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UNITED STATES
ex rel. D’ESQUIVA vs. UHL, District Director of Immigration. No. 263
137 F.2d 903,
1943 U.S. App. Decision August 18, 1943 Appeal from the District Court of the United
States for the Southern District of New York. Arthur Garfield Hays, of New York
City (Hays, St. John, Abramson & Schulman and James R. Cherry, all of New
York City, on the brief), for petitioner-appellant. Samuel Brodsky, Asst. U.S.
Atty., of New York City (Mathias F. Correa, U.S. Atty., and Stuart Z. Krinsly,
Asst. U.S. Atty., both of New York City, and Edward J. Ennis, Director, Alien
Enemy Control Unit, Dept. of Justice, and Leo Gitlin, Atty., Dept. of Justice,
both of Washington, D.C., on the brief), for respondent-appellee. AUTHOR: CLARK {F.2d 904} Before SWAN,
CLARK, and FRANK, Circuit Judges. CLARK, Circuit
Judge. By habeas corpus
the relator sought release from detention by the respondent, who holds him in
custody as an alien enemy under an order of the Attorney General purporting to
act pursuant to the Alien Enemy Act, 50 U.S.C.A. § 21, and the
presidential proclamation of December 8, 1941, No. 2526, 6 Fed.Reg. 6323.
Appellant is a Jew born in Vienna, Austria, in 1891. His parents were native
citizens of the Austro-Hungarian Empire. His petition alleges that in 1919 he
went to France, intending never to return to Austria; and he never did return
except to collect his inheritance from the estates of his parents in 1924. His
domicile in France continued from 1919 to February, 1939, when he and his wife,
a native French citizen whom he had married in Paris in 1938, came to the
United States under tourist visas issued by the American Consulate General at
Paris. In October, 1940, he executed an alien registration blank stating that
he was last a citizen or subject of Austria. Respondent justifies detention of
appellant on the ground that by reason of Austria’s incorporation into the
German Reich in 1938, as recognized by our government, he became a “native” and
a “citizen” of Germany within the meaning of the statute. Our decision in
United States ex rel. Schwarzkopf v. Uhl, 2 Cir., 136 F.2d 898 [sic, should be 137 F.2d 898], disposes
adversely to respondent of the contention that D’Esquiva is a German citizen.
Long prior to the invasion of Austria he had taken up his abode in France and
he has never elected to accept {F.2d 905} the sovereignty
of the invader. Therefore, he never became a citizen of Germany. Moreover, if
by German law he did become a German citizen, such citizenship was terminated
by th Executive Order of November 25, 1941. The government
argues that he is at least a “native” of Germany within the meaning of that
word as used in the statute.1
The use by congress of the four words “natives, citizens, denizens, or
subjects” indicates that each word is to have a significant and different
meaning. They include all who by reason of ties of nativity or allegiance are
likely to favor the enemy nation. “Natives” must include others besides
citizens or subjects of the hostile nation or government. In its ordinary and
natural meaning the word refers to a person’s place of birth. Hence a person
remains a native of the country of his birth, although he has moved away and
become a citizen or subject of another nation or government. See Minotto v.
Bradley, D.C.N.D. Ill., 252 F. 600, 602, 603; cf. Ex parte Gilroy,
D.C.S.D.N.Y., 257 F. 110, 127.This is inferable from the statute itself, which
applies to “all natives, citizens, denizens, or subjects of the hostile nation
or government* * who shall be within the United States and not actually
naturalized.” The exception of those who have been naturalized is necessary
only because of the term “natives”; the other classes named would cease to be “citizens,
denizens, or subjects” of a hostile nation by the very fact of naturalization
in the United States. Appellant, therefore, was a native of Austria, and we
think he remained such despite his removal to Fance for permanent
residence. The next step is
to determine the application of the statute to a native of Austria after that
country ceased to exist as an independent nation. Against respondent’s claim
that he is a native of what is now recognized as Germany, appellant argues that
a native is a person born not only within the territory, but also “within the
allegiance of the government,” inquestion, citing 2 Kent’s Commentaries 39 and
1 Blackstone’s Commentaries 369. But these authors were using the term in a
context where they were distinguishing aliens from natives, i.e., native-born
citizens; and they had no occasion to face the distinction made necessary in
this statute between natives and citizens, denizens, or subjects. What we have
said above makes clear that, unless we would deprive the word of all meaning in
the statute, the additional requisite for a native for which appellant contends
cannot be supported. And we think that, unless bizarre results are to be
accepted, the term “native of a hostile nation” must include one born of
native-citizen parents at a place which has now been recognized by our
government as a component part of a nation with which we are at war. Thus, a
native of Prussia before the German Empire was proclaimed in 1871 would now be
a native of Germany. And an Alsatian should not be held subject to detention as
an alien enemy merely because (unlike other members of his family, for example)
he happened to have been born after the original cession of Alsace to Germany
and prior to its return to France in 1919. Cf. In re Pfleiger, D.C.S.D.N.Y.,
254 F. 511.2 Nor should
changes in the composition of the nation - the adding or subtracting of parts,
as with France {F.2d 906} and Germany in 1919, or the substitution of a federated
republic for the empire, Germany, 1919 - make a discontinuity so that a native
of the former nation is to be considered not now a native of the succeeding and
present nation. The question is like that arising on deportation of aliens,
where “country” means the state, which at the time of deportation includes the
place from which the alien came, Mensevich v. Tod, 264 U.S. 134, 44 S. Ct. 282,
68 L. Ed. 591, or of his nativity, if he has not acquired a domicile elsewhere.
United States ex rel. Dipaola v. Reimer, 2 Cir., 102 F.2d 40. Hence, if Austria
is now recognized as a component part of Germany, we think appellant is to be
considered a German native and properly detained as such. Recognition of
foreign nations, it is settled, is a political question, the determination of
which by the legislative and executive departments of the government
conclusively binds the courts. Jones v. United States, 137 U.S. 202, 212, 11 S.
Ct. 80, 34 L. Ed. 691; United States v. Pink, 315 U.S. 203, 229, 62 S. Ct. 552,
86 L. Ed. 796. The district court, therefore, properly considered the acts of
the Department of State taken with reference to the Austrian Anschluss of 1938.
In its able
opinion, the court refers particularly to the photostatic copy of a letter of
May 9, 1942, from the Secretary of State to the Attorney General in response to
the latter’s inquiry as to what diplomatic recogniztion was given by the United
States Government to the incorporation of Austria into the German Reich. The
Secretary referred the Attorney General to two notes which had been delivered
to the German Foreign Minister on April 6, 1938, by the American Ambassador to
Berlin pursuant to instructions from the Department of State.In substance these
notes stated that the Government of the United States was obliged to close its
legation in Vienna and to establish in place thereof a Consulate General
because the Minister of the Republic of Austria had informed the Department of
State on March 17, 1938, that Austria had ceased to exist as an independent
nation and had been incorporated into the German Reich, and further that the
Government of the United States was under the necessity for all practical
purposes of accepting the announcement of the Austrian Minister and that
thereafter this government would look to the German Government for the payment
of the Austrian debts. The district court thereupon said: “The action taken
by the Department of State, as reflected in the letter to the Attorney General
and the two notes delivered to the German Foreign minister, is some evidence
tending to show that the United States Government recognized the consolidation
of Austria with Germany. Such action took place only after the Austrian
Government had formally notified the Department of State that that country had
ceased to exist as an independent nation. Further evidence of such recognition
is this action taken by the President, on April 28, 1942, when he abolished the
Austrian quota allowed under the immigration Act of 1924 (43 Stat. 153) and at
the same time inceased the German quota by the number formerly allowed Austria.
(Proclamation No. 2283, 52 Stat. 1544.) In the absence of any proof to the
contrary it must be assumed, therefore, that this government has officially
recognized the consolidation of Austria with Germany.” This conclusion,
therefore, led to its judgment of dismissal of the writ. It should be said that
on a somewhat different issue we had earlier reached a similar conclusion as to
the action of the State Department, in Land Oberoesterreich v. Gude, 2 Cir.,
109 F.2d 635, 637, certiorari denied 311 U.S. 670, 61 S. Ct. 30, 85 L. Ed. 431.
Appellant,
however, relies on other representations from the State Department, referred to
in United states ex rel. Schwarzkopf v. Uhl, supra, which now constitute “proof
to the contrary.” In particular a press release of the Secretary of State, No.
386, July 27, 1942, after the decision below had been rendered, is quoted and
relied on. Here, after referring to the confusion with respect to the view of
this country “as to the present status of Austria” and speaking of “the
situation presented by the imposition of military control over Austria, and
residents of Austria, by Germany,” the Secretary says: “This Government very
clearly made known its opinions as to the manner in which the seizure of
Austria took place and the relatin of that seizure to this Government’s
well-known policy toward the taking of territory by force. This Government has
never taken the position that Austria was legally absorbed into the German
Reich.” Since courts are bound by the action of the Executive, and where
necessary address their own inquiries to it, it is held {F.2d 907} that further
clarification made by the Executive, even after the decision below has been
made, is to be considered by the appellate court. Oetjen v. central Leather
Co., 246 U.S. 297, 301, 38 S. Ct. 309, 62 L. Ed. 726; Russian Socialist
Federated Soviet Republic v. Cibrario, 198 App. Div. 869, 872, 191 N.Y.S. 543,
547; cf. Puente v. Spanish National State, 2 Cir., 116 F.2d 43, 45, certiorari
denied 314 U.S. 627, 62 s. Ct. 57, 86 L. Ed. 504; Sullivan v. State of Sao
Paulo, 2 Cir., 122 F.2d 355.
But even if we
give all proper weight to this statement, we cannot find in it anything
absolutely decisive. The word “legally” can hardly be given the same content
with reference to intercourse between nations as it has in domestic law.
Whether this statement was intended as a definite nonrecognition of the
includsion of Austria in Germany, thus making the situation of Austria
comparable to that of Czechoslovakia (the country of which Schwarzkopf, in the
companion case, was a native), or of other governments in exile, or whether it
was merely a condemnation of the means by which the result was accomplished, is
not clear. There appear to
be other governmental regulations tending to throw some further doubt on the
matter. Thus, the Immigration and Naturalization Service of the Department of
Justice has issued new instructions dated May 14, 1943, and June 8, 1943,
pertaining to the proper classification for naturalization purposes of aliens
of Austrian nativity and nationality and holding that they are not now to be
considered natives of Germany for the purposes covered by the instructions. And
recent instructions of the Treasury Department dealing with reports to be made
of property owned in foreign countries are cited to us as distinguishing
between Austria and Germany. How far these various regulations and instructions
have been made in the light of, and in conformity with, the present view of the
Department of State is not disclosed. At any rate, we think the ends of justice
require a further inquiry into the recognition acorded the Austrian absorption
into Germany by our Department of State. We might address our own inquiries to
the Department, but we think the better course is to remand the proceedings to
the district court, since a hearing and the taking of testimony on this issue
may prove desirable. The judgment is,
therefore, reversed and the case remanded for further proceedings consistent
with this opinion. SWAN, Circuit
Judge (dissenting). In my opinion one
who was born a native of Austria remains a native Austrian even though his
country loses its identity as an independent state; hence, if the conqueror
(Germany) becomes a “hostile nation or government” I do not think the
native-born Austrians thereby become “natives” of a hostile nation within the
meaning of the enemy alien statute. The purpose of that statute was to
safeguard the security of the United States by apprehending and detaining all
aliens who would be likely to entertain friendly feelings for the hostile
nation, if in the individual case the President thought detention necessary.
Native-born members of the hostile nation were likely to entertain such
feelings and were therefore included in the definition of enemy aliens unless
they had become naturalized citizens of the United States. But a native of the
conquered country who has removed himself before the conquest has no reason
whatever to favor the conqueror; on the contrary he has every reason for
antipathy. In my view he cannot be considered a “native” of the hostile nation
within the meaning of the statute. Consequently inquiry as to whether the
United States through its Department of State has accorded de facto recognition
of the absorption of Austria into germany seems to be an irrelevant issue. I
think the cause should be remanded with directions to sustain the writ and
discharge the relator from custody.
FOOTNOTES 1 The first
sentence of the statute, 50 U.S.C.A. § 21, derived from Act July 6, 1798, 1 Stat. 577, is as
follows: “Whenever there is a declared war between the united States and any
foreign nation or government, or any invasion or predatory incursion is
perpetrated, attempted, or threatened against the territory of the United
States by any foreign nation or government, and the President makes public
proclamation of the event, all natives, citizens, denizens, or subjects of the
hostile nation or government, being of the age of fourteen years and upward, who
shall be within the United States and not actually naturalized, shall be liable
to be apprehended, restrained, secured, and removed as alien enemies.” Later
provisions of this section and of § 22 set forth the nature of regulations to be proclaimed by
the President to carry the act into effect, including the manner and degree of
restraint to which the alien shall be subjected, with reasonable time allowed
those not chargeable with actual hostility to settle their affairs and depart. 2 This was a case
where an Alsatian, who was born before the cession of Alsace to Germany, but
did not depart when that event took place, was held subject to the provisions
of the statute of 1802, originally denying citizenship, now allowing it only
under certain conditions, to an alien who “shall be a native, citizen, denizen
or subject” of any country with which the United States is at war. 2 Stat. 153,
now appearing as 8 U.S.C.A. §
726. See, also, In re Jonasson, D.C. Md., 241 F. 723. |