Petitioner's mother is a native-born citizen of the United
States, and his father is an Italian citizen who has never been
naturalized. They were married in the United States, and their
marital relationship has never been terminated. Petitioner was born
in Italy in 1906, while his parents were residing there
temporarily, and his mother brought him to the United States later
in the same year. He has since resided continuously in the United
States, and has never been naturalized.
Held: Petitioner is not a citizen of the United States.
Pp.
366 U. S.
309-315.
(a) R.S. § 2172, granting inherited citizenship to children born
abroad of parents who "now are, or have been," citizens, applies
only to children whose parents were citizens on or before April 14,
1802, when its predecessor became effective. When petitioner was
born in 1906, R.S. § 1993 provided the sole source of inherited
citizenship for foreign-born children, and it applied only to
children whose fathers were citizens. Pp.
366 U. S.
309-312.
(b) Section 5 of the Act of March 2, 1907, which provided
that
"a child born without the United States of alien parents shall
be deemed a citizen of the United States by virtue of . . .
resumption of American citizenship by the parent,"
is not applicable to petitioner, since mere marriage to an
alien, without change of domicile, did not terminate the
citizenship of an American woman either at the time of petitioner's
birth or at the time of his mother's return to the United States,
both of which occurred in 1906. Pp.
366 U. S.
312-314.
(c) A different conclusion is not required by the testimony of
petitioner's mother that she had been prevented from returning to
the United States prior to petitioner's birth by the wrongful
refusal of an American Consular Officer to issue her a passport
because of her pregnant condition. Pp.
366 U. S.
314-315.
278 F.2d 68 affirmed.
Page 366 U. S. 309
MR. JUSTICE HARLAN delivered the opinion of the Court.
Having been ordered deported as an alien on grounds which are
not contested, petitioner, claiming to be a citizen, brought the
present declaratory judgment action under 8 U.S.C. § 1503 to
determine his citizenship status.
Petitioner, whose mother is a native-born United States citizen
and whose father is a citizen of Italy (their marriage having been
in the United States), was born in Italy in 1906 while his parents
were temporarily residing there, and entered the United States with
his mother later the same year. He has continuously resided in the
United States since that time, and has never been naturalized. His
claim of United States citizenship is based primarily upon two
statutes: (1) Section 2172 of the Revised Statutes (1878 ed.),
[
Footnote 1] and (2) Section 5
of an Act of 1907. [
Footnote 2]
The Court of Appeals found that neither statute obtained as to one
in the circumstances of this petitioner, 278 F.2d 68. We granted
certiorari to review that conclusion, 364 U.S. 861, in view of the
apparent harshness of the result entailed. For reasons given
hereafter, we agree with the Court of Appeals.
I
In 1874, Congress reenacted two statutes which seem to defy
complete reconciliation. R.S. § 2172, a reenactment
Page 366 U. S. 310
of § 4 of an Act of April 14, 1802 (2 Stat. 155), provided
that
"children of
persons who now are, or have been citizens
of the United States, shall, though born out of the limits and
jurisdiction of the United States, be considered as citizens
thereof. . . ."
(Emphasis added.) R.S. § 1993, substantially a reenactment of §
1 of an Act of February 10, 1855 (10 Stat. 604), provided that
"All children heretofore born or hereafter born out of the
limits and jurisdiction of the United States, whose
fathers were or may be at the time of their birth citizens
thereof, are declared to be citizens of the United States; but the
rights of citizenship shall not descend to children whose fathers
never resided in the United States."
(Emphasis added.) Since R.S. § 2172 spoke broadly of children of
citizen "persons" -- perhaps citizen mothers as well as citizen
fathers -- while R.S. § 1993 spoke only of children of citizen
"fathers" (and even then embraced only citizen fathers who had been
United States residents), there is a conflict in the apparent reach
of the simultaneously reenacted provisions.
In this circumstance, petitioner, claiming that "persons" in
R.S. § 2172 included, in the disjunctive, both citizen fathers and
mothers, contends that we are faced with deciding either that R.S.
§ 1993 simply repeats, with modifications, that part of R.S. § 2172
relating to "fathers," (leaving its provisions relating to
"mothers" intact), or that it repeals that part of R.S. § 2172
relating to "mothers." He suggests that we make the former choice
to avoid the admitted severity of deporting a fifty-five-year-old
man who has resided in this country since he was an infant. The
Government, on the other hand,
Page 366 U. S. 311
asserts that R.S. § 2172 should be read as embracing only
children
both of whose parents were American citizens.
Whatever the force of these opposing contentions may be, other
considerations unmistakably lead to the conclusion that
petitioner's claim to citizenship under R.S. § 2172 must be
rejected.
In 1854, Horace Binney, one of the country's leading lawyers and
a recognized authority on the immigration laws, published an
article entitled "The Alienigenae of the United States" [
Footnote 3] in which he argued that the
words "who now are, or have been" in the 1802 predecessor of R.S. §
2172 had the effect of granting citizenship to the foreign-born
children only of persons who were citizens of the United States
on or before the effective date of the 1802 statute (April
14, 1802), in other words, that the statute had no prospective
application. Foreign-born children of persons who became American
citizens between April 14, 1802 and 1854, were aliens, Mr. Binney
argued. In 1855, Congress responded to the situation by enacting
the predecessor (10 Stat. 604) of R.S. § 1993. [
Footnote 4] The provision had retroactive, as well
as prospective, effect, but was clearly intended to apply only to
children of citizen
fathers. [
Footnote 5]
Page 366 U. S. 312
The view of Mr. Blinney and the 1855 Congress that the Act of
1802 had no application to the children of persons who were not
citizens in 1802 has found acceptance in the decisions of this
Court.
See United States v. Wong Kim Ark, 169 U.
S. 649,
169 U. S.
673-674;
Weedin v. Chin Bow, 274 U.
S. 657,
274 U. S.
663-664;
see also Mock Gum Ying v. Cahill, 81
F.2d 940. The commentators have agreed.
See 2 Kent,
Commentaries at 53; 3 Hackworth, Digest of International Law, §
222;
cf. Matter of Owen, 36 Op.Atty.Gen. 197, 200. Finally
Congress has repeatedly stated and acted upon that premise.
See, e.g., H.R.Rep. No. 1110, 67th Cong., 2d Sess. at p.
3. Indeed when, in 1934, Congress finally granted citizenship
rights to the foreign-born children of citizen mothers, 48 Stat.
797, it not only specifically made the provision prospective, but
further made clear its view that this was a reversal of prior law.
See H.R.Rep. No. 131, 73d Cong., 1st Sess., p. 2, and
S.Rep. No. 865, 73d Cong., 2d Sess., p. 1.
Whatever may have been the reason for the 1874 reenactment of
the Act of 1802 as R.S. § 2172, we find nothing in that action
which suggests a purpose to reverse the structure of inherited
citizenship that Congress created in 1855 and recognized and
reaffirmed until 1934. On this basis and in the light of our
precedents, we hold that, at the time of petitioner's birth in
1906, R.S. § 1993 provided the sole source of inherited citizenship
status for foreign-born children of American parents. That statute
cannot avail this petitioner, who is the foreign-born child of an
alien father.
II
Petitioner's second ground for claiming citizenship is founded
upon § 5 of an Act of March 2, 1907 (34 Stat.
Page 366 U. S. 313
1229), which provided in relevant part
"[T]hat a child born without the United States of alien parents
shall be deemed a citizen of the United States by virtue of . . .
resumption of American citizenship by the parent. . . . [
Footnote 6]"
Petitioner's claim in this regard necessarily depends upon our
finding (1) that his mother was an alien at the time of his birth,
having lost her citizenship either when she married an alien or
when she traveled abroad with her alien husband in 1906, and (2)
that his mother resumed her citizenship on her return to the United
States.
It is sufficient to dispose of the contention that we find that
mere marriage to an alien, without change of domicile, did not
terminate the citizenship of an American woman either at the time
of petitioner's birth or his mother's return to the United States,
both of which occurred in 1906. [
Footnote 7] This view, which is supported by the weight of
authority, [
Footnote 8] is
indeed not contested by petitioner, who instead asks this Court to
construe § 5 of the 1907 Act so as to avoid the obvious paradox of
giving preferred treatment to the children of a woman who has lost
her citizenship over that afforded to the children of a
Page 366 U. S. 314
woman who has never lost her citizenship. [
Footnote 9] Paradoxical though this may be, we
have no power to "construe" away the unambiguous statutory
requirement of § 5 that petitioner's mother must have lost her
citizenship at the time of his birth. [
Footnote 10]
III
Petitioner makes a further contention. It is urged that the
Government should not be heard to say that petitioner was born
outside the United States because of its own misconduct.
Petitioner's mother testified that she had been prevented from
leaving Italy prior to petitioner's birth by the refusal of an
American Consular Officer to issue her a passport because of her
pregnant condition. However, it is uncontested that the United
States did not require a passport for a citizen to return to the
country in 1906. Moreover, petitioner has presented no evidence of
any Italian requirement of an American passport to leave Italy at
that time. In this light, the testimony by petitioner's mother as
to what may have been only the consular official's well meant
advice -- "I am sorry, Mrs., you cannot [return to the United
States] in that condition" -- falls far short of misconduct
such
Page 366 U. S. 315
as might prevent the United States from relying on petitioner's
foreign birth. In this situation, we need not stop to inquire
whether, as some lower courts have held, there may be circumstances
in which the United States is estopped to deny citizenship because
of the conduct of its officials. [
Footnote 11]
Affirmed.
MR. JUSTICE DOUGLAS dissents.
[
Footnote 1]
See p.
366 U. S. 310,
infra.
[
Footnote 2]
See pp.
366 U. S.
312-313,
infra.
[
Footnote 3]
2 American Law Register 193.
[
Footnote 4]
That the enacting Congress accepted and acted upon the view that
the Act of 1802 (later reenacted as R.S. § 2172) had no effect as
to parents who became citizens after 1802 is clear from the
following statement of Congressman Cutting:
". . . the children of a man [U.S. citizen] who happened to be
in the world on the 14th of April, 1802, born abroad, are American
citizens, while the children of persons born on the 15th of April,
1802, are aliens to the country."
Cong.Globe, 33d Cong., 1st Sess. 170 (1854).
[
Footnote 5]
Congressman Cutting explained:
"In the reign of Victoria, in the year 1844, the English
Parliament provided that the children of English mothers, though
married to foreigners, should have the rights and privileges of
English subjects, though born out of allegiance.
I have not, in
this bill, gone to that extent, as the House will have observed
from the reading of it."
(Emphasis added.) Cong.Globe, 33d Cong., 1st Sess. 170.
[
Footnote 6]
In the context of the section, it is clear that the word
"parent" refers both to fathers and mothers. Section 2 of the Act
of May 24, 1934 (48 Stat. 797), on which petitioner alternatively
relies, is in all respects here material a reenactment of the above
provision.
[
Footnote 7]
By § 3 of the Act of March 2, 1907 (34 Stat. 1228), marriage to
an alien did terminate the citizenship of an American woman.
[
Footnote 8]
See, e.g., Comitis v. Parkerson, 56 F. 556, 559-560
(C.C.E.D.La.),
writ of error dismissed sub nom. Comitiz v.
Parkerson, 163 U.S. 681;
Ruckgaber v. Moore, 104 F.
947, 948-949 (C.C.E.D.N.Y.),
affirmed, 114 F. 1020;
Wallenburg v. Missouri Pacific R. Co., 159 F. 217, 219
(C.C.D.Neb.);
In re Fitzroy, 4 F.2d
541, 542 (D.C.D.Mass.);
In re Lynch, 31 F.2d 762
(D.C.S.D.Cal.);
Petition of Zogbaum, 32 F.2d
911, 912-913(D.C.D.S.D.);
In re Wright, 19 F. Supp.
224, 225 (D.C.E.D.Pa.);
Watkins v. Morgenthau, 56 F.
Supp. 529, 530-531 (D.C.E.D.Pa.).
[
Footnote 9]
Such a construction was espoused by Attorney General William D.
Mitchell in 1933, 37 Op.Atty.Gen. 90, and is also indicated in two
District Court cases.
See Petition of Black, 64 F. Supp.
518;
Petition of Donsky, 77 F. Supp. 832.
But see
D'Alessio v. Lehman, 183 F. Supp. 345, which takes a contrary
view.
[
Footnote 10]
Moreover, even if petitioner's mother had suffered a loss of
citizenship which was later reacquired, petitioner's case would
still not come within the statutory definition of "resumption of
American citizenship." Congress gave explicit content to this
requirement of § 5 of the Act of 1907, § 3 of the same Act
providing:
"
At the termination of the marital relation, she may
resume her American citizenship. . . ."
(Emphasis added.) 34 Stat. 1228. Petitioner's mother has never
terminated her marital relation with petitioner's alien father.
[
Footnote 11]
See, e.g., Podea v. Acheson, 179 F.2d 306;
Lee You
Fee v. Dulles, 236 F.2d 885, 887.