country or take some other equally patent step to show her election. * * * We accordingly conclude that if Mrs. Wright lost her United States citizenship, it was not lost solely by reason of her marriage prior to September 22, 1922, to an alien, but resulted from her marriage plus her withdrawal from the United States." The plaintiff's mother at the date of her marriage had already withdrawn from the country and her continuing to reside in Japan with her Japanese husband for fourteen years and her bringing up a family there without once returning to the United States supplies the other "patent step to show her election."
The defendants do not seriously question that if the plaintiff's mother lost her citizenship the provisions of the now repealed Act of 1907 apply and govern the present status of the plaintiff. That Act provided:
"A child born without the United States of alien parents shall be deemed a citizen of the United States by virtue of the * * * resumption of American citizenship by the parent, where such * * * resumption takes place during the minority of such child.The citizenship of such minor child shall begin at the time such minor child begins to reside permanently in the United States." 34 Stat. 1228, § 5, 8 U.S.C.A. § 8.
The operation of this portion of the Act was obviously intended to be retroactive and it was directed to cases of resumption of citizenship by expatriated parents taking place before as well as after its passage.
The Act of 1907 further provided that:
"At the termination of the marital relation she (the expatriated parent) may resume her American citizenship, if abroad, * * * by returning to reside in the United States * * *." § 3, 8 U.S.C.A. § 9.
The question here is, whether the separation of the plaintiff's mother from her husband and her return to the United States amounted to a termination of her marital status because, unless it did, her mere residence here would not restore her citizenship. Prior to the Act of 1907 there was no specific statutory provision governing the resumption of citizenship by termination of an alien marriage nor, so far as I know, any court decision. Some rulings of the State Department have been cited, but they do not quite reach the question here presented. However, inasmuch as the plaintiff's mother continued to reside in the United States not only before but for many years after 1907, her citizenship could be reacquired under that Act as well as under the law prior to 1907.
I have no question that the facts, as admitted or undisputed, are sufficient to show, for the purpose of establishing repatriation, a complete termination of marital status, apart from any question of divorce. The fact that the plaintiff's mother resided in America continuously for over 30 years after she left Japan without ever going back is compelling evidence that she left with the animus non revertendi. The document signed by her husband indicates that he fully understood that the separation was to be a permanent one if she desired to make it so, and it is obvious that that was her desire. The matter of divorce or no divorce may be of importance in determining whether a marital status has terminated in cases where the parties are domiciled in the same country. Where distance and race offer no bar to easy resumption of the marriage relation, separations are often equivocal and, especially where title to property is involved, the recorded evidence of legal proceedings may be needed. But, where a wife of a different race from that of her husband takes her children and leaves his country never to return and the issue is her citizenship and the only question is whether the marriage has really come to an end, I think that the point whether or not there was a divorce, even if raised by the pleadings, is not an issue as to material fact.
I hold that the plaintiff's mother had lost her American citizenship before the birth of the plaintiff, that she recovered it when she returned to this country in 1900 and that by reason of those facts the plaintiff has become an American citizen.
Summary judgment may be entered for the plaintiff accordingly.
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