| S.D.N.Y. | Mar 31, 1916
The questions raised by this proceeding are whether under section 2 of the Act of March 2, 1907 (U. S. Comp. Stat. § 3959), or under the treaty between the United States and Sweden and Norway of May 26, 1869 (Malloy’s Treaties, Conventions, etc., between United States and other powers, vol. 2, pp. 1758-1761), Anderson is after more than ten years’ residence in Sweden an alien or a citizen. The question of expatriation.—the question whether one gains or loses citizenship by residence in or away from a country—is one that has been discussed as long as courts in the United States have spoken.
When the law was in such a state as to hold that a man could change his citizenship or allegiance at will, and yet foreign residence no- matter how long continued did not per se affect the status of citizenship, the matter was certainly ripe for a statutory rule as to the inference of intent to be drawn from such residence, intent being pre-eminently a matter as to which presumptions are needed if any certainty is to be introduced into decisions.
Accordingly, the Act of June 29, 1906, c. 3592, § 15, 34 Stat. 601 (U. S. Comp. Stat. § 4374), malees a return to the native country of a naturalized citizen under certain circumstances “prima facie evidence of a lack of intention on the part of such alien” to become a citizen and lays him open to petition to set aside his certificate.
The Act of 1907 is upon its face in pari materia, for it declares that, when any “naturalized citizen shall have resided for two years in the foreign state from which he came,” it shall be presumed that he has .ceased to be an American citizen.
■ This decision also does away with all arguments that might have been founded upon the fact that the act was passed after Anderson left the United States for Sweden, for if the statute may conclusively hold a female citizen to have elected alienage by marriage, it is obvious that it may also hold a nonresident naturalized citizen to have elected alienage by his nonresidence. If there is no deprivation of liberty or property by one act under the statute, there is none by the other.
This is thought to be the first litigation of its kind under this statute, although the law has been upon the books for upwards of eight years. This is because of an opinion of the Attorney General rendered in 1910, and found in volume 28 of Opinions, at page 504.
There is no such limitation in the act itself and no obscurity in the language of the section in question. The same style of interpretation was urged upon the Supreme Court in the Mackenzie Case and there rejected, and the action of the Department of Labor in respect of Anderson 'is the result of a belief that the Attorney General’s opinion has been overruled by the decision of the Supreme Court. I share that view.
It follows that by force of the statute Anderson lately presented himself at the door of this country with a statutory presumption against him that he had ceased to be an American citizen by reason of his long-continued residence in the land of his birth.
[G] While the statute is sufficient to. dispose of this case, the treaty obligations between Sweden and the United States are likewise worthy of consideration. By the Naturalization Convention of 1869, supra, it was agreed that:
“If a Swede or Norwegian who has become a naturalized citizen of the United. States renews his residence in Sweden or Norway without the intent to return to America, he shall be held by the government of the United States io have renounced his American citizenship. The intent not to return to America may be held to exist when a person so naturalized resides more than two years in Sweden or Norway.”
It is said that this treaty is not now in force because of the separation between those kingdoms which occurred in 1905. This is wholly erroneous. The collection of treaties above referred to is official, having been compiled under a resolution of the Senate^ of January 18, 1909, and the documents which continued in force as to each kingdom, the treaties made by the United Kingdom, may be seen as to Norway at page 1300, and as to Sweden at page 1724 of volume 2 of Malloy’s compendium.
The writ is discharged, and the relator remanded.
it cannot be said that Mackenzie v. Hare is but tbe recognition of an old common-law rule. It is thought that the statute (so far as considered in the decision) is no more than a statutory affirmance of the common law; but the court’s opinion rests upon the statute and not on tradition.