it appearing that he had resided in the United States over five years and no charge of fraud having been made. In a second case, Ortega,1 a failure to comply with the naturalization laws was clear. The umpire, therefore, dismissed the claim and refused to be bound by the certificate of naturalization. This amounted to a denial of the position of the advocate of the United States that the certificate of naturalization must be accepted as final. The interposition of the Department of State being invoked, Secretary Evarts first expressed the opinion that the powers of the Commission were not "judicial," and that in effect the Commission could not question a certificate of naturalization. Baron Blanc, Bartholdi's successor as umpire, in the case of Dominguez 2 held that it was his duty to determine whether the certificate of naturalization was procured by fraud or was granted in violation of treaty stipulations or of the rules of international law, but that Dominguez's absence from the United States prior to his admission to citizenship did not work a change of legal residence; and assuming that the naturalization court had taken this view, it must prevail so long as it is unreversed by an American court.3 The Spanish Arbitrator, Marquis Potestad, protested against the ruling that the decision of an American court is final, and against a proposition of the umpire that the tribunals of the United States are the sole interpreters of the laws of the country. Secretary Evarts, again called upon, held that the tribunal, as an international judicial body, could "bring under judgment the decisions of local courts of both nations." He thus in effect upheld the protest of Marquis Potestad. When Count Lewenhaupt succeeded Baron Blanc as arbitrator, the whole question was reargued. In the case of Buzzi,5 the umpire decided that the claimant had no right to appear as an American citizen, since it was shown that during the five years immediately preceding his naturalization he had lived about four and a half years in Cuba. Secretary of State Blaine, who had succeeded Mr. Evarts, instructed

1 Ortega (U. S.) v. Spain, Moore's Arb. 2592.

2 Dominguez (U. S.) v. Spain, ibid. 2595-2597.

3 The history of this question before the Commission is presented by Mr. Moore in his Digest, III, 506–509. See also Moore's Arb. 2593 et seq.

4 Moore's Arb. 2601-2613.

5 Buzzi (U. S.) v. Spain, Feb. 12, 1871, Moore's Arb. 2613.

the American counsel to state that the United States could not accept the judgment as within the competence of the umpire to render, and that a duly issued certificate of naturalization was the judgment of a court, which could not be reversed or reviewed by the Executive or by an international commission.1

Secretary Frelinghuysen, Mr. Blaine's successor, did not adhere to the radical position of Secretary Blaine, but, while insisting that the Department had conferred no power on the Commission to examine into the object or motive of an applicant in seeking naturalization nor to make actual presence in the United States for five years immediately preceding naturalization a requisite, nevertheless admitted that a certificate of naturalization may be proven to have been obtained fraudulently, and added that the certificate could only be impeached "by showing that the court which granted it was without jurisdiction, or by showing, in conformity with the adjudications of the courts of the United States on that topic, that fraud, consisting of intentional and dishonest misrepresentation or suppression of material facts by the party obtaining the judgment, was practiced upon it, or that the naturalization was granted in violation of a treaty stipulation or of a rule of international law." 2

This was accepted as a binding rule by the Commission, and several claims of alleged naturalized citizens were dismissed on one or other of the above grounds. In several other cases it was held that there was no proof of intentional misrepresentation or fraud within the meaning of the rule adopted, and that claimants were entitled to appear as citizens of the United States.4

The French-United States mixed commission under the treaty of January 15, 1880, held that they had the right to examine the original

1 Moore's Arb. 2618. The radical position of Mr. Blaine has been generally disapproved.

2 Moore's Arb. 2619-2621.

Angarica (U. S.) v. Spain, ibid. 2621, 2624; Criado, ibid. 2624, 2626. See also cases of Buzzi, and Ortega, supra.

Zenea, Moore's Arb. 2626 (held no fraud, although naturalized before he was 21; see Moore's comment, ibid. 2629); Zaldivar, ibid. 2630 (suspicion of irregularity, but no fraud); Govin y Pinto, ibid. 2635; Madan, ibid. 2638, 2642; Antonio M. Mora, ibid. 2642, 2645 (burden of proof on Spain); Rozas, ibid. 2646; Montejo, ibid. 2643. See the statements of the Marquis de Potestad, Spanish Arbitrator, on these claims, ibid. 2631-2635.

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.

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.

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.

3

6

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. 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.

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.

1

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.