In the Matter of M

This case is not covered by Casetext's citator
Board of Immigration AppealsOct 7, 1955
6 I&N Dec. 749 (B.I.A. 1955)
6 I&N Dec. 7496 I&N Dec. 749

V-012641.

Decided by Board October 7, 1955.

Citizenship — Effect upon male descendants of Lafayette of the Maryland Act of 1784.

Male descendants of Lafayette who were born after the effective date of the Constitution of the United States (March 4, 1789) could only acquire United States citizenship on the terms specified by Congress and they were not in a position to acquire such citizenship by virtue of the Maryland Act of 1784 which conferred honorary citizenship of the State of Maryland upon Lafayette and his male heirs. Section 8 of Article I of the Constitution of the United States provides that Congress shall have power to establish a uniform rule of naturalization and it has long been settled that this power is exclusive.

CHARGES:

Warrant: Act of 1952 — Failed to comply with conditions of status — Visitor for pleasure.

BEFORE THE BOARD


Discussion: This case is before us on appeal from a decision of a special inquiry officer granting voluntary departure and directing that respondent be deported if he fails to depart voluntarily.

The respondent is a 54-year-old male, native and citizen of Italy, who last entered the United States on October 1, 1953, at which time he was admitted temporarily as a visitor. He was granted an extension of stay and was subsequently informed that he would be required to depart not later than October 21, 1954. Since that time he has remained in the United States without authority.

When the respondent was questioned on December 1, 1954, he stated that he was a citizen of Italy. At the hearing he testified that he has proof that he is a direct male descendant of the Marquis de Lafayette and counsel asserts that an act of the legislature of Maryland provided that the male heirs of Lafayette should be citizens of Maryland. From this, counsel argues that the respondent is a citizen of the United States but he did not supply a copy of the Maryland act nor a citation to it nor even the year of enactment, and no judicial authority was cited to sustain the contention. The record also does not contain proof of the respondent's relationship to Lafayette. While it might be appropriate to dismiss the appeal because of these deficiencies, we will consider the matter on the merits and will assume that the respondent can establish that he is a direct male heir of Lafayette.

The act to which counsel refers does not bear a specific date but it was designated as Chapter XII and was one of the laws passed at a session of the General Assembly of Maryland which began on November 1, 1784, and ended on January 22, 1785. It reads as follows:

Chap. XII

An Act to naturalize major-general the marquis de la Fayette and his heirs male for ever.

I. Whereas the general assembly of Maryland, anxious to perpetuate a name dear to the state, and to recognize the marquis de la Fayette for one of its citizens, who, at the age of 19, left his native country, and risked his life in the late revolution; who, on his joining the American army, after being appointed by congress to the rank of major-general, disinterestedly refused the usual rewards of command, and fought only to deserve what he attained, the character of patriot and soldier; who, when appointed to conduct an incursion into Canada, called forth by his prudence and extraordinary discretion the approbation of congress; who, at the head of an army in Virginia, baffled the manoeuvres of a distinguished general, and excited the admiration of the oldest commanders; who early attracted the notice and obtained the friendship of the illustrious general Washington; and who laboured and succeeded in raising the honour and the name of the United States of America: Therefore,

II. Be it enacted, by the general assembly of Maryland, That the marquis de la Fayette, and his heirs male for ever, shall be, and they and each of them are hereby deemed, adjudged, and taken to be, natural born citizens of this state, and shall henceforth be entitled to all the immunities, rights and privileges, of natural born citizens thereof, they and every of them conforming to the constitution and laws of this state, in the enjoyment and exercise of such immunities, rights and privileges.

We think it is clear that the intention of this legislation was to confer honorary citizenship, as distinguished from citizenship in a political sense, upon Lafayette and his descendants. This is borne out by the fact that, while they were granted rights and privileges of citizenship, they were not subjected to the obligations of citizenship. According to the act, they were made citizens of Maryland but it does not purport to confer Federal citizenship.

Section 8 of Article I of the Constitution of the United States provides that Congress shall have power to establish a uniform rule of naturalization, and it has long been settled that this power is exclusive. We need not consider the precise effect of the Maryland act of 1784 upon the political status of Lafayette and such of his male heirs as had been born prior to the date when the Constitution of the United States became effective (March 4, 1789). It is possible to argue that they were citizens of Maryland and under Section 2 of Article IV of the United States Constitution should be considered citizens of the United States. However, we hold that when Congress by legislation set forth the requirements for citizenship, the descendents of Lafayette who were born thereafter could only acquire United States citizenship on the terms specified by Congress, and they were not in a position to acquire such citizenship by virtue of the Maryland act of 1784.

Chirac v. Chirac, 2 Wheat. (15 U.S.) 259, 268 (1817); Dred Scott v. Sandford, 19 How. (60 U.S.) 393, 405 (1857).

In Dred Scott v. Sandford (footnote 1, supra), the court indicated that a state might confer state citizenship but that it would not follow that a citizen of the state would be a citizen of the United States or that he would be entitled to the privileges and immunities of a citizen in any of the other states. The court specifically stated that the rights such a person would acquire would be restricted to the state which gave them. Hence, if we assume that the respondent could establish that he was a direct male descendent of Lafayette and that he is a citizen of Maryland under the act of 1784, he would still not be a citizen or national of the United States. Section 101 (a) (3) of the Immigration and Nationality Act defines the term "alien" as "any person not a citizen or national of the United States." Consequently, we must hold that the respondent is an alien and that he is deportable on the charge stated in the immigration warrant of arrest.

Insofar as concerns counsel's request that action be deferred pending congressional consideration of a bill introduced in behalf of the respondent, this request should be made to the appropriate officer of the Service rather than to this Board. The special inquiry officer granted voluntary departure which appears to be the only discretionary relief available. Accordingly, the respondent's appeal will be dismissed.

Order: It is ordered that the appeal be and the same is hereby dismissed.