proceedings for naturalization, and finding that the certificate of naturalization was obtained by misrepresentation of material facts, they held it to be null and void.1

In the Flutie case before the United States-Venezuelan commission of 1903, in an able opinion, it was held that a certificate of naturalization is not binding on an international commission to establish the citizenship of a claimant where the facts show that the necessary prerequisites for granting the certificate were not fulfilled by the applicant for naturalization.2

The recent Spanish Claims Commission heard extended and able arguments on the question now under discussion in the cases of Torres and Ruiz. In an elaborate opinion in the Ruiz case, after reviewing decisions of other commissions, they held:

"The judgment of naturalization is prima facie evidence of its regularity and will be given full faith and credit until the defendant overcomes its conclusiveness by proof. The degree of proof which will constitute a sufficient demonstration by the defense in cases of fraudulent naturalization must necessarily rest in the discretion of the Commission. . . The burden upon the defendant in this case is to prove the legal fraud perpetrated by claimant in the procurement of his naturalization certificate and cannot be shifted by evidence showing errors or irregularities in the proceedings or by raising a doubt merely in the minds of the Commission. The proof cannot stop at showing that the facts made to appear to the satisfaction of the court which granted naturalization were false. It must at least go to the extent of satisfying the Commission that the statements and representations made by him at the time he filed his original declaration and at the time of procuring the judgment were false, or facts must be proven from which such fraud would be implied, and it must appear that his false representations and the representations procured by him to be made by the other witnesses were intentionally used by him for the purpose of deceiving the court and thereby securing his certificate of naturalization."

§ 227. Conclusiveness upon the Executive.

1

On the theory that naturalization, while a judicial, is not an adversary

1 Kuhnagel (France) v. U. S., ibid. 2647, 2649; Boutwell's Report, 72 (in which the decision upheld claimant's French citizenship). See also Bouillotte (France) v. U. S., ibid. 2650, 2652.

2 Flutie (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 38, 41.

3 Ruiz v. U. S., Spanish Treaty Cl. Com., No. 112, printed in Van Dyne, Naturalization, 177-178. See Final Report of the Commission, May 2, 1910, 13-14.

proceeding, and that it is an ex parte proceeding in which the government has neither notice nor appears, it has been held that the United States is not concluded by erroneous recitals in the record.1

Whether it is on this ground or in the exercise of the discretion vested in the Secretary of State by § 4075 of the Revised Statutes, it is certain that the Department of State declines to recognize the validity of a certificate of naturalization when it appears that it was obtained by mistake or by fraud, and refuses to issue a passport upon it, without reference to the holder's rights otherwise as a citizen.2 If a passport is obtained through such a certificate and subsequently that fact becomes known, a cancellation or return of the passport is demanded, or appropriate representations made to the proper foreign government. Similarly, a certificate of naturalization being only prima facie evidence of citizenship and therefore of title to protection, diplomatic protection may be and is declined whenever it appears that the certificate was fraudulently obtained or that the naturalized citizen has, either according to statute 5 or international practice, forfeited his right to diplomatic protection.

1 Johannessen v. U. S., 225 U. S. 227, 237; Akerman, Atty. Gen., in 13 Op. Atty. Gen. 176, although his legal reasons are inaccurate; Mr. Fish, Sec'y of State, Circulars of May 2, 1871, For. Rel., 1871, pp. 25, 26. International commissions, as has been observed, have held that foreign governments are not bound, supra. See also Ruiz v. U. S., in Van Dyne, 166.

2 Mr. Bayard, Sec'y of State, to Mr. Scruggs, May 16, 1885, For. Rel., 1885, 211, and other instructions in For. Rel., paraphrased in Moore's Dig. III, 510-513, 909– 910. Mr. Hay, Sec'y of State, to Mr. Sampson, Jan. 21, 1902, For. Rel., 1902, 389. 3 Mr. Bayard, Sec'y of State, to Mr. McLane, Dec. 8, 1888, For. Rel., 1888, I, 565, and Moore's Dig. III, § 524.

4 Mr. Fish, Sec'y of State, to Mr. Maynard, Feb. 11, 1876, Moore's Dig. III, 505; Mr. Blaine, Sec'y of State, to Mr. Hirsch, Dec. 17, 1890, ibid. 512. See also 14 Op. Atty. Gen. 295.

5 Act of March 2, 1907, § 2; Act of June 29, 1906, § 15.

E. g., Failure of bona fide intention to assume duties of American citizenship. Margolin's case, For. Rel., 1901, 450-451. Refusal to present evidence of citizenship, Moribold case in China, 1912. See infra, § 337 et seq.

CHAPTER III

NATURALIZATION AND OTHER TITLES TO CITIZENSHIP

OR PROTECTION

FRAUDULENT NATURALIZATION

§ 228. Municipal Penalties.

The statutes of the United States penalize false swearing in any of the proceedings under the naturalization laws, as well as false personation, forgery, altering or using a false or counterfeit certificate of naturalization,2 or unlawfully procuring naturalization.3

It has been noted that the United States may bring suit to set aside or cancel a fraudulently obtained naturalization certificate.1 Section 15 of the Act of June 29, 1906, provided for the first time that when a naturalized citizen establishes a permanent residence abroad within five years after his naturalization, it shall be deemed prima facie evidence that the naturalization was obtained in bad faith. The relevant provisions of this section have been incorporated in substance in a circular instruction of the Department of State on the subject dated April 19, 1907,5 which reads:

"When any alien who has secured naturalization of the United States shall proceed abroad within five years after his naturalization and shall take up his permanent residence in any foreign country within five years after the date of his naturalization, it shall be deemed prima facie evidence that he did not intend in good faith to become a citizen of the United States when he applied for naturalization, and in the absence

1 Act of March 4, 1909, § 80 of the U. S. Criminal Code; Act of June 29, 1906, § 23. 2 Act of March 4, 1909, §§ 74-79, U. S. Criminal Code, repealing §§ 16, 17 and 19 of Act of June 29, 1906.

Act of June 29, 1906, § 23. The statutes above mentioned and various other statutes relating to crimes and offenses against the naturalization laws are set out in Van Dyne, Naturalization, 189–196, 414–416.

4 Supra, p. 520.

For. Rel., 1907, 8. Printed also in Van Dyne, 136–138.

of countervailing evidence it shall be sufficient in the proper proceedings to authorize the cancellation of his certificate of citizenship as fraudulent. Diplomatic and Consular officers shall furnish the Department of State, to be transmitted to the Department of Justice, the names of those within their jurisdictions, respectively, who are subject to the provisions of this requirement, and such statements from Diplomatic and Consular Officers shall be certified to by such officers under their official seals, and are under the law admissible in evidence in all courts to cancel certificates of naturalization.1

2

Section 15 of the Act of 1906 has been held by the Supreme Court to be retroactive. While suit to cancel fraudulently or illegally obtained naturalization certificates has been brought under the Act in several instances,3 it appears that the Department of Justice, has limited its proceedings under the statute to cases in which it seemed that the result of the suit would benefit the citizenship of the country.1 It seems that the proceeding is both difficult and expensive.

§ 229. Presumptions of Fraud.

Besides the statutory cases of fraudulent naturalization, there are numerous cases in which naturalization is obtained by a technical compliance with the statutes, but without any intent to reside permanently in the United States. Such naturalization may be considered fraudulent. The applicant intends to reside in his native or perhaps 1 This paragraph was also added to the Diplomatic Instructions and Consular Regulations, under the provisions of the Executive Order of April 6, 1907.

2 Johannessen v. U. S., 225 U. S. 227; Luria v. U. S., 231 U. S. 9. See the fourth paragraph of § 15.

3 U. S. v. Nesbit, 168 Fed. 1005; U. S. v. Mansour, 170 Fed. 671; U. S. v. Simon, 170 Fed. 680; U. S. v. Meyer, 170 Fed. 983; U. S. v. Spohrer, 175 Fed. 440; U. S. v. Ellis, 185 Fed. 546; U. S. v. Luria, 184 Fed. 643, 231 U. S. 9; U. S. v. Albertini, 206 Fed. 133; Johannessen v. U. S., 225 U. S. 227.

4 Part of Circular letter No. 107 of the Dept. of Justice of Sept. 20, 1909, containing instructions as to naturalization matters, reads:

"In the opinion of the Department, as a general rule, good cause is not shown for the institution of proceedings to cancel certificates of naturalization alleged to have been fraudulently or illegally procured unless some substantial results are to be achieved thereby in the way of the betterment of the citizenship of the country. The legislation referred to, being retroactive, is construed to be remedial rather than penal in its nature; for the protection of the body politic rather than for the punishment of the individuals concerned." The British Nationality Act, 1914, Part II, § 7, gives the Secretary of State authority summarily to revoke a fraudulently obtained certificate.

in another country and to use his naturalization to avoid duties and responsibilities to which without it he would be subject. Before the Act of June 29, 1906 and the Act of March 2, 1907, which defined the cases in which the presumption of expatriation arises by reason of residence abroad for certain periods of time, this government was frequently imposed upon by persons who claimed, as naturalized citizens, the right to American protection and release from duties owed to their native country. Secretary of State Fish sedulously supported the principle that an alien who obtains naturalization in the United States not with a view to perform the duties of American citizenship, but with a view to escape the obligations of citizenship in the land of his nativity in which he resumes his residence, is guilty of a double fraud which the government of his adoption should not, by giving him its protection, aid him to consummate.1

This became a rule of action in the matter of protecting naturalized citizens, but it was difficult to apply because it was not easy to determine when a naturalized citizen had permanently resumed residence in his native land without an intention to return to the United States. These abuses of naturalization were discovered particularly in military service cases in which the person in question had obtained American citizenship and then upon return to his native country had used his naturalization to evade the obligation of military service. The Bancroft naturalization treaties sought to provide definite rules for the determination of these cases in the countries with which they were concluded, but in various other countries diplomatic controversies have been frequent. When it appeared evident that the person had abandoned his American residence permanently and that

3

1 Circular of Oct. 14, 1869, Moore's Arb. 2563-2564, printed also in Morse, Citizenship, 233-235. See Moore's Arb. 2564, and citation to Geo. F. Edmunds memorial address; 14 Op. Atty. Gen. 295; Wharton, II, § 176; For. Rel., 1877, 246; Morse, 228. See also Moore's Dig. III, § 377. For an account of British practice, see H. Doc. 326, 59th Cong., 2d sess., 349 et seq., and the British Nationality Act, 1914, Part II, § 3 (1), 4 & 5 Geo. V, ch. 17. Flutie (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 38, 42.

* Mr. Cadwalader, Act'y Sec'y of State, to Mr. Jay, Oct. 5, 1874, For. Rel., 1874, 33; Mr. Tillman to Mr. Sherman, Dec. 7, 1897, For. Rel., 1897, 127; Mr. Logan in For. Rel., 1879, 143–145; Mr. Hunter in For. Rel., 1880, 108.