The controversy we have had here in the last two meetings is related to persons who have been naturalized in the past, that is prior to the effective date of this act, through the naturalization of a parent, and have continued thereafter to reside in such foreign state for a considerable period of time.

We think, judging by the statements of the Chief Justice in Perkins v. Elg, that such persons must be deemed to have elected foreign nationality and to have lost American nationality under the law then in effect—that is, section 2, act of March 2, 1907. This statement seems to beg the question.

This says

Provided further, That a person who has acquired foreign nationality through the naturalization of his parent or parents, and who at the same time is a citizen of the United States

and so forth. It begs the whole question.

The whole question is whether such a person has expatriated himself or not.

It goes without saying if a person has not expatriated himself under the law which was in effect at the time of his naturalization abroad, and at the time when he attained his majority, if that person has not expatriated himself, as this says, of course that person has a right, and no one can keep him out of the country, and the whole question is whether that person has expatriated himself.

Our view is that it is impossible by any legislation which may be adopted now to determine the question whether a person either lost or did not lose his citizenship many years ago.

I think the intent of this, as I gather from the remarks of representatives of the Department of Labor, is that such a person cannot be held to have expatriated himself because of his long residence in a foreign state since he attained his majority.

If that is true, we do not agree to that, and we think that the opinion in the Elg case greatly supports our view. But there seems to be disagreement on that point.

Mr. SHAUGHNESSY. In your opening remarks, Mr. Flournoy, I assumed from the way you expressed yourself that the language selected in this second proviso did not accomplish the thing we intended to accomplish.

Mr. FLOURNOY. It does not accomplish what I think you intended it to.

Mr. SHAUGHNESSY. For the sake of discussion, may we temporarily set aside your interpretation of the Elg case?

But do you have any fault to find with the selection of language as attempting to accomplish that which we intended to accomplish, to wit, to give all such persons 2 years after the effective date of this act to return to and reside permanently in the United States to preserve their American citizenship?

Mr. FLOURNOY. It depends upon what you mean by "such persons." Mr. SHAUGHNESSY. A person who was born in the United States, who during minority went abroad, his father became a naturalized citizen of the foreign country.

Mr. FLOURNOY. We will say this person resided in that country where he had been naturalized for 20 years since attaining his majority. Mr. SHAUGNESSY. Do you get what I mean? I assumed from the

way you expressed yourself that the selection of the language did not accomplish what we intended to accomplish. That is separate and apart as to any difference of opinion as to what the Elg case may mean. There is no fault in the selection of the language excepting it goes to the basic disagreement between the interpretations of the Elg decision?

Mr. NOEL. There is the muddy part about this statement. Did you not intend to say, "Provided, further, a person who claims naturalization"?

Mr. FLOURNOY. No. We are assuming he has been naturalized, I think.

Mr. NOEL. It says there in the first part he is naturalized and in the second part he has to do something and to be naturalized.

Mr. SHOEMAKER. Because he already has citizenship. He has dual citizenship.

Mr. RILEY. What I was going to say is that so far as drafting is concerned, could we not say, as Mr. Shaughnessy expressed it, avoiding the use of that ambiguous phrase "heretofore expatriated himself," and say "he has not heretofore expatriated himself by his voluntary act"? Mr. SHAUGHNESSY. That would clear it up.

Mr. RILEY. That would clear it up.

And then that would raise the clear-cut question of policy which the congressional committee could decide.

Mr. SHAUGHNESSY. Yes; because under this language it may be argued that the act of his father caused the boy's expatriation. I think that clears that issue up.

Mr. BUTLER. I agree with you.

Mr. FLOURNOY. And, Mr. Chairman, of course it remains to be determined whether the act of a person of full age and continuing to reside in that country, where he has been naturalized, whether we can regard that as a voluntary act within the meaning of the code or not. That is what it is boiled down to, is it not?

Mr. SHAUGHNESSY. Yes; it is boiled down to that. But it does resolve itself into a direct issue now.

Mr. FLOURNOY. We consider, in other words, judging by the statements of the Chief Justice in Perkins v. Elg, the act of a fullgrown person who continues to reside in a foreign country in which he has been naturalized, we would say that is a voluntary act representing an acceptance of the naturalization of that country, and therefore a loss of American nationality.

That is where we differ, I think.

Mr. SHOEMAKER. Our difference is it may be a voluntary act or it may not be. The mere fact he stays there does not divest him of his status.

Mr. REES. You want to give him 2 years' time, no matter how long he has lived abroad?

Mr. SHOEMAKER. That is correct, sir.

Mr. SHAUGHNESSY. That is correct.

Mr. REES. You want to give him 2 years' time during which to come back to the United States and assert his citizenship?

Mr. SHOEMAKER. He may have been asserting it all of the time.
Mr. REES. I am not raising that question.

Mr. SHOEMAKER. That is correct.

Mr. REES. Let us see if we can get this down to the closest point.
Mr. SHOEMAKER. That is correct.

Mr. REES. It is the Department of Labor's idea that a man who is born of foreign parents in the United States

Mr. FLOURNOY (interposing). Not necessarily foreign, Mr. Chair

man.

Mr. REES. Not necessarily. But who is born in the United States and goes abroad and becomes a citizen of a foreign country by reason of the naturalization of his parents, and continues to remain

Mr. SHAUGHNESSY. During his minority, Mr. Chairman.

Mr. REES. During his minority; yes.

Mr. SHAUGHNESSY. Yes.

Mr. REES. And continues to remain in that country for any period of time and being a citizen thereof may return to the United States at any time within 2 years after the passage of this act, and thereby establish or reestablish his American citizenship.

Mr. SHOEMAKER. If he has not voluntarily expatriated himself.
Mr. REES. If he has not voluntarily expatriated himself.

Mr. SHOEMAKER. That is right.

Mr. REES. Nevertheless he is a citizen of the foreign country by reason of the naturalization of foreign parents.

Mr. SHAUGHNESSY. Is by reason of his parents; yes.

Mr. REES. The State Department takes the view that the same person who has remained abroad, after having become a citizen through the naturalization of his parents and shall have remained abroad for an indefinite period of time, thereby loses his right of citizenship.

Mr. FLOURNOY. Must be deemed to have elected the foreign nationality.

Mr. REES. From the very fact he did remain abroad after he was 21 years of age; I want to get this right; is prima facie evidence that he is not an American citizen?

Mr. FLOURNOY. Yes.

Mr. HAZARD. I do not think it is prima facie. I think the fact is he absolutely loses it.

Mr. REES. All right. He loses his citizenship after he is 21 years of

age.

Mr. FLOURNOY. I would not say that. There might be a case where a person was prevented by some serious illness or some compelling cause, but I would not say such a thing, for example, as the mere fact he has a good job abroad would be sufficient. If he is ill and confined in a hospital, obviously his continued residence there would not indicate an election.

But if there was no preventing cause and he found it more to his advantage to live in that country, then going by the statements of the Chief Justice in the Elg case, we think he must be regarded as having elected foreign nationality, and as having lost his American nationality.

Mr. SHAUGHNESSY. Mr. Chairman, would this suggestion be in order?

Mr. REES. Mr. Shaughnessy, go ahead.

Mr. SHAUGHNESSY. Inasmuch as this will possibly be the last meeting-we hope it will be-and as this transcript perhaps will be the most important transcript on this particular point

Mr. REES (interposing). That is correct.

Mr. SHAUGHNESSY (continuing). Would it not be a good suggestion if each side just briefly, for the purpose of the record, gave the whole story in support of its particular contention?

Mr. REES. When I started to make that statement I was trying to state the proposition as clearly as I could.

Mr. SHAUGHNESSY. You did, very clearly.

Mr. REES. Then I thought perhaps I could get the State Depart-ment to express its view just as clearly as possible, and let each one of us not go afield, and put in too many "if's" and "and's" but get to the particular proposition.

Mr. SHAUGHNESSY. That is it.

Mr. REES. And let the gentleman who represents the American Bar Association express his view.

Mr. SHAUGHNESSY. Just omitting discussion, and just a brief statement of argument of their particular contention.

Mr. REES. That is right; because I do want that statement to be used in the full committee when this proposition is discussed.

Mr. SHAUGHNESSY. To be technically correct, I wish to change one statement of the chairman, and that is as to "2 years after the passage of the act." It is 2 years after the effective date of the act, which is 90 days more.

Will you do that, Mr. Secretary?

Mr. FLOURNOY. Mr. Chairman, would there be any advantage in following this course, supplementing Mr. Shaughnessy's suggestion that each side submit to the subcommittee within a brief period a memorandum, stating definitely what its position is, with the understanding, perhaps, that it will not exceed a certain number of pages, and I know you do not want to read a long memorandum.

Mr. SHAUGHNESSY. That is not my suggestion.

Mr. FLOURNOY. But have it in writing. I have talked so much I am afraid I have talked too much.

I cannot state our position any more clearly than I have stated it. Mr. SHAUGHNESSY. I do not have that in mind at all, because I know busy committees do not read lengthy memoranda.

I believe, for instance, Mr. Shoemaker could state in a few words our position in the record.

Mr. SHOEMAKER. I do not believe I can add anything to what I have stated, but I want to do anything I can to help.

Mr. REES. Are you ready to make that sort of a statement?

Mr. FLOURNOY. I will do my best, and try to make it as short as I can.

Mr. REES. All right. You may proceed, Mr. Flournoy.

Mr. FLOURNOY. Mr. Chairman, in the first place, we think that there is no authority for inserting in the Nationality Code any provision to determine the question whether a person by an act of his parent, together with his own act, has expatriated himself under the law prior to the adoption of the code.

Presumably there was some law in effect which decided that question at the time, and we do not believe that there is any authority to insert in the record retroactive legislation to decide whether a man lost his citizenship 20 years ago or not.

We think in determining those cases reliance should be placed upon the opinion of the Chief Justice in Perkins v. Elg. We think that

that opinion to the effect that Miss Elg had not lost her citizenship under section 2 of the act of March 2, 1907, was clearly based upon the ground that she had elected to retain American citizenship; that in the first place she had a right to make an election after reaching majority, and that she made such an election shortly after reaching majority, and manifested her choice of American citizenship by returning to this country to reside.

We do not think Congress can go any further than that.

When cases come up relating to and involving the question whether an individual lost his citizenship years ago, we think that it is necessary to apply the law which was in effect at that time, using the opinion in the Elg case as a criterion in each case for reaching a conclusion. Mr. REES. Mr. Shoemaker, would you like to make a statement on behalf of the Department of Labor?

Mr. SHOEMAKER. I do not think I can add anything more to what I have said already. It would simply be adding to the record. Mr. REES. I would suggest you make a restatement of your views, and make it rather brief.

Mr. SHAUGHNESSY. Restate it and make it rather brief, yes, sir. Mr. SHOEMAKER. Our position is this: That the Elg opinion laid down no hard and fast rule by which a person might be divested of his American citizenship when abroad by reason of the fact that he remained abroad.

The Elg opinion gave an indication, and as I understand the position of the State Department, they take the view that there might be circumstances which exist which would warrant the conclusion that notwithstanding the individual remained abroad, he was still an American citizen.

Our position so far as the clause which has been included in the code is concerned is that in these cases where the individual has not voluntarily by his own act expatriated himself, and there is a doubt as to whether or not he has adhered to the foreign allegiance to the exclusion of the American allegiance, he should be given the opportunity to return to the United States within a period of 2 years, and then if he fails to do so he is forever estopped from claiming American citizenship, either through the fact of birth or whatever his claim may be based upon.

Mr. REES. Mr. Butler, on behalf of the Department of Justice?

Mr. BUTLER. Mr. Chairman, there seems to be a very serious difference of opinion between the two Departments who are principally concerned with the matter of the admission to the United States of persons who may or may not have lost citizenship by residence abroad. Now, the Attorney General is directed by law to give opinions on matters of law to the President and the heads of departments. He is not required to give opinions to any other persons.

He may be called upon to give an opinion on this very point. I may be called on in the Department to assist in the writing of that opinion, and I feel that it would be premature on my part to express an opinion on this particular point at this time.

Now, some years ago the State and Labor Departments had a difference of opinion as to the citizenship of the young girl of this particular class, Ingrid Tobiassen.

The Department of State and the Department of Labor took opposite views, and the matter was submitted to the Attorney General for