v. Attorney General of United States, D.C., 42 F.Supp. 13, 16. This 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." By amendments in 1933 and 1934, Executive Order No. 6166, Sec. 14, June 10, 1933, and Act of May 24, 1934, Chap. 344, Sec. 1, 48 Stat. 797, 8 U.S.C.A. § 6, the requirements for descent of the right of citizenship upon the child were made more rigid, and the statute was repealed by the Nationality Act of 1940, 8 U.S. C.A. §§ 601(c), 713 and 807.

The Nationality Act of 1940 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. Sec. 904. Also, it 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." In view of the phraseology in the saving clause which we have just quoted, we do not think it can reasonably be said that the Nationality Act of 1940 was intended to apply to cases such as the present one where the time of petitioner's birth, which occurred long prior to the adoption of this act, is one of the basic factors in a determination of his present citizenship status. In other words, we believe that petitioner's status must be determined in accordance with the requirements of such law or laws as were in effect at the time this and subsequent related events occurred. The Act of March 2, 1907, from which the second and third sentences of Section 6 of Title 8 U.S.C.A., above quoted, are derived, was not in effect at the time of petitioner's birth which, as we have seen, occurred in 1900. However, the first and more important sentence of that section of the act is taken from the Act of February 10, 1855, c. 71, sec. 1, 10 Stat. 604, R.S. Sec. 1993, and from the Act of April 14, 1802, c. 26, sec. 4, 2 Stat. 155, and remained in effect until re-enacted as section 6 of the Act of March 2, 1907. See Weedin v. Chin Bow, 274 U.S. 657, 47 S. Ct. 772, 71 L.Ed. 1284.

There are other provisions in the statute of March 2, 1907, 34 Stat. 1229, which must be taken into account in the present inquiry, namely, sections 2 and 7 of that Act (which appear as the last three sentences of Section 17 of 8 U.S.C.A.), even though also repealed by the Nationality Act of 1940, Secs. 401, 404, 409, 8 U.S.C.A. §§ 801, 804, and 809, as amended October 16, 1941. Section 17 is as follows:

"Any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign State in conformity with its laws, or when he has taken an oath of allegiance to any foreign State.

"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 year. 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."

This part of the Act of March 2, 1907, was new. We are immediately concerned with it only in so far as it may affect the citizenship of petitioner's father. It is to be noted that it was not enacted until after petitioner was born. But even assuming that it is to be given retroactive effect, it cannot have had the effect of taking from the father his citizenship prior to petitioner's birth because the father had not been in Germany a year when his son was born there in 1900, that is, not long enough to have had the statutory presumption of intent to expatriate himself created against him. While, of course, the presumption created by the statute is not important if an earlier actual intent to expatriate existed on the part of the father, we must conclude that there is an absence of proof of any intent, either actual or presumptive, on his part to expatriate himself prior to 1900. The father had only left the United States a year before, had returned again two years later and had remained until 1905. From these facts, and from the absence of any proof with respect to what the father intended to do prior to 1905 when he definitely settled in Germany, we are disposed to give to the present petitioner the benefit of any doubt that may surround this question. We, therefore, conclude that the father was an American citizen at the time petitioner was born, and the father having also met the further requirement of Section 6 of 8 U.S.C.A., as to American residence, it follows that his American citizenship descended...