Part 9

There was a dubious situation regarding Porto Ricans; for it was held at first that, when the United States acquired Porto Rico and the Philippines by the Spanish War, these peoples came under the “protection” of the United States, but did not thereby acquire status as citizens. The Act of Congress, March 2, 1917, cleared up this situation, however, declaring permanently resident Porto Ricans to be citizens, unless they owed allegiance to a foreign country, or within six months after the passage of the Act specifically refused American citizenship. This Act created the judicial “district of Porto Rico,” and definitely vested naturalization jurisdiction in the United States District Court for that district, declaring residence in Porto Rico to be tantamount, for naturalization purposes, to residence anywhere else in the United States.

The Act of May 9, 1918, which swept into eligibility for immediate citizenship upward of two hundred thousand aliens serving in the army, navy, marine corps, and merchant marine, definitely extended the privilege to several classes, including Filipinos and Porto Ricans, regardless of every consideration other than military service, and it has been interpreted in favor of even Chinese and Japanese in those branches of the national war employ.[68]

LIMITATIONS REGARDING AGE

The present law says clearly that an alien may not make a declaration of intention until he is eighteen years old. The old law contained a provision to the effect that anyone who arrived in the United States before the age of eighteen could, after he had been here the required five years, become naturalized by virtue of one proceeding, which was held to constitute both declaration and final petition. Otherwise, nothing was said in the old law regarding the age required for declaration; an alien must be twenty-one, however, in order to be naturalized. There was a good deal of uncertainty and confusion on this point, both the Naturalization Service and the courts taking varying and inconsistent positions from time to time and in various jurisdictions. This is of only academic interest now; but the situation is still somewhat dubious, because an alien can file his declaration at the age of eighteen, and in a strict construction of the law he can file his petition two years later at the age of twenty. Some courts have so construed it. It is generally customary, however, for the courts to insist upon the age of twenty-one before granting citizenship; although one should bear in mind that citizenship does not necessarily involve the suffrage, and all states of the United States require attainment of twenty-one years before the citizen can vote.

THE DECLARATION OF INTENTION

So far as anything in the law goes to prevent, the immigrant can make his way immediately from the vessel that brings him, after the immigration authorities have admitted him to these shores, or across the Canadian or the Mexican border, to the clerk’s office in “any court having a clerk, a seal, and jurisdiction over actions at law or equity, or law and equity, without limit as to amount,” and within an hour of arrival file his declaration of intention to become an American citizen. Of course, he doesn’t do that--unless in very rare instances. The available statistics go to show that, in the average case, he waits nearly seven (6.8) years.[69] But whenever he files it, it will be good (unless some blunder of the clerk, or some technical defect which the clerk overlooks, makes it invalid from the outset) for seven years. It cannot be made the basis of a petition for citizenship until two years after its date, and there must have been, before or after its date, at least three years’ additional residence in the United States to make up the required five years, and the last year of the five must have been passed “continuously” within the state or territory in which the final petition is filed.

Mr. Alien would better be very careful that his declaration is properly made out, on the identical printed form furnished by the Bureau of Naturalization; he must file it in the office of the clerk, and not deliver it to him at his house or on the street corner. He may not hear anything about this at the time; but seven years afterward he may be brought up standing by the fact that it is invalid because of just such a defect. In the case _in re_ Brefo (217 Fed., 131-134) it was held, in 1914, that a declaration otherwise correct, but in typewriting, not on “the form furnished for that purpose by the government,” was a “legal nullity.” Were such an enormity permitted, the court said, there would be “an end to uniformity”; government control and supervision could not exist! And in the case _in re_ Langtry (31 Fed., 879), as long ago as 1887 the court declared that the clerk had no authority to take acknowledgment of declaration of intention at the home of an alien. Numerous other cases in Pennsylvania, Illinois, Kentucky, North Carolina, Florida, have settled the fact that the clerk’s office, or open court, is the only place where a valid declaration can be filed.

If the clerk is without the proper blank forms, because he neglects to keep himself supplied, or because the Naturalization Bureau at Washington fails to heed his request for them, there is nothing for the would-be declarant to do but go home--perhaps many, or in some cases as much as two hundred and fifty miles--and subsequently try again.

As has been said, he must be very particular about the words that he or anyone else writes on the blank when he does get it. If he files his declaration in a court which has much naturalization business, it is likely that the clerk or his deputy will see that it is letter-perfect; but if it is his fortune to reside in a district where naturalizations are few, or where the clerk regards the whole transaction as a nuisance, he may be permitted to make a fatal mistake or omission and remain in blissful ignorance of that fact for anywhere from two to seven years--until he goes before the court with his final petition and finds that because his declaration was from the beginning technically defective he must file a new one and wait at least two years more.

“DECLARATION INVALID”

This, in fact, has been a very common occurrence. During the period 1908-18, 8.5 per cent of all denials of naturalization petitions in the United States were on the ground of “declaration invalid”; that this percentage is made up of figures[70] tragically high in some districts may be recognized in the fact that in Nebraska it was 23.8, in Indiana 21.3, in Oregon 18.7, in Kansas 18.6, in Massachusetts 14.4, in Montana 13.2, in Iowa 12.5, in Arkansas and Idaho 11.3, in Washington 10.9, in Oklahoma 10.4. The petition of an Englishman applying for citizenship in Colorado was denied upon motion of the government’s representative, because in his declaration seven years before he had renounced “King Albert,” when, in fact, the name of the then potentate of Great Britain was “Albert Edward”![71] As the court in that case truly said:

The act of renouncing the allegiance which one owes to a government or sovereign, and taking upon himself a new allegiance, is too solemn and important an act to be loosely performed, or to be surrounded by any uncertainty or doubt. No presumptions are indulged with respect to it.... The declaration of intention must in all material matters comply with the strict letter of the Act.

The court may not rectify _nunc pro tunc_, as in most other kinds of litigation, technical blunders made in good faith or inadvertently by the declarant, or even by the clerk of the court in which the declaration was filed. All the responsibility lies upon the alien.

In the unreported case of John Pollock, in the Philadelphia Court of Quarter Sessions, in 1915, the petitioner had honestly believed himself to have acquired German nationality from the flag of the German ship on which he was born, en route to the United States, of Russian parents coming here with intent to abandon their Russian nationality, and in his declaration had forsworn the German sovereignty; but the court held that the honesty of his mistake could not avail him--“Unfortunately it is impossible to amend his declaration; ... the application must be denied.” Through a misunderstanding of the intricacies of political geography in the then Austria-Hungary, a petitioner who actually was born under that sovereignty erroneously renounced the German Emperor. In that case, when, three years later, upon his final petition for naturalization, the court undertook to amend the declaration, its power to do this was denied upon the government’s appeal.[72]

Five Austrians went in a body to the office of the clerk of the Court of Common Pleas in Hudson County, New Jersey, to file declarations of intention. Doubtless they were very glad, and very grateful, to have the clerk on duty fill out the required blanks for them! Two years or more later, when they marched proudly and anxiously into court to complete their citizenship, their petitions were denied--“declaration invalid,” because, forsooth, as the court in its decision explained:

... The clerk who filled out their papers _assumed them all to be German_, and noted this in the declaration accordingly. The applicants contend that the error was a clerical error on the part of the clerk, and that their renunciation also included other sovereigns, rulers, or potentates. This, however, is not sufficient under the statute.

There are many other cases, in widely separated jurisdictions, to similar effect, showing, in general, that the courts sustain the contention of the Naturalization Service that the law does not permit the rectification of even innocent blunders in the declaration, no matter by whom or in what circumstances they are made.

Who, then, is to see that the technicalities thus insisted upon in the enforcement of the law as it reads are duly and truly observed? Surely not the alien! His care of his own interests is, in the nature of the case, ill-informed, and under the existing conditions, improved as they are in comparison with those prevailing in former times, he is at the mercy not only of the sometimes careless, begrudging, or perhaps well-intending, but better-informed clerk of the court, but of many kinds of extra-legal assistants who, whether with good or with sordid motives, undertake to give, or maybe to sell, advice or instruction--to say nothing of pretended “influence” which, anywhere up to seven years later, when the mischief cannot be remedied, may turn out to have been worse than worthless.

Of vital importance and significance, far beyond what would be gleaned from a superficial reading of the words, becomes in this connection what the Commissioner of Naturalization said in his annual report of July 1, 1912:

The great bulk of the work of the Division [now the Bureau of Naturalization] consists of the examination of the naturalization papers filed in or issued out of the courts. It has never been possible, with the clerical aid supplied, to keep abreast of this work. Concluding the first year with a large number of papers not examined, that condition has grown more and more serious.... At the present time it must be stated that no examination of declarations of intention has been made since October, 1910, and not more than 30,000 certificates have even been examined. Correction of errors in the latter papers, [final] certificates of naturalization, are perhaps less necessary, but the declarations are used as the basis of petitions for naturalization, and defects in them may result in the denial of such petitions and a further delay of two years to the applicants for citizenship. Beginning with October, 1912, declarations which have not been examined will mature, and these aggregate 298,000 in number.[73]

That the Bureau of Naturalization is aware of the desperate importance of this matter to the aliens appears not only in so many words in the Commissioner’s own utterances, but in legislation proposed by the Bureau which would tend to remedy it. In the same report (1912), after describing the strenuous efforts of the clerical force to catch up in particular cases with the dates of final hearings, Commissioner Campbell said:

To any easy assumption that errors in a declaration may be corrected at the hearing of the petition, the answer is plain--that no change can be made if the declaration was filed, as it frequently is, in a court other than that in which such hearing is held. It has also been decided judicially that a declaration, complete in every respect, cannot be changed because of even conceded error in its averments. It is therefore important that the discovery by prompt administrative examination, of a defect, either in the way of omission or error, be brought to the attention of a declarant and the clerk of the court in which his declaration is filed, so that either the paper may be corrected or the declarant may file a new declaration, and thus save time, expense, and ultimate disappointment.

All of which has the color of mockery in the light of the fact that at the date of that report there lay in the files of the Bureau nearly three hundred thousand unexamined declarations, all of which would mature within the ensuing three months!

The legislative proposals to remedy conditions so far as inadvertent errors in the declaration are concerned, include, for instance, a proposed amendment[74] to Section 4 of the Naturalization Law, providing that

... any averment required to be made in the declaration of intention that may be shown to have been made erroneously, but with no intention to violate or evade the requirements of the naturalization law, may be corrected by order of the court in which the declaration was filed, or by the court in which it is presented as a basis for a petition for naturalization.

SHOULD DECLARATION BE ABOLISHED?

Some belated survival of Commissioner Campbell’s earlier belief, as a member of the Naturalization Commission of 1905, that the declaration of intention should be abolished as superfluous and as a prolific source of errors, appears in his concluding paragraph under this head, wherein, after alluding to the increasingly urgent appeals for more clerical assistance, which had characterized virtually every one of his reports since the establishment of the Naturalization Service, he adds:

If the object to be obtained does not justify the additional expenditure that it involves, then the declaration, as a matter of common justice to applicants for citizenship, if not for the practical reasons stated ... in the Report of the Commission of Naturalization to the President, dated November 8, 1905, should be stricken from the law. It may be suggested that the effect of such action upon the exercise by alien declarants of the elective franchise in certain states would be merely to cut off future supplies of such voters.

It is indeed true that many careful, experienced, and judicious students of the naturalization problem have on many grounds favored the abandonment of the declaration of intention. The arguments in this behalf are plausible while there are states in which aliens holding “first papers” (declarations of intention) are entitled to vote. As for the others, the reasons to the contrary seem to the present writer to outweigh them. Regardless of the suffrage, in many states the declaration entitles the holder to certain property rights; many employers, and even municipalities, require at least the declaration before they will permit employment. The best reason of all, regarded by a majority of the naturalizing judges as of vital importance, is that the declaration, and the interval of at least two years which must elapse before the declarant can file his final appeal for admission to citizenship, afford a period of probation, not only of substantial psychological value as affecting the alien himself, but giving the government opportunity to observe the conduct of the individual and to investigate his antecedents, and the person’s neighbors and the public generally due notice that he is an aspirant for active membership in the community.

On more than one occasion Mr. Campbell, who more than perhaps anyone else might be regarded as an expert on the subject of naturalization, favored the abolition of the declaration of intention. As late as 1910, testifying before the Committee on Immigration and Naturalization of the House of Representatives, he said:

I think I am on record as advocating the abolition of the declaration of intention, anyhow.

That this is no longer his view, or that of the Bureau, appears somewhat emphatically in the following excerpt of the annual report bearing his signature, for the fiscal year ending June 30, 1917:[75]

Many theorists in the United States, when there was no Federal supervision of the naturalization law, conceived the idea that the declaration of intention was a purely superfluous act; that the certificate of the declaration of intention was a superfluous document. Many of them still retain that idea, having made no advance in their studies, or being unacquainted with the experience of the Federal administrative force. There is nothing that has arisen in the experience of the Bureau of Naturalization, in the ten years of Federal supervision, that justifies this idea that the declaration of intention should be abolished.

The Americanization work of the Bureau, based as it is upon the declaration of intention, is the only point of contact the Federal Government has with the individual alien from the time he lands upon our soil. The use of the declaration of intention by the Bureau in sending the names to the public schools and bringing the aliens of every community into close relationship with them has forever settled the question of the value of the declaration of intention.

This is only a new use to which this “first paper” (an instrument which is peculiarly an American institution)[76] has been put. If this were the only use to be made of it, it would justify its continued existence. As it is, it is used and interwoven into the administrative fabric of the Government in its contact with aliens throughout the United States. It is a means of identification by which the alien makes known his right to take up Government land; by which he may secure employment in municipalities and in State improvement work; by which membership in many organizations may alone be secured. It is the indication of the announced purpose of the alien to forswear his allegiance to his sovereign and to choose the Constitution of the United States as his new allegiance. It is woven throughout the warp and woof of our national laws and our social and economic organizations.

NATURALIZATION JUDGES FAVOR ITS RETENTION

Of 323 judges of naturalizing courts all over the United States who answered definitely on this point the questionnaire of the Americanization Study, 241 opposed, more or less emphatically, the abolition of the declaration of intention, only 82 favoring its abolition on one ground or another, but principally because they were aware of no good purpose served by it.

One United States district judge rather picturesquely described its function:

This country cannot afford to have it said that we are urging citizens of other countries to renounce their allegiance and take up citizenship with us. That would be wrong from every standpoint. On the other hand, if they do want to become American citizens, it is our duty ... to help them fit themselves. If you take away the declaration of intention you will destroy our opportunity in that regard. The young lady who meets a young man and likes him, would be very much out of place if, without any other tie between them, she began to tell him what she wanted him to do, what she wanted him to study, and how she wanted him to study, what she wanted him to drink, and how she wanted him to dress. It would be very immodest and impolite, to say the least. If that young man had made her a proposal of marriage, and she were considering it, these suggestions from her would be entirely proper, and she would be performing her duty to the young man and to herself. This illustrates, I believe, the proper limits within which our country can guide, advise, and direct aliens who through the declaration of intention have made, as it were, a proposal of marriage, with reference to preparation for citizenship.

Sound objections to abolition of the declaration appear also in connection with the property rights as regards homestead entry and other matters under both Federal and state laws--a complicated matter in addition to the great confusion existing by reason of the laws of those states which conferred the right to vote upon holders of so-called “first papers.” With the removal of this right, much of the objection to the declaration of intention disappears. As it was, under such laws, an alien might file a declaration of intention every seven years as they expired _seriatim_, and, without any proper inquiry, judicial approval, or supervision whatever, retain his right to vote--citizenship for all practical purposes.

Many of the judges would permit no renewal of a declaration after the expiration of the first; some would substitute registration upon entry, annual, or even more frequent reports by the alien regarding his whereabouts and behavior, and constant governmental _espionage_.

The declaration of intention, particularly if it be properly guarded and solemnized, puts everybody, at least constructively, upon notice that a new member is applying, and requires the declarant himself to keep that application in mind for two years. He cannot suddenly decide, by reason of some special condition or inconvenience, to apply for citizenship and consummate the process in three months, as he could do if the declaration were abolished without extending the interval between petition and certificate. The defects in the present system are found in the fact that he can file his declaration anywhere at will, in a form so defective that two years or more later it nullifies his petition; he can be grafted upon and bled _ad libitum_ by all manner of exploiters claiming to be able to assist him. However valuable in theory, in practice it is far too hit-or-miss.

The declaration should be surrounded by a very much greater degree of care and solemnity than at present. Not only should it be made under oath and on properly guarded printed forms; when it is filed it should be scrutinized and accepted as to substance, and by no means be subject long afterward to rejection because of clerical or other technical errors which ought to have been detected at the outset.

The St. Louis office of the Naturalization Service has taken a long step in this direction, by securing the co-operation of many of the courts in that district in the establishment of a custom by which the declaration is accepted for filing only after it has been viséd by the naturalization officers. This has no authority in law, but it nevertheless is a wholesome practice, chiefly in the interest of the alien declarant; incidentally it goes far to put out of business the various kinds of parasites who exploit the ignorance and helplessness of the aspirant for citizenship.

THE SEVEN-YEAR LIMITATION