United States v. Uhl, 263.

• Decision Date: 18 August 1943
• Docket Number: No. 263.,263.
• Citation: 137 F.2d 903
• Parties: UNITED STATES ex rel. D'ESQUIVA v. UHL, District Director of Immigration.
• Court: U.S. Court of Appeals — Second Circuit

137 F.2d 903 (1943)

UNITED STATES ex rel. D'ESQUIVA v. UHL, District Director of Immigration.

No. 263.

Circuit Court of Appeals, Second Circuit.

August 18, 1943.

Arthur Garfield Hays, of New York City (Hays, St. John, Abramson & Schulman and James R. Cherry, all of New York City, on the brief), for petitioner-appellant.

Samuel Brodsky, Asst. U. S. Atty., of New York City (Mathias F. Correa, U. S. Atty., and Stuart Z. Krinsly, Asst. U. S. Atty., both of New York City, and Edward J. Ennis, Director, Alien Enemy Control Unit, Dept. of Justice, and Leo Gitlin, Atty., Dept. of Justice, both of Washington, D. C., on the brief), for respondent-appellee.

Before SWAN, CLARK, and FRANK, Circuit Judges.

CLARK, Circuit Judge.

By habeas corpus the relator sought release from detention by the respondent, who holds him in custody as an alien enemy under an order of the Attorney General purporting to act pursuant to the Alien Enemy Act, 50 U.S.C.A. § 21, and the presidential proclamation of December 8, 1941, No. 2526, 6 Fed. Reg. 6323. Appellant is a Jew born in Vienna, Austria, in 1891. His parents were native citizens of the Austro-Hungarian Empire. His petition alleges that in 1919 he went to France, intending never to return to Austria; and he never did return except to collect his inheritance from the estates of his parents in 1924. His domicile in France continued from 1919 to February, 1939, when he and his wife, a native French citizen whom he had married in Paris in 1938, came to the United States under tourist visas issued by the American Consulate General at Paris. In October, 1940, he executed an alien registration blank stating that he was last a citizen or subject of Austria. Respondent justifies detention of appellant on the ground that by reason of Austria's incorporation into the German Reich in 1938, as recognized by our government, he became a "native" and a "citizen" of Germany within the meaning of the statute.

Our decision in United States ex rel. Schwarzkopf v. Uhl, 2 Cir., 136 F.2d 898, disposes adversely to respondent of the contention that D'Esquiva is a German citizen. Long prior to the invasion of Austria he had taken up his abode in France and he has never elected to accept the sovereignty of the invader. Therefore, he never became a citizen of Germany. Moreover, if by German law he did become a German citizen, such citizenship was terminated by the Executive Order of November 25, 1941.

The government argues that he is at least a "native" of Germany within the meaning of that word as used in the statute.¹ The use by Congress of the four words "natives, citizens, denizens, or subjects" indicates that each word is to have a significant and different meaning. They include all who by reason of ties of nativity or allegiance are likely to favor the enemy nation. "Natives" must include others besides citizens or subjects of the hostile nation or government. In its ordinary and natural meaning the word refers to a person's place of birth. Hence a person remains a native of the country of his birth, although he has moved away and become a citizen or subject of another nation or government. See Minotto v. Bradley, D.C. N.D.Ill., 252 F. 600, 602, 603; cf. Ex parte Gilroy, D.C.S.D.N.Y., 257 F. 110, 127. This is inferable from the statute itself, which applies to "all natives, citizens, denizens, or subjects of the hostile nation or government, * * * who shall be within the United States and not actually naturalized." The exception of those who have been naturalized is necessary only because of the term "natives"; the other classes named would cease to be "citizens, denizens, or subjects" of a hostile nation by the very fact of naturalization in the United States. Appellant, therefore, was a native of Austria, and we think he remained such despite his removal to France for permanent residence.

The next step is to determine the application of the statute to a native of Austria after that country ceased to exist as an independent nation. Against respondent's claim that he is a native of what is now recognized as Germany, appellant argues that a native is a person born not only within the territory, but also "within the allegiance of the government," in question, citing 2 Kent's Commentaries 39 and 1 Blackstone's Commentaries 369. But these authors were using the term in a context where they were distinguishing aliens from natives, i.e., native-born citizens; and they had no occasion to face the distinction made necessary in this statute between natives and citizens, denizens, or subjects. What we have said above makes clear that, unless we would deprive the word of all meaning in the statute, the additional requisite for a native for which appellant contends cannot be supported. And we think that, unless bizarre results are to be accepted, the term "native of a hostile nation" must include one born of native-citizen parents at a place which has now been recognized by our government as a component part of a nation with which we are at war. Thus, a native of Prussia before the German Empire was proclaimed in 1871 would now be a native of Germany. And an Alsatian should not be held subject to detention as an alien enemy merely because (unlike other members of his family, for example) he happened to have been born after the original cession of Alsace to Germany and prior to its return to France in 1919. Cf. In re Pfleiger, D.C. S.D.N.Y., 254 F. 511.² Nor should changes in the composition of the nation — the adding or subtracting of parts, as with France and Germany in 1919, or the substitution of a federated republic for the empire, Germany, 1919 — make a discontinuity so that a native of the former nation is to be considered not now a native of the succeeding and present nation. The question is like that arising on deportation of aliens, where "country" means the state, which at the time of deportation includes the place from which the alien came, Mensevich v. Tod, 264 U.S. 134, 44 S.Ct. 282, 68 L.Ed. 591, or of his nativity, if he has not acquired a domicile elsewhere. United States ex rel. DiPaola v. Reimer, 2 Cir., 102 F.2d 40.

Hence, if Austria is now recognized as a component part of Germany, we think appellant is to be considered a German native and properly detained as such. Recognition of foreign nations, it is settled, is a political question, the determination of which by the legislative and executive departments of the government conclusively binds the courts. Jones v. United States, 137 U.S. 202, 212, 11 S.Ct. 80, 34 L.Ed. 691; United States v. Pink, 315 U.S. 203, 229, 62 S.Ct. 552, 86 L.Ed. 796. The district court, therefore, properly considered the acts of the Department of State taken with reference to the Austrian Anschluss of 1938.

In its able opinion, the court refers particularly to the photostatic copy of a letter of May 9, 1942, from the Secretary of State to the Attorney General in response to the latter's inquiry as to what diplomatic recognition was given by the United States Government to the incorporation of Austria into the German Reich. The Secretary referred the Attorney General to two notes which had been delivered to the German Foreign Minister on April 6, 1938, by the American Ambassador to Berlin pursuant to instructions from the Department of State. In substance these notes stated that the Government of the United States was obliged to close its legation in Vienna and to establish in place thereof a Consulate General because the Minister of the Republic of Austria had informed the Department of State on March 17, 1938, that Austria had ceased to exist as an independent nation and had been incorporated into the German Reich, and further that the Government of the United States was under the necessity for all practical purposes of accepting the...