A-6811391
Decided by Board April 26, 1949
Status — National (but not citizen) of United States — Acquisition in outlying possessions — Native inhabitant of American Samoa on February 16, 1900 — Birth in American Samoa after its annexation by United States (February 16, 1900) and before the effective date of the Nationality Act of 1940 (January 13, 1941) — Applicable law — American Samoa, Guam, Swain's Island — Guam Island courts without power to grant United States nationality — Issuance of passports or letters of identity by Governors of Guam and Samoa not an "adjudication" of nationality. (See 3 IN Dec. 729.)
1. Native inhabitants of American Samoa at the time of its annexation by the United States on February 16, 1900, became nationals (but not citizens) of the United States. (Likewise as to Guam, date of annexation April 11, 1898, and as to Swain's Island, date of annexation March 4, 1925.)
2. A person born in American Samoa (Guam, Swain's Island) since the date of its annexation by the United States, whose father possessed American nationality (but not citizenship) at the time of such birth, acquired American nationality (but not citizenship) at birth.
3. The United States nationality status of the mother does not affect acquisition of United States nationality by legitimate children after the annexation date unless they were born after January 12, 1941 (section 204, Nationality Act of 1940 is not considered retroactive), since it is the father's nationality alone which controls during such period.
4. A legitimate child of Samoan stock born in American Samoa after February 16, 1900, and before January 13, 1941, of a British Samoan father (who came to American Samoa after February 16, 1900, and who did not acquire United States nationality before the child was born) did not become a national of the United States.
5. The issuance of passports or letters of identity by the Governor of Samoa (or of Guam) is not an adjudication of United States nationality.
6. Guam Island courts are without power to grant United States nationality.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Executive Order 8766 — No passport.
BEFORE THE BOARD
Discussion: Appellant was born in American Samoa in 1920, is a veteran of 3 years in the Marines, and seeks admission to Honolulu to attend school. He testified that his father and mother were natives of British Samoa, and he did not know when they first emigrated from British (Western) to American Samoa. He had an affidavit from the high chief of his village executed before the assistant attorney general of the island swearing that the applicant was born in that village in American Samoa in 1920. The Board of Special Inquiry and the Commissioner found appellant to be an alien, not a national because he had no proof of his father's residence in Samoa in 1900.
Appellant had a letter of identity issued by the Governor of American Samoa. The State Department considers that persons bearing such letters are entitled to admission to the United States or Hawaii without passports. The Board of Special Inquiry and the Commissioner held that appellant should be excluded, not on the nopassport charge, but on the no-visa charge. This is one of a group of cases before this Board involving Samoans and Guamanians who have recently applied for admission.
In the 4 months of October 1947 through January 1948, the Immigration and Naturalization Service held 102 persons documented as American nationals by the Governor of Samoa, for the Board of Special Inquiry at Honolulu. We have no information as to the number of Guamanians held, or as to the number of Guamanians and Samoans held since January 1948.
A telegram from the Governor of Samoa to L.H. Haus, officer in charge of Immigration and Naturalization in Honolulu, January 30, 1948:
"Please inform this government of status of arrivals in Honolulu within past 4 months from American Samoa with respect to following:
"A. Have any persons been refused admittance or released under bond?
"B. Were they documented as American nationals?
"C. If so documented, reasons for detaining?"
The following telegram was sent by Mr. Haus to the Governor of American Samoa:
"Since October 1947, 102 persons documented as American nationals by Governor of Samoa held for Board of Special Inquiry for all causes. Of these approximately 30 debarred from United States as aliens. All those debarred paroled to local Samoans pending appeal to Commissioner of Immigration. Final action in all cases not yet indicated. All except 4 stowaways and two others bore letters of identity issued by Governor of Samoa. Reason for exclusion in most cases failure to establish nationality in conformance with present administrative definition of noncitizen national. Four cases excluded basis document obtained by fraud. This office presently seeking restatement administrative definition with concurrence State Department. Will promptly advise result."
On February 13, 1948, Mr. Haus again wired the Governor of Samoa.
"Commissioner's office advises handle Samoan cases in accordance with former interpretation unless and until decision received changing situation. This office thereby must decide Samoan nationality cases in accordance with administrative interpretation 305R6/I and J. Believe your office presently in possession this definition which providing in part national must be born of two national parents. You will be promptly advised of any change."
The issue in the present case is, "What is the nationality status of a person born in an outlying possession after the date of annexation but before the effective date of the Nationality Act of 1940 whose father was an alien, though his mother may have been a national?"
While each of the six cases now before this Board presents a different factual situation, somewhat the same general principles regarding nationality problems are involved in all of them. The Boards of Special Inquiry found, and the findings were sustained by the Assistant Commissioner, that the appellants in these six cases were not nationals of the United States. (There was no claim of citizenship in any of them.) It is the opinion of this Board that those findings were correct. We are aware that such a holding makes certain of the inhabitants of our island possessions stateless people. We are cognizant, too, of the fact that some, at least, of those persons who assisted in drafting the Nationality Act of 1940 informally professed an intention to assign a status to everyone. Still, there are two obstacles to finding that these appellants were born nationals or have acquired nationality: The first is that it generally has been considered that the principle of jus soli does not obtain in the outlying possessions of the United States. The second is that section 204 of the Nationality Act of 1940 is not considered to be retroactive. There are a number of cases dealing with the nature of territorial acquisition by a sovereign state and the effect of such acquisition on the rights of the inhabitants of that territory. They point the way to the only possible conclusion in the present cases. See Downes v. Bidwell, 182 U.S. 244, 21 S. Ct. 770, 45 L. Ed. 1088 (1901); The Diamond Rings, 183 U.S. 176, 22 S. Ct. 59, 46 L. Ed. 138 (1901); De Lima v. Bidwell, 182 U.S. 1, 45 L. Ed. 1041, 21 S. Ct. 743; and In re Opinions of Justices, 68 Me. 589.
Downes v. Bidwell, supra, is the leading case. There were several opinions written, concurring and dissenting, but no one opinion in which a majority of the court concurred.
An action was commenced by Downes, an importer, against the collector of the port of New York, to recover back duties paid under protest upon oranges shipped to plaintiff from the island of Puerto Rico during November 1900, after the passage of the Foraker Act temporarily providing a civil government and revenues for Puerto Rico. The question was whether merchandise brought into this country from Puerto Rico after the passage of that act was exempt from duty. The court held in a 5 to 4 decision that it was not, for the reasons (so far as we are interested) that Puerto Rico was not yet a part of the United States, that Congress had the power to incorporate the territory into the United States or not to do so, to whatever extent it wishes to. The "Opinion of the court" (insofar as there is a majority opinion) laid down a number of important principles including the following: that territories are not States within the meaning of Revised Statutes, section 709, permitting writs of error to the Supreme Court in cases where the validity of a State statute is in question; that the territories are not within the clause of the Constitution providing for the creation of a supreme court and such inferior courts as Congress may see fit to establish; and that Congress may lawfully provide for trials conducted in a "foreign country" before consular tribunals, without the intervention of a grand or petit jury, because the Constitution does not apply to foreign countries. The court then said (p. 279):
We are also of opinion that the power to acquire territory by treaty implies not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be in what Chief Justice Marshall termed the "American Empire." There seems to be no middle ground between this position and the doctrine that if their inhabitants do not become, immediately upon annexation, citizens of the United States, their children thereafter born, whether savages or civilized, are such, and entitled to all the rights, privileges, and immunities of citizens. If such be their status, the consequences will be extremely serious. Indeed, it is doubtful if Congress would ever assent to the annexation of territory upon the condition that its inhabitants, however foreign they may be to our habits, traditions, and modes of life, shall become at once citizens of the United States. In all its treaties hitherto the treaty-making power has made special provision for this subject; in the cases of Louisiana and Florida, by stipulating that "the inhabitants shall be incorporated into the Union of the United States and admitted as soon as possible * * * to the enjoyment of all the rights, advantages and immunities of citizens of the United States;" in the case of Mexico, that they should "be incorporated into the Union, and be admitted at the proper time (to be judged of by the Congress of the United States), to the enjoyment of all the rights of citizens of the United States;" in the case of Alaska, that the inhabitants who remained 3 years, "with the exception of uncivilized native tribes, shall be admitted to the enjoyment of all the rights," etc.; and in the case of Puerto Rico and the Philippines, "that the civil rights and political status of the native inhabitants * * * shall be determined by Congress." In all these cases there is an implied denial of the right of the inhabitants to American citizenship until Congress by further action shall signify its assent thereto.
The court continued its dissertation by pointing out at some length (pp. 280-284) that while title by conquest is acquired by force, that humanity, public demands, and wise policy dictate that conquered territories be granted the "natural rights" even though they are not granted the "artificial rights." The "natural rights" to which the inhabitants of annexed territory are entitled are the rights to hold property, to religious freedom, to freedom of speech, press, due process, to immunity from searches, seizures, cruel and unusual punishment, etc. The "artificial rights," to which the citizens of annexed territory are not necessarily entitled, are the rights of citizenship, of suffrage and to "the particular methods of procedure pointed out in the Constitution, which are peculiar to Anglo — Saxon jurisprudence."
The concurring opinion of Mr. Justice Gray is also of interest in the instant controversy. He says (p. 345):
The civil government of the United States cannot extend immediately, and of its own force, over territory acquired by war. Such territory must necessarily, in the first instance, be governed by the military power under the control of the President as commander in chief. Civil government cannot take effect at once, as soon as possession is acquired under military authority, or even as soon as that possession is confirmed by treaty. It can only be put in operation by the action of the appropriate political department of the government, at such time and in such degree as that department may determine. There must, of necessity, be a transition period.
In a conquered territory, civil government must take effect, either by the action of the treaty-making power, or by that of the Congress of the United States.
Applying the principles enunciated in Downes v. Bidwell to the cases presently before us, it is clear that the inhabitants of Guam and Samoa are entitled to the natural rights, but that the "artificial rights" of citizenship, nationality, suffrage, and access to constitutional courts are theirs only as they are extended by Congress to those inhabitants. Guam and Samoa are still under military authority. They are still in what Mr. Justice Gray referred to as "the transition period."
The principle of jus soli — the law of the place of one's birth — does not obtain in the outlying possessions of the United States. The rule that citizenship is acquired by birth has always been applied within the United States, both before and after the passage of the Fourteenth Amendment. The rule has not been applied outside of the United States as it relates to nationals in outlying possessions, presumably because the Constitution does not extend to outlying possessions.
The rule of jus sanguinis, the law of the place of one's descent or parentage, is applied outside the United States. Hackworth says (vol. III, Digest of International Law, p. 16):
Children born outside of the United States to parents, one or both of whom are American citizens, acquire citizenship of the United States, in certain circumstances, under the rule known as jus sanguinis * * *
The rule of jus sanguinis has been embodied in the statutory law of the United States in one form or another from the beginning of the Republic.
It is this rule that gives American citizenship to children born on foreign soil, if they are of American descent. It is also this rule which denies American nationality to inhabitants of the outlying possessions born of alien parents, or of an alien father.
The distinction between these two rules and their application at home and abroad has been recognized and applied with some consistency by the State Department. There have been occasional exceptions made for hard cases. But the usual departmental ruling was to hold that only those inhabitants of an area became nationals of the United States (1) who lived there at the time of annexation, including their children, or (2) children born to such nationals subsequent to the annexation. The Department has so held with regard to Cuba, the Canal Zone, and the Philippine Islands.
With regard to Samoa, the Department of State first held, in 1927, that certain persons are nationals (the Secretary of State (Kellogg) to the Secretary of the Navy, April 22, 1927, ms. Department of State, file 134 Guam/1, Hackworth, p. 155, vol. III) and said:
The indigenous inhabitants of the territory described in the treaty above referred to who were residing in that territory on February 16, 1900, and their children or other descendants, and the indigenous inhabitants of the territory (Swain's Island) described in the joint resolution of March 4, 1945, who were residing in such territory on that date and their children are nationals of the United States and as such entitled to the protection of the United States while traveling abroad. A passport issued to such a person should describe him as an "inhabitant of American Samoa entitled to the protection of the United States."
In 1933 the Consular Reg. U.S. sec. 159, n. 25, read:
This Department has not had occasion to make a decision concerning the nationality of a person born in Guam of alien parents since the annexation. If an application for a passport should be submitted by such person it would be well to refer the question to this Department for its consideration.
In 1937 the State Department issued instructions to the Passport Division Office in Guam, holding that inhabitants of Guam, as of Samoa, while traveling abroad, should be issued passports describing them as inhabitants of Guam entitled to the protection of the United States. (Sec. 6, Code 6.2, July 30, 1937.)
With the end of World War II, the resumption of trade relations and the passage of statutes giving certain rights to veterans of the Armed Forces, the question again arose as to which of the Samoan and Guamanians were to be considered nationals and which were to be considered not nationals. The Nationality Act of 1940, as we shall see, provided that a child born after the effective date of that act could inherit nationality through his mother as well as his father. There was no specific provision for children born before the effective date of the act. A letter on this subject from the State Department to the Acting Commissioner of Immigration and Naturalization, dated November 18, 1947, reads, in part, as follows:
(2) A child born in American Samoa prior to January 13, 1941, of a father who is indigenous to American Samoa and who has been a continuous resident of American Samoa is considered by this Department as an inhabitant of American Samoa owing allegiance to the United States and as such a national of the United States. However, a child born in American Samoa prior to January 13, 1941, in wedlock of an alien father and a mother who was indigenous to American Samoa is not considered to be an American national.
(3) A child born in American Samoa prior to January 13, 1941, out of wedlock of a mother who is indigenous to American Samoa and an inhabitant thereof is considered by this Department to take the status of the mother and to be entitled to be considered as an inhabitant of American Samoa owing allegiance to the United States. In considering this question it also appears necessary to consider the possible application to cases of this kind of the provisions of the second paragraph of section 205 of the Nationality Act of 1940 which is one of the few provisions of the Nationality Act which in its terms is specifically retroactive.
This was in line with the conception of the Immigration and Naturalization Service with two exceptions. The State Department view was more liberal in regard to (1) a child born in wedlock prior to January 13, 1941, of a father indigenous to the island and an alien mother and (2) a child born out of wedlock prior to January 13, 1941, to a mother indigenous to the island and an alien father. Up to this time the Immigration and Naturalization Service had assumed that a person falling in either of the above classifications was not a national because one of his parents was not a national.
However, when the case of E---- A---- L---- arose, the Commissioner approved a change of policy consistent with the State Department view. L---- was born in American Samoa to a father having American nationality, the other parent being a native of British Samoa. The conclusion was that L---- acquired American nationality through his father.
A letter on this subject from the office of the Attorney General reads, in part, as follows:
I am happy to advise you that immigration regulations have now been clarified and the office of the Service at Honolulu has been instructed that the following persons born in American Samoa or Swain's Island prior to January 13, 1941, are nationals of the United States.
(1) A person born in American Samoa prior to January 13, 1941, who has resided there continuously since birth and whose parents were indigenous there.
(2) A person born in Swain's Island prior to Janary 13, 1941, who has resided there continuously since birth and whose parents were indigenous there.
(3) A person born prior to January 13, 1941, out of wedlock in either island who has resided there continuously since birth, and whose mother was indigenous there.
(4) A person born prior to January 13, 1941, in wedlock in American Samoa or in Swain's Island who has resided there continuously since birth, and whose father was indigenous there.
Appellant's father apparently came from British Samoa to American Samoa after the time of acquisition (February 16, 1900), and therefore did not acquire American nationality before the birth of appellant. In accordance with the above discussion, it may be considered established that the appellant in the present case, born in Samoa before January 13, 1941, did not acquire United States nationality at birth, even though born in a United States possession, and even though of a race indigenous to the island, because his father was not a national of the United States. Having been born before the effective date of the Nationality Act of 1940, he did not acquire United States nationality under that act for the reason that section 204 of the Nationality Act of 1940 is considered to be not retroactive. Section 204 reads as follows:
Unless otherwise provided in section 201, the following shall be nationals, but not citizens of the United States at birth:
(a) A person born in an outlying possession of the United States of parents one of whom is a national, but not a citizen, of the United States.
With regard to such cases a letter was sent on October 29, 1947, by the Acting Commissioner of Immigration and Naturalization to the Secretary of State which, in view of the fact that the effective date of the Nationality Act of 1940 is January 13, 1941, asked for the views of the Department of State on this question. In reply thereto the letter of November 18, 1947, from the State Department said:
(1) This Department is of the opinion that section 204 of the Nationality Act of 1940 is in no way retroactive.
The Acting Commissioner agreed with the State Department view, basing his decision on a statement in the report (House committee print, 76th Cong., 1st sess.) proposing a revision and codification of the nationality laws of the United States, which, with amendments not material here, became the Nationality Act of 1940. That statement appears on page 14, part 1, of that report and is that —
It should be borne in mind that the proposed code is prospective and is not intended as declaratory of the status of persons born before its effective date.
* * * * * * *
* * * as indicated above, the principle of jus soli does not obtain in the outlying possessions of the United States, and * * * it does not seem expedient to change the law in such a way as to make it applicable there. * * *
The above-quoted memoranda did not rely upon it, nor did the legislative committee report point it out, but the Nationality Act does contain a saving clause apparently intended to maintain the status quo with regard to most controversies insofar as possible at the time of the passage of the act. Section 347 (a) ( 8 U.S.C. 747) of the act provides:
Nothing contained in either chapter III or in chapter V of this act, unless otherwise provided therein, shall be construed to affect the validity of any declaration of intention, petition for naturalization, certificate of naturalization or of citizenship, or other document or proceeding which shall be valid at the time this act shall take effect; or to affect any prosecution, suit, action, or proceedings, civil or criminal, brought, or any act, thing, or matter, civil or criminal, done or existing, at the time this act shall take effect; but as to all such prosecutions, suits, actions, proceedings, acts, things, or matters, the statutes or parts of statutes repealed by this act, are hereby continued in force and effect. ( 54 Stat. 1168; 8 U.S.C. 747.)
The applicability of this section to the present controversy is not clear, and the relation of this section to section 204, with which we are here concerned, has not been before the courts. The saving clause has been interpreted in relation to other sections of the act in the cases of Haaland v. Attorney General of the United States, 42 F. Supp. 13 (D.C. Md. 1941), and Schaufus v. Attorney General of the United States, 45 F. Supp. 61 (D.C. Md. 1942), the latter following the holding in the former and both decisions written by the same judge. In the Haaland case, petitioner's father, a Norwegian, emigrated to the United States in 1892, became a naturalized citizen in 1897, married petitioner's mother, a Norwegian, and returned to Norway in November 1907. They have lived in Norway ever since and have never returned to the United States. In Norway in October 1908 petitioner was born and there he lived until 1929, shortly after his twenty-first birthday, when he came to the United States on a United States passport issued by consul in Norway. A question of citizenship having arisen, nine more years later he brought this suit against the Attorney General of the United States to obtain a declaratory judgment that he, petitioner, is a citizen of the United States. The decision of the court, so far as we are interested here, was that petitioner's right to be declared a United States citizen was governed by the treaty of 1869 and the act of March 2, 1907, rather than by the Nationality Act of 1940. The court overruled the Department of Justice ruling and declared petitioner to be a citizen of the United States. With regard to the saving clause, section 347 (a), the court said (p. 22):
However, the question of course still exists whether it can reasonably be said that the Nationality Act of 1940, in view of the phraseology which we have italicized in the saving clause just quoted, was intended to apply to cases such as the present one, where the petitioner's nationality depends upon the effect of such "things or matters" as petitioner's birth; his American residence, and his father's foreign residence and loss of nationality, all of which occurred long prior to the adoption of this act. In other words, must we say that the present petitioner's status can only be determined in accordance with the requirements of a prior law which was in effect at a time when all of these events had already occurred?
We think that such a conclusion is required. Were we dealing with a petition for naturalization, for example, under this act, the requirement of law in effect when such petition was filed would control, by express language of the act. (sec. 347, 8 U.S.C.A. 747). Such is in accordance with usual statutory construction.
In the Schaufus case a similar ruling on the effect of the act resulted in the petition being dismissed and the petitioner being declared not a citizen of the United States. Petitioner's father was born in Denmark in 1862, emigrated to the United States when he was 37 years old, married a native citizen of Germany, became naturalized, and returned to Germany in 1899. Petitioner was born in Germany in 1900. Two years later petitioner was brought to this country by his parents. They stayed 3 years and in 1905 returned to Germany. The parents never returned to the United States. The father became a German citizen in 1917 and died in Germany in 1938. Petitioner entered this country on a German passport when he was 27 years old. The court distinguished this case from the Haaland case on the facts, i.e.: Schaufus remained in Germany until he was 27; Haaland came to this country before he was 21. Schaufus always considered himself a German citizen and entered and reentered this country as such, until he heard of the Haaland decision; Haaland always considered himself an American citizen until the issue arose in connection with a reentry. The court point out that the Nationality Act of 1940 (sec. 504, 8 U.S.C. 904) specifically declares that nationality lawfully acqiured is not taken away by the act and that nationality already lost is not restored. The court quotes from the section containing the saving clause and continued (p. 60):
In view of the phraseology in the saving clause which we have just quoted, we do not think it can reasonably be said that the Nationality Act of 1940 was intended to apply to cases such as the present one where the time of petitioner's birth, which occurred long prior to the adoption of this act, is one of the basic factors in a determination of his present citizenship status. In other words, we believe that petitioner's status must be determined in accordance with the requirements of such law or laws as were in effect at the time this and subsequent related events occurred. [Italics supplied.]United States ex rel. Aberasturi v. Cain, 55 F.Supp. 536 (D.C.N.Y. 1944) (reversed on other grounds 147 F. (2d) 449) also held that this statute is prospective in application and is retrospective only where specifically so provided.
Because section 347 of the Nationality Act of 1940 attempts to maintain the status quo of all nationality and citizenship problems existing at the time of the passage of the act and because all previous administrative rulings are to the effect that Congress contemplated that section 204 of the Nationality Act of 1940 should have no retroactive effect, and because all proposed legislation has been on that basis, it is the conclusion of this Board that section 204 is prospective and not retrospective in effect.
The following bills which were introduced in the 80th Cong., but none of which was enacted, contained provisions for conferring United States citizenship upon the inhabitants of Guam: H.R. 3563, H.R. 64, H.R. 3044, H.R. 2753, H.R. 4340, H.R. 1417, H.R. 874, S. 1078. In addition, suggested legislation was drafted jointly by the Navy Department and Department of Interior and was presented to the House Committee on Public Lands but was not introduced as legislation.
The following bills, all of which contained provisions for conferring United States citizenship upon the inhabitants of American Samoa, were introduced in the 80th Cong., but were not enacted: H.R. 3564, H.R. 4612, H.R. 858. In addition, joint legislation was prepared by Navy and Interior but was not presented to Congress.
The Department of State drafted proposed legislation for introduction at the 81st Cong. The effect of this legislation would be to make retroactive sec. 204 of the Nationality Act of 1940.
In none of the Guamanian or Samoan cases did the applicants for admission fail to present a passport, a letter of identity or some document in lieu of a passport which indicated that he would be able to return to his own country. The Guamanians had been admitted to citizenship of that island and were issued a national's passport by the insular government.
The question arises as to the force to be given an action of the Guam island court in granting Guamanian citizenship. A letter written by Charles Wellborn, rear admiral, United States Navy, Deputy Chief of Naval Operations (Administration) to the Commissioner of Immigration on January 9, 1948, outlines the history of Guam, the legislative and executive authority of the Governor and the island courts, the manner in which the island is administered, and the legal status of the island, in part, as follows:
The legal status of Guam is the same today as it was in 1904 when the Attorney General's opinion was written. While Congress has from time to time legislated with respect to Guam it has not extended the Constitution or laws of the United States to Guam. It has not established a government there nor provided for a judicial system, although it has from time to time, by various enactments, recognized the naval civil government of Guam. (See, for example, act of June 28, 1906 (48 U.S.C. 1358 and 1432); act of November 15, 1945 ( 59 Stat. 584, ch. 485.)). The courts of Guam are not established by the Congress of the United States as are the courts of Alaska, Hawaii, and Puerto Rico, nor is Guam included within any of the judicial subdivisions of the United States, nor is there any appeal authorized from the courts of Guam to the courts of the United States, although an appeal may be made administratively to the Secretary of the Navy.
As to the specific validity of an order of a court of Guam on matters of citizenship or nationality outside of the island of Guam, there is no statutory provision on the subject and so far as the Navy Department is aware the question has not been passed upon by any of the Federal or State courts of the United States. It appears, however, that the island court of Guam has full jurisdiction to determine a question of Guam citizenship for administrative and legal purposes within the island itself. Such court has been established as part of the judicial system of Guam and, according to the Attorney General of the United States, the Secretary of the Navy, acting through the Governor, has full authority to establish a judicial system for Guam. It would appear, therefore, that a ruling of that court upon a question within its jurisdiction is entitled to great weight at least, if not full recognition and acceptance, by the executive departments of the United States in administering the laws of the United States.
It is hoped that the information herein furnished will enable the Immigration and Naturalization Service to make an early determination of whether a person declared by the tribunal mentioned to be a citizen of Guam may properly be considered a noncitizen national of the United States.
Apparently, no acknowledgment of this letter has been received by the Navy Department. However, an opinion by the Office of Adjudication Review of the Immigration and Naturalization Service in the Matter of S----, 56218/714, OAR, March 2, 1948, discussed this question as follows:
Article IX of the treaty with Spain by which the United States acquired Guam provides in part that the civil rights and political status of native inhabitants of the territories ceded to the United States shall be determined by Congress. The Attorney General of the United States in an opinion dated December 17, 1904 (25 Op. Atty. Gen. 2982) stated as follows with reference to the status of Guam (and Tutuila):
The political status of these islands is anomalous. Neither the Constitution nor the laws of the United States have been extended to them and the only administrative authority existing in them is that derived mediately or immediately from the President as Commander in Chief of the Army and Navy of the United States.
The communication in the Matter of S----, supra, concluded:
There can be no doubt but that the code of laws promulgated by the Governor and the courts established thereby have full legal force and authority in the island of Guam itself. Section 42A of the civil code of Guam however by its own terms limits its operation "for the purpose of administration of local laws" in prescribing that certain persons are to be held to be citizens of Guam.
Since, therefore, pursuant to the provisions of the treaty by which Guam was ceded to the United States, Congress alone has power to determine the civil rights and political status of inhabitants of Guam, the granting of citizenship of Guam by the Guam island court cannot be regarded as conferring the status of a United States national upon the individual concerned. Furthermore in view of the limitation contained in section 42A the grant of citizenship by the Guam island court has no extra-jurisdictional effect and can be recognized only in the island of Guam.
The statement made above that Congress has not determined the political status of the inhabitants of Guam appears also in the Service manuals and the compilation of Immigration and Nationality Laws and Regulations. The statement must be qualified since the passage of the Nationality Act of 1940, because sections 204 and 205 are applicable, so far as they go, to citizens of Guam as well as other "outlying possessions."
It is the opinion of this Board that a decision of the court of Guam or Samoa should be accorded the same weight as a decision of any other court similarly constituted and of similar jurisdiction. One of the leading cases on the subject of force and effect of a foreign judgment is Hilton v. Guyot, 159 U.S. 113, 40 Law. Ed. 95 (1895). The court stated the rule as follows:
We are satisfied that, where there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court, or in the system of laws under which it was sitting, or fraud in procuring the judgment, or any other special reason why the comity of this Nation should not allow it full effect, the merits of the case should not, in an action brought in this country upon the judgment, be tried afresh, as on a new trial or an appeal, upon the mere assertion of the party that the judgment was erroneous in law or in fact. The defendants, therefore, cannot be permitted, upon that general ground, to contest the validity or the effect of the judgment sued on.
The court further held that where there is no comity between our country and the court of the country (France, in this case) issuing the foreign judgment, that judgment is only prima facie evidence of the justice of the plaintiff's claim.
In Ingenohl v. Olsen Co., Inc., 273 U.S. 541, 71 L. Ed. 763 (1927) the Supreme Court reversed a judgment of the Supreme Court of the Philippine Islands. Mr. Justice Holmes for the Supreme Court of the United States said:
It is not necessary to consider whether the section of the Code of Civil Procedure relied upon was within the power of the Philippine Commission to pass. In any event as interpreted it involved delicate considerations of international relations and therefore we should not hold ourselves bound to that deference that we show to the judgment of the local Court upon matters of only local concern. We are of opinion that whatever scope may be given to the section it is far from warranting the refusal to enforce this English judgment for costs, obtained after a fair trial before a court having jurisdiction of the parties, when the judgment is unquestionably valid and in other respects will be enforced, [Italics supplied.]
"Comity" has been stated to be the recognition which one state or nation allows within its territory of the law of another, having due regard, both to international duty and convenience and to the rights of its own citizens or other persons who are under the protection of its laws. Applied judicially it means the local enforcement in a suit of which the court has taken jurisdiction of laws of a foreign jurisdiction ( U.S. v. Belmont, 85 F. (2d) 542 (C.C.A., N.Y.) (reversed on other grounds), 57 S. Ct. 758, 301 U.S. 324). "Comity is the recognition which one nation allows within its territory to legislative, executive or judicial acts of another nation," says Howard v. Howard, 158 S.E. 101, 200 N.E. 574, but the doctrine cannot supply jurisdiction otherwise absent ( In re Armstrong's Estate, 4 N.Y.S. 2d 413, 167 Misc. 592).
It is clear that whether it is a decision of a foreign court or of a territorial court we may look to see whether the court was one of competent jurisdiction to decide the question before it.
With reference to Admiral Wellborn's query, it seems to us that Downes v. Bidwell, 182 U.S. 244, 21 S. Ct. 770, by inference, at least, supplies the answer. That case granted the propriety of using consular courts in annexed territory, rather than the kind of courts established by the Constitution in the areas to which the Constitution has been extended. The opinion in that case also points out that the power to grant citizenship in annexed territory is (where it always has been) in Congress. That power is not in the Secretary of the Navy, or in the Attorney General or the insular Governors. Only Congress can legislate a class of nonnationals into a class of nationals or a class of noncitizens into a class of citizens. Congress has not extended nationality to those island inhabitants born in the circumstances of the appellant in the present case. When looked at in this light it is clear that the island courts have not the power to grant American citizenship. We cannot abdicate in these matters, particularly in the face of clear error.
The next problem is the effect of a grant of an American national's passport to the aliens involved in these proceedings.
The Governors of Guam and Samoa have authority to issue passports, but the grant of a passport is not a binding adjudication of nationality or citizenship. This is a well-established administrative principle, but it was failure to realize this which helped to confuse these appellants.
There is no consular officer on Samoa or Guam, and the Governors of those islands are recognized as the proper authorities to issue travel documents by Executive Order 8766, of June 3, 1941 (superseding similar earlier orders):
PART III * * * The Governor of American Samoa is hereby authorized to issue passport visas, transit certificates, limited entry certificates, and immigration visas to aliens coming to the United States from American Samoa. The Governor of Guam is hereby authorized to issue passport visas, transit certificates, limited entry certificates, and immigration visas to aliens coming to the United States from Guam.
The Naval Governor of Guam is authorized by the State Department to issue the passports as follows:
The Secretary of State (Kellogg) to the Secretary of the Navy (Wilbur), April 22, 1927, MS. Department of State, file 134 Guam/1:
In pursuance of authority conferred upon me by section 1 of an act of Congress entitled "An Act to regulate the issue and validity of passports, and for other purposes," approved July 3, 1926 ( 44 Stat. 887), the Governor of Guam is hereby authorized to issue, amend, and renew passports in accordance with the provisions of the rules governing the granting and issuing of passports in the United States, signed by the President on February 12, 1926, and article X of the Consular Regulations, Annotated, and under such other rules or regulations as may from time to time be issued. In exercising the discretion hereby conferred upon him the Governor should be guided by the provisions of article X of the Consular Regulations * * * so far as the principles set forth in these regulations may be applicable to persons claiming American nationality and desiring to obtain passports from the Governor. Matters which relate solely to consular functions should, of course, be disregarded.
* * * * * * *
The Governor of Guam, in exercising the authority hereby conferred upon him, is expected to refer to this Department, accompanied by appropriate recommendations and legal references, for decision, all applications, involving complicated questions of law, fact, or policy in order that uniformity of action may be maintained. This Department will be glad to give to him such further advice concerning passports and citizenship matters as he may request.
* * * * * * *
* * * Passport applications of persons concerning whose nationality there is a reasonable doubt should be referred to this Department before passports are issued. [Italics supplied.]
On March 30, 1929, authority to issue passports was conferred upon the Governor of Samoa in terms similar to those contained in the Department of State's letter of April 22, 1927 ( supra), conferring such authority on the Governor of Guam.
It appears that none of these applications for passports was referred by the Office of the Governor of Samoa to the State Department for approval prior to issuance. In the record of the Matter of F---- L---- (6701885) is a report on an investigation of the passport applications in the Office of the Attorney General of the American Samoans. The investigator testified that to his own knowledge "not one of the 194 applications * * * were forwarded to the State Department for prior approval." The Navy Department advises us that the island governors are now referring all requests to the State Department.
The case of Miller, Alien Property Custodian, et al. v. Sinjen, 289 Fed. 388 (C.C.A. 8th, 1923), presented the question whether Sinjen was to be regarded as a citizen of the United States and consequently was entitled to the return of property held by the Alien Property Custodian. The Department of State had refused to issue a passport to Sinjen because the presumption of expatriation had arisen against him. In commenting upon this refusal the court stated:
But in the case at bar a finding that plaintiff had ceased to be a citizen of the United States was not necessary to the action of the State Department in denying him a passport, for the reason that the granting of a passport by the United States is, and always has been, a discretionary matter; and a passport, when granted, is not conclusive, nor is it even evidence, that the person to whom it is granted is a citizen of the United States ( Urtetigui v. D'Arcy, 9 Pet. 692, L. Ed. 276; In re Gee Hop (D.C.), 71 Fed. 274; Edsell v. Mark, 179 Fed. 292, 103 C.C.A. 121; 23 Op. Atty. Gen. 509). This has been the law both prior to the passage of any statute relating to the granting of passports, as well as subsequent to such statutes, now embodied in sections 4075 et seq. Revised Statutes (Comp. St. sec. 7623 et seq.) [Italics supplied.]
The granting or withholding of a passport in no sense is an adjudication of citizenship or lack of it. The responsibility of determining whether or not these appellants have been granted United States nationality by Congress still rests at the administrative level, with the Immigration Service and, on appeal, with this Board.
To recapitulate, inhabitants of Samoa and Guam are United States nationals if they fall within the following classifications:
( a) Those who were native inhabitants of Guam on April 11, 1898 (the time of annexation from Spain), became American nationals.
( b) Those who were native inhabitants of American Samoa on February 16, 1900, or Swain's Island on March 4, 1925 (the time of annexation from Germany and Great Britain), became American nationals.
( c) A person born in these territories since the date of annexation whose father possessed American nationality, also possesses American nationality.
( d) Under (sec. 204 (a)) of the Nationality Act of 1940, a person born since January 13, 1941, in an outlying possession of the United States of parents one of whom is a national, or (sec. 204 (b)) a person born outside the United States and outside its outlying possessions of parents both of whom are nationals, also possesses American nationality.
A recent decision of the Commissioner of Immigration and Naturalization in Matter of M----, A-6811393, (Dec. 9, 1948, Central Office) held that the subject, born in British Samoa of a father who is a native of American Samoa and a mother who is a native of British Samoa is excludable as not being an American national. The Commissioner found that nationality, as distinguished from citizenship, cannot be transmitted by a father who has the status of a national to a child born in a foreign country. Even under sec. 204 (b) of the Nationality Act of 1940 in order to acquire United States nationality, a child born outside the outlying possessions of the United States must be born of parents both of whom are nationals of the United States and have resided in the United States or one of its outlying possessions prior to the birth of such child. It was held for reasons similar to those set forth in the above decision that this section of the act did not apply to M---- in any event, because he was born before passage of the act.
In the instant case, the appellant has not sustained the burden of proving American nationality. His father and mother were both natives of Western (British) Samoa, and in the light of the above findings he cannot be found to have derived American nationality either from them, or by virtue of his birth in American Samoa, or by the passage of the Nationality Act of 1940; or by the grant of letter of identity from the Governor of American Samoa. Therefore, we concur with the Commissioner's finding that appellant is an alien.
In accordance with previous practice, this Board on November 23, 1948, requested the State Department for a waiver of documents covering appellant. On December 2, 1948, notification was received that the passport and visa requirements have been waived as to this individual and certain others similarly situated whose cases are before this Board on appeal. Even without this waiver it would appear that appellant comes within the standing waiver provided by Title 8, Code of Federal Regulations, 176.107 (n), in that he is "a resident of remote Pacific islands, who, after arrival at a port of entry in Hawaii or on the mainland, is found to be a bona fide temporary visitor under Section 3 (2) of the act . . ." It is our opinion that appellant is a bona fide temporary visitor and should be admitted as such. The maximum period for which a visitor may be admitted is 6 months. At the end of that time if he has maintained his status as a visitor he may apply for and be granted an extension of his stay.
Order: It is ordered that the appeal be and the same is hereby sustained.