United States v. Marshall

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
Citation34 F.2d 219
Docket NumberNo. 46.,46.
PartiesUNITED STATES ex rel. ROJAK v. MARSHALL, District Director of Immigration.
Decision Date01 April 1929

M. M. Edmundson and Thos. E. Whitten, both of Pittsburgh, Pa., for relator.

John D. Meyer, U. S. Atty., and Zeno Fritz, Asst. U. S. Atty., both of Pittsburgh, Pa., for respondent.

McVICAR, District Judge.

Stefan Rojak was arrested by virtue of an order from the Assistant to the Secretary of Labor, and an order of deportation was made on the ground that he was an alien who had made an illegal entry into the United States. Rojak filed his petition for a writ of habeas corpus in this court, and alleged in support thereof that his arrest and detention was illegal, because he was a citizen of the United States. The government filed an answer, denying the allegation of citizenship. At the hearing it was stipulated that the evidence taken by the immigration authorities should be considered as the evidence in the habeas corpus proceeding. From this evidence we find the following facts:

The relator, Stefan Rojak, was born in the borough of Braddock, Allegheny county, Pennsylvania, March 28, 1900. In the year 1905 he returned with his mother to Czecho-Slovakia; his father returning a few years later. He remained continuously in Czecho-Slovakia, making it his home, from 1905 to April, 1925; a period of 20 years. He received his schooling in that country. He was married June 10, 1919, and has a wife and two children with whom he lived in Czecho-Slovakia until his departure therefrom, being a period of approximately 4 years after he arrived at the age of 21 years. He entered the military service of that country October 3, 1921, and after enlistment took the oath of allegiance thereto. He remained in the military service until November 21, 1922. When he left Czecho-Slovakia, in April, 1925, he procured a passport into Canada from that country, representing himself to be a citizen of Czecho-Slovakia. He arrived in Quebec, in the province of Ontario, Canada, April 25, 1925. From Quebec he went to Windsor. For a short time he made his home in Windsor and worked in Detroit, Mich. On January 28, 1926, he entered the United States at Detroit, and from there came to Allegheny county, Pennsylvania, to the community in which he was born. On October 26, 1928, he was arrested. At the first hearing he stated that he considered himself a citizen of Czecho-Slovakia, and at the second hearing (where he was represented by counsel) he claimed to be a citizen of the United States.

The government admits that Rojak, at the time of his birth, was a citizen of the United States, and that he remained a citizen of the United States until he arrived at the age of 21 years, but by reason of the aforesaid facts claims he has expatriated himself and is not now a citizen of the United States.

The question, therefore, is whether Rojak was a citizen of the United States when he entered therein, January 28, 1926. "Expatriation is the voluntary renunciation of one's nationality and allegiance by becoming a citizen of another country." 11 C. J. 783. Rev. St. § 1999, being section 15 of the U. S. Code (8 USCA), states:

"Whereas, the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness. * * * Therefore any declaration, instruction, opinion, order, or decision of any officer of the United States which denies, restricts, impairs, or questions the right of expatriation, is declared inconsistent with the fundamental principles of the republic."

The Act of March 2, 1907, being section 17 of the U. S. Code (8 USCA), provides that:

"Any American citizen shall be deemed to have expatriated himself when he has been naturalized in any...

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6 cases
  • Ex parte Quirin. Ex parte Haupt. Ex parte Kerling. Ex parte Burger. Ex parte Heinck. Ex parte Thiel. Ex parte Neubauer. United States ex rel. Quirin v. Cox, Brig. Gen., U.S.a., Provost Marshal of the Military District of Washington, and 6 other cases. Nos. &#8212 8212 1942
    • United States
    • United States Supreme Court
    • 31 July 1942
    ...abandoned his United States citizenship. See Perkins v. Elg, 307 U.S. 325, 334, 59 S.Ct. 884, 889, 83 L.Ed. 1320; United States ex rel. Rojak v. Marshall, D.C., 34 F.2d 219; United States ex rel. Scimeca v. Husband, 2 Cir., 6 F.2d 957, 958; 8 U.S.C. § 801, 8 U.S.C.A. § 801, and compare 8 U.......
  • Savorgnan v. United States v. 8212 1949
    • United States
    • United States Supreme Court
    • 9 January 1950
    ...v. United States, 292 U.S. 443, 54 S.Ct. 800, 78 L.Ed. 1353; United States v. Bradley, 7 Cir., 83 F.2d 483; United States ex rel. Rojak v. Marshall, D.C.W.D.Pa., 34 F.2d 219; 39 Op.Atty.Gen. 474 (1937—1940). 22 See Note 2, supra. 23 See note 10, 24 Where 'permanent residence' was intended, ......
  • Matter of Picone
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • 21 January 1963
    ...such a situation otherwise than under the provisions of the Act of 1907. See 39 Ops. A.G. 411, 412 (1940); United States ex rel. Rojak v. Marshall, 34 F.2d 219, 220 (W.D. Pa. 1929); United States ex rel. DeCicco v. Longo, 46 F. Supp. 170, 174 (D. Conn. 1942); contra, Leong Kwai Yin v. Unite......
  • Brandenberg v. Hurst
    • United States
    • Court of Appeals of Kentucky
    • 12 May 1942
    ...... . .          Under. the law prevailing in 1915, a citizen of the United States. forfeited his citizenship by taking an oath of allegiance to. a foreign State. In ...See. Camardo v. Tillinghast, 1 Cir., 29 F.2d 527;. United States ex rel. Rojak v. Marshall, D.C., 34. F.2d 219. After our declaration of war with Germany on April. 6, 1917, because one ......
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