IMMIGRATION

GOVERNMENI

Storage A11600 662548 

HEARING

BEFORE

SUBCOMMITTEE NO. 1

OF THE

COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES

NINETIETH CONGRESS

FIRST SESSION

ON

H.R. 475, H.R. 555, and H.R. 3596

TO CHANGE THE EXEMPTION FROM THE ENGLISH LANGUAGE

REQUIREMENT OF SECTION 312 OF THE IMMIGRATION AND

NATIONALITY ACT

AND

H.R. 3597

TO AMEND SECTION 301(b) OF THE IMMIGRATION AND

NATIONALITY ACT

MARCH 8, 1967

Serial No. 2

Printed for the use of the Committee on the Judiciary

U.S. GOVERNMENT PRINTING OFFICE

7 7,1 WASHINGTON: 1967

eb.
COMMITTEE ON THE JUDICIARY

EMANUEL CELLER, New York, Chairman

MICHAEL A. FEIGHAN, Ohio

EDWIN E. WILLIS, Louisiana

PETER W. RODIN°, JR., New Jersey

BYRON G. ROGERS, Colorado

HAROLD D. DONOHUE, Massachusetts

JACK BROOKS, Texas

WILLIAM M. TUCK, Virginia

ROBERT T. ASHMORE, South Carolina

JOHN DOWDY, Texas

BASIL L. WHITENER, North Carolina

ROBERT W. KASTENMEIER, Wisconsin

JAMES C. CORMAN, California

WILLIAM L. ST. ONGE, Connecticut

DON EDWARDS, California

WILLIAM L. HUNGATE, Missouri

HERBERT TENZER, New York

JOHN CONYERS, JR., Michigan

ANDREW JACOBS, JR., Indiana

JOSHUA EILBERG, Pennsylvania

WILLIAM M. McCULLOCH, Ohio

RICHARD H. POFF, Virginia

ARCH A. MOORE, JR., West Virginia

WILLIAM T. CAHILL, New Jersey

CLARK MAcGREGOR, Minnesota

CHARLES MCC. MATHIAS, JR., Maryland

EDWARD HUTCHINSON, Michigan

ROBERT McCLORY, Illinois

HENRY P. SMITH III, New York

WILLIAM V. ROTH, JR., Delaware

THOMAS J. MESKILL, Connecticut

CHARLES W. SANDMAN, JR., New Jersey

TOM RAILSBACK, Illinois

EDWARD G. BIESTER, JR., Pennsylvania

CHARLES E. WIGGINS, California

BESS E. Dick, Staff Director

WILLIAM R. FOLEY, General Counsel

GARNER J. CLINE, Counsel

HERBERT FUCHS, Counsel

WILLIAM P. SHATTUCK, Counsel

BENJAMIN L. ZELENKO, Counsel

CHARLES J. ZINN, Law Revision Counsel

DONALD G. BENN, Associate Counsel

JOHN W. DrAN III, Asiociate Counsel

DONALD E. SINTARELLI, Associate Counsel

SUBCOMMITTEE No. 1

GENERAL JURISDICTION OVER JUDICIARY BILLS AS ASSIGNED

SPECIAL JURISDICTION OVER IMMIGRATION AND NATIONALITY

MICHAEL A. FEIGHAN, Ohio, Chairman

PETER W. RODINO, JR., New Jersey

HAROLD D. DONOHUE, Massachusetts

JOHN DOWDY, Texas

II

ARCH A. MOORE, JR., West Virginia

WILLIAM T. CAHILL, New Jersey

CLARK MAcGREGOR, Minnesota

GARNER J. CLINE, Counsel

DONALD G. BENN, Associate Counsel
CONTENTS

Testimony of— Page

Hon. Eligio de la Garza, a Representative in Congress from the State

of Texas 2

IIon. Patsy T. Mink, a Representative in Congress from the State of

Hawaii 5

Mr. Edward Rudnick, Assistant Commissioner of Naturalization, Immigration and Naturalization Service 12

IMMIGRATION

WEDNESDAY, MARCH 8, 1967

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE No. 1

OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met at 10:15 a.m., in room 2237, Rayburn Building, pursuant to notice and at the call of the Chair, the Honorable

Michael Feighan (chairman of the subcommittee) presiding.

Present: Messrs. Feighan, Rodino, Dowdy, Moore, and MacGregor.

Also present: Garner J. Cline, counsel; and Donald Benn, associate

counsel.

Mr. FEIGHAN. The subcommittee will come to order.

There are two issues before the subcommittee this morning. The

first issue is whether section 312 of the Immigration and Nationality

Act concerning exemption from the English language requirements

should be enlarged.

Three bills are pending which would affect this section of the law:

H.R. 475, by Mr. de la Garza, provides exemption from the English

language requirement for applicants for naturalization who, on

January 5, 1965, are over 50 years of age and have been living in the

United States for periods totaling at least 20 years.

H.R. 555, which I have introduced, provides exemption from the

English language requirements for those applicants for naturalization

who, on the date of filing of their petition, are over 50 years of age and

have been residing in the United States for periods totaling 20 years.

H.R. 3596, by Mrs. Mink, relieves applicants for naturalization

from meeting the English language requirements who are over 50

years of age and who have resided in the United States for periods

totaling 20 years.

The second issue is rather complex. H.R. 3597, by Mrs. Mink,

provides that any person who is a national and citizen of the United

States at birth under section 301(a) (7) of that Act shall not lose his

nationality and citizenship if the alien parent is naturalized while

such person is under the age of 16 years and such person begins

residing in the United States permanently while under the age of

16 years.

(H.R. 475, H.R. 555, H.R. 3596, and H.R. 3597 follow:)

[H.R. 475, 90th Cong., first sess.]

A BILL To amend section 312 of the Immigration and Naturalization Act

Be it enacted by the Senate and House of Representatives of the United States of

America in Congress assembled, That the proviso to section 312(1) of the Immigration and Naturalization Act is hereby amended to read: "That this requirement

shall not apply to any person physically unable to comply therewith, if otherwise

qualified to be naturalized, or to any person who on January 5, 1965, is over fifty

1
2 IMMIGRATION

years of age and has been living in the United States for periods totaling at least

twenty years;".

[H.R. 555, 90th Cong., first sass.]

A BILL To amend section 312 of the Immigration and Nationality Act to exempt certain additional persons from the requirements as to understanding the English language before their naturalization as citizens of the United States

Be it enacted by the Senate and , House of Representatives of the United States of America in Congress assembled, That the first proviso contained in paragraph (1)

of section 312 of the Immigration and Nationality Act (8 U.S.C. 1423) is amended

by striking out "or to any person who, on the effective date of this Act, is over fifty

years of age and has been living in the United States for periods totaling at least

twenty years" and by inserting in lieu thereof the following: "or to any person

who, on the date of the filing of his petition for naturalization as provided in section

334 of this Act, is over fifty years of age and has been living in the United States

for periods totaling at least twenty years".

[H.R. 3596, 90th Cong., first sess.]

A BILL To amend section 312 of the Immigration and Nationality Act to exempt certain additional persons from the requirements as to understanding the English language before their naturalization as citizens of the United States

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the first proviso contained in paragraph (1) of

'section 312 of the Immigration and Nationality Act (8 U.S.C. 1423) is amended

by striking out "or to any person who, on the effective date of this Act, is over

fifty years of age and has been living in the United States for periods totaling at

least twenty years" and inserting in lieu thereof the following: 'or to any person

who is over fifty years of age and has been living in the United States for periods

totaling at least twenty years".

[[H.R. 3597, 90th Cong., first seas.]

A BILL To amend section 301(b) of the Immigration and Nationality Act to provide that any person who Is a national and citizen of the United States at birth under section 301(a) (7) of that Act shall not lose his nationality and citizenship if the alien parent is naturalized while such person is under the age of sixteen

years and such person begins residing in the United States permanently while under the age of sixteen

years

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 301(b) of the Immigration and

Nationality Act (8 U.S.C. 1401) is amended to read as follows:

"(b) Any pqrson who is a national and citizen of the United States at birth

under paragraph (7) of subsection (a) shall lose his nationality and citizenship

unless—

"(1) he shall come to the United States prior to attaining the age of

twenty-three years and shall, immediately following such coming, be continuously physically present in the United States for at least five years:

Provided, That such physical presence follows the attainment of the age of

fourteen years and precedes the age of twenty-eight years; or

"(2) the alien parent is naturalized while the child is under the age of

sixteen years and the child begins to reside permanently in the United States

while under the age of sixteen years."

Mr. FEIGHAN. Our first witness will be our very able and distinguished colleague, Mr. de la Garza.

Would you proceed?

STATEMENT OF HON. ELIGIO DE LA GARZA, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS

Mr. DE LA GARZA. Thank you, Mr. Chairman and members of the

committee.

I welcome and greatly appreciate this opportunity to urge your

favorable consideration of H.R. 475, a bill which I introduced on

January 10, 1967, for the purpose of amending section 312(1) of the

Immigration and Nationality Act.
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Mr. Chairman, my bill is similar to H.R. 555, which you have

introduced. The basic difference being that I have a cut-off date as

of January 5, 1965, whereas your bill has a continuous provision in it.

Mr. Chairman, I feel that I am not acquainted too well with the

bill by Mrs. Mink, but I feel that if we do anything we will have done

something to help these people; and I urge the favorable action of

the committee on any one of these pieces of legislation.

For the record I would like to submit a statement which I have

prepared in behalf of my bill H.R. 475, Mr. Chairman.

Mr. FEIGHAN. We will be very happy to include that in the record.

(The prepared statement follows:)

STATEMENT OF HON. ELIGIO DE LA GARZA, A REPRESENTATIVE IN CONGRESS FROM

THE STATE OF TEXAS

Mr. Chairman and members of the committee, I welcome and greatly appreciate

this opportunity to urge your favorable consideration of H.R. 475, a bill which

I introduced on January 10, 1967, for the purpose of amending Section.312(1) of

the Immigration and Nationality Act. This section contains the general requirements that applicants for naturalization be able to speak, understand, read and

write the English language, and an exemption from those requirements.

A provision comparable with Section 312(1) was first included in the naturalization statute on September 23, 1950, when legislation amending Section 304 of

the Nationality Act of 1940 became effective. The amended provision, Section

304(1), also accorded an exemption from the English language requirements to

those applicants who, on September 23, 1950, were over fifty years of age and had

been residents of the United States for twenty years. Section 304(1) was substantially reenacted as Section 312(1) with a notable difference; namely, that the

age and residence required to exempt an applicant from the English language

requirements were to be computed as of December 24, 1952, the effective date of

the Immigration and Nationality Act.

My bill, H.R. 475, merely updates the exemption provision of Section 312(1),

for it provides simply that the age and residence required to exempt a naturalization applicant from the English language prerequisites will be computed as of

January 5, 1965, rather than as of December 24, 1952. Thus, the proposed

enactment in no way modifies the basic legislative concepts expressed in Section

312(1), and follows a pattern of legislation deemed both necessary and proper

in the past.

Indeed, I respectfully submit that the contemplated amendment merely

implements an existing Congressional policy which has become largely ineffective

with the passage of time. It is safe to state that, during the interim period of

the past thirteen years, the vast majority of aliens who could qualify for the

English language exemption under Section 312(1), in its present context, have

availed themselves of the benefit and, if otherwise eligible, have become naturalized

citizens of the United States. Accordingly, to a very considerable extent, the

exemption provision has a relatively negligible application at the present time.

On the other hand, among the more than three million aliens residing permanently in the United States, there are a very great many who were not eligible

for the English language exemption in 1952, either because they then lacked a,

year or more of residence, or were one or more years under the age of fifty. Although otherwise worthy of citizenship, these deserving persons have been unable

to achieve their desire to become citizens, because of their inability to satisfy

the English language requirements. Within this large group are persons who

have now lived in the United States for well over thirty years, and others who are

more than sixty years of age. Logic and common sense should convince us, I

think, that aliens who have accumulated lengthy residence and have arrived at

an advanced age during the past thirteen years are no less worthy of the exemption than those who qualified for the benefit on December 24, 1952.

The aliens who will benefit from my bill are representative of diverse foreign

nationalities, and live in all sections of the United States. I have been fortunate

enough to meet, observe, and know personally many men and women in this

Clderly group. They are, for the most part, the fathers and mothers of a fine,

representative generation of young American citizens, born and reared in this

country. I am familiar with the extent to which these parents have sacrificed
4 IMMIGRATION

themselves to educate their children, and bring them up in the traditional American manner. To me, these sacrifices show a spirit of loyalty and devotion to democratic ideals, and a dedication to the welfare of the United States, which betoken a sense of good citizenship in its highest form. Elderly longtime residents who have demonstrated their qualifications for citizenship in this fundamental

manner should not be deprived of the opportunity to become citizens merely because they have been unable to learn the English language.

Of particular concern to me are the many members of this elderly group who have come from Mexico and other Spanish-speaking countries, and have been residing in my home State of Texas and other parts of the Southwest for many

years.

I have visited these Spanish-speaking people in their homes, have watched them at work, and I know their problems well. In the past, I have taken the floor of the House to speak of the need for special measures to improve their living conditions and assure them better educational and job opportunities. Devoted

as they have been to the solidarity of the home and the welfare of their families, their lives have been years of backbreaking toil, hardship, and poverty, years of constant struggle to earn the bare necessities of life for themselves and their children. Although their burdens have been far greater than those of other residents of foreign birth, who have been enjoying the good American life, these God-fearing people have withstood them with courage and forebearance, ever obedient to the law and loyal to the United States and the principles of its Govern- ment. The great majority, despite the heavy demands upon them, have success- fully raised and educated children who have served this country well in agriculture, industry, the professions, and the armed forces. The cost of these accomplishments, however, has been a heavy one, for these elderly fathers and mothers have had to forego the opportunity to improve their lot by education. throughout the years, few, if any of them, have had the time to attend citizenship classes where they could receive assistance in learning the English language, Moreover, with the passing of the years, the infirmities of advanced age and a

diminished capacity to learn make it virtually impossible for them to acquire this knowledge.

My colleagues, I say to you with the utmost sincerity, that these elderly Spanish-speaking men and women, my neighbors and friends, have been good citizens in fact for many years. Above all, my meetings with them have disclosed their fervent, heart-felt yearning to become citizens in name as well. This privilege is being denied them solely because, in the twilight of a life of sacrifice, they have been unable to master the intricacies of the English language. I counsel you to

remove this obstacle, and permit them to achieve full citizenship of the adopted

country they have served so well. Indeed, how can we deny this assistance to them when, in some instances, their sons have surrendered their lives in the

cause of freedom and justice upon battlefields abroad. H. R. 475 will materially assist many of these deserving persons to become citizens and, again, I strongly

urge you to accord the measure early and favorable consideration.

Mr. DE LA GARZA. I would be happy to yield to any question.

Mr. MOORE. Mr. de la Garza, I assume that the introduction of the legislation is prompted by some of the inequities that have been

brought to your attention as a result of the present law. Can you tell me to what extent these inequities have been brought to your attention, let's say, in your own congressional district? Do you have

a number of individuals who cannot qualify because of the English

requirement?

Mr. DE LA GARZA. That is the basic problem, Mr. Moore, that the

age limitation and the time limitation that the previous legislation

had, or the present legislation has, has caught up with a substantial

number of people that because of the age at the present time and the difficulties which they encountered because of the type of work or the

areas where they lived and had to work, they were not able to pick

up the English language basically in the reading or writing.

Most of them, I think, could get by if they had to, understanding

or being able to make themselves understood in English; but reading

and writing the English language is the difficult part. And it has just

caught up with a substantial number.
IMMIGRATION 5

The basic reasoning behind my putting a date is that I feel, from

my perusal of the situation, about 10 years will ultimately take care

of the situation where we will not need this legislation any more.

Mr. MOORE. Do you presently have pending any private legislation which seeks to waive the English-speaking requirement for

naturalization

Mr. DE LA GARZA. On any individual?

Mr. MOORE. Yes.

Mr. DE LA GARZA. No, sir; because then I would have to introduce

thousands.

Mr. MOORE. That is what I am trying to gauge here. Apparently

there are many, many instances in which if we were to give favorable

consideration to this legislation, that there would be beneficiaries,

and those beneficiaries would be in your congressional district.

Mr. DE LA GARZA. Right.

Mr. MOORE. Thank you very much.

Mr. FEIGHAN. Mr. MacGregor?

Mr. MACGREGOR. I have no questions. I thank you very much,

Mr. de la Garza, for your appearance.

Mr. FEIGHAN. Did I understand that you feel this problem will

solve itself within 10 years?

Mr. DE LA GARZA. I feel that in my district, Mr. Chairman, that

it will not solve itself completely; but I feel that the trend is now that

those who are coming in, basically from Mexico in my area, have

either been braceros or have had links sufficiently that they will be

able to understand; and it will be a little more difficult to read and

write the English language, but I feel they will be better prepared,

with all of the available present governmental programs of adult

education and migrant adult education, I feel that in 10 to 12 years

it will be basically alleviated to a great extent where it would be possible then, if exemptions be needed, that you could go on an individual

basis.

And I could not do that now. There are so many.

Mr. FEIGHAN. Your observations are confined primarily to your

own district?

Mr. DE LA GARZA. Only to my specific immediate area. I would

not be able to make a statement regarding New York, California,

Hawaii, or the other areas.

Mr. FEIGHAN. Thank you.

Any other questions?

Mr. MACGREGOR. None.

Mr. FEIGHAN. Thank you.

Mr. DE LA GARZA. Thank you.

Mr. FEIGHAN. Our next witness will be our very distinguished

colleague, the Honorable Patsy Mink. We are happy to have you

with us.

STATEMENT OF HON. PATSY T. MINK, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF HAWAII

Mrs. MINK. I have a prepared statement, which I have submitted

to the committee counsel; and, with your permission, I would like to

request that it be entered into the record at this time.

76-774-67-2
6 IMMIGRATION

Mr. FEIGHAN. I will be very happy to have it included,

(The prepared statement on H.R. 3596 follows:)

STATEMENT ON H.R. 3596 BY REPRESENTATIVE PATSY T. MINK

Mr. Chairman and Members of the Committee:

I am pleased to have this opportunity to testify on behalf of H.R. 3596 which

seeks to amend section 312 of the Immigration and Nationality Act.

This section now reads as follows:

REQUIREMENTS AS TO UNDERSTANDING THE ENGLISH LANGUAGE, HISTORY,

PRINCIPLES, AND FORM OF GOVERNMENT OF THE UNITED STATES

SEC. 312. No person except as otherwise provided in this title shall hereafter be naturalized as a citizen of the United States upon his own petition

who cannot demonstrate—

(1) an understanding of the English language, including an ability to

read, write, and speak words in ordinary usage in the English language:

Provided, That this requirement shall not apply to any person physically

unable to comply therewith, if otherwise qualified to be naturalized, or

to any person who, on the effective date of this Act, is over fifty years of

age and has been living in the United States for periods, totaling at least

twenty years: Provided further, That the requirements of this section

relating to ability to read and write shall be met if the applicant can

read or write simple words and phrases to the end that a reasonable test

of his literacy shall be made and that no extraordinary or unreasonable

conditions shall be imposed upon the applicant; and

(2) a knowledge and understanding of the fundamentals of the history, and of the principles and form of government, of the United States.

The 82nd Congress by enacting PL 82-414 accepted the principle that aliens

who were 50 years of age and who had resided in this country for at least 20 years

could become naturalized citizens without meeting the requirement of being able

to read, write, and speak the English language.

Hundreds of aliens in my State were able to qualify for American citizenship

because of this provision in the law.

However this amendment was limited by the words, "as of the effective date of

this Act". The net effect of these words is that only those aliens who were 50

years old and who resided 20 years in this country as of December 24, 1952, the

effective data of PL 82-414, could receive any benefits from this amendment.

Thus all aliens whose birth date was after December 24, 1902, even though they

have lived in this country for more than twenty years, could not benefit from this

amendment.

This arbitrary cut-off date, I believe, has created an unnecessary barrier against

American citizenship. As important as I believe the ability to read, write, and

speak English is, I do not believe that we ought to require it of our foreign-born

who came to the United States after their formal education years were over.

I believe that these aliens, regardless of their inability to read and write English,

are sincere in their desire to want to become American citizens. A test of their

understanding of the principles of our democracy in any language must come out in the same expressions of faith in freedom and democracy and in a reiteration

of the concepts embodied in our Constitution.

I believe that the 20 years residence requirement is assurance enough that the

alien will have had opportunities and experiences which give him a full and

adequate understanding of America, even though he has not been able to learn

the English language sufficiently to pass the examination when rendered in English.

I further believe that the 20 years residence coupled with the age requirement

of 50 years limits the benefits of this waiver to those who need it.

For all others who seek to be naturalized, they can do so after five years

residence provided they are versed in the English language.

The young immigrant has available to him all the public education that he can

absorb. For him it is reasonable if he wishes his citizenship in five years that he

learn the English language. For the adult immigrant who is studious and adept

with languages it is also reasonable that he may qualify as soon as he has learned

English with as little as only five years residence.

But the older immigrant who was born on January 1, 1903, and is now 64 years

old and who came as an immigrant to this country in 1947, when he was 44 years

old and has resided here for 20 years, may have great difficulty in meeting the
IMMIGRATION 7

requirements of fluency with the English language. It must be recognized also

that those whose native tongue is at least somewhat related to English have an

easier lesson to master than those whose basic language is totally different.

Lastly, I believe that this bill is made even more compelling if we have concern

for those aliens who nearing the end of their lives want so desperately to become

American citizens, yet because of their age and environs, lack the ability to read,

write, or learn English adequately enough to qualify for the naturalization

examination.

The 89th Congress made great strides to increase the opportunities for new

immigrants coming to this country. We showed great humanitarianism in

reuniting these families. I believe that it is in keeping with this same spirit

that we now allow as part of our laws all resident aliens who are fifty years old

and who have lived here for at least 20 years, this opportunity to become citizens

of the United States without an arbitrary cut-off date. We gave this privilege

to those who were born before December 24, 1902. I believe that we should now

extend this to all aliens who meet the age and residence requirements. Thank

you very much.

Mrs. MINK. I differ somewhat from my colleague who just testified,

in reacting to the question by Mr. Moore, on the matter of legislation

with a cutoff date in solving the situation in my constituency.

The fact that the Congress, in its wisdom, in the 82d Congress

saw fit to provide this exemption for persons 50 years of age and

having resided here 20 years; and thus declaring that this was a proper

type of exemption to provide for these individuals, compels me to

argue before this committee that if at that time it was seen fit to be

a proper exemption, that logically we should attempt to try to remove

the cutoff date entirely.

If it was proper to give this kind of exemption to those persons

who were born before December 24, 1902, and that is the effect of

the legislation enacted by the 82d Congress, then it is wholly unfair to

deny this same exemption to those who happen to have been born

just a few months or years after that date.

To illustrate the problem as I did in my statement, the cutoff date

currently denies individuals who at 44 years of age came into the

United States, particularly to the State of Hawaii, as recently as

1947, and who have resided in the United States for 20 years, in applying for naturalization, to have the right, the same right that others

had, to take the naturalization examination in their own native

tongue, with which they are most familiar. I think that the extra

requirement of 20 years residence is enough of a special requirement

to place upon these aliens.

All others who are competent, or who are versed in English, need to

satisfy the requirement only by residence of 5 years. In my opinion,

the 20 years' experience that they would have gained in addition to

their age of 50 gives them the kind of understanding that I feel the

Naturalization Act intended that these individuals should be possessed with, before being granted citizenship.

Therefore, I would like to urge upon this committee that they

consider either my bill or the one that the chairman has sponsored,

which, as I understand it, removes any cutoff date and simply grants

this exemption to all aliens who are 50 years of age and who have

resided in this country for more than 20 years.

Mr. FEIGHAN. Any questions?

Mr. MOORE. I have no questions.

Mr. FEIGHAN. You would like to address yourself also to the other

bill?
8 IMMIGRATION

Mrs. MINK. Yes. The other bill that I have introduced is a more

complex situation. Before I begin, Mr. Chairman, I have also sub--

mitted a statement which I would like to request be entered into the

record.

Mr. FEIGHAN. Without objection, so ordered.

(The prepared statement on H.R. 3597 follows:)

STATEMENT ON H. R. 3597 BY REPRESENTATIVE PATSY T. MINK

Mr. Chairman and Members of the Committee:

I want to express my appreciation for this opportunity to discuss with you the

purposes and objectives of my bill, II. R. 3597.

H. R. 3597 amends Section 301(b) of the Immigration and Naturalization Act

by providing an alternative way in which a child born overseas of one citizen

parent may become a full-fledged American citizen. Under current law such a

child, although born a citizen of the United States, is subject to certain requirements which he must personally meet in order to retain his birthright. The law

now requires that such a child must return to U.S. soil sometime between the ages

of 14 and 23 years and remain in continuous residency within the United States

for a period of five years. If he fails to fulfill this requirement of five years physi—

cal presence within the United States, he loses his American citizenship.

The effect of the present law is to create different classes of American citizens

among children who are born overseas where only one parent is an American

citizen. Many of these children affected by this requirement are born of a U.S.

parent who is in the employ of the U.S. government overseas. Therefore, the

anomaly is that while such a parent is overseas serving his country and there

marries an alien, his children do not have the same rights as other "native" born

U.S. citizens. If such a man wants to be with his adult children and provide

them a home until they are themselves married, he must quit the employ of his

government overseas or seek a transfer home before his oldest child reaches his

23rd birthday, unless he is willing to send them out one at a time whenever each

child approaches the cut-off date of 23 years of age, and then require that they

remain in the U.S. continuously for five years! •

There is a further requirement for even this conditional citizenship status for

such a child, to wit, that the citizen parent must have lived in the United

States at least ten years. Thus, in order for a child born overseas of only one

U.S. citizen parent to become an American citizen at birth (subject to these

retention rights of continous 5-year presence between ages 14 and 28), it must

further be shown that the U.S. citizen parent prior to the birth of this child must

have been physically present in the U.S. or its outlying possessions for a period or

periods totaling not less than 10 years, at least 5 of which were after attaining

the age of 14 years: (provided that honorable military service counts as physical

presence).

Thus, a U.S. citizen parent without the ten years total "physical presence"

in the U.S. before the birth of this child of an alien spouse cannot convey U.S.

citizenship at birth to his child. Such a child would be an alien. However,

Section 320 of the Act provides that in such a case, if the alien parent becomes

a naturalized citizen before the child reaches his 16th birthday and the child

begins to reside permanently in the U.S., the child acquires citizenship at that

time of naturalization of the alien parent without any further requirement of

permanent physical presence for five continous years.

A child, alien at birth, ineligible for derivative U.S. citizenship, acquires under

our present law permanent unconditioned U.S. citizenship upon the naturalization of the alien parent prior to the child's 16th birthday and provided only that

the child begin to permanently reside in the U.S.

My bill does not amend this portion of the existing law. However, this provision suggests the real inequity in the current law which I seek to correct.

Since the law already allows such a child, not a citizen by birth because his

citizen parent lacked the ten years residency in the United States, to automatically

become a citizen upon the naturalization of his alien parent, provided only that

he begins to reside in the United States before his sixteenth birthday, why should

not this same provision make it possible for such full citizenship for that child

who became a citizen by birth in a foreign country, subject only to the same

proviso, to wit, the naturalization of his alien parent prior to his sixteenth birthday and assumption of residency in this country at that time?
IMMIGRATION 9

As the law now stands we require more of the child whose citizen parent did

meet the ten years residency in the United States and was by law able to convey

citizenship upon his child born overseas, than we do of the child similarly born

overseas whose citizen parent did not meet the ten year residency requirement.

I do not believe that this is a fair provision in the existing law, for it gives greater

rights to the "stateless" child as compared to the child who became a citizen by

birth under similar circumstances.

My bill does not seek to take any rights away from the child born overseas of

one alien parent where the citizen parent did not meet the residency requirement.

It seeks only to grant these same rights to the child who became a citizen by

birth overseas so that similarly upon the naturalization of his alien parent before

his 16th birthday and upon the assumption of residency in the United States, he

can become a full-fledged American citizen without meeting the further requirement of five years continuous physical presence within the United States.

I do not question the policy of the Naturalization law in requiring that an

American parent must have lived in the United States for at least ten years in

,order to transmit American citizenship status to a child born of an alien spouse.

Neither do I question the policy as it relates to those children born overseas

whose alien parents do not seek to become naturalized before the 16th birthdays

of their children. For these children the requirement of returning to the United

States remains as well as the 5 years continuous presence before reaching the age

of 28 years.

What I do question is the equity for these two classes of children whose alien

parents do become naturalized citizens. These two classes should be treated the

same. Certainly the child whose citizenship was in "limbo" should not attain

citizenship automatically upon the naturalization of the alien parent, while the

child who was re;ardel a citizen by birth still be further required to show five

years continuous physical presonce even though his alien parent has also become

naturalized. Rather, this latter child shoulA have greater rights, and not less,

as he appears to have under the present law.

My bill is limited to the correction of this one inequity. Thus, under my bill,

when both parents become American citizens by virtue of the naturalization of

the alien parent, then the child automatically becomes a full-fledged American

citizen with the only limitation being that this naturalization shall have been

before the child's 16th birthday and with the child in actual physical presence

and residence within the United States at that time.

I hope that this Committee will give favorable consideration to this bill which,

if enacted into law, will provide greater equity for our children bqrn under these

circumstances and place the burden of the perfecting of their rights as American

citizens upon their parents, by providing an optional course of full citizenship for

their children by the timely naturalization of the alien parent.

Mrs. MINK. This bill has to do with the children that are born

overseas, where only one parent is an American citizen and the

other parent is an alien.

Currently section 301(b) of the Immigration and Naturalization

Act provides if the citizen parent has lived in the United States for

10 years, and that includes military service, that the child born overseas, with one alien parent and one American citizen parent, qualifies

at birth as an American citizen, subject to what we call retention

rights, which means that the child must come back to American soil

sometime between the ages of 14 and 23 and remain here for 5 continuous years in order to retain his American citizenship.

Now, I am sure that the policy behind this rule was to make sure

that these youngsters who were born overseas have some exposure

to American life and have some contact. And for this reason this

requirement was placed in the statute.

The inequity which I want to address myself to relates to the

situation where this same kind of child, born overseas of one American

parent and one alien parent, where the American parent has not had

10 years' residency in the United States and therefore could not

convey to that child American citizenship by birth; that child

currently under the law is a stateless citizen.
10 IMMIGRATION

For that kind of a child, born under those circumstances, if the

alien parent should come to this country and become naturalized

before the child is 16 years of age the child automatically becomes a

full-fledged American citizen without any requirement of continuous

5 years' physical presence in the United States.

Mr. FEIGHAN. Excuse me. The child does not automatically beeome a citizen.

Mrs. MINK. He must be present here, together with the alien

parent who makes the application for naturalization.

In other words, all the statute requires of that child, as I understand

it, is that he begins to reside permanently in the United States; but

there is no subsequent requirement that he remain here for 5 continuous years.

And so we have a dilemma, I think, of treating such a child with'

lesser status, in essence, with greater privilege than the child who was

by birth an American citizen, who, even if his parent, alien parent,

becomes naturalized, does not have this same privilege and prerogative

of citizenship merely by being attached to a naturalization proceeding

by his alien parent.

So all my bill attempts to do is to provide this same privilege for

that child who was by birth an American citizen born of one alien

parent, saying to him that if his alien parent comes to this country

and becomes naturalized, that the only requirement as to him will be

the same as to that other stateless child; that is, beginning to reside

permanently within the United States.

Mr. FEIGHAN. Questions?

Mr. MOORE. Why do you say that the child born in any one of a

number of foreign countries is a stateless person?

Mrs. MINK. Because he does not acquire American citizenship by

birth.

Mr. MOOftE. He does not acquire American citizenship; but does

he not acquire citizenship of another country? A stateless person

is one who is not a citizen of any country in the world.

Let's take France. Anybody that is born in France, regardless of

the division between parents, is considered a French citizen. As a

matter of fact, they even draft our boys that may have left France

and come back to the United States, where they have had a U.S.

parent and a French parent.

So it is not quite correct to say that the individuals in this set of

circumstances are stateless persons because they do have citizenship

in some country, but not the United States.

Mrs. MINK. That is correct. I use the phrase rather liberally,

Mr. Moore, mainly to express the frustration of so many individuals

that have written to me about this other problem of not having met

the 10-year requirement of residence, and having children born

overseas of one alien parent, and writing to me and saying that "I

deeply desire to have my child considered an American. However,

this is not possible, and they have constantly, in correspondence with

my office, used that terminology only with reference to the fact that

they would like American citizenship for their children; but, under

the law, this is not possible.

But that is not the section that I am attempting to amend by

my bill.

Mr. MOORE. I see.
IMMIGRATION 11

Mr. Chairman, if I understand correctly, we did touch this problem,

not in this particular area, but we took care of the grandchildren, I

think, in the last session. This was the diplomatic problem that we

had. We did not go as far as this bill suggests.

Mr. MACGREGOR. Mrs. Mink, you indicated that a number of

people had written to you expressing a deep desire that their son or

daughter not be discriminated against in this respect. Would you

tell us a little bit about the factual situation of a typical case that has

come to your attention, so that we might have some idea of how widespread the problem is?

Mrs. MINK. Yes. I think that the principal area which has come

to my attention is those persons who are serving the Government of

Air the United States overseas in the military branches, either as a member of the service, but more particularly as employees of the military

overseas. Most of my correspondence comes, obviously, from the

Asian area, where they have been working in a civilian capacity in

various military installations in Japan, Okinawa, and elsewhere, having gone there as single persons, subsequently married nationals of

that area to which they were sent.

And then, of course, children were born and they find it now necessary to either send their children, one by one, home in order to comply

with this 5-year requirement of continuous residence, or terminate

their employment with the Government, or, in some cases, with private companies, private American companies who are overseas; and

they feel that this is a very harsh burden which they are being asked

to carry.

They would like to continue their service; but they also feel a great

sense of obligation to keep the family together and to protect the

citizenship rights of their children.

And I think that they make a very strong case, since the parent

who does not convey citizenship has this other route of simply sending

the spouse home, going through the naturalization proceedings,

perhaps staying here for a while, but not requiring that they be here

for 5 continuous years. And I think that it is this discrepancy of the

two situations that highlights the conflict that they see; and they

feel that when the alien parent becomes naturalized, they are indeed

both then American citizens, and this has been so stated eloquently

by the Supreme Court, that we can not establish a second class of

citizens called naturalized citizens and give to them any different

rights than native-born citizens have had—although I do not make

that statement with reference to this bill.

I see some analogies that can be raised in that regard, that we have

here two sets of children, born almost under identical circumstances.

The only difference is that the one American parent did not have 10

years' residence. For that child, his route to a complete, full-fledged,

unequivocal American citizen is much easier than to the child who

is born an American citizen because his parent had the ten years'

residence; and this is the inequity that my bill searches to try to

correct.

Mr. MACGREGOR. Thank you.

Mr. FEIGHAN. Mr. Dowdy.

Mr. DOWDY. I have no questions.

Mr. FEIGHAN. Thank you very much.

A
•

12 IMMIGRATION

Mrs. MINK. May I just make one closing comment. My bill did

not address itself to the retroactive feature; and I think that this is

a matter which should be considered by the committee. I do not

know quite how to approach the subject; but I think that the committee ought to give some consideration to the parent who has followed

this procedure already, whose child was born an American citizen

overseas and whose alien parent has been naturalized before the 16th birthday of the children, to try to accord them some immediate relief

through the filing of certificates and so forth, so that their citizenship

may be confirmed now without the requirement of 5 years' continuous

residence, if the committee should see fit to report out my bill.

Mr. FEIGHAN. Thank you very much.

Mrs. MINK. Thank you very much.

Mr. FEIGHAN. We next have a statement from Mr. Rudnick.

We are very happy to have you with us. Mr. Rudnick is the Assistant Commissioner for Naturalization, Immigration and Natu- ralization Service.

STATEMENT OF EDWARD RUDNICK, ASSISTANT COMMISSIONER

FOR NATURALIZATION, IMMIGRATION AND NATURALIZATION

SERVICE

Mr. RUDNICK. I should like to address myself first, Mr. Chairman,

to the bill pertaining to the retention requirements, and I have a

prepared statement that I would like to read at this time.

Mr. FEIGHAN. You May proceed.

Mr. RUDNICK. Our laws have always recognized the doctrine of

automatic acquisition of citizenship by descent and, under it, have

have extended nationality to children born abroad to U.S. citizen

parents.

The prescribed prerequisites, until recent years, limited the right

of descent to children whose fathers were U.S. citizens who had resided in the United States prior to the birth of the children. This

was extended in 1934 to include children of U.S. citizen mothers, as

well as U.S. citizen fathers. Citizenship could, therefore, descend

through either parent.

Beginning with the Act of May 24, 1934, and continuing under

succeeding statutes to the present time, Congress has drawn a distinc- tion between a child born of two U.S. citizen parents and a child

born of one citizen parent and one alien parent. The citizenship

acquired by operation of law by the child born of two U.S. citizen

parents was, and is today, full and complete. No further actions or formalities after acquisition are required on the part of the child as a

condition for continued enjoyment of the status. Not so with respect

to the child of mixed citizenship parentage.

The child of one citizen and one alien parent, although vested with citizenship at birth, was subject to divestiture of his status if he failed

to take up residence in the United States or its outlying possessions

for a continuous period of 5 years immediately preceding his 18th

birthday. The Nationality Act of 1940 amended this retroactively

to permit compliance with the 5-year resident requirement to take

place between ages 13 and 21 years. The current Immigration and Nationality Act made further changes which I shall touch upon

shortly.
IMMIGRATION 13

It should be noted that, under the Nationality Act of 1940, different

conditions for descent of citizenship to a child were prescribed for the

first time on the basis of the citizenship status of the child's second

parent, or on the basis of the child's place of birth abroad. However,

despite these differences, it was only in the case of a child born of one

citizen and one alien parent, with certain exceptions, that Congress

has attached conditions subsequent for the retention of the child's

citizenship.

The current provisions for retention of citizenship applicable to the

citizen-alien parent combination are to be found in section 301(b) of

the Immigration and Nationality Act, and are made applicable by

section 301(c) of that Act to children born abroad after May 24, 1934.

The citizen child subject to its provisions is required to come to the

United States prior to the attainment of the age of 23 years and to

thereafter be continuously physically present in the United States for

at least 5 years between the ages of 14 and 28 years. This means

that the child must come to this country no later than age 23 years if

he is to preserve his citizenship.

H.R. 3597 would add an exception to section 301(b), to provide

that the child shall not lose his citizenship if the alien parent is

naturalized while the child is under the age of 16 years and the child

begins to reside permanently in the United States while under the

age of 16 years. Since the provisions of section 301(b) are applicable

to persons born abroad subsequent to May 24, 1934, the provisions of

this bill would also be applicable to those born abroad after that date.

The bill would thus exempt a citizen at birth from complying with

the retention requirements of the existing law if he entered the United

States to reside permanently before he was 16 years of age, and if the

alien parent was naturalized before the child became 16 years of age.

Brief reference to the provisions of section 320 of the Immigration

and Nationality Act will explain the significance of the proposed

amendment. That section provides that a child born outside the

United States of a U.S. citizen parent and an alien parent shall become

a citizen when the alien parent is naturalized while the child is under

the age of 16 years and the child becomes a permanent resident of the

United States while under 16 years of age.

No conditions for retention of citizenship so derived are prescribed,

nor have any of the earlier statutes governing derivation of citizenship

through the naturalization of a parent qualified the status or made it

contingent upon further actions.

The child contemplated by section 320 is one who did not acquire

U.S. citizenship at birth because the U.S. citizen parent lacked the

physical presence requirements for transmission of citizenship under

section 301(b) of the Immigration and Nationality Act.

Under existing law, therefore, the child who acquired citizenship

at birth is in a less favorable position than the child who derives

citizenship after birth. H.R. 3597 would remedy this inequity by

making section 301(b) of the Act harmonious with section 320 insofar

as retention requirements are concerned. This is a desirable objective

which the Department of Justice favors.

Thank you.

Mr. FEIGHAN. Thank you, Mr. Rudnick.

You stated that certain classes of persons were exempt under the

Nationality Act of 1940 from the retention requirement applicable

76-774-67-3
14 IMMIGRATION

to the citizen-alien-parent combination. What were these classes,

and how are they treated under the Immigration and Nationality Act?

Mr. RUDNICK. Well, the similar provision in the Nationality Act

of 1940 involving the alien-citizen-parent combination also had

retention requirements that differed somewhat from present requirements. There was a residence requirement, rather than a physical

presence requirement, as in the present statute; but it made an exception in the cases of parents who, at the time of the child's birth, were

in the employ of the U.S. Government or were employed by American

commercial, educational, religious, financial, philanthropic, or scientific organizations.

If the parent was so employed at the time of the child's birth,

retention requirements were completely inapplicable. The child was

vested with citizenship with no conditions subsequent.

Under the present Act there is no similar provision and parents so

employed today, whose children are born under circumstances that

would have exempted the child from retention requirements under

the 1940 Act, are in the same position as any other child born of a

U.S. citizen and an alien parent, and retention requirements have to

be complied with.

Mr. FEIGHAN. In what respects do the requirements for the acquisition and retention of citizenship at birth abroad to other than a one

citizen parent and one alien parent differ from the citizen-alien

parentage combination?

Mr. RUDNICK. Well, this again is a carryover from the 1940 Act.

The 1940 Act, for the first time, drew a distinction between various

combinations of parentage. Up until that time, beginning with the

1934 Act, you could acquire citizenship at birth abroad through a

U.S. citizen father or a U.S. citizen mother. That was all that was

necessary to determine whether or not the citizenship is vested in the

child.

Now, the 1940 Act, and the current Act provides that when a child

is born' abroad of two U.S. parents, the child is a citizen at birth if

either one of the U.S. citizen parents had a residence in the United

States prior to the birth of the child.

There is no fixed period as to the length of residence and citizenship

is vested without any conditions subsequent.

With two citizen parents, you are a citizen no matter how briefly

your citizen parents may have resided in this country.

Mr. FEIGHAN. In other words

'

there is no further action required

by the child born abroad of two U.S. citizens?

Mr. RUDNICK. Yes, sir. It is full and complete; with no further

conditions.

Mr. DOWDY. That is true now?

Mr. RUDNICK. That is true now. Another class differentiated from

the alien and citizen combination in the current law is a child born of

a U.S. parent and a noncitizen national parent. The U.S. citizen

parent must have been physically present in the United States for a

continuous period of 1 year preceding the birth of the child.

If those conditions are met, again there are no retention requirements on the part of the child; but citizenship will not vest unless

the citizen parent has had a continuous physical presence in this

country before that child is born.

Mr. MOORE. For 1 year?
IMMIGRATION 15

Mr. RUDNICK. For the 1 year.

Mr. DOWDY. Will the gentleman yield?

I will probably expose some ignorance. What is a noncitizen

national?

. Mr. RUDNICK. A noncitizen national is a person who owes allegiance

to the United States, but does not have citizenship. He is a national,

owing allegiance. A person born in Swain's Island today is a national

of the United States, but not a citizen of the United States. He owes

allegiance to the United States.

Mr. DOWDY. Because we have sort of supervision over the island?

Mr. RUDNICK. Yes.

Mr. DOWDY. I understand.

Mr. FEIGHAN. Where is Swain's Island?

Mr. RUDNICK. That is near Samoa. Samoa and Swain's Island

are defined in the Immigration and Nationality Act as "outlying

possessions," and birth in an outlying possession gives noncitizen

nationality. It is in the South Pacific.

Shall I continue?

Mr. MOORE. Please do.

Mr. FEIGHAN. May I ask, what can a child born in Swain's Island

further do with reference to citizenship?

Mr. RUDNICK. He can derive or get naturalized.

Mr. MOORE. Provided that citizen parent has been 1 year, preceding the birth of this child, a resident of the United States?

Mr. RUDNICK. Yes. If the citizen parent has the necessary physical presence, this child is a citizen. If, for some reason, as I understand your question, he is born there and does not become a citizen,

how does he become a citizen?

Mr. FEIGHAN. Yes.

Mt. RUDNICK. He could come here as though he were an alien and

apply for naturalization, or if his parents became naturalized—a

nationa4can bra naturalized—he could derive citizenship.

If that did not happen, he could have a parent, if the parent came

here, apply for judicial naturalization for him. He can become a

citizen BS though he were in the position of an alien.

Mr. FEIGHAN. He would have to have the 5-year requirement?

Mr. MOORE. No.

Mr. flEJDNICK. Not for derivation. He could either derive under

section 320 or, if the events did not lead to derivation, he could come

over here and become naturalized in his own right.

Mr. MOORE. After the expiration of the 5 years.

Mr. RUDNICK. Comply with the regular naturalization requirements.

Mr. FEIGHAN. That was my original question. He would be required to come to the United States and go through the 5-year requirement?

Mr. RUDNICK. Yes; he would, if he did not acquire citizenship

either at birth, because he did not have the proper parentage, or his

parents did not become naturalized and thereby confer derivative

citizenship upon him. Then he could come and comply with the

ordinary naturalization requirements in his own right and become a

citizen through naturalization.

Mr. MOORE. Which is the same as any other 

Mr. RUDNICK. Yes.
16 IMMIGRATION

Mr. MOORE. He has no class difference.

Mr. RUDNICK. That is right.

Mr. DOWDY. Well, I thought probably there was nobody in the

world that was born a stateless citizen, but perhaps we have got one

here in these islands. They would be noncitizen nationals. Is that

a stateless person?

Mr. RUDNICK. He is not stateless. He is what we recognize as

a person owing allegiance to this country. He is a national. That

is the definition of the term, and he has some relationship to the

United States, short of citizenship.

Mr. DOWDY. That is almost a stateless person?

Mr. RUDNICK. It is close to it. It is somewhere in between.

Mr. MOORE. Is it? Is he in any different class than an individual

who is here as a permanent resident of the United States and has not

pursued his application for citizenship, the answer is "No"?

Mr. RUDNICK. That is right.

Mr. DOWDY. A person who has not pursued an application for

citizenship is still a citizen of a nation from which he derived, is he not?

Mr. MOORE. NO.

Mr. RUDNICK. Not necessarily. There are lots of people in this

world who are stateless, who are born in countries that do not recognize the jus soli doctrine of acquisition of citizenship and are born m

countries that do not confer citizenship.

A parent may be visiting in some countries which do not confer

citizenship on children in that country unless the parents are citizens

of that country. Consequently, that person might be born without

any citizenship.

Mr. DOWDY. Of course, there has been a time in the history of this

country that certain nations—and I think at one time England was

one of them—that did not recognize naturalization of their itizens.

In other words, an English citizen in the United States would be

naturalized, but the English would not recognize' it and waild still

press him into service in their army or navy.

Mr. RUDNICK. On the other hand, there are countries who would

recognize, as we do, that the performance of certain acts would cause

forfeiture of citizenship in that country, and by the time the person

comes in, he is coming in as a stateless person, has no citizenship.

There are any number of ways that he could lose his citizenship and

be stateless.

Mr. DOWDY. I was just talking about born stateless. That is what

my question was originally, born stateless, not something they did

later on that might raise a question.

Mr. FEIGHAN. A child born in Swain's Island or a possession of the

United States, can that child become a U.S. citizen in, say, Swain's

Island or in the possessions, or must he come to the United States?

Mr. RUDNICK. Must come to the United States. Now, a child

born in an outlying possession, such as Swain's Island, who has a U.S.

citizen father, the citizen father having had a continuous physical

presence in the United States for 1 year without regard to the citizenship status of the spouse, is born a citizen of the United States,

although born in Swain's Island.

Mr. MOORE. That is derivative citizenship?

Mr. RUDNICK. Acquisition at birth.

Mr. MOORE. Acquired at birth?
IMMIGRATION 17

Mr. RUDNICK. Yes; at birth.

Now, this brings us to the section of the bill to which 301(b) is

related, and that is the alien-citizenship combination. And there we

have this rigid retention provision of physical presence in the United

States during a particular period for 5 years, and this is what this bill

is attempting to eliminate.

Mr. FEIGHAN. To eliminate.

Mr. RUDNICK. Yes; it is a substitution. It still remains here; but

if another contingency comes into existence, that would be a substitute for it.

Mr. MOORE. Do I understand, the way this bill is constructed,

there are two events which must occur; that is, 16—the child comes

here prior to the time he is 16 years of age—and the alien parent

becomes naturalized also. Both these events have to take place in

order for that child of mixed citizen and alien parentage to take

citizenship.

Mr. RUDNICK. Yes, sir, that is the suggestive formula which is

taken from 320, and that is exactly what 320 requires as a condition

for derivation.

Mr. MOORE. Right. I have got that, I think; but today the only

requirement is that the child return to the United States by his 16th

birthday.

What does the present law require? We have two events which

must take place under this bill; that is, take up residence in the

United States by the time that child reaches 16 years of age, plus the

naturalization of the alien parent.

What is the present law requirement?

Mr. RUDNICK. That is the present law for derivation.

Mr. MOORE. Right. What does this bill propose to do?

Mr. RUDNICK. This bill proposes to treat a child who does not,

derive under section 320 but who acquired, rather, at birth; and therefore, if he acquired at birth, it would make no difference that his

mother, the alien, was naturalized at a later date. He is still stuck

with section 301(b) retention requirements.

Mr. MOORE. Of coming to the United States within a specified

period of time?

Mr. RUDNICK. That is right, and remaining here for 5 years

continuously.

Mr. MOORE. Let me ask you this question, if I may. We have a

child born in any one of a number of nations of the world of an

American father and a Chinese mother. The American father never

comes back to the United States, and the Chinese mother naturally

does stay with the American citizen husband. The child continues

to make his home with his parents, and reaches the age of 21 or 22

and marries and never comes to the United States, lives for 95 years,

and dies.

This bill would provide that that individual would be a citizen of

the United States?

If it does not, tell me why.

Mr. RUDNICK. We have never had any laws, and we do not have

any laws today, that would permit the transmission of citizenship

from a second-generation parent who has never been in this country.

That does not happen.

Mr. MOORE. I am talking about a U.S. citizen parent, father, who

lives here for 20 years before he goes overseas, and he goes overseas
18 IMMIGRATION

and he marries a Chinese girl, and he spends the rest of his life there, and they have one child.. That child never comes to the United States. He lives to be 95 years of age and dies. Does he die a U.S. citizen under this bill?

Mr. RUDNICK. He would not die a U.S. citizen today without this bill although he had the proper parentage.

Mr. MOORE. He has retention rights which he never exercises under the present law; and if he does not exercise the retention rights, then he loses those rights.

Mr. RUDNICK. But this bill is not going to give him anything.

Mr. MOORE. Why will it not?

Mr. RUDNICK. Because he either has to comply with the retention requirements or if his mother ever gets here and sits around for 5

years and becomes a citizen, and he is 15 years of age, you are going to forget about retention requirements; that is the substitute for the retention requirements.

So if he remains there and never complies with the retention requirements, and his Chinese mother never comes here, he is just going to lose citizenship when he reaches age 23. That is the end of it. He lost on that date if he never made it.

Mr. MOORE. Under the present law?

Mr. RUDNICK. That is the present law. And this allows a sub- stitute for the present law if he fails to make it, only if his mother is naturalized, he is here as a permanent resident and is under 16. Those three conditions have to exist before he gets anything or any benefit under that law.

Mr. FEIGHAN. May I ask, in any event the child has got to come to the United States?

Mr. RUDNICK. Yes, sir. Not only come here, he must come here

as a permanent resident. He cannot visit here. He has got to come

as a permanent resident.

His mother would have to come here and remain for the necessary period of residence. She would have to come in as an immigrant and comply with all the normal requirements for naturalization; and then if, as, and when she ever became a citizen, then you turn and look at the child and say, where is he? How old is he? And so

on.

Mr. MOORE. If he is under the age of 16, he has met the requirements for retention of citizenship.

Mr. RUDNICK. Yes.

Mr. MOORE. After the age of 16 he must be here a period of 5 years.

Mr. RUUDNICK. Then he is on his own, judicial naturalization.

Mr. FEIGHAN. He must be physically present in the United States before he is 16 in order to acquire that full citizenship?

Mr. RUDNICK. Yes sir. And he must have that physical presence

on the basis of a lawful admission for permanent residence. That is a

little different from retention, because you do not have to be a lawfully admitted permanent resident to retain. The law says "Come here."

Now, you can just come here as a citizen.

Mr. FEIGHAN. What procedure must a child who is here under 16 follow then to get all full rights of American citizenship?

Mr. RUDNICK. Are you referring to what this bill is suggesting as

an alternative?

Mr. FEIGHAN. Take it under the present law, and what the bill would do.
IMMIGRATION 19

Mr. RUDNICK. If a child would come here, let's say at age 15,

and if his alien mother—the example that we have been discussing—

if his alien mother became naturalized before his 16th birthday, he

would not have to do anything whatsoever.

The law confers citizenship upon him automatically.

Now, let's assume that he is 17 years of age when his mother becomes a citizen, if she becomes one at all. He cannot do anything

on his own to become a citizen, because the law requires that he

must be at least 18 years of age in order to petition for naturalization.

He is only 17. But the law does allow his citizen parent, the father

in this instance, to file a petition for naturalization in a naturalization

court and petition the court for the naturalization of his 17-year-old

son.

There are no residence requirements in connection with that; but

he does need a lawful admission for permanent residence. He cannot

be a person who might be deportable. He cannot be a member of a

subversive organization. He must not be a person who claimed

exemption from military service.

And if those conditions are met, the 17-year-old child is naturalized

through the petition of his parent, and he becomes an ordinary

naturalized citizen by judicial action.

Mr. MOORE. What is the situation in the event the U.S. citizen

parent is deceased?

Mr. RUDNICK. The law allows posthumous children to take citizenship through whatever status that deceased parent had.

Mr. MOORE. This bill?

Mr. RUDNICK. Your present law allows that.

Mr. MOORE. The present law permits that. This bill would not

change that?

Mr. RUDNICK. No.

Mr. DOWDY. You were not talking about just posthumous children,

you were talking about any children?

Mr. RUDNICK. What would be the situation? This bill only

relates to a person born of a U.S. citizen, nobody else. That is all

we are talking about. His mother is alive. She may be the citizen.

The father may have died. The father may have been an alien before

he died.

Therefore, this child would be subject to retention provisions.

Mr. MOORE. What provisions are we making for the U.S. illegitimate children born throughout the world today from American

soldiers.

Mr. RUDNICK. There is a provision in the current law for acquisition

of citizenship under these varying conditions that I outlined before 

Mr. MOORE. Does this take an affidavit or statement on the part

of the U.S. citizen father?

Mr. RUDNICK. Paternity would have to be established by legitimation—perhaps in a court of competent jurisdiction. The law today

states that if an illegitimate child is born of a U.S. citizen mother, who

had a year's physical presence in the United States before the child

was born, that child is a U.S. citizen.

Mr. MOORE. We have no problem there.

Mr. RUDNICK. No.

Mr. FEIGHAN. Mr. Rudnick, I am thinking of a situation where an

18-year-old U.S. citizen would go abroad, get married, and have a
20 IMMIGRATION

child. Now, are there any steps that this U.S. citizen parent can take

to confer U.S. citizenship upon his foreign-born child, who did not

acquire U.S. citizenship at birth or after birth?

Mr. RUDNICK. Yes. The provisions that I mentioned a few

moments ago. You have naturalization section 322 that allows a U.S.

citizen parent to institute proceedings in a naturalization court to

confer citizenship upon his child. So that if, as, and when that U.S.

citizen parent who did not transmit citizenship to the child comes to

the United States, and brings the child with him or the child subsequently enters for permanent residence, on the basis of that permanent

residence entry, a petition can be filed.

The child can be naturalized if he is still under 18 years of age, and

he would be a citizen by naturalization.

Mr. FEIGHAN. Mr. Dowdy.

Mr. DOWDY. An interesting thing struck my mind, from a statement

I understood to be made here. If an alien is married to a U.S. citizen

and the child is born overseas and has his retention rights and so on,

as you mentioned; now I understood you to say that if a woman, an

American citizen, has an illegitimate child abroad, it is an American

citizen regardless of his father's citizenship.

Did I understand you correctly?

Mr. RUDNICK. No, I was referring to a U.S. citizen mother. The

child is illegitimate.

Mr. DOWDY. That is what I asked. In other words, you can have

an alien father if it is a marriage, but if it is an illegitimate child 

Mr. RUDNICK. Does not have a father.

Mr. DOWDY. I have known but one virgin birth in history, and I

sort of thought maybe there was a parentage somewhere down the

linc 

Mr. RUDNICK. I meant in contemplation of law, has no father--

Mr. DOWDY. I was just wondering why there was a distinction.

It seems like it is putting a penalty upon legitimacy.

Mr. RUDNICK. In a sense there is. The illegitimate child of a

citizen woman gets an advantage over the legitimate child who has to

rely upon the citizenship status of his parents, and retention requirements of 301(b).

Mr. DOWDY. That is all. I was not sure I correctly understood

you awhile ago; but I do now.

Mr. FEIGHAN. What effect would that recent amendment to section 301(a) (7) of the Immigration and Nationality Act have upon the

children covered by the bill now under consideration?

Mr. RUDNICK. The section 301(a) (7) amendment of November 6,

1966, took care of the physical presence requirements necessary on

the part of the parent for transmission of citizenship; and what this

bill did is to permit a parent who has served in the Armed Forces of

the United States honorably, or has been in the employ of the U.S.

Government or is in the employ of an international organization, to

count the time that was spent abroad in those capacities in calculating

the physical presence requirements.

But that, Mr. Chairman, solely relates to transmission of citizenship,

in the first instance, to the child.

But we do not have in section 301(b) any similar provision which

allows for the utilization of so-called constructive physical presence on

the part of the child, for example, who was engaged in these capacities
IMMIGRATION 21

after birth. There is no similar provision so that the change of

November 6, 1966, would not have much bearing upon this child's

situation. It would just remain as it is under today's law.

Mr. FEIGHAN. Mr. Rodino.

Mr. RODINO. Mr. Rudnick, you make reference to the date of

May 24, 1934, when the Congress drew a distinction between a child

born of two U.S. citizen parents and a child born of one citizen parent

and one alien parent; and since this bill apparently would affect

children born after that time of May 24, 1934, would you not say that

many of these children have already lost their U.S. citizenship through

a failure to fulfill these requirements, the retention requirements?

Mr. RUDNICK. Yes sir, Mr. Rodino. There are probably a large

number of children Who lost citizenship under the provisions of the

Nationality Act of 1940, which were also applicable to births subsequent to May 24, 1934. Under that law there was a residence

requirement which would have required these children to come to the

United States by at least 16 years of age, so that any child who

failed to come to the United States by age 16 would have lost citizenship normally; and then of course the children under this present Act

who failed to comply with retention requirements also have lost their

citizenship.

However, this amendment of section 301(b) would make applicable

to it section 301(c) in the present law, which states that the retention

requirements described in section 301(b) are applicable to children

born after May 24, 1934.

Now, if this becomes law, you would go back to any child born

during this intervening period and retroactively recognize that, if

the parent complied with this alternate procedure in the proposed

bill, such child did comply with the alternate retention requirements.

Mr. RODINO. I am trying to follow you now, trying to get what

the effect of this bill would be on those children who would fail to

fulfill these retention requirements under this bill.

Mr. RUDNICK. Well, I believe that this bill would restore citizenship

to those children; and the reason I say that is that we have experienced

something very similar to this when the current Act was passed, the

Immigration and Nationality Act, and children had already lost for

failure to comply with retention requirements under the 1940 Act.

Now, section 405(c) contains a provision that, except as otherwise

provided in this Act, citizenship lost shall not be restored by the repeal

of a statute; and the question that had to be decided was whether or

not those children who had already lost under the 1940 Act could,

nevertheless, take advantage of the 1952 Act and meet those retention

requirements.

The issue arose in the case of Lee You Fee and reached the Supreme

Court. The answer was in the affirmative, that these children could

take, even though they had already lost, the savings clause having

been construed as not applicable to the situation, and that section

301(b) was an exception to the prohibition against restoring

citizenship.

Mr. RODINO. So you are suggesting that under this bill the effect

on these children who had failed to fulfill these retention requirements

would be to restore citizenship to them?

Mr. RUDNICK. To recognize them as citizens if, as, and when they

complied with the requirements of this bill.
22 IMMIGRATION

Only if they did, and not completely 

Mr. RODINO. Yes, I see.

Mr. RUDNICK. As I say, by analogy to the position and the interpretation that was taken in this other situation, that is very close to

this. And if there is any doubt as to the

Mr. RODINO. Do you think that this is clear enough to set out as a

rule of law that would be followed without definitely stating it?

Mr. RUDNICK. It would, I think, certainly be much clearer if a

sentence was added to this, as was done with the November 6, 1966,

act, the last sentence, which indicated that that amendment or that

proviso was to be regarded as though it had been passed as of 1934.

That would remove any doubt.

Mr. RODINO. Do you think that would be more beneficial to the

purposes of the bill if included?

Mr. RUDNICK. I think it would.

Mr. RODINO. Is it a hard-and-fast rule, Mr. Rudnick, that the law

which requires 5 years of continuous physical presence in the United

States as a condition for the retention of citizenship under section

301(b), so hard and fast so there is no flexibility at all, and that such

a child could not depart from the United States during that period of

time without jeopardizing the citizenship? Is there any flexibility?

Mr. RUDNICK. Yes, there is flexibility. The Act of September 11,

1957, although it did not amend the Immigration and Nationality

Act, .provided in separate legislation that in the administration of the

provisions of section 301(b) a child subject to those retention requirements was at liberty to be absent from the United States for an

aggregate period, not exceeding 12 months, during the period for

which continuous physical presence was required.

So that if a child arrived here at age 18 and started accumulating

the necessary 5 years of physical presence, he is at liberty to leave

and return io to 12 months and not break continuity of physical

presence. So there is sufficient flexibility under the present law.

Mr. RODIN°. Thank you.

Mr. FEIGHAN. Mr. Rudnick, in your statement you say—

The bill would thus exempt a citizen at birth from complying with the retention

requirements of the existing law if he entered the United States to reside permanently before he was 16 years of age and if the alien parent was naturalized before

the child became 16 years of age.

Is that all that this bill would do? In other words, it would refer

only to the retention provision?

Mr. RUDNICK. Yes, sir. Refers only to the retention provisions

and what it is saying, in effect, is that but for the fact that you were

born a citizen, you would have been able to derive under section 320,

and you would not have been required to comply with any retention

provisions. We are going to treat you as though you were not born

a citizen. We are going to treat you as though you were born an

alien. So that if your other parent, your second parent, is naturalized,

you automatically derive citizenship without any further conditions.

This is all this does.

Mr. MOORE. Provided it is before the child reaches the age of 16?

Mr. RUDNICK. Yes, under the conditions of section 320.

Mr. FEIGHAN. In other words, the child born of a U.S. citizen and

an alien, if that alien becomes naturalized before the child is 16, the

child can get citizenship; is that correct?
IMMIGRATION 23

Mr. MOORE. Already is. It is automatic.

Mr. RUDNICK. The child became a citizen at birth because he had

a citizen father and alien mother, and the father had enough physical

presence.

Now he comes over here and he starts accumulating physical

presence 

Mr. MOORE. He has citizenship at that point.

Mr. FEIGHAN. He has citizenship at birth.

Mr. MOORE. But he has to do certain things to retain it.

Mr. RUDNICK. That child comes here. He is a citizen. He comes

here to live because he has to meet retention requirements. This

says to him, if you are still under 16 years of age, if you are a permanent

resident, if your alien parent becomes a citizen while you are a permanent resident, while you are under 16, forget about retention

requirements; you do not have to meet them any longer. That is

all it says to him.

Mr. MOORE. He has been a citizen from birth?

Mr. RUDNICK. That is right.

Mr. FEIGHAN. Well now, what would be the situation if the child

came here before he was 16 and the alien parent did not become

naturalized?

Mr. RUDNICK. He is going to have to meet your present retention

requirements. He is going to have to comply with them.

Mr. FEIGHAN. This just puts that child in the category of those

who were not citizens at birth?

Mr. RUDNICK. That is correct, exactly.

To put it another way, it substitutes for these retention requirements the naturalization of his mother or his father, whoever was

the alien, and his permanent residency here, and the fact that he is

under 16 years of age, because were it not for the fact that he was

born a citizen, that naturalization of his parent would have made

him a citizen at age 15, 14, or 13, automatically, if he was under 16

and a permanent resident.

All this is saying is that we are going to let you have the identical

status that you would have had, had you not been born a citizen.

So what does he have? He has two citizen parents, one of whom

was naturalized, and one that had that status at birth. And it lets

him, in effect, derive and thereby removes him from the retention

requirements.

That is what that does.

Mr. MOORE. What sort of scope, as to numbers, would this bill

involve?

Mr. RUDNICK. Well, that is difficult to gauge, Mr. Moore, because

we have never inquired into the question of whether or not the alien

parent ever became a citizen.

Mr. MOORE. If they have already pursued and retained their

citizenship, it would not make a bit of difference?

Mr. RUDNICK. That is correct. They would normally apply to

us for a certificate for citizenship as evidence of citizenship acquired

at birth.

Mr. MOORE. That is right.

Mr. RUDNICK. All we would have to look into is, did he have a

citizen parent when born, what was the other parent; and we would

not look to see whether, 5 years later, the alien parent became a

citizen. It was not material.
IMMIGRATION

I would expect a considerable number of these alien parents do

become naturalized, and probably do become naturalized prior to

the child reaching the 16th birthday; and I would say that a large

number of children are probably affected by this.

Mr. MOORE. Well, if the child of an alien parent—that child I

assume comes into the United States, he has to if he is going to

retain his rights, and he is already a citizen, is this bill not going to

help him?

Mr. RUDNICK. Yes; he can come and go.

Mr. MOORE. He cannot go out until 

Mr. RUDNICK. Yes, sir. That is 5 years of physical presence.

That is what that relieves him of. He can travel all over the world.

Mr. MOORE. Now, I think we are getting dovyn to what may be

the purpose of the bill, and this is what I think has made us ask so

many questions that seemed to not be on the point. What else will

it permit that child to do?

Mr. RUDNICK. He is a U.S. citizen, as you or I, free to do as he

pleases, and free to move in and out of the country. Without this,

he could not move in and out of the country as he pleases. He must

remain here for 5 years continuously.

Mr. MOORE. You mean to tell me, then, that there are a considerable number of people in the United States in that category?

Mr. RUDNICK. Yes. There are thousands of children acquiring

citizenship at birth right now, born of one U.S. citizen parent, one

an alien, who has to meet these requirements. They have got to

get here. They have plenty of time. They have got until age 23

to make it. But there are such children all over the world. And we

get inquiries constantly from individuals whose circumstances are

such that the child is close to age 23 and they cannot get here. They

are having problems.

Mr. MOORE. Then the other parent, the alien parent, has already

been naturalized?

Mr. RUDNICK. Possible, yes.

Mr. MOORE. If the alien parent has not been naturalized, it does

not make a bit of difference whether he gets here or not. I do not see

how in the world it is going to touch too many people. It will in

some specific cases.

Mr. RUDNICK. It will help every single serviceman, for example,

who is married to an alien, who has a child overseas. The serviceman

ultimately returns to the United States with his family.

Mr. MOORE. GO on.

Mr. RUDNICK. That child, after he gets here, must comply with the

retention requirements for physical presence.

Mr. MOORE. Not if the alien parent becomes naturalized.

Mr. RUDNICK. Yes; he does, without this bill.

Mr. MOORE. Not if he is under the age of 16 years of age.

What if the child is brought here at the age of 1, 2, or 3, and the alien

parent becomes a naturalized parent, you mean to tell me that child

does not take citizenship?

Mr. RUDNICK. He certainly does not. He is already a citizen.

Mr. MOORE. What are you relieving him of?

Mr. RUDNICK. Retention requirements.

Mr. MOORE. He stays in the United States the rest of his life.
IMMIGRATION 25

Mr. RUDNICK. Then he has complied with the United States—

supposing he does not want to remain in the United States the rest

of his life?

Mr. DOWDY. Maybe he does not want to be a citizen?

Mr. RUDNICK. He has to go away to school, for example, in a foreign country.

Mr. MOORE. How do you vest citizenship in this 1-, 2-, or 3-yearold child? His retention rights do not begin to run against him until

he reaches the age of 16, as I understand it, and he should then remain

in the country for a period of 5 years. Right?

Mr. RUDNICK. Well, he has to get here by at least age 23.

Mr. MOORE. All right. Let's say you use the example of a military

person, a U.S. citizen, married to an alien. They have a child.

They come back to the United States. And nobody in the family

leaves until that child is 18 years of age. The alien mother submits

herself for naturalization after she has been here a period, if she is the

wife of a U.S. citizen, and after 3 years here in the United States,

physical presence, petitions for citizenship, and becomes a U.S.

citizen. The child is now 4 years old.

Mr. RUDNICK. Still has to meet retention requirements.

Mr. MOORE. Let's say the child becomes 19 years of age, he is

drafted into the U.S. Army and shipped overseas for 5 years. Does

he lose his citizenship?

Mr. RUDNICK. Not if he is in the U.S. Army, shipped overseas.

Mr. MOORE. He goes independently overseas at the age of 18 or 19

under present law, both parents are now citizens of the United States

and have been for 15 years.

Mr. RUDNICK. He has got 5 years' continuous physical presence in?

Mr. MOORE. Yes.

Mr. RUDNICK. He has complied with your retention requirements.

He has just met them.

Mr. MOORE. Not the way I understood you to explain it initially.

Mr. DOWDY. That is involuntary. In other words, he has no

voluntary choice in the matter.

Mr. MOORE. That is right.

Mr. RUDNICK. The fact that—let me try to explain it this way,

Mr. Moore—the fact that the alien parent is naturalized—forget this

bill for a moment—under today's law, does not take this child out

of the requirement to comply with retention provisions. It does not

take him out of it. This bill is trying to take him out of it.

Mr. MOORE. It see.

Mr. RUDNICK. And the formula used is, if your alien parent is

naturalized, while you are a permanent resident under age 16 years

of age, we will take you out of the retention requirements. Without

this bill, he is still required to comply with retention requirements.

Mr. MOORE. The bill would take care of the question I posed?

Mr. RUDNICK. No. You are hypothecating a case in which the

child lives here approximately all his life. He has already met them.

He has no problem.

Mr. MOORE. No, he has not, because up to today he has to be here

5 years after the age of 14.

Mr. RUDNICK. So he is 19 and he leaves.

Mr. MOORE. I am getting him on the other side of the 5 years.
26 IMMIGRATION

Mr. RUDNICK. If he is 18, he is out of luck. He has got to get it in.

He is going to be out of luck if he leaves at age 18. This bill will

allow him to leave at age 18.

Mr. MOORE. Yes. How do you practically administer section

301(b) today? If a person claims his citizenship, who raises the

question of physical presence and age requirements?

Mr. RUDNICK. How does it arise?

Mr. MOORE. Yes.

Mr. RUDNICK. Well, these persons in this class may apply to the

Immigration and Naturalization Service for a certificate of citizenship

evidencing this type of citizenship, and then inquiry into that phase

of the case must be made.

Mr. FEIGHAN. A child that is born a citizen at birth, comes over

here 1-year-old and stays here until he is 13Y2 and then leaves. He is

not a citizen?

Mr. MOORE. Even though his alien parent has become naturalized.

Mr. RUDNICK. When he comes over here in that instance—but he

will lose it unless he gets those 5 years of continuous physical presence

here after age 14.

Mr. MOORE. Regardless of the naturalization of the other alien

parent.

Mr. RUDNICK. That is correct; regardless of the naturalization of the

alien. You see, he cannot derive under section 320, because you are

talking to a citizen.

Mr. MOORE. That is correct.

Mr. FEIGHAN. Any further questions?

Mr. MOORE. I have no further questions.

Mr. FEIGHAN. Mr. Dowdy?

Mr. DOWDY. I am wondering, under some provision or suggestions

here of what the law would be at least, a person would become automatically a citizen if his alien parent is naturalized before he reaches

age 16. You say he would automatically become a citizen, is that

correct?

Mr. RUDNICK. Yes, sir. Derivative.

Mr. DOWDY. Under this bill?

Mr. RUDNICK. Yes, sir.

Mr. DOWDY. Now, if he does not have to do anything, he is a

citizen, how is he going to prove it?

Mr. RUDNICK. He comes to US.

Mr. DOWDY. He has got to get something on record then?

Mr. RUDNICK. He does not have to. He can go along producing

any kind of evidence he sees fit, showing "I am x; this is my age; my

father; I am a citizen." He does not have to get this document.

Mr. DOWDY. Well, for all practical purposes, I would, as an attorney, tell him to do it. I know people that are born in the United

States and have been citizens all their lives and sometimes they have

difficulty proving they exist, even, because they did not have a birth

certificate recorded.

Do you not get down to some sort of problem like that? In this

instance, should not perhaps the alien, when becoming naturalized—

should they not put the children's names in the judgment that makes

her a citizen, to show that their children are citizens?

I hate to leave loose ends dangling, and it looks like that is what

we are doing.
IMMIGRATION 27

Mr. RUDNICK. As I indicated, Mr. Dowdy, we do have a procedure; and we issue these certificates at the rate of about 35,000 a

year, year in, year out, to these children coming to us. They are

given a document saying unquestionably you are a citizen of the

United States, and this is how you became one.

So there is a record for those who wish to take advantage of this

privilege.

Mr. DOWDY. Under this proposed law here, that would no longer

be necessary, as I understand?

Mr. R UDNICK. Yes; it would be necessary. These children are

citizens. We issue certificates to children who have not yet complied. They have not lost yet. We will give them a certificate from

the moment of birth, if necessary, so there is ample protection for

them. And there are ample official records that would establish their

status if they wanted to come to us.

Mr. DOWDY. That is taken care of under this proposed amendment

to the law?

Mr. RUDNICK. It will take care of these children, too.

Mr. DOWDY. I was afraid something was being overlooked.

Mr. MOORE. Can I ask this question? The individual who has

all these ingredients of citizenship, but does not come to INS and seek

to obtain the document which you refer to, is there any presumption

in the law that he must have an alien registration—must he have

one or the other?

Mr. RUDNICK. If an individual fails to register, and the proper

authorities become aware of it, and they inquire into it and they ask

why, and the man says, "Why, I am an American citizen," he is

going to have to prove it.

Mr. MOORE. The presumption is he must have one or the other,

he must have either the document which indicates that he has fulfilled

the requirements of citizenship by birth, and following through, if he

is a retention case, or he must have an alien registration card, and if

not he has to explain it to somebody?

Mr. RUDNICK. That is right. But you cannot go so far to as say

that he must have the certificate of citizenship.

Mr. MOORE. No, but must have one or the other explained—

Mr. RUDNICK. Either have to have an alien registration card or

prove he is a citizen. He can prove it through any number of ways

other than through the certificate of citizenship. This is a convenient

official document, so that no question can be raised about it.

It has the same force and effect as the certificate issued by a court

of law.

Mr. MOORE. This is not needed unless the issue is raised?

Mr. RUDNICK. That is true. I mean if no one ever questions,

there is no problem.

He may want to vote. He may want to hold public office, or any

number of things.

Mr. MOORE. That was the situation in the case of a Baltimore

mayor.

Mr. RUDNICK. It is an excellent document for these children to

obtain. As I say, 35,000 of them obtained them year in and year out.

Mr. DOWDY. This may not be directly applicable to the bill here;

but as we have talked, I wondered about having a time for election—

do not know who should make the election. It first occurred to me
28 IMMIGRATION

perhaps when a man marries an alien, from whatever country, that

the wife's citizenship should follow the husband's unless they opted

the other direction.

Mr. RUDNICK. That used to be the law of this country, Mr.

Dowdy. It went out of existence in 1922.

Mr. DOWDY. What was the reason for that?

Mr. RUDNICK. I suppose the independence of women then and their

capacity to transact legal business.

Mr. DOWDY. Is it not normal that a woman would want to live

where her husband lives, and makes a living?

Mr. RUDNICK. That is true.

Mr. DOWDY. Now, given the right to opt in the other direction,

if the woman is making the living, and he wants to live in her country

or opted—that is, the husband would opt in that direction 

Mr. RunNicx. She is at liberty to live in a foreign country, and

whether or not she could acquire the citizenship of that country 

Mr. DOWDY. I am talking about her nation, where she was born.

If an American citizen marries an alien and wants to choose, they

choose to be the citizen of this country or vice versa 

Mr. RUDNICK. That is a matter that the individual has to decide

for himself, as to whether he wants to retain his American citizenship

or whether they decide between them that they should have one

citizenship and choose which one it will be, the U.S. or the foreign;

but that would be an individual choice.

Mr. DOWDY. Or if you do not want to put the option or the choosing

up to the parents, the child, when he reaches a limited age, when he

reaches 21, can choose 

Mr. RUDNICK. Well, our laws have never required that child, the

derivative child, to make such a choice. Our laws have never required that.

Mr. DOWDY. Unless he meets the requirements of the law, he

loses his chance to become an American citizen.

Mr. RUDNICK. That is true.

Mr. DOWDY. That is all.

Mr. FEIGHAN. Mr. Rudnick, thank you very much.

Now would you address yourself to the provisions of H.R. 555 and,

in doing so, I would like to ask you: Can you give us some indication

of the extent to which aliens interested in becoming citizens fail to

reach their goals because of the inability to meet literacy and educational requirements?

Mr. RUDNICK. Yes, Mr. Chairman. There are a considerable

number of individuals that come to the Immigration and Naturalization Service from time to time evincing an interest in becoming naturalized, and upon discussions with representatives in our various

offices find that they are required to read, write, and speak the English

language; and consequently would either have to acquire the necessary

skills or forfeit the opportunity of applying.

Now, we refer these people normally to the public school authorities,

where citizenship classes are being conducted, and we keep some statistics on the number of these people that we refer, and they run close to

maybe 90,000 a year of actual referrals to the public schools.

Mr. FEIGHAN. By that you mean those who make application

before--

Mr. RUDNICK. Either in the form of application or just come to the

office and inquire, "What do I have to do to become a citizen?" As I
IMMIGRATION 29

say, these large numbers do not have the necessary qualifications, and

it is necessary for us to tell them where they may possibly acquire it.

Now, in addition to that, we have applications submitted, and the

questions in the application itself inquire as to whether or not the

individual is able to read, write, and speak English; and very frequently the answer is "No." So we have to reject those applications

and explain to the applicants that this is a necessary requirement

and that they would have to comply with it.

And then there are individuals who feel that they do have the

necessary skill. They feel that they do speak enough, or are able to

write simple words and read simple words in the English language

and will insist upon proceeding all the way into the court, and those

cases are, of course, disposed of in a formal hearing before a naturalization court. And they run, 300 to 400 a year, actual denials on the

merits, the person does not have the ability.

So with that background, I would say that, by and large, there are

literally thousands and thousands of people interested in becoming

citizens who do not meet the requirements, are not able to meet them,

or do not meet them sufficiently to pass the examination.

Others who are aware of the requirements, I must assume, do not

even come near an Immigration and Naturalization office, because

they realize it would be hopeless.

So there is that potential in the alien population, particularly in

the Southwest with the Spanish-speaking people.

There is a large illiterate group there, and I think there are over

600,000 Spanish-speaking people in the Southwest, of which many, of

course, are not literate in the English language. So that would be

the potential, and the group that would benefit perhaps under this

advanced date, or whatever new date is selected 

Mr. FEIGHAN. As you pointed out, the literacy-exempt alien is not

similarly exempted from demonstrating a knowledge of the principles

and form of government of the United States under the administration

of the present requirement.

How is the candidate's knowledge on the subject determined?

Mr. RUDNICK. The law does not exempt anybody from demonstrating knowledge of the form and principles of our Government.

Now, the literacy-exempt alien, of course, is privileged to institute

naturalization proceedings through an application; and since he is

exempt from the requirement of speaking, reading, and writing

English, but not from the knowledge of Government, we are obliged

to converse with him in his native tongue, or whatever language he is

able to speak. So, of necessity, we have to conduct a naturalization

examination in its entirety, including the examination on his knowledge

of Government, through interpreters. And that is how that knowledge is determined, through the answers given to the questions asked

of the applicant by the interpreter and translated for us.

Mr. MOORE. What sort of administrative problem are you going

to incur here in supplying courts, in their inquiry, the necessary interpreters to make examinations in the native tongue, because the court

does have certain questions he might want to ask to satisfy himself?

He would have to have an interpreter, unless the court itself were

bilingual.

Mr. RUDNICK. That is true, Mr. Moore. However, most of our

people who conduct these examinations, particularly in the Southwest,
30 IMMIGRATION

are able to speak the language, and in most instances they can do

this without the need of any other interpreter. In other instances,

some unusual language would require that we have an interpreter

present, and we have not found any real difficulty in meeting that need.

Mr. MOORE. And there have been instances under the present law

where geography would have made that apparent if it had been a

real problem, I assume.

Mr. RUDNICK. Yes.

Mr. MOORE. Simply by updating it, it is not going to aggravate

the situation materially?

Mr. RUDNICK. No. It would simply just give us more of the same;

but I do not think it would be in such volume because of the number of courts in which we operate. There are more than 600 of them

that would not present any real problem.

Mr. MOORE. Geography usually controls the greatest flow in this

particular area, and you are fully equipped now to handle it there?

Mr. RUDNICK. Yes.

Mr. FEIGHAN. The Immigration and Naturalization Service, I understand, approves H.R. 555; is that correct?

Mr. RUDNICK. Well, of the three bills, I believe there are, they vary

somewhat, one from the other. One, Mr. de la Garza's bill, has a

fixed calendar date. I think H.R. 555 relates to determining the age

and residence as of the date of filing the petition, and the third one is

silent. It just has the requirement of 50 years of age and living in

the United States for 20 years, which could be interpreted as meaning

as of the date that that amendment is added to the Act, or possibly

at the time of naturalization.

And any of those would be satisfactory to the Department of

Justice.

We are in agreement that the date should be moved up to whatever

point in time, this committee, of course, sees fit to move it to.

Mr. FEfGHAN. Would it be advisable to have it, say, at the date of

application, so that all of this would be current?

Mr. RUDNICK. That would avoid the necessity for doing what we

are doing today, considering whether or not we should move it up

another 10, or another 10. It would have that advantage. The

fixed date would allow the individual to determine once and for all

that this is the cutoff, but that he would not be qualified for the exemption by the mere expiration of time.

Mr. MOORE. Having a date, Mr. Rudnick, does this in any way

really encourage this alien maybe to exert an extra effort to become

conversant with the English language? I assume there is a reason

for this being in here.

Mr. RUDNICK. There would be. If he is anxious to become a citizen

and he realizes that he must—if you have a fixed date—must meet

the requirements of literacy and knowledge, he is going to have to

equip himself to meet that test.

So there is unquestionably an incentive on the part of the alien

with the fixed date.

Mr. MOORE. No further questions.

Mr. FEIGHAN. If you have the fixed date, though, those who have

not fulfilled the requirements of the 50 years of age and 20 years'

residence would be excluded?

Mr. RUDNICK. Yes; you would have another class left out in the

cold, as the class we are dealing with now has been left out in the cold;
IMMIGRATION 31

whereas, the continually progressive date would qualify these people

as time went along.

Mr. DOWDY. Mr. Chairman, I do not know whether this is really

material. It may not apply to very many people. I remember

several years ago, before I came to Congress—several years before I

came to Congress—there was a woman about 70 who came from one

of the Germanic countries, I believe, when she was a small child.

She never did learn how to read and write but she raised a lot of

children that were American citizens, of course, born in this country.

And she wanted to die an American citizen, and we found a sympathetic judge, and she became a citizen before she died.

Now, I see no harm in that. I do not know whether there are

enough of those to be of interest to us.

Mr. MOORE. If the gentleman will yield, if she found a sympathetic

judge, she also found a sympathetic INS officer some place along the

line.

Mr. FEIGHAN. There is still the requirement of literacy in some

language under the provisions of section 312?

Mr. RUDNICK. Not for naturalization purposes, under the English

exemption, no requirement.

Mr. CLINE. An illiterate person can be naturalized under the

proviso in section 312?

Mr. RUDNICK. Yes, sir.

Mr. MOORE. That meets this particular requirement—under the

present law—an illiterate person that is 50 years of age and been in

this country 20 years previous to 1952, illiterate, can be naturalized?

Mr. RUDNICK. Yes, sir.

Mr. MOORE. Well, that is no different than what has been done in

several other respects.

Mr. RUDNICK. I have a statement in this connection that I would

like to read.

Mr. MOORE. I think you are a very knowledgeable person in this

area.

Mr. FEIGHAN. Would you care to read that statement?

Mr. MOORE. Just let him enter it in the record.

Mr. RUDNICK. It is five pages. It will take 10 minutes.

Mr. MOORE. You covered everything in your oral submission,

did you not?

Mr. RUDNICK. Yes.

Mr. FEIGHAN. Section 312, now says:

Provided further, That the requirements of this section relating to ability to

read and write shall be met if the applicant can read or write simple words and

phrases * * * and no unreasonable conditions can be imposed upon the applicant.

Mr. RUDNICK. That is the nonexempt alien. If he gets out of

that, then he does not have to be literate in any language, if he is an

exempt alien. The rule you just read relates to the nonexempt.

He must meet that condition.

Mr. FEIGHAN. If you will, just submit your statement then.

(The document referred to follows)

STATEMENT OF MR. RUDNICK CONCERNING AMENDMENT OF THE IMMIGRATION

AND NATIONALITY ACT RESPECTING THE LITERACY REQUIREMENTS FOR

NATURALIZATION

Thank you for the opportunity to present to you the views of the Department

of Justice on the bills pending before you to amend section 312 of the Immigra-
32 IMMIGRATION

tion and Nationality Act to enlarge the classes of persons eligible for exemption

from compliance with the literacy requirements of the naturalization laws.

The Naturalization Act of June 29, 1906, fixed responsibility for naturalization

in the Federal Government, and was the first Act to include basic educational

requirements. It required the candidate for naturalization to speak the English

language and to sign his name in his own handwriting. A showing of attachment

to the principles of the Constitution was a further requirement—one that was

interpreted as requiring a reasonable knowledge of our form of government.

An exception to the speaking requirement was made in the cases of aliens physically

unable to comply therewith.

These requirements continued unchanged as part of our naturalization laws

until the amendment of the Nationality Act of 1940 by the Internal Security Act

on September 23, 1950. Since that date, by explicit statutory injunction, rather

than by judicial fiat as was the case in some courts, applicants for naturalization

have been required to read and write simple words and phrases in common usage

in the English language. That Act added to the exception from the literacy requirements by reason of physical disability a proviso that the requirements were

inapplicable to persons who, on the date of approval of that Act, were over 50

years of age and had been legally residing in the United States for 20 years. This

relief was incorporated into the law to facilitate the naturalization of many otherwise desirable aliens in the older-age groups, who could not hope to become citizens

because of their inability to acquire the needed literacy skills. No similar exemptions have been granted from the statutory requirements that an applicant demonstrate knowledge and understanding of the fundamentals of the history and

principles and form of government of the United States.

Both the literacy requirements and the exceptions thereto contained in the 1950

legislation were carried over into the present Immigration and Nationality Act

with slight modification. The exception for elderly persons under the earlier

law was conditioned, in part, upon legal residence in the United States for 20

years. The current law substituted for that prerequisite the less-stringent requirement that the applicant be living, rather than legally residing, in the United

States for periods totaling at least 20 years. Additionally, the date fixed for

calculating both the qualifying age and residence was advanced from September

23, 1950, to the effective date of the Immigration and Nationality Act, December

24, 1952.

H.R. 555 would amend section 312(1) of the Immigration and Nationality

Act (8 U.S.C. 1423; 66 Stat. 239) in such manner as to exempt persons from the

requirement of understanding the English language, including an ability to read,

write, and speak it, if they were over 50 years of age and had been living in the

United States for periods totaling at least 20 years on the date of filing their

petitions.

H. R. 3596 would grant similar exemptions to persons who are over 50 years of

age and have been living in the United States for periods totaling at least 20 years.

H. R. 475 similarly seeks to liberalize the exemptions from literacy requirements

by merely substituting for the cutoff date of December 24, 1952, in the present

law, the new date of January 5, 1965.

The proposed legislation presents no new question of policy. The Im.migration

and Nationality Act resolved in the affirmative the question whether persons over

50 years of age with 20 years of residence, who are otherwise qualified for naturalization, should be excused from the test of their ability to read, write, and speak

English.

Fourteen years have elapsed since the cutoff date prescribed in the 1952 legislation. Those who could claim the exemptions today would have to be at least

64 years of age and have lived in this country for as much as 34 years. Those

who reached age 50 or who completed the 20 years of residence after 1952 remain

ineligible for the exemptions, even though they may now be over age 60 and have

lived here for as much as 30 years. We know of no reason why the policy expressed in the 1952 legislation should not apply to the latter group. We believe

that failure to afford similar treatment to them deprives them, without apparent

reason, of an opportunity for citizenship. Accordingly, we favor the relief which

the proposed legislation would afford.

The three bills under consideration are designed to meet the needs of these

favored groups. They differ only with respect to the date or time from which the

prerequisite age and residence should be calculated.

H. R. 475 advances the exemption by 12 years, so that those born before 1915,

rather than before 1902 as at present, would qualify.
IMMIGRATION 33

H. R. 3596 freezes the benefits to those persons who possess the age and residence

qualifications as of the date of its enactment, although the provisions are susceptible of a construction that eligibility for the exemption is calculated as of the date

of naturalization.

The provisions of H. R. 555 offer a flexible formula that would permit eligibility

for the exemption to be achieved at an indefinite date in the future through

the mere passage of time.

In the selection of one of the suggested approaches, attention is invited to the

provisions of section 332(b) of the Immigration and Nationality Act which

authorizes the Attorney General to promote instruction and training in citizenship

responsibilities of applicants for naturalization. This includes the sending of

names of candidates for naturalization to the public schools, and preparing and

distributing citizenship textbooks to candidates who are receiving instruction in

preparation for citizenship within or under the supervision of the public schools.

To the extent that the date for qualifying for the exemption is advanced, applicants

made eligible for the exemption will not find it necessary to participate in that

program.

Mr. FEIGHAN. On behalf of the subcommittee, I want to express

our deep appreciation for your very splendid presentation.

Any further questions? (No response.)

Mr. FEIGHAN. We will go into executive session.

(Whereupon, at 11:55 a.m., the subcommittee went into executive

session.)