Americans by Choice

The final hearing must be public, in open court, and the judge must pass upon the petition personally:

Attention needs to be drawn especially to the following section, which, however innocuous in appearance, has given rise to a vast deal of vexation and injustice, and has caused the exclusion from citizenship of a large number of persons otherwise perfectly qualified and desirable:

It will become evident as we proceed that the interpretation which has been placed by the courts and the Naturalization Service upon the distinction between the phrases, “two witnesses,” “at least two witnesses,” and “two or more witnesses,” has in practice caused a palpable absurdity from the point of view of common sense, and inflicted crying hardships and wrongs from the point of view of bare justice. Upon the humanity and good sense of the court, interacting with the same on the part of the representatives of the government, has depended to a very great degree the sensible interpretation of these and other provisions of the law; but in general both are bound by its letter, and in many instances they have been forced to reject petitions which, on the sane merits of the case, should have been accepted.

V

THE LAW IN OPERATION

Commissioner Campbell, in his annual report for the fiscal year ending June 30, 1914, described in some detail the operations of the field service of his Bureau in the handling of the applicant for citizenship:

Further emphasizing the advantages of this practice, the Commissioner remarks that it enables the examiner to dispose of a large number of cases, and tends to obviate denials on such grounds as “that the petitioner is already a citizen”; “incompetent witnesses,” “insufficient residence,” “no certificate of arrival,” “declaration invalid,” “premature petition,” etc.—“unless, as is sometimes the case, a petitioner is obstinate and insists on taking his chance of admission by the court against the advice of the examiner.” The Commissioner goes on to say:

Referring to the work in regions apart from the great cities, the Commissioner said, in his report for 1912–13:

For the rest, and the far-outlying, sparsely-settled regions, where a person desiring citizenship must travel with his witnesses perhaps even hundreds of miles not once, but twice in any event, and in some cases several times, to and from the court having jurisdiction over the territory in which he lives, the situation is not so simple. To persons completing by the essential of American Citizenship their title to a homestead on the public lands—necessarily and characteristically in such sparsely settled regions—this item of travel, expense in both money and time for three persons, to say nothing of other hardships and exasperations involved in the meticulous technicalities of the law and practice, not infrequently is a raw tragedy. Neither provision by Congress nor administrative arrangement or concession in enforcement by the Naturalization Bureau or the courts has materially mitigated the hardships involved in such cases.

RESTRICTIONS OF RACE

Not every alien, whatever his character or good disposition toward the “good order and happiness” of the United States, or his willingness to “support and defend the Constitution and bear true faith and allegiance to the same,” can become a citizen of the United States. He, or she, must be either white, or black—or, in the case of the American Indian, red. And if black, he, or she, must be of African descent. A long series of decisions has been necessary to define exactly what races are excluded; with the result that it is now, for practical purposes, well established that naturalization cannot, under existing laws, be granted to Chinese, Japanese, Hawaiians, Burmese, or the black or brown natives of India.

It is not our province here to discuss the merits either of the racial limitation or of the somewhat vague definition that has been arrived at; it must suffice to outline the situation. The Naturalization Law of 1870 limited naturalization to “aliens being free white persons; and to aliens of African nativity and to persons of African descent.” This was enacted in the tense days of Reconstruction after the Civil War, and was a natural but wholly unnecessary fling at the South. All American negroes are citizens of the United States by virtue of their birth in this country, and those who come here from Africa are likely to be incapable of passing the naturalization tests. Congress never has enacted a clear definition of the term, “white person,” and endless confusion has existed. Hawaiians, Afghans, Chinese, Syrians, Turks, and Fiji Islanders, all have been admitted by some courts and excluded by others. The Commissioner of Naturalization at one time directed the field force to oppose vigorously the admission of any Asiatic. A non-Mongolian Turk, married to a white woman literally Caucasian, would be surprised to have his son excluded as not a white person; but such folk, and many others white by any common-sense definition, were excluded, the courts usually accepting as the judgment of experts the contention of the naturalization examiners; until finally the ruling was rescinded, and the matter has since then been left largely to the discretion of the courts, which have substantially settled the question so far as it may be settled in absence of a clear constitutional or legislative definition, such as exists specifically in the Act of 1882 excluding the Chinese by name. As the law and decisions stand now, the same definition which will admit an African deckhand or cook excludes a Japanese prince or a Hindu university graduate.[66]

As for the Filipinos, it was held, in 1915, by the Supreme Court of the District of Columbia, that a Filipino is neither an alien nor an African, and that, therefore, he did not come within the provisions of the law limiting naturalization to white aliens, or black ones of African descent; that the Filipino then before the court could and would be naturalized under the section providing:

In another case (not, however, involving clearly the question of racial color) a native of the Philippine Islands, of full Spanish paternity, but of half-breed blood on his mother’s side, was admitted by the same court.[67]

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 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:

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:

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:

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

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:

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:

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]

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:

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

The law of 1906 limited the life of a declaration of intention to seven years. Prior to that there was no limit, and even after the passage of that Act it was held in practice that it did not apply to declarations made previously. But in 1913 the question was raised, in the United States Court in New York City, whether it was not the intent of Congress to apply the seven-year limitation to all declarations. In 1914 the court ruled that it was. The effect of that decision was to invalidate all declarations made prior to September 27, 1906, notwithstanding the express provision in the law that “no alien who, in conformity with the law in force at the date of his declaration, has declared his intention to become a citizen of the United States, shall be required to renew such declaration.”

This decision was soon affirmed by the United States Circuit Court of Appeals; but even then it was not uniformly observed, until January, 1919, when the United States Supreme Court put an abrupt stop to the practice of accepting “old-law declarations” by affirming the decision of the District Court at New York.

The effect of this final ruling by the highest court in the land was tragic. Hundreds, if not thousands, of pending petitions, of aliens altogether fit from every other point of view, forthwith became invalid simply because based upon “old-law declarations” blighted by the newly applied seven-year restriction. In one session of the State Supreme Court in New York County a batch of more than seventy otherwise acceptable petitions was denied for this reason alone. The question of the effect of the decision upon certificates of naturalization granted theretofore between its date and September 27, 1913, was met by Congress in the Act of May 9, 1918, by the following provision:

THE CERTIFICATE OF LAWFUL ENTRY

Assuming, now, that our alien is of the proper racial descent, the accepted age, and that his declaration of intention will pass muster; that he has lived in the United States for at least two years since the declaration was filed, and at least three years besides that—a total of not less than five years in all, including the final fifth year in the state—what must he do, and what may be done to him, when he comes up at last with his request for admission to Active Membership?

If he arrived in this country since June 29, 1906, he must produce a Certificate of Arrival. In theory, at least, all arriving aliens are registered at the port of entry by the Immigration Service of the Department of Labor. Under existing law they cannot get in at all if they are of certain excluded races and classes; if they are under contract to get a particular job; if they are insane or afflicted with certain diseases; if they are recognizable as anarchists, polygamists (or believers in either anarchy or polygamy), criminals, or, in the opinion of the immigration authorities, likely to become a public charge—a burden upon the community. They must, with certain exceptions for age and family relationship, be able to read and write in some language.

Aliens may properly enter the United States only through some officially designated port of entry, designated by the Commissioner of Immigration, if an alien enters elsewhere along our enormous border line he is deemed to be “unlawfully present,” is subject to deportation, and when he tries to become a citizen he must give a very good excuse for having “climbed up some other way.” A good many Canadians and Mexicans have found very embarrassing, eventually, the fact of their ignorance or evasion of this requirement.

The Act of Congress, approved June 29, 1906, went into effect in most respects on the 27th of September following, but this provision was to take effect immediately:

Unfortunately for the aliens subsequently embarrassed by the fact, the books for record of entries were not promptly installed, and in some instances since they were installed the immigration officials at the ports of entry have not always been scrupulous in the making of the required entries.

No certificate is given to the alien at the time of his arrival, even if he is properly registered; nothing of the sort is required of him anywhere; he does not have to show it when he makes his declaration of intention to become a citizen, nor at any other time or for any other purpose—until after he has been here at least five years and comes to the point of filing his petition for final naturalization. Then he must have it—unless he arrived before June 29th, 1906; in that event it is not required of him.

He is not to go for it to the Immigration Service. He must get it in the most roundabout fashion. He must address a written application, through the clerk of the court in which his petition for naturalization is to be filed, to the Commissioner of Naturalization, who in turn requests it of the Immigration Service. The Immigration Service, if it can find the original entry (and sometimes—quite frequently in fact—it cannot), sends the certificate to the Commissioner of Naturalization, who sends it to the clerk of the court, at the same time notifying the alien that now he may proceed to file his petition.

But what if the arrival entry cannot be found? What if the alien cannot remember the name of the vessel, or other important facts relating to his entry, and thus give the necessary clews for the search? What if it was his misfortune to arrive at a port after the law took effect and before the registry system was in operation? Both the Immigration and the Naturalization Service take a good deal of pains to care for such situations; but frequently without success. All this involves delay, not only vexatious and discouraging, but likely to prove fatal in the case of an alien whose declaration is at the edge of expiration. Not infrequently an application for certificate of arrival is bandied back and forth between the two Bureaus for months.

There was a case in 1919 in which the alien described himself as having arrived on a certain date and vessel at New York; the immigration records showed no such arrival, and, what was worse, no such vessel entering New York at that time. After long delay it turned out that the alien did arrive on that date and vessel, but at Boston, whence, upon admission, he came by a domestic coastwise vessel from Boston to New York. Many other cases are by no means so simple.

A petition accepted for filing without the requisite certificate of arrival is regarded as incomplete, and may not be completed subsequently by attachment of the certificate, but must be marked “spoiled”; the four dollars paid as fee may be returned to the petitioner by the clerk, or can be applied to the filing of a new and sufficient petition. It has been the practice of the Bureau of Naturalization, after it appears impossible to find record of the applicant’s admission to the country, to refer him to the nearest immigration inspector for what is known as a nunc pro tunc inspection, for the purpose of satisfying the inspector that the alien should not be deported as “unlawfully present.” If the inspector is satisfied, he issues what is known as a “provisional certificate of arrival,” whose acceptance as sufficient for purposes of naturalization is subject to the discretion of the court. This would appear a reasonable way out; but in the case of petitioners living a very long distance from the office of an immigration inspector, it involves an extra, and perhaps prohibitively expensive, journey to the distant city for that purpose alone, and this difficulty has in fact been to some extent relieved by permission to handle such cases by correspondence and affidavits.

THE VEXATIOUS QUESTION OF NAMES

Another obstruction goes to the question of our treatment of the foreign-born laborer in industry—especially if he bear what we choose to regard as a “queer” name, difficult for us to spell or pronounce. The courts have, properly, no doubt, no patience with assumed names—particularly in a case where the alien cannot remember the name under which he entered the country. But it is a very common practice, in concerns employing a large number of immigrants, for the minor officials of the company, superintendents and foremen, to attach a name to a job, and insist upon calling the man who occupies it, “Mike Murphy,” or what not else, because that was the name of the first incumbent, and it is easier to pronounce than “Bahaoud,” “Behrensmayer,” or “Przybylski.” This, and the even more common practice of calling a man by a number, rather than a name, results in a vast deal of confusion, in a substantial discouragement of self-respect, and in the ultimate establishment of the neighborhood identity of a polysyllabic Greek or Armenian, perhaps, with a fine old Irish name. This will not do in the naturalization court. The petitioner must come in under at least the same name that he bore when he entered the country, and there must be no suspicion as to its not being his own.

But he does not have to keep that name. It is prescribed as lawful for the court in its discretion, “at the time and as a part of the naturalization of any aliens, ... upon the petition of such alien, to make a decree changing the name of said alien.” The fact of which the court must be convinced is that the petitioner is not attempting to conceal his real identity for the purpose of escaping payment of just debts or punishment for crime. Many aliens do thus change their names, and there have been cases in which the judge virtually compelled them to do so.

A naturalization judge said to the writer: