7 FAM 1200 Appendix E
LOSS OF NATIONALITY OF MARRIED WOMEN UNDER THE ACT OF
1907 and successor statutes
(CT:CON-804; 04-30-2018)
(Office of Origin: CA/OCS)
7 FAM 1210 ApPENDIX E INTRODUCTION
(CT:CON-253; 04-22-2008)
a. This Appendix describes the evolution of the
adjudication by the Bureau of Consular Affairs (CA) and posts abroad of
possible loss of nationality cases involving U.S. citizen women who married
aliens in the early part of the 20th century. This guidance is provided
because it is pertinent to the adjudication of citizenship claims of the
children born abroad to such women.
b. Frederick Van Dyne, Assistant Solicitor to the
Department of States Treatise on the Law of Naturalization (1907) and Van
Dynes Citizenship of the United States of America (1904) clarify the evolution
of U.S. law on this subject.
(1) In an instruction to American Consul Sagua la
Grade, June 7, 1894, Acting Secretary Uhl said The view has been taken by this
Department in several cases that the marriage of an American woman to a
foreigner does not completely devest [sic.] her of her American citizenship,
but that the same is only suspended during coverture, and reverts upon the
death of her husband, if she is residing in the United States, or upon her
returning to this country if residing abroad. (Van Dyne on Citizenship, 137).
(2) Secretary Sherman, in an instruction to the United
States Minister at St. Petersburg, March 15, 1897, said By our statute an
alien wife of an American citizen shares his citizenship. By the usual rules
of Continental private international law, a woman marrying an alien shares his
status, certainly during his life; but thereafter, on widowhood, reverts to her
original status unless she abandons the country of her origin and returns to
that of her husband. (Foreign Relations, 1901, 443).
(3) Cockburn, in his work on Nationality (published in
1869, page 24) said: in every country, except where the English law prevails,
the nationality of a woman on marriage merges in that of her husband, she loses
her own nationality and acquires his.
c. Van Dyne also points out that between 1862 1877,
the Attorney General of the United States issued four different, and sometimes
conflicting opinions regarding this issue. During the same period, various
U.S. courts and international claims commissions to which the United States was
a party issued varying opinions on the subject.
d. To resolve any doubt that might exist because of the
variant decisions of the courts, and opinions of the Secretaries of State and
Attorneys General as to the effect of the marriage of an American woman to an
alien, on April 13, 1906, the Senate passed a joint resolution providing for a
commission to examine the subjects of citizenship of the United States,
expatriation, and protection abroad and to make a report and recommendations to
the Congress for its consideration. The Citizenship Commission of 1906
recommended and Congress enacted the Expatriation Act of March 2, 1907 (34
Statutes at Large 1228), Section 3, which provided by statute that a female
U.S. citizen automatically lost her citizenship upon marriage to an alien.
e. Section 2, Act of February 10, 1855 (10 Statutes at
Large 604) provided Any women who is now or may hereafter be married to a
citizen of the United States, and who might herself be lawfully naturalized
shall be deemed a citizen. The Naturalization Act of June 29, 1906 (34
Statutes at Large 596) provided a uniform rule for naturalization.
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NOTE: After 1907, the vast majority of married women
in the United States no longer held the status of citizen or non citizen as a
consequence of birthplace, parentage, or independent naturalization. The
citizenship of their spouse was the single factor ruling their
nationalities.
(Bredbenner, A Nationality of Her Own: Women, Marriage
and the Law of Citizenship (1998), page 16).
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f. The U.S. Supreme Court upheld the Expatriation Act
of March 2, 1907, noting that "the identity of husband and wife is an
ancient principle of our jurisprudence." (Mackenzie v. Hare, 239 U.S.
299, 311, 60 L. Ed. 297, 36 S. Ct. 106 (1915). In the matter of Miller v.
Albright, 523 U.S. 420 (1998), the U.S. Supreme Court noted:
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The statutory rule that women relinquished their United States citizenship upon marriage to an alien encountered increasing opposition,
fueled in large part by the women's suffrage movement and the enhanced
importance of citizenship to women as they obtained the right to vote. In
response, Congress provided a measure of relief. Under the 1922 Cable Act,
marriage to an alien no longer stripped a woman of her citizenship
automatically. But equal respect for a woman's nationality remained only
partially realized. A woman still lost her United States citizenship if she
married an alien ineligible for citizenship; she could not become a citizen
by naturalization if her husband did not qualify for citizenship; she was
presumed to have renounced her citizenship if she lived abroad in her
husband's country for two years, or if she lived abroad elsewhere for five
years. A woman who became a naturalized citizen was unable to transmit her
citizenship to her children if her non-citizen husband remained alive and
they were not separated. See In re Citizenship Status of Minor Children
Where Mother Alone Becomes Citizen Through Naturalization, 25 F.2d 210, 210
(NJ 1928) ("the status of the wife was dependent upon that of her
husband, and therefore the children acquired their citizenship from the same
source as had been theretofore existent under the common law"); see
Gettys, The Law of Citizenship in the United States 118 (1934), at 56-57. No
restrictions of like kind applied to male United States citizens.
NOTE: The Court referenced: Bredbenner, Toward
Independent Citizenship: Married Women's Nationality Rights in the United States: 1855-1937, 54-59 (Ph. D. dissertation, University of Virginia, 1990) and
Sapiro, Women, Citizenship, and Nationality: Immigration
and Naturalization Policies in the United States, 13 Politics & Soc. 1,
4-10 (1984).
See
Bredbenner, A Nationality of Her Own: Women, Marriage
and the Law of Citizenship (1998))
National Archives: Women and Naturalization
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g. The Act of March 3, 1931 (46 Statutes at Large
1511), eliminated prospectively loss of nationality by a U.S.
citizen woman solely due to marriage to an alien husband.
h. Legislation in 1936 and 1940 further eroded the Act of
1907, and made provision for resumption of U.S. citizenship, but did not
restore U.S. citizenship to all such women. A 1994 amendment to the
Immigration and Nationality Act (INA), the Immigration and Nationality
Technical Corrections Act of 1994, Public Law 103-416 (108 Statutes at Large
4305), finally provided a remedy, restoring citizenship retroactively and
simplifying claims to U.S. citizenship by children of the U.S. citizen women
who lost U.S. citizenship under these laws. (See 7 FAM 1270
Appendix E.)
i. The Department continues to see these cases, which
necessitates publication of this Appendix, to explain how these cases were
adjudicated, and how they may be remedied today.
7 FAM 1220 appendix e authoritites
(CT:CON-253; 04-22-2008)
a. The Act of March 2, 1907 (34 Statutes at Large
1228), Section 3, Expatriation Act;
b. The Act of September 22, 1922 (42 Statutes at Large
1021), Section 3, Married Womens Citizenship Act, also known as the Cable Act;
c. The Act of July 3, 1930 (46 Statutes at Large 854)
Naturalization of Married Women;
d. The Act of March 3, 1931 (46 Statutes at Large
1511), Section 4, Naturalization Act, Amendments;
e. The Act of June 25, 1936 (49 Statutes at Large
1917), An Act to Repatriate Native-Born Women Who Have Heretofore Lost Their
Citizenship By Marriage to An Alien;
f. The Act of July 2, 1940 (54 Statutes at Large 715),
Repatriation of Certain Native-Born Women; and
g. The Immigration and Nationality Technical
Corrections Act of 1994, Public Law 103-416 (108 Statutes at Large 4305).
7 FAM 1230 appendix e expatriation of
married women PRIOR TO 1907
(CT:CON-253; 04-22-2008)
a. In the absence of a statute governing the
nationality status of a woman national of the United States who married an
alien prior to the enactment of the Act of March 2, 1907 (34 Statutes at Large
1228), the Department held that such a woman retained her nationality unless:
(1) She took up a permanent residence abroad with her
husband at some time prior to the passage of the Cable Act on September 22,
1922, and
(2) She acquired, as a result of marriage, the
nationality of the country of which her husband was a citizen or subject.
Such a woman was held to have lost her United States citizenship only if the provisions of both paragraphs (1) and (2) were
applicable to her case.
b. The Executive Order of President Roosevelt of April
8, 1907, amending the diplomatic and consular regulations to reflect the Act of
March 2, 1907 on the Expatriation of Citizens and Their Protection (34 Statutes
at Large 1228), provided:
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Registration to Resume or Retain Citizenship: When an
American woman has married a foreigner and he dies or they are absolutely
divorced, in order to resume her rights as an American citizen, she must
register with the American consulate within one year after the termination of
the marital relation.
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c. Effect of Alien Husbands Naturalization in a
Foreign State: An American woman who married a citizen of a foreign state
prior to March 2, 1907, and retained her citizenship, but whose alien husband
was naturalized in another foreign state before March 2, 1907, was held to have
lost her U.S. citizenship if she took up a permanent residence with him abroad
prior to September 22, 1922, and acquired the citizenship of the country in which
he was naturalized.
7 FAM 1240 appendix E American Women
Married to Aliens Between March 2, 1907 and September 22, 1922
(CT:CON-253; 04-22-2008)
a. A U.S. citizen woman who married an alien between
March 2, 1907 and September 22, 1922, was held to have lost her U.S.
citizenship under Section 3 of the Act of March 2, 1907 (34 Statutes at Large
1228).
b. When she married, on or after September 22, 1922,
and prior to March 3, 1931, an alien ineligible to be naturalized as a U.S.
citizen, she was held to have lost her U.S. citizenship under Section 3 of the
Act of September 22, 1922. It was held that if such a marriage took place
between April 6, 1917 and July 2, 1921, during which period the United States
was at war, she lost her citizenship as of the termination of World War I if
the marital relationship continued after such date and if her husband was still
an alien. If, however, the marriage terminated by death or divorce prior to
July 2, 1921, or if, in the meantime her husband had become a U.S. citizen,
such woman was held never to have lost her status as a U.S. citizen through
such marriage.
c. The Act of March 3, 1931 (46 Statutes at Large
1511), amended Section 3 of the Act of September 22, 1922, so that, thereafter,
the provision under which a U.S. citizen woman lost her citizenship solely by
marriage to an alien ineligible for U.S. citizenship was eliminated from the
Act of September 22, 1922. Thus, a U.S. citizen woman who married any alien on
or after March 3, 1931, consequently did not thereby lose her U.S. citizenship
solely by reason of Section 3 of the Act of March 2, 1907, (34 Statutes at
Large 1228) which provided that U.S. citizen women who married aliens lost
their U.S. citizenship.
d. A U.S. citizen woman who married in the United States
lost U.S. citizenship if she later established residence abroad with her
husband before September 22, 1922, or March 2, 1931, depending on the
eligibility for naturalization of the alien.
7 FAM 1250 Appendix E Attorney General
Interpretation of the ActS of 1907 AND 1922
(CT:CON-253; 04-22-2008)
a. On January 25, 1940, Robert H. Jackson, Attorney
General of the United States rendered an opinion regarding expatriation of
married women (39 Opinion of the Attorney General 411) upholding a finding of
loss of nationality of Mrs. A. whose U.S. citizenship was acquired by
naturalization by virtue of her marriage to a U.S. citizen in 1894. Mrs. A.
was later included in her husbands naturalization as a German citizen with her
knowledge in 1924.
b. On August 22, 1940, Attorney General Robert H.
Jackson rendered an opinion regarding loss of citizenship through marriage to
an alien (39 Opinion of the Attorney General 474) who acquired naturalization
in a foreign state while the United States was at war, that is, between April
6, 1917 and July 2, 1921. The Attorney Generals opinion reflected that as
these provisions have been construed by the Department of State, the
Immigration and Naturalization Service, and by the courts, it has been
generally understood that the proviso in section 2 prevented loss of
citizenship while the United States was at war. The Solicitor of the
Department of Labor (at one time the parent agency of the former INS) concluded
in 1938 that the acts of these citizens amounted to attempted expatriation
which never became effective. The Legal Adviser of the U.S. Department of
State expressed the view in a letter to the Attorney General of July 10, 1940,
that expatriation became effective upon termination of the war. The Attorney
General concluded that the preponderance of the judicial determinations in
several courts which have dealt with the question impel me to the conclusion
that American citizens who were naturalized abroad after entry into the war by
this country on April 6, 1917, and prior to the congressional resolution of
July 2, 1921, declaring the war at an end, lost their citizenship as of the
latter date, and that this is also true of American women who married aliens or
who were naturalized abroad through the naturalization of their husbands during
the same period, provided the marital status had not previously been
terminated.
7 FAM 1260 appendix e resumption of
nationality
(CT:CON-253; 04-22-2008)
a. Pursuant to INA 324(c) (8 U.S.C. 1435(c)) a woman
formerly a citizen of the United States at birth who wished to regain her
citizenship under INA 324(c) can apply abroad to a diplomatic or consular
officer on the form prescribed by the Department to take the oath of allegiance
prescribed by section 337 of that Act. The applicant was required to submit
documentary evidence to establish her eligibility to take the oath of
allegiance. If the diplomatic or consular officer or the Department determined,
when the application was submitted to the Department for decision, that the
applicant is ineligible for resumption of citizenship because of INA 313 (8
U.S.C. 1424), the oath was not to be administered.
b. A woman who has been restored to citizenship by the
Act of June 25, 1936 (49 Statutes at Large 1917), as amended by the Act of July
2, 1940 (54 Statutes at Large 715), but who failed to take the oath of
allegiance prior to December 24, 1952, as prescribed by the nationality laws,
can apply abroad to any diplomatic or consular officer to take the oath of
allegiance as prescribed by INA 337 (8 U.S.C. 1448).
c. Upon request and payment of the prescribed fee, a
diplomatic or consular officer or the Department issued a certified copy of the
application and oath administered to a woman repatriated under this section.
d. This resumption of citizenship was also called
repatriation, a term which in current consular parlance has a different
meaning (see 7
FAM 370).
7 FAM 1270 Appendix E Effect of
Afroyim and Terrazas on Section 3 of the Act of 1907
(CT:CON-407; 06-29-2012)
a. Marriage of a U.S. citizen woman to an alien is
expatriating under Section 3 of the Act of March 2, 1907 (34 Statutes at Large
1228) only if there is a statement by the U.S. citizen woman that she intended
to relinquish U.S. citizenship.
b. If an L Consular Lookout and Support System
(CLASS) hold exists for loss of nationality in a case involving loss by
marriage, the cases should be referred to CA/OCS/L
(Ask-OCS-L-Dom-Post@state.gov) for administrative review.
c. If a Q lookout exists in CLASS under this section
of law, absent a statement by the U.S. citizen woman that she intended to
relinquish U.S. citizenship, the Q lookout should be removed by CA/OCS/ACS or
passport agency or center.
7 FAM 1280 appendix e the 1994
amendment to the immigration and nationality act
(CT:CON-454; 04-15-2013)
a. The Immigration and Nationality Technical
Corrections Act of 1994, Public Law 103-416 (108 Statutes at Large 4305),
October 25, 1994 (see 7 FAM 1133.2-1)
retroactively benefited the children born abroad to U.S. women and alien
fathers, prior to May 24, 1934, including those for whom findings of loss of
nationality were made under the Acts of 1907 and 1922.
b. If a post abroad or a passport agency or center
receives a passport application for a person born abroad prior to May 24, 1934
to a U.S. citizen mother married to an alien who lost U.S. citizenship under
the Act of 1907 and its successor statutes, or for whom a Q lookout exists
for possible loss of citizenship, follow the guidance in 7 FAM 1270
Appendix E and 7 FAM 1230
general guidance regarding administrative review and appeal of previous
findings of loss of nationality.
c. The CLASS hold against the mother should be removed
prior to issuance of a passport to the child.
7 FAM 1290 Appendix E Historical
Instructions and U.S. senate resolution
(CT:CON-676; 08-18-2016)
a. Historical
instructions to consuls regarding loss of nationality and married women under
the Act of March 2, 1907 and its successor statutes are available on the CAWeb
Intranet by searching under Citizens Services, Service Area: Loss of
Nationality, Reference Materials and Reports.
b. On May 14, 2014, the
U.S. Senate enacted Senate Resolution S. 402, 113th Congress, 2d Session, May
14, 2014 "Expressing the regret of the Senate for the passage of section 3
of the Expatriation Act of 1907 (34 Stat. 1228) that revoked the United States
citizenship of women who married foreign nationals."
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NOTE:
Excerpt from S. 402:
"Whereas an
acknowledgment of the actions of the Senate that have contributed to discrimination
against women will not erase the past, but will highlight the injustices of
the national experience and help build a better, stronger, and more equal
Nation; and
Whereas the Senate
recognizes the importance of addressing the error of section 3 of the
Expatriation Act of 1907 in order to educate the public and future
generations regarding the impact of this law on women and to prevent a
similar law from being enacted in the future: Now, therefore, be it
Resolved, That the Senate
(1) Acknowledges that
section 3 of the Expatriation Act of 1907 (34 Stat. 1228) is incompatible
with and antithetical to the core principle that all persons, regardless of
gender, race, religion, or ethnicity, are created equal;
(2) Expresses sincere
sympathy and regret to the descendants of individuals whose citizenship was
revoked under section 3 of the Expatriation Act of 1907, who suffered
injustice, humiliation, and inequality, and who were deprived of
constitutional protections accorded to all citizens of the United States; and
(3) Reaffirms the
commitment to preserving civil rights and constitutional protections for all
people of the United States."
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