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Recovery of Japanese Nationality as Cause for Expatriation in American Law
Published online by Cambridge University Press: 20 April 2017
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A peculiar and difficult nationality problem latent for decades in the relationship of American to Japanese law suddenly has emerged since the Japanese surrender in 1945. Directly involved is the nationality status of several thousands of Nisei (American-born individuals of Japanese paternity) who now are dismayed to discover that certain actions taken by them or on their behalf in the course of World War II either have seriously clouded their claims to American citizenship or have resulted in an apparently irrevocable expatriation. Stated briefly, the problem involved is that of the effect on American nationality of reacquisition of Japanese nationality obtained through a process known to Japanese law as “recovery.” In this article a description first is made of the Japanese legal institution of “recovery” and its relationship to other phases of Japanese nationality law. Consideration then is given to the application to “recoveries” of those articles and sections of the American Nationality Acts of 1907 and 1940 which deal with expatriation. In a final section, certain troublesome categories of ostensible “recoveries” as well as “recoveries” obtained during minority are examined, and various possibilities are explored for challenging the apparent loss of American nationality which has resulted.
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- Research Article
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- Copyright © American Society of International Law 1949
References
page 441 note 1 The Basic Nationality Statute of Japan is the Kokuseki So (Nationality Act) enacted March 15, 1899, in force from April 1, 1899. It is implemented by the Kokuseki Ho Shiko Kisoku (Nationality Act Enforcement Regulations), Ordinance No. 26 of Nov. 17, 1924, in force from Dec. 1, 1924.
page 441 note 2 Kokuseki Ho, Art. 5 (5).
page 441 note 3 Ibid., Arts. 25-27.
page 442 note 4 Ibid., Arts. 9 and 10.
page 442 note 5 Ibid., Art. 7 (5).
page 442 note 6 Art. 14 of the Constitution of Japan provides : “All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, social status or family origin.”
page 442 note 7 Kokuseki Ho, Art. 25.
page 443 note 8 Ibid., Arts. 20-2 ; 26; Kokuseki Ho Shikco Kisoku, Art. 8.
page 443 note 9 Kokuseki Ho, Arts. 20-3, 26.
page 443 note 10 The period during which a prefectural governor’s action was possible was June 1, 1944, to March 1, 1947. See Chokurei No. 351 and Naimu Shorei No. 21 of 1944; Chokurei No. 51 of Feb. 19, 1947.
page 443 note 11 Kokuseki Ho Shiko Kisoku, Art. 8.
page 443 note 12 Two letters of instructions issued by the Ministry of Home Affairs, dated May 17, 1934, and March 19, 1936, emphasize this point. The former pertained to the proof to be required of a woman formerly married to an alien. The latter concerned the “recovery “of a former Japanese who possessed Brazilian nationality. In neither situation was the loss of foreign nationality held to be a prerequisite. These are to be found in Kokuseki Kaifuku Ni Kansuru Shiryo, published in 1944 by the Ministry of Home Affairs.
page 443 note 13 Yamada, Saburo, in Gendai Hogaku Zenshu, Vol. 35, p. 187 Google Scholar.
page 444 note 14 54 Stat. 1174, Title I, Sub. Chap. V, Sec. 504; USCA, Title 8, Sec. 904.
page 444 note 15 34 Stat. 1228; Code of Laws of the United States (1934 Ed.), Title 8, Sec. 17.
page 445 note 16 Hyde, International Law Chiefly as Interpreted and Applied by the United States (1945 Ed.), p. 1087.
page 445 note 17 For example, a provision that nationality automatically accrues after a designated period of residence. See Hackworth, Digest of International Law, Vol. III, p. 211.
page 447 note 18 Kdkuseki Ho, Art. 25 ; Act of March 2, 1907, Sec. 3.
page 447 note 19 Footnote 13, above; Hyde, op. cit., p. 1117, citing Esecutive Order of Aug. 4, 1930, and Sec. 140 of the Consular Regulations of the United States as of August, 1940.
page 447 note 20 Sec. 4 (12) of the Act of June 29, 1906, as amended May 9, 1918, 40 Stat. 545.
page 447 note 21 Two cases in which contrary interpretations were made shortly before “World War II are those of Tsuyoshi Mino and Kazuo Minami, files 130.6 and 130, respectively, of the Tokyo Consulate. Both interpretations were supported by Instructions of the Department of State. The circumstances under which these precedents were established as well as the language used in correspondence indicates that the distinctions between the Japanese processes of “recovery” and “naturalization” were not clearly understood and that an adequate description of the problem was not made to the Department of State. It is also clear that the expatriated individuals, far from opposing the interpretation of the consul, welcomed it as affording a solution to the otherwise difficult problem of divesting themselves of American nationality. In a sense, the instructions of the Department were issued in the absence of adequate information and were never tested by the fire of criticism.
page 447 note 22 54 Stat. 1168; USCA, Title 8, Sec. 801.
page 448 note 23 Unessential portions were deleted to simplify the presentation of the problem of interpretation. The full text of this subsection is as follows:
(a) Obtaining naturalization in a foreign state, either upon his own application or through the naturalization of a parent having legal custody of such person: Provided, however, That nationality shall not be lost as the result of the naturalization of a parent unless and until the child shall have attained the age of twenty-three years without acquiring permanent residence in the United States : Provided further, That a person who has acquired foreign nationality through the naturalization of his parent or parents, and who at the same time is a citizen of the United States, shall, if abroad and he has not heretofore expatriated himself as an American citizen by his own voluntary act, be permitted within two years from the effective date of his [sic] Act to return to the United States and take up permanent residence therein, and it shall be thereafter deemed that he has elected to be an American citizen. Failure on the part of such person to so return and take up permanent residence in the United States during such period shall be deemed to be a determination on the part of such person to discontinue his status as an American citizen, and such person shall be forever estopped by such failure from thereafter claiming such American citizenship; ....
page 449 note 24 The Family Register Record system is one of the interesting features of Japanese law. Every Japanese possesses a personal record which is kept, together with the records of other members of his legal family, at a municipal office. On this record are reported vital facts such as date of birth, name of spouse, offspring, period of military service, criminal record, etc. These records are consulted frequently and the submission of copies of one’s Family Register Record in connection with applications for employment, marriage negotiations, etc., is a general practice. Registration normally is limited to Japanese nationals, and the inability or reluctance of an individual to provide a copy of his record would usually arouse suspicion of one who purported to be a Japanese.
page 450 note 25 The curious fact of recourse to Japanese legal process in connection with the confirmation of American citizenship has not escaped the attention of the Japanese press. See Tokyo Shimbun for Oct. 20 and Dec. 22, 1947.
page 451 note 26 Note 21 above.
page 451 note 27 Matsuo Nemoto, Kosekiho, 1939, pp. 25-26 and 33.
page 452 note 28 Errors of this sort have arisen from the failure of custodians to demand proof be fore entering reports of “recoveries” and perhaps from a mistaken assumption that a return to Japan of a relative was sufficient to constitute a revival of that individual’s nationality.
page 452 note 29 Minobe, Tatsukiehi, in Gyoseiho Satsuyo (1942 ed.), Vol. 1, p. 193 Google Scholar; Tanaka, Jiro, in Gyosei Koi no Kashi (Hogaku Kyokai Zashi, Vol. 49, Issue 2, p. 67 Google Scholar).
page 452 note 30 Minobe, cited above, p. 175; Tanaka, cited above, p. 20.
page 453 note 31 Koseki Ho Shiko Kisoku, Art. 8.
page 454 note 32 Abstract of Passport Laws and Precedents No. 4.4B of Feb. 5, 1947, to be found in Passport Code.
page 455 note 33 Horitsu Jisbo (Watanabe), defining Duress (Kyohaku,). Also, Gendai Hogaku Zenshu, Vol. 3, pp. 223-224, citing Supreme Court Case No. 1529 of November 28, 1904.
page 455 note 34 Civil Code, Art. 96.
page 456 note 35 17 American Jurisprudence, p. 873.
page 456 note 36 Case of Leslie Nakashima.
page 457 note 37 Tadayasu Abo v. Clark, U. S. Dist. Ct., N. D. Calif., 77 Fed. Supp. 806; this Journal, Vol. 42 (1948), p. 940.
page 458 note 38 Minobe, cited in note 29 above, pp. 204-6.
page 458 note 39 The Court of Administrative Litigation exercised limited jurisdiction over certain specified categories of cases which did not include nationality actions. Gyosei Saiban Ho, Art. 15. See also Sogan Ho, Statute 106 of Nov. 10, 1890.
page 459 note 40 Inoue v. Clark, U. S. Dist Ct., S. D. Calif., 73 Fed. Supp. 1000; this Journal, Vol. 42 (1948), p. 492.