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CHAPTER 3

The Victory of the Federalization of Naturalization, 1926–1940

Nonetheless, in the period between the 1926 amendments to the Naturalization Act and the outbreak of World War II, denaturalization was at its peak. The number of revocations of citizenship averaged about a thousand a year between 1935 and 1941, reflecting three historical phenomena.

First, the Bureau of Naturalization continued to be vigilant in ensuring that state courts respected the requirements of federal naturalization laws. Thomas Ellis Isaac, for instance, was naturalized on March 18, 1926, at the Court of Common Pleas for Clarendon County, South Carolina. But the Court of Common Pleas had not been authorized to conduct naturalizations since 1911. As a result, Isaac’s certificate was annulled in 1927 for having been illegally procured.¹ The Bureau eventually discovered that the Clarendon court had illegally naturalized six other people as well and decided to pursue the denaturalization of all of them.²

Just as often, however, after the Bureau targeted the courts themselves, it endeavored to protect the interests of the denaturalized. Edla Lund, a Swedish widow and music teacher born in Stockholm in 1867, arrived in the United States at the age of twenty. She had been naturalized on December 5, 1932, not using the appropriate forms. Her naturalization was cancelled on April 9, 1934, but, characteristically, the district director of naturalization was asked to assist Lund in regaining American citizenship. Others were advised to reapply for naturalization after their certificates were cancelled.³

Second, a general toughening in immigration law combined with some liberal provisions aimed at naturalizing World War I foreign combatants and seamen, encouraged fraud. Before 1921, an immigrant entering and residing in the United States illegally, who was also interested in becoming a naturalized citizen could follow an easy procedure. He could cross into Mexico or Canada and have his subsequent reentry into the United States officially recorded.⁴ This would serve as a record of legal entry into the country and would begin the official countdown toward citizenship.

After the Immigration Restriction Act was passed on May 19, 1921, however, immigrants to the United States had to be admitted within a national quota, with the exception of immigrants from nations in the Western Hemisphere. This meant that many immigrants could no longer “reset” the record of their arrival through a quick jaunt south of the border. Moreover, many immigrants who had arrived before 1921 could not prove their entry date—some arrived before records of arrival were kept at all ports of entry, while in other cases entry records were lost or destroyed.⁵ With legal methods for circumventing America’s entry requirements no longer available, some individuals seeking American citizenship used the assistance of dishonest immigration bureaucrats to modify boat records from years past.

The new system reinforced the Bureau of Naturalization’s control of the naturalization process. On August 1, 1924, the Bureau requested that the clerks of naturalization courts throughout the United States forward the declarations of intention of applicants for citizenship who had arrived in the United States after June 2, 1921. The Bureau also asked clerks to defer filing these applications with the courts until proof had been furnished that the applicants’ entry into the United States was by a permanent admission: “Large numbers of aliens who had entered the country illegally or who were unlawfully remaining in the United States after having entered the country for temporary periods of residence only were attempting to make declarations of intention.”⁶ Under the plan adopted by the Bureau, applications from aliens arriving after June 30, 1924, were compared with the immigration visas in the Bureau’s custody in order to defeat “attempts to become citizens by those who entered the United States in defiance of the provisions of the quota and visa restrictions of the immigration law.”⁷

Illegal naturalization also involved individuals who feigned inclusion in two categories of foreigners whose naturalization had been statutorily facilitated since World War I. On May 9, 1918, Congress had passed an act providing for the immediate naturalization of alien soldiers in the U.S. military, permitting them to become citizens without the typically required certificate of arrival. The same act provided that any alien who had been a member of the armed forces for three or more years could file a petition for naturalization without proof that they had met the five-year residency requirement, and that any applicant who had served during World War I was exempt from the requirement to file a declaration of intention.⁸ Between May 9, 1918, and June 1, 1919, a total of 128,000 foreign soldiers were naturalized under these provisions.⁹

In the San Francisco naturalization district, fraudulent naturalizations of “draft evaders, slackers posing as honorably discharged soldiers and sailors,” and “men claiming merchant service through forged seamen’s discharges” were cancelled in 1924.¹⁰ Over the course of 1929, proceedings for the violation of naturalization laws on similar grounds were also initiated in Pittsburgh, New York City, and Boston.¹¹ In the middle of 1930, it was discovered that a New York City-based group was providing fraudulent naturalization documents, taking advantage of the exemptions conferred on veterans, to immigrants who had arrived after the end of World War I. Individuals typically paid between $500 and $800 for their fraudulent naturalizations. Confessions were obtained from four individuals who secured their naturalization by falsely alleging World War I service. Up to twelve other individuals were involved in the fraud.¹²

Third, the number of denaturalizations rose rapidly in the late 1930s and early 1940s to levels unseen in American history. Naturalizations also unexpectedly rose during this period, reaching a peak in 1940.¹³ This rise came despite the fact that immigration declined from 6.3 million individuals in the years between 1910 and 1919 to 4.3 million in the 1920s, dropping below 700,000 over the course of the 1930s.¹⁴ The 1936 Annual Report of the Department of Labor observed that “normally it might be expected that a decline in immigration would be followed by a corresponding decline in naturalization, but this has not been true in the past 4 years. Immigrants admitted between 1933 and 1936, inclusive, numbered 123,823 and during the same period 475,767 declarations of intention were filed. It is evident that the majority of aliens who are now seeking naturalization are not recent immigrants but have been in the country for some time”¹⁵ The era of “hostile legislation” was among the reasons invoked for this rush of hitherto indifferent aliens.

But, in actuality, the increase after 1934 in the number of aliens going through the naturalization process was primarily the product of the dramatic rise of unemployment caused by the Great Depression. The resulting response by President Roosevelt creating social programs reserved exclusively for citizens generated a strong incentive for aliens to seek naturalization. Aliens were commonly barred from employment on public works, private employers preferred hiring citizens, and only citizens could qualify for old-age pensions and other benefits under social security laws. These considerations impelled the alien to seek naturalization and the citizens to prove her citizenship. Both trends provoked a denaturalization surge.¹⁶

Two primary social benefits seem to have been particularly important to immigrants: old-age assistance and public employment programs such as the Works Progress Administration (WPA). In a 1932 article, “Is Citizenship a Fair Requirement in Old Age Assistance Acts?” sociologist Dallas Hirst points out: “All but one of the eighteen states which have passed old age assistance acts requires that the recipients of such aid be citizens. . . . In other words, one old person out of every five is ineligible for state old age assistance because he or she has failed to become a citizen.”¹⁷

The federal Social Security Act, passed in 1935, established certain basic federal contours for state old-age assistance programs, among them the proviso that state plans could not include “any citizenship requirement which excludes any citizen of the United States.”¹⁸ But the phrasing left it up to each state to decide what, if any, coverage to provide to noncitizens. In April 1936, thirty-eight of the forty-eight states, plus the District of Columbia, had state old-age assistance laws in place. Of these thirty-nine jurisdictions, twenty-eight required U.S. citizenship as a prerequisite to receiving old-age aid.¹⁹

Consequently, the new Immigration and Naturalization Service (INS), reuniting in 1933 the Bureau of Immigration and the Bureau of Naturalization into a single agency, began uncovering numerous cases of immigrants who were naturalized illegally before 1906 and requested old age benefits. Under the Justice Department’s original 1909 Circular interpreting and applying the Naturalization Act, the citizenship—and social security benefits—of these individuals would be protected.²⁰

However, for the large number of immigrants fraudulently naturalized after 1906, the INS tightened the noose. On November 17, 1938, it instituted denaturalization proceedings against five immigrants, all of whom were naturalized in 1936 or 1937 by a court that had not possessed jurisdiction since February 3, 1912.²¹

During this time of economic crisis, various regulations restricted legal employment to American citizens. A 1933 study by social scientist Harold Fields found that, starting in 1928, “the majority of jobs in basic industries and also membership in the majority of the largest unions were reserved to American citizens.” In fact, Fields listed “eighteen professions, eleven types of public employment, forty-three kinds of occupational licenses, and ten miscellaneous categories of activity which required either first papers or full citizenship according to the statutes of various states and the District of Columbia.”²² Historian Mary Anne Thatcher writes that, by 1941, “eight or nine of every ten jobs in the United States were denied to aliens by statute or local ordinance, by the regulations of licensing boards, or by the prejudices of private employers.”²³ Employment was becoming ever more tied to citizenship.

When the Works Progress Administration (WPA) was created, administrator Harry Hopkins was hard-pressed to answer congressional requests to provide data on how many aliens were receiving public services. He responded only that, “Many of the initial office forms designed for the WPA provided no place for giving information on race, religion, citizenship, or politics.”²⁴ Despite the resolve of Hopkins and Roosevelt, Congress passed in 1936 the first restrictions on employment by the WPA, prohibiting the agency from “knowingly” hiring aliens who were in the United States illegally, though also directing that “prompt” employment was not to be infringed upon by any new controls.²⁵

By 1939, the WPA had banned noncitizen employment entirely.²⁶ Applicants for jobs and recipients of agency services were often asked to fill out informational forms about their citizenship. These forms would eventually reveal a certain number of illegal or fraudulent naturalizations that had not been cancelled due to the protections afforded by the 1909 Circular. Many of the fraudulent naturalizations uncovered were performed for the parents of Depression-era aid recipients. The citizenship they received when they were minors could be one day at risk.²⁷ In order to avoid a situation that could lead to a sudden loss of social benefits and jobs or to deportation, these citizens were often advised to seek their own denaturalization, so that they could reapply and regularize their citizenship status.

These requirements encouraged foreign immigrants to naturalize. And this pressure for naturalization also, inevitably, increased naturalization fraud. An investigation that began in December 1933 uncovered evidence of systematic fraud in naturalization cases in the New York district, perpetrated since 1924 “by racketeers acting in collusion with employees of this Service having access to official records.” Fifty-six investigators were assigned to examine 4 million arrival records and 150,000 naturalization petitions, files, and court records in New York and Brooklyn over a nine-year period. Evidence of fraud, such as altered boat manifests and missing files, was detected. Bribes of between $100 and $1,200 had been extracted from immigrants. The payments collected even at this early point in the scheme totaled over a million dollars.²⁸

In April 1935, Samuel H. Kaufman, Special Assistant to the Attorney General, was assigned to the federal district courts surrounding the port of New York to help organize the prosecution of the large number of local denaturalization cases, including those of “aliens who have entered the country unlawfully, persons who have aided in such entry, and perpetrators of naturalization fraud.”²⁹ In 1937, four years after the fraud investigation had begun in New York, 174 indictments were handed down in fraudulent naturalization cases. Among those indicted were ten former employees and two then-current employees of the Immigration and Naturalization Service. In all, 3,336 aliens were arrested for deportation proceedings, 140 certificates of naturalization were cancelled, and an additional 279 naturalizations were pending cancellation.³⁰

While denaturalization was higher than ever, the transfer of power between state courts and the federal administration concerning naturalization accelerated in several stages.

First, the Nationality Act of 1940 extended to the state courts the system of INS examiners that was already operating in conjunction with the federal courts.³¹ State courts that did not elect to adopt the new system were permitted to continue to grant citizenship under the original procedure, requiring the full examination of the petitioner and witnesses at the final hearing. But, as time went on, nonadopting courts were fewer and fewer in number. Court reliance on the conclusions of examiners made judicial naturalization a mere formality (since judges invariably and unquestioningly followed the recommendations of the Immigration and Naturalization Service). As a result, the 1940 Act, in effect, bypassed the courts and conferred the power of designation of examiners directly on the Commissioner of Immigration and Naturalization.

Second, on May 22, 1940, at the suggestion of Undersecretary of State and close confidant Sumner Welles, Franklin Roosevelt announced the transfer of the Immigration and Naturalization Service to the Department of Justice.³² Since January 1940, Roosevelt had been under pressure from Congress to remove Secretary of Labor Frances Perkins from her post. She had been accused of not enforcing immigration laws when she lobbied to welcome Jewish refugees from Europe and obtained the right to remain for German Jewish visitors already in the United States at the outbreak of World War II.³³ And when Perkins dismissed charges against the alleged Communist union leader Harry Bridges, her decision provoked a political firestorm.³⁴

Welles, to whom the president often turned “for fresh ideas and quick action,”³⁵ had convinced him that the transfer of the INS to the Department of Justice was justified because there were various aspects of naturalization and of immigration problems in which the collaboration of the courts was essential, and because, in many cases, investigations were necessary and had to be carried out by the FBI.³⁶ The transfer would also permit Roosevelt to keep Perkins in his cabinet, while placating her opponents.³⁷

On May 21, Roosevelt summoned Attorney General Robert Jackson for a lunch at the White House. “Shortly after lunch arrived,” reported Jackson, “he handed me an Executive Order which proposes immediate transfer of the Bureau of Immigration and Naturalization from the Department of Labor to the Department of Justice.” Jackson recalled that Roosevelt “turned to his soup and left the move to me.” He read the order and told the President that “he had no desire to undertake this task; that it was one which no man could long perform acceptably in a period of public excitement; that there was somewhat the same tendency in America to make goats of all aliens that in Germany had made goats of all Jews.” Jackson explained, “I told him that I favored a much stronger border control and a stricter supervision of aliens in the country than we had had in the past, but that I was utterly opposed to a new policy of persecuting or prosecuting aliens just because of alienage.” With all of this Roosevelt agreed, and, his complaints satisfied, Jackson accepted the responsibility of transferring the INS to the Department of Justice.³⁸

This departmental transfer was the last major step toward the federalization of naturalization authority. As a consequence, “the Government need for denaturalization as a remedy for naturalization abuses” decreased “with the increasing supervision of the Department of Justice over naturalization process.”³⁹

The power exercised by the Naturalization Service was also reinforced by the war. Beginning around 1940, naturalization applications poured in: aliens submitted to registration by the Alien Registration Act wanted to express their loyalty and secure their status as citizens⁴⁰ while an increasing number of companies—particularly in war industries—were reluctant to hire noncitizens. Because, at the time, it employed only 147 naturalization examiners, the INS faced an increasingly long backlog of petitions; in 1941, an applicant was typically required to wait between fourteen and eighteen months before she could become naturalized. Realizing the severity of the problem, Congress increased the Immigration and Naturalization Service’s funding, allowing it to raise the total number of examiners to approximately 400 by 1944.⁴¹ The INS assigned these additional examiners “to districts where the demand for naturalization was unusually heavy and arrearages unusually formidable,” including areas such as New York, Newark, Buffalo, Boston and Cleveland.⁴² With the additional cooperation of the courts, the number of civilian naturalizations rose from 185,000 in 1939 to 393,000 in 1944.

Congress also authorized for the first time in U.S. history, a designated representative of the INS Commissioner to “combine the powers of naturalization examiner and of a naturalization judge” and confer, on foreign soil, American citizenship to noncitizens serving with armed forces abroad.⁴³ Finally in August 1943, in order to “produce uniformity and improvement”⁴⁴ in the naturalization process, the Immigration and Naturalization Service instituted a centralized review of examiners’ recommendations.⁴⁵ Under this new system, petitions recommended either for denial or for approval with facts presented to the court, or regarding which the field officer was in doubt as to the proper recommendations, were submitted to the central office for review.⁴⁶

Additional statutory authority for the INS review process was introduced by the Internal Security Act, passed on September 23, 1950.⁴⁷ Already, the large-scale administrative review of the naturalization examiners’ work had fulfilled an important purpose: “in achieving uniformity in recommendations and decisions.”⁴⁸ The 1950 Act relabeled the initial hearing conducted by a naturalization examiner as a “preliminary examination,” and made preliminary examination records admissible as evidence at subsequent final judicial hearings. Naturalization examiners were granted the authority to subpoena a naturalization application and to compel by subpoena the production of relevant evidence.

In the mid-1950s, the INS initiated a program to reduce the number of courts exercising naturalization jurisdiction and to encourage the filing of naturalization petitions in larger courts. In 1955, a total of 950 courts exercised naturalization jurisdiction. This number dropped to 752 in 1958, to 622 in 1964, and to 450 in 1977.

Thirteen years later, naturalization—a responsibility of the judiciary since America’s founding—became a wholly administrative procedure after the passage of the Immigration Act of 1990.⁴⁹ In removing naturalization authority from the judiciary, Congress castigated some courts for tolerating delays of up to two years in processing applications.⁵⁰ Courts, exclusively those in the federal system, retained only the authority to formally administer the citizenship oath.⁵¹ Because of these changes, the age when thousands of courts performed the work of minting America’s citizens was confined to the memory of a small cadre of experts and scholars.

The denaturalization provision of the 1906 Act was originally and primarily conceived as a means of redressing naturalization fraud and illegality committed prior to or during the naturalization process itself—before the moment an alien obtained American citizenship. But, in practice, the Wickersham 1909 Circular limited the cancellation of certificates of citizenship that had been fraudulently or illegally procured to those instances where revoking naturalization would substantially better the country’s citizenry.

Yet even at the height of naturalization corruption in the 1930s, cases where individuals obtained citizenship through fraud or illegal behavior committed before or during the naturalization process constituted a minority of the cancellations of naturalization certificates.⁵² The bulk of denaturalizations after 1909 resulted not from an intent to clean up the naturalization process or to make naturalization procedures more administrative in nature. Rather, these naturalizations occurred out of a desire to expel from the body politic “un-American” citizens: most of them not for fraud or illegality committed before they were naturalized, but because of who they were or what they had done after they obtained American citizenship.

The goal of “bettering the citizenry,” along with the vesting of denaturalization authority in federal hands, paved the way for interpreting the 1906 denaturalization provision in a new direction. Denaturalization became a means for cleansing the American body politic of those naturalized citizens who behaved in ways considered un-American, due to their attachment to a “foreign” morality or to their race, land of origin, or political ideas—sometimes before their naturalization, but, most often, developed afterward.

“Former” Americans of this sort were never encouraged to reapply after they were stripped of their citizenship. To the contrary, expelled from American citizenry, they would become foreigners again or, worse, stateless. They were often deported from the United States or, if already abroad, forbidden to reenter.