United States v. Cohen

• Decision Date: 14 June 1910
• Docket Number: 292.
• Citation: 179 F. 834
• Parties: UNITED STATES v. COHEN.
• Court: U.S. Court of Appeals — Second Circuit

179 F. 834

UNITED STATES v. COHEN.

No. 292.

United States Court of Appeals, Second Circuit.

June 14, 1910

A. S Pratt, Asst. U.S. Atty.

Before COXE and WARD, Circuit Judges, and HAZEL, District Judge.

COXE Circuit Judge.

The United States appeals from an order of the Circuit Court for the Southern District of New York admitting Henrietta Cohen to citizenship. The appellee is 60 years of age, was born in Germany, arrived in this country in October, 1869, and has resided in New York since that date. She filed her declaration of intention in July, 1907, and her petition for naturalization on August 6, 1909. In, or about, the year 1870, she was married to Tobias Cohen who was, and still is a subject of the Emperor of Russia. They are still living together as husband and wife and during their married life six children have been born to them.

The record presents the single question-- whether the alien wife of an alien man, both having resided in this country as husband and wife for over 30 years, can become a citizen? We are unable to find a decision of the Supreme Court or of a Circuit Court of Appeals upon the precise question here in issue, but there is attached to the brief of the District Attorney an unreported decision of Judge Adams, of this circuit, denying an application based upon, substantially identical facts. The question is interesting and is, by no means, free from doubt, but we incline to the opinion that both on principle and authority it should be answered in the negative.

The admission to American citizenship is a high privilege which should not be granted upon a doubtful interpretation of the law. It must be conceded that there is no specific provision of the statutes which permits the naturalization of the alien wife of an alien husband. On the contrary, as was pointed out by Judge Henry B. Brown in Peguingot v. Detroit, 16 F. 211, the general trend of legislation has been constantly toward the recognition of the proposition that the husband is the head of the family and that his wife and minor children take his citizenship, it being inconsistent with the theory of our laws that the wife shall be a citizen and the husband an alien and vice versa.

The expatriation act of March 2, 1907 (Act March 2, 1907, c. 2534, 34 Stat. 1228 (U.S. Comp. St. Supp. 1909, p. 438)), provides as follows:

'Sec. 2. That any American citizen shall be deemed to have expatriated himself when he

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