Читать книгу The Sovereign Citizen - Patrick Weil - Страница 9

CHAPTER 1

Denaturalization, the Main Instrument of Federal Power

Naturalization fraud was not a new phenomenon in nineteenth-century America, but it reached its peak in New York City in the November 3, 1868, election that placed Ulysses S. Grant in the presidency. In October 1868 alone, fifty-four thousand foreigners were naturalized in New York City by only two judges.¹ Grant ultimately lost the state by ten thousand votes to his opponent Democrat Horatio Seymour, a New York governor. A senatorial inquiry later showed that, in addition to New York, the Democrats won three other states—New Jersey, Georgia, and Louisiana—through fraud.²

In response, the Republican leadership in Congress proposed to cede exclusive jurisdiction for naturalization to the federal courts. But just as had happened after the contested 1844 election,³ a congressional inquiry did not lead to any major change in the law. Instead, western Republicans joined Democrats in opposing the granting of exclusive authority over naturalization proceedings to the federal courts.⁴ At the time, naturalization was a tool for political machines to increase the number of loyal voters on the eve of local, state, and federal elections. For the naturalized themselves, naturalization provided access to jobs restricted to those possessing American citizenship. Furthermore, naturalization was a means for the clerks of local courts to generate revenue.⁵ Finally, naturalization fraud was not a priority for reformers, who wanted to cure and purify citizenship in all its dimensions and who had placed the elimination of patronage jobs in civil service and reform of the ballot higher on their agenda.⁶

On April 1, 1890, the House of Representatives ordered a subcommittee of the Committee on the Judiciary to investigate the naturalization practices of American courts. In a March 1893 report, its chairman, Congressman William Oates of Alabama, described them as completely dysfunctional: “What a ridiculous farce! The making of citizens out of aliens, which should be a grave judicial proceeding in the exercise of a constitutional function, is left by the courts to its mere ministerial officers who can exercise no judicial power, but run the machine merely for the fees they can make out of it.”⁷

A 1902 scandal in St. Louis, in which several politicians were indicted for violating naturalization laws, finally turned the wheels of naturalization reform.⁸ But it was not until March 1903, in reaction to the assassination of President William McKinley,⁹ that Congress passed a bill prohibiting the naturalization of those opposed to organized government and who advocated the killing of government officials. The bill also included a provision that required courts to record the affidavits of applicants for citizenship and their witnesses and to check “the truth of every material fact requisite for naturalization.”¹⁰ At that time, many judges eventually discovered the requirements of the law; they undertook efforts to implement them, but they did so with uneven results: “some of the certificates [contained] less than 200 words and others 4000, some [created] new forms, others [used] the old ones.”¹¹

At around the same time that Congress launched legislative reform efforts, in April 1903, Joel Marx, special assistant to the U.S. attorney for the Southern District of New York, began an investigation into immigration fraud which had become endemic to New York, the epicenter of naturalization.¹² In a single two-year period, from April 1903 to May 1905, “through the efforts” of the U.S. attorney’s office, there were 791 arrests for naturalization fraud in New York, with 685 convictions. Of these, 418 arrests were based on either false testimony or an ineligible age of arrival in the United States while 89 others were for lacking the five years of residence required prior to naturalization.¹³

Based on the first results of Marx’s efforts—as presented to a federal grand jury in New York¹⁴—President Theodore Roosevelt called on December 7, 1903, “for the immediate attention of the Congress.” Railing against current naturalization practices, he exclaimed: “Forgeries and perjuries of shameless and flagrant character have been perpetrated, not only in the dense centers of population, but throughout the country; and it established beyond doubt that very many so-called citizens of the United States have no title whatever to that right, and are asserting and enjoying the benefits of the same through the grossest frauds.”¹⁵

One year later, President Roosevelt called for “a comprehensive revision of the naturalization laws” and for an inquiry into the subjects of citizenship, expatriation, and protection of Americans abroad, with a view towards mending the problems with appropriate legislation. Toward that end, Roosevelt suggested that naturalization authority be vested exclusively in certain courts that would require written naturalization applications and deliver regular reports to the Secretary of State. Under this plan, Congress would clarify the evidentiary standards that courts should apply. On March 1, 1905, Roosevelt appointed a commission to further investigate this proposal.¹⁶

By the time Roosevelt began lobbying for naturalization legislation, many of the previous obstacles to reform had dissipated. Perhaps most important, the interest of party machines in minting new voters before elections had declined. The inauguration of the secret ballot in the majority of the states by 1892 had made the control of voters at the ballot box difficult and even inefficient.¹⁷ The political parties thus no longer resisted naturalization reform.

Roosevelt’s new Presidential Commission on naturalization reform comprised three members: the chairman, Milton D. Purdy, from the Department of Justice; Gaillard Hunt, from the Department of State; and Richard K. Campbell, from the Department of Commerce and Labor. They were the foremost experts on naturalization in their respective departments. The Purdy Commission delivered its report on November 8, 1905. It would become the basis for the 1906 Naturalization Act, which, for the first time, created a mechanism for statutory denaturalization.¹⁸

Before the 1906 Act, in order to be naturalized, an alien was required to have resided in the United States for five years and within the state where the naturalizing court was located for one year.¹⁹ He had to have “behaved as a man of good character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same.”²⁰ Furthermore, the applicant was required to make a declaration of intention to become a citizen, before a court with naturalization power, at least two years prior to his actual application.²¹ Yet if the alien had come to the United States under eighteen years of age, he was exempted from the preliminary declaration of intention.²² In the Commission’s opinion, the exemption of the two-year waiting period, normally imposed after the declaration was registered, was the primary source of fraud. It encouraged youthful-looking immigrants who had attained the age of majority to commit perjury by swearing that they had arrived prior to their eighteenth birthday.

The Commission also identified several other deficiencies and inequities. For one, the court procedure was discreet and ex parte, taking place between the applicant and the court, with no “interested party on the other side to oppose the applicant’s claim, pose tough questions or dig up counter-evidence.”²³ Additionally, naturalization fees were entirely regulated by state law and varied widely. In California, for instance, there was no charge of any kind. But in Alabama, Florida, Georgia, Mississippi, Pennsylvania, South Carolina, and Texas, the fee was five dollars, and in Nevada, it was ten dollars.

Finally, the Commission cited competition among the courts as another source of fraudulent and improper naturalizations. Under the United States’ original federal naturalization law, passed on March 26, 1790, naturalization could be conferred by any common law court of record.²⁴ In 1802, additional requirements were added: in order to naturalize new citizens, courts should have a clerk and a seal.²⁵ This meant that more than five thousand courts were legally authorized to compete for the approximately hundred thousand original naturalization applications processed each year across the United States.²⁶ For the courts, naturalization was a business, and court clerks reaped the dividends: “One court bids for business against another, and the court which is strict in enforcing the law loses the fees which a more lax court gets.”²⁷ When state courts in New Jersey, New York, and Rhode Island began to require that “public notice . . .be given in advance of a hearing for naturalization, all the naturalization business went to the Federal Court, where the procedure was not strict so far.”²⁸

According to the Commission the bottom line was clear: uniformity in both fees and procedure were a necessity. In its view, the Constitution left no doubt as to the Congress’s right to provide for effective federal control of the naturalization machinery and to create a “uniform rule of Naturalization.”²⁹

The Commission recommended that only federal courts in cities of over a hundred thousand inhabitants be given the power to naturalize alien residents.³⁰ In addition, it proposed a uniform naturalization fee of at least seven dollars throughout the United States and a cap on the revenue that administration of the naturalization process could generate for clerks. Half of the collected fees, up to $3,000, would be subject to the court’s disposition; everything collected beyond that amount would go to the federal government.³¹ The Purdy Commission also suggested mandating permanent residence in the United States and requiring knowledge of English as preconditions for naturalization. And, in order to discourage fraud, naturalization would be forbidden in the thirty days preceding a presidential or congressional election.³²

Additionally, the commission proposed that the preliminary declaration of intention which meant “little or nothing,” be eliminated. As a substitute, all aliens would be required to file a petition at least ninety days before a hearing by the court. Meanwhile their petitions would be transmitted immediately to a new Bureau of Naturalization, which would be created within the Department of Commerce and Labor³³ to supervise the execution of the naturalization laws.³⁴

Ultimately, many of the Purdy Commission’s recommendations became part of the Naturalization Act of June 29, 1906. For example, the Act mandated that aspiring citizens be able to speak English. It also required applicants to have lived continuously in the United States during the five years directly prior to naturalization and to continue to reside in the United States afterward.

However, the Naturalization Act did not include the Commission’s proposal to eliminate the declaration of intention, nor did it provide that federal courts in large cities possess exclusive jurisdiction over naturalization. Indeed, many cities of more than a hundred thousand inhabitants did not possess a federal court. New Jersey, for example, had a federal court in Trenton but lacked one in Newark or Hudson City.³⁵ As a result, Congress preserved the authority of state courts to naturalize new citizens—with the condition that, in addition to having a seal and a clerk, the courts should exert universal competence.

Nevertheless, the new law did reinforce a certain degree of federal control over naturalization. Now, proceedings were required to be held in open court, and a representative of the United States would have the right to appear. Under the new procedures, the federal government could cross-examine the petitioner and his or her witnesses, as well as subpoena its own witnesses, produce relevant evidence, and “be heard in opposition to the granting of any petition in naturalization proceedings.”³⁶A new Bureau of Immigration and Naturalization within the Department of Commerce and Labor was given the task of enforcing naturalization laws.

In addition, Section 15 of the Act conferred upon U.S. attorneys the authority to institute denaturalization proceedings “in any court having jurisdiction to naturalize aliens . . .for the purpose of setting aside and canceling the certificate of citizenship on the ground of fraud or on the ground that such certificate of citizenship was illegally procured.”³⁷ Another provision in the same section also permitted denaturalization on grounds previously raised by Theodore Roosevelt in response to the common practice of newly naturalized returning to their native countries as soon as they secured U.S. citizenship.

The Naturalization Act went into effect on September 27, 1906. The newly established Division of Naturalization, responsible for overseeing the implementation of the law, settled into the Munsey Building on Pennsylvania Avenue in Washington, D.C. Twenty-five hundred square feet of office space was rented to house seventeen people, including fourteen clerks.³⁸ Within several months, the chief of the new division, Richard Campbell, expressed his satisfaction: “That something has been accomplished in the direction of reducing the notorious and long-continued abuses in conferring citizenship by naturalization is palpable.” He noted that the new regime’s success was reflected in a number of new trends: “First the greatly reduced number of naturalizations, and, second, the high grade of the petitioners, as stated by the U.S. attorneys, and partly shown by the small portion of denials. . . . The number of cancellations, secured or pending, of certificates improperly issued is another evidence of the practical value of the new law as a reform measure.”³⁹

Indeed, in the years following its passage, the effect of the 1906 Act was immediate and quantifiable. Before 1906, the number of naturalizations was estimated at 100,000 per year. In 1907, however, the number of certificates issued plummeted to 7,953. Just one year later, in 1908, the number of naturalizations had tripled, to 25,963, and in 1909, it rose to 38,372.⁴⁰ But it would be several years before the pace of naturalization again reached pre-1906 levels.

The courts and assistant U.S. attorneys did not share Campbell’s contentment with the effects of the broad reforms and felt overwhelmed by their new tasks. Part of the problem was that the Naturalization Act cut in half the number of courts offering naturalization proceedings. Under the old system, nearly 5,160 different state and federal courts were qualified to conduct naturalization procedures.⁴¹ Under the new criteria fixed by the 1906 Act, even though there were upward of 3,000 courts vested with the authority to conduct naturalizations,⁴² the number of courts actually offering naturalizations settled at around 2,200 and 90 percent of these were state courts. And while the courts remained in charge of receiving and registering applications for naturalization and of delivering the oath of citizenship, they now also had to fulfill new legal requirements, which increased their workload. Court clerks were obligated to shoulder these additional burdens despite a decline in resources. Some came to the conclusion that the financial benefit of offering naturalization service was not worth the additional work required and decided to abandon the naturalization process altogether.⁴³

In addition, the new naturalization process was cumbersome, with numerous actors tasked with participating across four distinct stages. First, a naturalization application had to be filed with a competent court, most often in a clerk’s office. Second, in the three months following the application, the court or the federal government could investigate the facts alleged by the applicant and the applicant’s two witnesses. Third, the naturalization hearing would then take place in open court, and the government could intervene if it felt it necessary. Fourth, at any time after the successful completion of the naturalization process, a U.S. attorney could institute proceedings for the cancellation of the naturalization on the grounds of fraud or illegality.

The new scheme did not clearly delineate the authority and responsibilities of the various interested parties and opened the ground for conflicts between the courts—federal and state—and between the Division of Naturalization and the Department of Justice. For example, the new law permitted the executive to intervene at stages 2, 3 and 4 of the naturalization process. But if the law was clear in assigning to the U.S. attorneys the tasks of instituting cancellation procedures, no mention was made of which department was in charge of intervening in open court at the naturalization proceeding itself, and, prior to it, in the examination of the application.

Figure 1. U.S. Naturalization Process, 1906–1926

At first, in 1906 and 1907, the Department of Justice was able to represent the executive branch’s interests in the naturalization process because, as noted earlier, the number of naturalization proceedings was very low in the first year after the passage of the Naturalization Act. Moreover, in order to support its new responsibilities, the Department of Justice received an appropriation of $100,000.⁴⁴ With this new funding source, a number of assistant U.S. attorneys were appointed to work at headquarters in large cities around the country.⁴⁵ Additionally, in order to relieve these assistant attorneys of the eventual enormous volume of naturalization-related issues, Alford W. Cooley, assistant attorney general, recruited a “considerable number of examiners”—forty to fifty—who were dispatched to the same principal cities as the new attorneys.⁴⁶ These examiners were authorized to initiate the preliminary naturalization examination, check applications, correct minor errors, turn away individuals who were clearly unable to meet the requirements of the new law, and transmit contested cases to assistant U.S. attorneys.⁴⁷

Campbell, the primary architect of the Department of Commerce and Labor’s naturalization machinery, viewed with disfavor the development of a new administration within the Department of Justice, under the supervision of Cooley. But in 1907 Campbell’s small new division did not possess sufficient resources to fulfill his goal of managing a uniform and centralized naturalization process without additional help. Soon after the Naturalization Act’s passage, Congress had rebuffed Campbell’s request to form a new team of examiners, choosing to allocate to the Department of Justice responsibility for naturalization attorneys and examiners.⁴⁸

With the drafting of a uniform application form, responsibility for overseeing denaturalization proceedings was the only real power given to Campbell’s Division of Naturalization. It was not much. But creative use of denaturalization authority would gradually but radically reinforce the new Division’s central role in transforming American citizenship.

As described above, under Section 15 of the new law, U.S. attorneys were obligated to institute proceedings for the cancellation of naturalization certificates upon affidavit showing that a certificate had at any time been illegally or fraudulently procured. Once informed of an instance of illegality or fraud, they could not refuse to act.

In the years just following the passage of 1906 Act, evidence supporting denaturalization typically originated from a few common sources. Interestingly, the majority of denaturalization cases arose when witnesses for new citizens were required to produce their own certificates of naturalization. While ascertaining the competence of these witnesses, examiners and judges would often uncover fraud or illegality in a witness’s naturalization proceeding. Confronted with contradictory information and documents relating to a witness’s declaration of intention or date of arrival in the United States, it might become clear that a witness’s citizenship had been illegally procured.⁴⁹

The Civil Service Commission was another source of denaturalization proceedings due to legal requirements restricting classified civil service positions to American citizens. The Commission required that foreign-born applicants for these positions submit their naturalization certificates, which it would then check.⁵⁰ Counterfeit certificates were promptly reported. Similarly, denaturalization cases would even arise when the certificates of naturalized persons applying for licenses to serve as officers of steam vessels, a position reserved for citizens of the United States, were investigated. Of the 415 applicants in 1908 for such positions, 59 became the subjects of cancellation proceedings.⁵¹ A number of denaturalization cases were also passed along from the State Department,⁵² which sometimes discovered illegality or fraud when naturalized citizens submitted passport requests.

One year after it was established by the 1906 Act, the new naturalization system was in crisis. U.S. attorneys were overwhelmed by their responsibility for intervening in open court—the third stage of the naturalization process. But the investment of time and resources in naturalization cases paled in comparison to what was required in denaturalization cases.⁵³ This put a significant strain on the system, because the number of denaturalization cases increased dramatically during the earlier years of the new regime: from 86 in 1907 to 457 in 1908 (see Appendix 3).

Officially, the increase in denaturalization cases was not caused by “the result of a search by government officials for violations of law.” The Division of Naturalization would declare in its 1907 Annual Report, “They were all developed as an incident of administrative work either in this or in some other department or branch of the Government.”⁵⁴ In truth, however, the Division of Naturalization played a proactive role in encouraging the different agencies to convey information regarding naturalization fraud to U.S. attorneys’ offices. The division was eager to have assistant U.S. attorneys mobilized across the country working on denaturalization proceedings, and it asked them to gather and report information about any naturalization cancellations that occurred within their districts.⁵⁵

Figure 2. Petition for Naturalization, Form 2204, in use from 1913 to June 30, 1929.

The Department of Justice was crushed under the weight of these obligations. The required tasks were so arduous and numerous for the U.S. attorneys that “in many naturalization petition hearings, it was impossible for the Government to appear, so the applicants received their citizenship without objection.” Despite a surge in the number of applicants for citizenship, Congress appropriated only $150,000 to the Department of Justice for the supervision of naturalization, compared to an estimated need of $325,000 for the 1909 fiscal year. From the perspective of the Department of Justice, this was unfortunate: it thought applicants were best served by having their cases thoroughly investigated prior to their admission to citizenship. Doing so would avoid the need for unpleasant proceedings later to revoke citizenship.⁵⁶

The Division of Naturalization took advantage of the situation. As early as 1908,⁵⁷ it pointed to the Department of Justice’s struggles as proof that it should be permitted to recruit field examiners to work on the naturalization proceedings. Eventually, Campbell was successful in convincing Congress to sign off on this plan.

The good news for Campbell and the Division of Naturalization was that Theodore Roosevelt’s Attorney General, Charles Bonaparte, had no desire to retain control over the naturalization examiners.⁵⁸ In fact, Bonaparte stated in the 1907 Annual Report of the Department of Justice that, in his view, “the naturalization examiners should be transferred to the Department of Commerce and Labor,” even though, within the Department of Justice, “he was in a small minority on that subject.”⁵⁹

So, at the beginning of 1909, Bonaparte, who was on excellent terms with the Commerce and Labor Secretary, Oscar Straus, accepted the latter’s suggestion that he meet with Campbell to discuss how the two of them could “shape [their] request for appropriation harmoniously.”⁶⁰ Despite the potential for interagency conflict, when Campbell and Bonaparte met, they rapidly came to an agreement. Instead of waiting for a prospective citizen to go to court, where precious resources might be needed in order to contest the denaturalization application, it was better, as Bonaparte would testify to Congress a few weeks later, “to advise him how that informality could be removed.” He continued, “In other words it seems to me that the tail is wagging the dog. The court work is a mere incident of a thorough investigation of the facts connected to the case.”⁶¹ In the alternative, Bonaparte suggested that responsibility for checking all applications during the ninety-day period between registration with the clerk of court and the swearing of allegiance to the United States be transferred to the Department of Commerce and Labor.

At first, the joint proposal divided the congressional committee, but eventually Congress followed the joint suggestion of Bonaparte and Campbell. As requested, the employment of the naturalization examiners and clerks⁶² would be transferred from the Department of Justice to the Division of Naturalization in the Department of Commerce and Labor for the 1910 fiscal year, with $125,000 appropriated to cover necessary expenses.⁶³ During the year following this change, the Attorney General expressed his satisfaction over its result: “that, with the exception of some portions of the Southern States which it has not had the means to cover, the naturalization work seems to be most effectively administered.”⁶⁴ The U.S. attorneys’ offices were, from that point on, only required to participate in contested cases, appeals, and cancellation proceedings, “all of which have been reduced to a minimum.”⁶⁵ With this adjustment, the Departments of Justice and Labor were able to forge a strong cooperative relationship on naturalization policy, even if they lacked the means to actively represent the government in every court proceeding.

But, while they might increasingly see eye-to-eye on naturalization policy, the views of the two departments diverged with respect to their approaches to denaturalization. The Division of Naturalization advocated an amendment to the existing statute to automatically validate naturalization certificates issued at least ten to fifteen years prior to individuals who had been continuous residents of “the United States and who, appear to have possessed (at the time they were naturalized) the prescribed personal qualifications at the time of their naturalization.”⁶⁶ Attorney General Bonaparte disagreed with this lax approach. Instead of legalizing illegal naturalizations that occurred under the previous naturalization law, he urged Congress to amend the 1906 Act so that it would place clearly within the scope of its denaturalization provision “certificates issued under the old naturalization law as well as those issued under the present law.”⁶⁷

But this first conflict over denaturalization ended swiftly with the arrival of the new Taft Administration. On September 20, 1909, after receiving approval from Campbell at the Division of Naturalization,⁶⁸ George W. Wickersham, Taft’s new Attorney General,⁶⁹ sent out an important circular to all U.S. attorneys:

In the opinion of the Department, as a general rule, good cause is not shown for the institution of proceedings to cancel certificates of naturalization alleged to have been fraudulently or illegally procured unless some substantial results are to be achieved thereby in the way of the betterment of the citizenship of the country. The legislation referred to, being retroactive, is construed to be remedial rather than penal in its nature; for the protection of the body politics rather than for the punishment of the individual concerned. Ordinarily, nothing less than the betterment of the citizenship of the country should be regarded as sufficient to justify the disturbance of personal and property rights which cancellation proceedings may occasion. This does not mean that such proceedings should not be instituted in any case where willful and deliberate fraud appears, as the perpetration of such fraud would indicate lack of the moral qualifications necessary for citizenship. If, however, many years have elapsed since the judgment of naturalization was apparently so procured, and the party has since conducted himself as a good citizen and possesses the necessary qualifications for citizenship, cancellation proceedings should not, as a rule, be instituted.

Cancellation proceedings should not be instituted merely for correction of errors and irregularities in the naturalization of a person which would properly have been the subject of consideration at the hearing or of correction on appeal.

Mere consent to the cancellation of a certificate of naturalization by the holder thereof, for some defect or irregularity, should not be regarded as in itself sufficient to justify such procedures.⁷⁰ (Emphasis added)

With this circular, denaturalization was redefined in order to avoid targeting every American fraudulently or illegally naturalized—these first years of implementation had demonstrated that those fitting into this category were far too numerous. Denaturalization would now be pursued only if “some substantial results” could be “achieved thereby in the way of the betterment of the citizenship of the country.”

The result of this new policy was significant: the Circular established a new logic for denaturalization as a tool for the protection of the body politic, rather than for punishment applied, without further judgment, to every individual who violated mere technical requirements. Yet, despite a fleeting appearance of unity, the nomination of Wickersham foreshadowed tension between the Justice, Labor, and State Departments over the enactment and interpretation of denaturalization rules for years to come.