The opinion of the court was delivered by: GALSTON
This is an action brought pursuant to Section 503 of the Nationality Act of 1940, as amended, 8 U.S.C.A. § 903, in which the plaintiff seeks a judgment declaring him to be a national of the United States. The plaintiff alleges residence in the County of Queens, City and State of New York. It is also alleged in the complaint that:
'6. Plaintiff was born in Tiflis, Russia on November 12, 1917, a citizen of the United States by virtue of the provision of Section 1993 of the U.S. Revised Statutes (Comp. Stat. Sec. 3947).'
The specific cause for the present action for a declaratory judgment is the refusal of the Immigration and Naturalization Service of the Department of Justice to grant a preference quota visa for the plaintiff's alleged mother, Stephania M. Scott. The failure of the Immigration and Naturalization Service to recognize the plaintiff as an American citizen for the purpose of obtaining the preference quota visa for his mother, it is alleged, threatens the plaintiff with the forfeiture of substantial rights as an American citizen.
In his answer the defendant admits the refusal to grant the plaintiff's application, but alleges that his action 'was made necessary by the plaintiff's refusal to submit proof of his claimed citizenship and of his relationship to Stephanie (sic) M. Scott, his alleged mother.'
The plaintiff relies on that part of Section 1993 of the Revised Statutes reading as follows:
'All children * * * born out of the limits and jurisdiction of the United States, whose fathers * * * may be at the time of their birth citizens * * * are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.'
The Act of March 2, 1907, c. 2534, sections 6 and 7, 34 Stat. 1229, which incorporates Revised Statute Sec. 1993, continues as follows:
'all children * * * who continue to reside outside the United States shall, in order to receive the protection of this Government, be required upon reaching the age of eighteen years to record at an American consulate their intention to become residents and remain citizens of the United States and shall be further required to take the oath of allegiance to the United States upon attaining their majority.'
It may be noted that the defendant does not set up as a defense the failure of the plaintiff to perform any affirmative acts required by law to retain his citizenship, once obtained. At the trial, the Assistant United States Attorney representing the defendant declared that he does not expect the plaintiff to prove the absence of any act of expatriation, and that if there has been an act of expatriation, the defendant will waive it.
In the plaintiff's petition for the issuance of an immigration visa on behalf of his mother, he alleged that he was born on November 12, 1917 at Tiflis, Russia; that his parents were married in 1915 at Piatigorsk, Russia; and that his father, Harry Winfeld Scott, had been born on December 18, 1872 at Philadelphia, Pennsylvania. He also stated in the petition that his father had resided in the United States from his birth to 1912; had lived in France in 1912 and in other countries including Russia; and had died in Odessa, Russia.
In a letter accompanying the petition, which was filed in October, 1947, the plaintiff stated that he was not attaching the 'required documents' because they had been 'deposited at the U.S. Consulate General, Warsaw, Poland, December 1939.' Among the documents so deposited, according to the letter, were the plaintiff's birth certificate, a Russian permit of entry, and the father's certificate of death. No documentary proof of the father's place of birth, nor of his parents' marriage, was ever submitted to the Immigration and Naturalization Service.
The plaintiff is at present living in Brussels, Belgium. Stephania Krzswka Scott, alleged to be plaintiff's mother is living at present in Surrey, England. The only proof offered at the trial were depositions and documents.
But plaintiff was unable to produce, at the trial, any documentary evidence directly establishing the place of birth of his father or of the marriage of his parents. The evidence indicates that inquiries were made on behalf of the plaintiff to the Department of Health, Commonwealth of Pennsylvania, and to the Board of Health, Pottsville, Schuylkill County, Pennsylvania, with respect to the birth record of Harry Winfield Scott. The answers to these inquiries states that no records of births were kept prior to 1906, and 1893, respectively.
The deposition of 'Stefania (sic) Krzswka Scott,' taken at The American Embassy, London, England, discloses that the deponent was married to Harry Winfield Scott in Piatigorsk in June, 1915, and that a son, George Albert Scott, was born of the marriage on November 11, 1917. She stated that her husband had told her that ...