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

3

Section 15 of the Act of 1906 has been held by the Supreme Court 2 to be retroactive. While suit to cancel fraudulently or illegally obtained naturalization certificates has been brought under the Act in several instances, 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.4 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.

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.

♦ 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.2 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 3 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

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.

2 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.

3 Infra, p. 548.

the naturalization was in fact fraudulently used to escape obligations otherwise due, protection has been withdrawn.1

Some years ago, when diplomatic officers were permitted to issue passports, the Department of State directed that when the renewal of passports was frequently demanded by alleged Americans resident abroad they were to be warned that the declaration of intention to return to the United States was not an empty phrase and that a further passport should be refused unless for special reasons it was clear that the foreign residence was not inconsistent with bona fide American citizenship. The criteria for determining when naturalization was obtained fraudulently or claimed inconsistently with American citizenship. were much simplified by the application of the presumptions defined in the Acts of June 29, 1906 and March 2, 1907.2 Section 15 of the Act of 1906 provides that the permanent residence of a naturalized citizen in any foreign country within five years after his naturalization shall be deemed prima facie evidence that his naturalization was obtained in bad faith. It still leaves the diplomatic or consular officer to determine from all the circumstances when the residence is "permanent." By § 2 of the Act of 1907, two years' residence of the naturalized citizen in the country of his origin or five years' residence in any other country creates a presumption that he has ceased to be an American citizen, and unless that presumption is rebutted by showing some special and temporary reason for the change of residence, the obligation of protection by the United States is deemed to be ended.

It has already been noted that whenever it appears to the Department of State that naturalization has been improperly or improvidently granted to a person claiming an American passport or diplomatic protection on the strength of a naturalization certificate, the passport and protection are refused.3

1 Mr. Olney, Secretary of State, to Mr. Townsend, For. Rel., 1895, 24. When the naturalized citizen has, on return to his native country, flaunted his naturalization and boasted of his immunity from burdens to which his neighbors were subject, thereby incurring the penalty of expulsion "for reasons of public welfare," the United States has declined to intervene in his behalf. For. Rel., 1894, pp. 30-36, supra, pp. 53, 56.

2 Aide memoire of the Dept. of State, December 20, 1909, For. Rel., 1909, 35. * Supra, p. 527.

§ 230. Criteria Applied by Municipal and International Courts.

As to what is fraud, no definite rule can be laid down. It would seem, however, that it must in general be positive rather than negative. Thus, it was held in United States v. Norsch,1 that an applicant who merely presented himself for naturalization, knowing that he was not entitled thereto was not guilty of fraud, the court adding, that only when he resorts to false testimony or to some trick or artifice with a view to deceiving the court, is he guilty of fraud.2

Attention has already been called to the views of international commissions on the question of fraudulent naturalization, and to the general rule adopted by them that the fraud which renders naturalization invalid must consist in intentional and dishonest misrepresentation as to a material fact or in the willful suppression of material facts.3 Under the rule of the Spanish Claims Commission adopted December 14, 1882, some curious decisions were handed down as to what constituted fraud. The doubtful regularity of claimant's naturalization was held not to constitute fraud. In other cases, however, the rule appears to have been too liberally interpreted. Thus, the naturalization of a person before he was twenty-one, notwithstanding his false representations, was held not to constitute fraud. Similarly, clear proof of failure to comply with the five years' residence requirements was in a number of cases held not to constitute fraud. Other commissions have considered that naturalization obtained notwithstanding failure to comply with residence requirements was a prima facie evidence of or equivalent to fraud or misrepresentation and to disentitle the claimant from appearing before the commission as an American citizen.8

1 U. S. v. Norsch, 42 Fed. 417, 419; Matter of McCarran, 8 Misc. (N. Y.), 482. 2 For other cases in municipal courts, see H. Doc. 326, 59th Cong., 2d sess., 134, and cases under § 15 of the Act of 1906, cited supra, p. 529, note 3.

3 Supra, p. 522. See particularly Angarica (U. S.) v. Spain, Feb. 12, 1871, Moore's Arb. 2621, and Criado, ibid. 2625.

4 Supra, p. 525.

Zaldivar (U. S.) v. Spain, Feb. 12, 1871, Moore's Arb. 2630; Govin (U. S.) v. Spain, ibid. 2629 (dictum).

Zenea (U. S.) v. Spain, ibid. 2626.

7 See, e. g., Montejo (U. S.) v. Spain, ibid. 2646; Macias (U. S.) v. Spain, ibid. 3775, No. 52, Original opinion, MS. Dept. of State; Govin Y Pinto, ibid. 2635; Rozas, ibid. 2646. See also Madan, ibid. 2641, and Portuondo, ibid. 2565.

8 Medina (U. S.) v. Costa Rica, July 2, 1860, ibid. 2583, 2587; Perez (U. S.) v.

While the abandonment of American citizenship by a naturalized citizen may be visited with the same results as fraudulent naturalization (and the Act of 1906 in fact provides that the establishment of a permanent residence abroad within five years after naturalization shall be considered prima facie evidence of the bad faith of the naturalization), international commissions have considered abandonment of citizenship as distinct from fraudulent naturalization as a ground of forfeiture of diplomatic protection or citizenship.

While the practice of the Department of State has not been uniform, the attempt is now generally made to secure and destroy a fraudulently obtained naturalization certificate, just as a wrongfully held passport is retained and cancelled. The demand for legislation empowering the government to bring suit to cancel records of naturalization obtained by fraud has been met by the Act of June 29, 1906.1 Section 7 of the recent British Nationality and Status of Aliens Act enables the Secretary of State to revoke any certificate obtained by fraud, and order it to be given up and cancelled, an obligation enforced by criminal proceedings.2

INTERNATIONAL EFFECTS OF NATURALIZATION

§ 231. Nature and Effect of Naturalization.

3

Naturalization is in effect an act of adoption by which a foreigner at his expressed or implied volition, is granted citizenship, with its incidental rights, upon his compliance with the conditions prescribed by the municipal law of the adopting country. It is an act of public law whose validity can in theory be determined only by the naturalizing country, within whose right it is to fix the conditions under which Mexico, July 4, 1868, ibid. 2719, and Lizardi (U. S.) v. Mexico, ibid. 2589; Kuhnagel (France) v. U. S., ibid. 2647, 2649 (same principle); Flutie (U.S.) v. Venezuela, Feb. 17, 1903, Ralston, 38, 41; Ruiz v. U. S., No. 112, Spanish Treaty Cl. Com., supra., p. 526. 1 Supra, p. 528. See also Moore's Dig. III, § 425.

1

2 Part II, § 7 (2), 4-5 Geo. V, ch. 17. Under the new Act (§ 8) the government of any British possession has the power to grant a certificate of naturalization having the same effect as a certificate granted by the British Secretary of State. In the self-governing dominions, the Act must first have been adopted. See E. B. Sargent on Naturalization in the British dominions, in No. 31 (July, 1914), Journ. of the Soc. of Comp. Leg. 327-336.

* Stoicesco, C. J., Etude sur la naturalisation, Paris, 1876, p. 236.