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UNITED STATES ex rel.
STEINVORTH vs. WATKINS, District Director of Immigration, etc. No.
123, Docket 20408 U.S.
App. Decision George
C. Dix and David S. Kumble, both of New York City, for relator-appellant. John
F. X. McGohey, U.S. Atty., of New York City (Stanley H. Lowell, Asst. U.S.
Atty., of New York City, of counsel), for respondent-appellee. Before
L. HAND, CHASE, and FRANK, Circuit Judges. [*50] The appeal is from the dismissal by the District Court for the Southern
District of New York of a writ of habeas corpus issued on the application of
Ricardo Steinvorth who was born at San Jose, Costa Rica, of parents who were
both German citizens there residing. The appellant was arrested by Costa Rican
officers on September 24, 1944; was brought to this country by our authorities
in collaboration with Costa Rican officials; and was here interned as an enemy
alien at Fort Lincoln Internment Camp in 1944. He is now held, under an order
for his internment, at Ellis Island, N.Y., by the appellee who is the District
Director of Immigration and Naturalization for the District of New York. The only justification for the restraint of the appellant relied on by
the appellee is Sec. 21 of Title 50 U.S.C.A. and presidential action
thereunder. The statute authorizes the President, after public proclamation of
the event, whenever any foreign nation or government makes, or threatens to make,
war upon this country to direct the conduct to be observed towards ‘all
natives, citizens, denizens, or subjects of the hostile nation or government,
being of the age of fourteen years and upward, who shall be within the United
States and not actually naturalized* * .’ It also authorizes him to have them
apprehended, restrained, secured and removed as alien enemies, the removal
being permitted only after they have refused or neglected to depart. [*51] Whether this appellant is lawfully
restrained by virtue of the above statute depends upon whether he is, as
claimed by the appellee and held by the court below, a citizen of Germany. The additional pertinent facts are that he lived in Costa Rica until 1901
when his parents took him to Germany where he lived until he was drafted into
the German armed forces in 1916. He served therein, part of the time as a
lieutenant in the German navy, until December 1918. Thereafter he lived in
Germany until 1920 when he emigrated to Costa Rica where he continued to reside
until he was brought to this country for internment as above stated. He is
married to a Costa Rican who with their two children now resides there. In
1924, 1928 and 1932, he visited Germany on a German passport. On July 14, 1941, after informing the German consul that he was about to
do so in order to become a Costa Rican citizen, he opted for Costa Rican
citizenship. In accordance with Art. I of the Costa Rican law of May 13, 1869,
‘The following are Costa Ricans by origin * * * (6) The children of an alien,
born in the national territory, who after completing 21 years are inscribed in
the Civic Registry of their own accord * * * ’ When the appellant had thus
exercised his option to become a citizen of Costa Rica by being inscribed in
the registry on his own initiative, he not only became a citizen of that
country, in compliance with its laws but, assuming he had previously acquired
German citizenship, he was under German law deprived of his former German
citizenship if his action were the equivalent of an application for citizenship
in Costa Rica and he did not obtain the written permission of the competent
German authorities to retain his German citizenship. Section 25 of the Reich and State Citizenship Law of July 22, 1913, is
applicable and provides that, ‘A German who neither has his domicile nor his
permanent residence in Germany loses his citizenship by acquisition of a
foreign citizenship, if this acquisition is the result of his application or
the application of the husband or legal representative. * * * A person does not
lose his or her citizenship if he or she has obtained, prior to the acquisition
of the foreign citizenship, upon his or her application, the written permission
of the competent authorities of his or her home state for retaining his or her
German citizenship. Prior to the granting of the permission, a German Consul
should be heard.’ The undisputed evidence shows that when the appellant informed the German
consul that he was about to opt for citizenship in Costa Rica, he was told that
he would, by so doing, lose his German citizenship. He never sought or
received, so far as appears, the written permission of the competent German
authorities to retain his German citizenship. His action in opting for Costa Rican citizenship was a voluntary exercise
of a legal right. In that sense it was an application for such citizenship. It
indicated his own desire to become a citizen of Costa Rica, recognized as such
under its laws, and though it was also the demand of a right which could not
lawfully be refused, its character as an application for the recognition of
that right persisted and that deprived him of German citizenship under German
law. That was the status of the appellant until the day before he was arrested
in Costa Rica. But on September 23, 1944, the President of Costa Rica, by means
of a resolution promulgated by the Secretary of State in the Ministry of
Foreign Affairs, did, in purported compliance with Costa Rican law, declare
that the appellant had lost his Costa Rican nationality and ordered the
cancellation of his inscription in the Civil Registry. The appellant now seeks
to attack the validity of this presidential action and to have us hold it a
nullity under Costa Rican law. Since it has been clearly shown that it was a
governmental act performed within the territory of Costa Rica, we cannot sit in
judgment upon its validity but we must accept it as a lawful cancellation of
the appellant’s Costa Rican citizenship because done by a foreign sovereign
within its own country. The Claveresk, 2 Cir., 264 F. 276; Banco DeEspana v.
Federal Reserve Bank, 2 Cir., 114 F.2d 438; [*52]
Ricaud v. American Metal Co., 246 U.S. 304, 38 S. Ct. 62 L. Ed. 733; Underhill
v. Hernandez, 168 U.S. 250, 18 S. Ct. 83, 42 L. Ed. 456. Yet this deprivation of his Costa Rican citizenship did not restore him
to German citizenship. That could only be done by Germany itself and there is
nothing whatever in the record to show, or even suggest, that anything has
happened since September 23, 1944, to make him a German citizen. The statute authorizes the President to bring about the detention only of
‘ * * * all natives, citizens, denizens or subjects of the hostile nation or
government * * * . ’ The appellant is not within this class as a native or as a
denizen of Costa Rica, which was, and is, a friendly government. He never was a
native of Germany, the only hostile nation or government with which we are now
concerned, and if he ever was a citizen, a subject or a denizen of Germany he
was, and has been, within none of those designations at any time while he has
been within the United States. Consequently the justification for his present restraint claimed by the
appellee under the above statute is inadequate as a matter of law and he is
being illegally restrained. Order reversed. Appellant discharged. |