T-2974423.
Decided by Board July 23, 1954.
Citizenship — Not acquired by native of Virgin Islands not residing therein on the date of cession.
A native of the Virgin Islands who has made his home in the French West Indies from 1916 to the present did not acquire United States nationality at the time of cession of the Virgin Islands to the United States on January 17, 1917, because he was not an inhabitant of the Islands. While physical presence in the Virgin Islands at the moment of cession is not required, it is expected that persons temporarily sojourning abroad must return or must have returned within a reasonable time and must establish that, even while absent, they were bona fide residents of the Virgin Islands, had a definite intention to return, that the absence was only temporary, and that no fixed place of abode had been acquired elsewhere.
EXCLUDABLE:
Act of 1952 — No immigrant visa.
BEFORE THE BOARD
Discussion: Appellant, 67 years old, widower, male, arrived at St. Thomas, Virgin Islands, on May 29, 1954, from St. Martin, French West Indies. He applied for admission as a citizen of the United States. The special inquiry officer ordered that he be admitted to the United States as a national. The officer in charge of the Immigration and Naturalization Service office at Charlotte Amalie, Virgin Islands, appealed to this Board from that decision, stating that no decision as to the nationality of the appellant and of persons in similar circumstances is available.
Appellant was born at St. Croix, Virgin Islands, on November 8, 1886. He resided in the Virgin Islands until the summer of 1916, when, he testified, he "left" and went to live in St. Thomas, French West Indies; that his wife's home was there, and he went to live with her. He did not return to the Virgin Islands for any purpose until 1942, at which time he returned to St. Croix, Virgin Islands, for a visit of 1 month. He then returned to the French West Indies, and lived there until he attempted the entry into the Virgin Islands on May 29, 1954.
Appellant requests admission to the Virgin Islands as a citizen, because of his birth in the Virgin Islands. His wife died 4 years ago. He is without funds and has no relatives except his sister who lives in St. Croix and who has stated that she will be responsible for him.
Appellant testified that at no time had he made a declaration to preserve his Danish citizenship. He has never exercised any rights as a French citizen either by voting, serving in the military forces of that country, or otherwise. No children were born of his marriage. The special inquiry officer stated that appellant disclaims any criminal record and testifies that he has never been a member of the Communist Party. He has never applied for nor received an immigrant visa.
Denmark ceded the Virgin Islands to the United States by a treaty which took effect on January 17, 1917. The treaty provided that Danish citizens who remained in the Islands might opt Danish citizenship by making a declaration before a court of record within 1 year, and in default of such a declaration, they should be held to have renounced Danish citizenship and to have accepted citizenship in the United States. The special inquiry officer held:
The treaty made no provision for natives of the Virgin Islands who were absent from the Islands when possession was transferred to the United States on January 17, 1917. However, it has been determined under generally applicable principles of international law, that a native of the Virgin Islands of the United States, absent therefrom and from other United States territory on January 17, 1917, who did not preserve Danish citizenship and who at no time thereafter was within any territory of Denmark, is presumptively a national of the United States.
He held, therefore, that the appellant, a Danish citizen at the time he left the Virgin Islands, had become a non-citizen national of the United States, even though he had never returned to those Islands since January 17, 1917. It is our conclusion that this decision was not correct, that appellant has acquired neither United States nationality nor citizenship at any time.
The treaty provided that the civil rights and political status of the inhabitants of the Islands should be determined by Congress. It has been held that this provision in the treaty meant that the Virgin Islanders did not automatically acquire full United States citizenship upon cession. They acquired United States nationality only, and legislative action was necessary to give them full United States citizenship. The enactment which granted citizenship was the act of February 25, 1927 ( 44 Stat. 1234, 8 U.S.C. 5 (b), as amended by the act of June 28, 1932, 47 Stat. 336, 8 U.S.C. 5 (b)), as follows:
For fuller discussion of the historical aspects see 38 Op. Atty. Gen. 525 (October 15, 1936); III, Digest of International Law, Hackworth, 147; Matter of L----, 56267/142, 3 IN Dec. 719 (B.I.A., August 24, 1949) and Matter of S----, 0300-160724, 3 IN Dec. 870 (February 8, 1950).
The following persons and their children born subsequent to January 17, 1917, are hereby declared to be citizens of the United States:
(a) All former Danish citizens who, on January 17, 1917, resided in the Virgin Islands of the United States, and are now residing in those Islands or in the United States or Puerto Rico, and who did not make the declaration required to preserve their Danish citizenship by article 6 of the treaty entered into on August 4, 1916, between the United States and Denmark, or who, having made such a declaration, have heretofore renounced or may hereafter renounce it by a declaration before a court of record;
(b) All natives of the Virgin Islands of the United States who, on January 17, 1917, resided in those islands, and are now residing in those islands or in the United States or Puerto Rico, and who are not citizens or subjects of any foreign country;
(c) All natives of the Virgin Islands of the United States who, on January 17, 1917, resided in the United States, and are now residing in the Virgin Islands of the United States, and who are not citizens or subjects of any foreign country ( 44 Stat. 1234); and
(d) All natives of the Virgin Islands of the United States who are, on the date of enactment of this subdivision, residing in continental United States, the Virgin Islands of the United States, Puerto Rico, the Canal Zone, or any other insular possession or Territory of the United States, who are not citizens or subjects of any foreign country, regardless of their place of residence on January 17, 1917.
The last quoted paragraph (d) was added by the amendatory act of June 28, 1932.
Clearly, appellant does not fall within any of the classifications set forth above. Having left the Virgin Islands in 1916, he was not a former Danish citizen residing in the Virgin Islands on January 17, 1917, nor was he residing in the continental United States or in any other insular possession or territory of the United States.
Appellant did not acquire United States citizenship by the provisions of section 306 of the Immigration and Nationality Act of 1952.
Not being a person who was specifically included in the three statutes which have delineated the groups of natives, residents and former residents of the Virgin Islands who would be given United States citizenship, it should be assumed that it was not intended by Congress that he be given United States citizenship. In support of this assumption, a Senate Report on section 5 of the act of June 28, 1932, which after its enactment became section 1 (b) of the act of February 25, 1927, having set forth all the classes of persons who were to be granted citizenship and some of the reasons for granting citizenship to these persons, the report then continued:
For fuller text of Senate Report see Matter of S----, 0300-160724, 3 IN Dec. 870, at 873.
(D) No provision was made in the act of February 25, 1927, for the citizenship or naturalization of the following natives of the Virgin Islands:
(1) Natives of the Virgin Islands who, on January 17, 1917, resided anywhere else than (a) in the Virgin Islands, (b) in the United States; or
(2) Natives of the Virgin Islands who resided either in the Virgin Islands or in the United States on January 17, 1917, and who, on February 25, 1927, resided anywhere else than (a) in the Virgin Islands, (b) in the United States, or (c) in Puerto Rico.
(3) Natives of the Virgin Islands regardless of date of birth, who on current date do not reside either (a) in the Virgin Islands, or (b) in the United States, or (c) in Puerto Rico, regardless of their place of residence on either January 17, 1917, or February 25, 1927. [Emphasis supplied.]
Appellant falls within groups (D) (1) and (3) above. On January 17, 1917, he did not live in the Virgin Islands or in Puerto Rico or in the United States. He had gone to make his permanent home in the French West Indies.
The incorrect impression that appellant may have acquired United States nationality at the time of cession probably arose from the opinion of the Attorney General, 38 Op. Atty. Gen. 525, referred to above, containing some imprecise language, which might create the impression that this should be or is the law. However, that opinion actually concerns the citizenship of persons born in the Virgin Islands who were absent from those islands at the time of annexation by the United States on January 17, 1917, but were residing in "continental United States, the Virgin Islands of the United States, Puerto Rico, the Canal Zone, or other insular possessions or territory of the United States" on June 28, 1932, the date of the amendatory act discussed above, and who were not then citizens or subjects of any foreign country other than Denmark. The Attorney General discusses en passant the problem of citizens of the Virgin Islands, absent on the date of cession, who are "temporarily sojourning for a brief time in another country." It was the conclusion of the Attorney General, though these conclusions must necessarily fall in the class of dicta, that such absent persons are comprised in the cession "if they return * * * soon after the cession." Keith, Theory of State Session, p. 42. The Attorney General refers to an opinion (24 Op. Atty. Gen. 40, 43) concerning Molinas, a native of Puerto Rico temporarily living in France at the time of the annexation of Puerto Rico (April 11, 1899), and still in France when the opinion was rendered (May 13, 1902). He concluded that Molinas, even though absent from the country, became a citizen of Puerto Rico and, as such, an American national entitled to the privileges of certain tariff laws. The Supreme Court later quoted with approval from this opinion of the Attorney General in Gonzales v. Williams, 192 U.S. 1 (1904) ( 48 L. Ed. 317) as follows:
But even in supposing that a native Puerto Rican like Mr. Molinas, temporarily absent at the date of the treaty, has been unintentionally omitted from section 7, he is undoubtedly one of those turned over to the United States by article IX of the treaty to belong to our nationality. He is also clearly a Puerto Rican; that is to say, a permanent inhabitant of that Island, which was also turned over by Spain to the United States.
It should be noted that the cases and authorities referred to above specify that the absent native is "temporarily living" in a foreign country. They require that he establish that he intends to return to his native territory; that he is still a "permanent inhabitant" of the Island. This view has been adopted by the Department of State, according to the Digest of International Law, Hackworth, Volume III, p. 149. This authority states that in an instruction to the American Consul at Santo Domingo of October 3, 1931, the Department of State said:
The Department has construed the word "residence" as used in the laws and treaties relating to the inhabitants of the Virgin Islands as synonymous with "home" or "domicile" that is as denoting a permanent dwelling place, to which the party when absent intends to return. Therefore a person who was permanently residing in the Virgin Islands or in other terms permanently domiciled there should be regarded as retaining that place of residence or domicile until he has shown by his acts that he has acquired another domicile, that is by actually taking up his abode in some other place with the intention of remaining there.
It is thought that a Danish citizen who was physically absent from the Islands on January 17, 1917, and who is applying for protection as an American national, should before being accorded the protection of the United States be required to show that: (1) he was an actually bona fide resident of the Virgin Islands before the annexation thereof by the United States; (2) that upon leaving the Islands he had a definite intention to return, which intention continued during his absence up to the date his application for protection is made. As evidence of the intention to return to the Islands evidence might be accepted of a permanent connection with the Islands, the temporary nature of the absence, the ownership of property and the payment of taxes in the Islands, the presence in the Islands of family or relatives, and that no fixed place of abode had been acquired elsewhere.
The Department of State to the Consul at Santo Domingo, Oct. 3, 1931, MS, Department of State, file 134 Virgin Islands/104.
E---- E---- P----, who was born in the Virgin Islands in 1893 of parents who were natives of the Islands, proceeded to Cuba on Dec. 13, 1916, where she continued to reside. The Department of State in an instruction of Feb. 24, 1921, denied her application for a passport for the purpose of visiting the Virgin Islands, but instructed the Vice Consul at Antilla, Cuba, that he might issue her an emergency passport if she convinced him that she intended to return to the Islands for permanent residence. With reference to the general question of the status of persons in the position of Mrs. P----, the Office of the Solicitor for the Department of State, said in a memorandum of July 11, 1920:
* * * The decision of the Supreme Court in the Bosque case [ 209 U.S. 91 (1908)] should, no doubt, be considered in deciding the status of natives of Denmark proper, who claim American nationality upon the ground that they were inhabitants of the Virgin Islands on January 17, 1917, particularly if they were physically present in Denmark on that date or within the period of 1 year thereafter. However, while the burden of proof is upon such person to show that he had never ceased to be an inhabitant of the Virgin Islands, the mere fact of temporary absence from the Islands on January 17, 1917, or within the period of 1 year thereafter, does not necessarily preclude such persons from claiming American nationality. (MS. Department of State, file 130P5416; ibid. 134 Virgin Islands/243.)
Two decisions by the Immigration and Naturalization Service, Office of Adjudications Review, are consistent with the view we have taken here. Matter of A----, A-5816008 (C.O., August 5, 1943) concerned a native of the Virgin Islands, born in 1891, who left the Virgin Islands to live in the Dominican Republic sometime before the date of cession, January 17, 1917. She continued to reside in the Dominican Republic until her admission into the United States in 1922. She lived continuously in the United States from 1922 until the day of the adjudication by the Service, except for a visit to the Dominican Republic in 1935. She was admitted to the United States in 1922 and again in 1935 as a United States citizen. It was held that she acquired United States citizenship by the act of June 28, 1932, as a native of the Virgin Islands who was living in the United States at the time of the enactment of that law. There is some discussion in the Service opinion about "a presumption of changed nationality" against persons born within a ceded territory, whether present or absent at the time of cession, but the actual decision in this case turned upon the construction of the 1932 statute.
A second decision, Matter of C----, 5/252 and 5/253 (C.O., May 2, 1944), concerned a mother and daughter, born in the Virgin Islands in 1872 and 1902, who wished to be permitted to file petitions for naturalization under section 321 of the Nationality Act of 1940. The father was born in the Virgin Islands in 1873. The mother and daughter resided continuously in the Virgin Islands until May 4, 1917, when they moved to the Dominican Republic to join the father. They remained in the Dominican Republic until 1934, when they were readmitted to the Virgin Islands as United States citizens. The father died in the Dominican Republic in 1934. It was decided by the Immigration and Naturalization Service, Office of Adjudications, that the C----s, mother and daughter, acquired United States nationality at the time of cession in January 1917, because they were then living in the Virgin Islands, even though they left that area before the year of option (the year during which the declaration for preservation of Danish citizenship might be made) had expired. However, they did not acquire United States citizenship under either the acts of 1917 or 1932, because they were living outside of the United States or United States controlled territory.
United States ex rel. Schwarzkopf v. Uhl, 137 F. (2d) 898 (C.C.A. 2, 1943), considered the subject of acquisition of territory and its inhabitants by force and invasion and nationality changes resulting therefrom. The court discussed some of the authorities, text and case, and decided:
If the inhabitants remain within the territory their allegiance is transferred to the new sovereign, American Insurance Co. v. 356 Bales of Cotton, 1 Pet. 511, 542 (1828), 7 L. Ed. 242. If they have voluntarily departed before the annexation and have never elected to accept the sovereignty of the new government, their allegiance is not so transferred, Inglis v. Trustees of the Sailor's Snug Harbor, 3 Pet. 99, 122, 123 (1830), 7 L. Ed. 617; United States v. Repentigny, 5 Wall. 211, 260 (1866), 18 L. Ed. 627; Jones v. McMasters, 20 How. 8, 20, 15 L. Ed. 805; Boyd v. Thayer, 143 U.S. 135, 162, 12 S. Ct. 375 (1892), 36 L. Ed. 103. See also Halleck, Int. Law, 4th ed., II, 506 et seq.; Hackworth, Digest of International Law, III, 346; Moore, Digest of International Law, III, §§ 379, 380 (presenting American treaty and diplomatic history in support of the view that only the inhabitants who elect to remain change their allegiance; Van Dyne, Naturalization, 275, 276 (confirming the treaty practice as evidence of the American political and legal view).
There does not seem to be any legal distinction between the principles applicable to changes of nationality as the result of an act of war committed by one nation upon another and the principles applicable to change of nationality as the result of acquisition of territory by one nation from another by peaceful means. The court decided that Schwarzkopf was not a German citizen, because he had left Austria before the annexation of Austria by Germany in March 1938, and, therefore, he should not be detained by the Department of Justice of the United States as an alien enemy, a citizen of Germany, pursuant to the act of July 6, 1798, as amended, 1 Stat. 577, 50 U.S.C.A. 21. Schwarzkopf was born in Czechoslovakia, and therefore was not detainable as a "native of Germany under the applicable law."
In a companion case, United States ex rel. D'Esquiva v. Uhl, 137 F. (2d) 903 (C.C.A. 2, 1943), the court held that a native-born Austrian who left that country prior to the invasion of Austria by Germany did not become a "citizen" of Germany, but the court held that he was detainable as an alien enemy, because he was a "native" of Germany within the phraseology and meaning of the statute.
It is our conclusion upon all the applicable case, text, and administrative authority set forth above, that appellant did not acquire United States nationality at the time of cession of the Virgin Islands to the United States, because he was not an inhabitant of the Islands. It is not held that he must have been actually physically present in the Islands at the moment of cession to acquire United States nationality. Nationality has been conceded to persons who were temporarily sojourning abroad. It is expected, however, that such a person must return or must have returned within a reasonable time to claim his new nationality and must be able to establish that, even while absent, he was a bona fide resident of the Virgin Islands, that he had a definite intention to return, that his absence was only temporary, and that no fixed place of abode had been acquired elsewhere. Appellant testified that he lived and worked and made his home in the French West Indies from 1916 until the present time. He is not able to meet any of the enumerated requirements.
Neither can appellant claim United States citizenship under any of the three laws which have been enacted granting citizenship to natives, residents, and former residents of the Virgin Islands. He does not fall within any of the classes enumerated in those statutes. On the contrary, he falls within a class of persons specifically mentioned in a Senate committee report as not having been covered by the law.
At time of birth in the Virgin Islands, appellant acquired Danish citizenship. Whether or not he is eligible to receive an immigration visa under the appropriate quota is a question for decision by the consul to whom the appellant may apply for a visa.
Order: It is ordered that the appeal of the officer in charge of the Immigration and Naturalization Service office for the Virgin Islands be sustained and that the appellant be excluded as one who is not a citizen or national of the United States.