B-7466, DECEMBER 15, 1939, 19 COMP. GEN. 590

B-7466, DECEMBER 15, 1939, 19 COMP. GEN. 590

FOREIGN SERVICE - FEES - VISAS - REFUNDS THE GENERAL RULE IS THAT A REFUND OF FEES COLLECTED FOR VISAS IS AUTHORIZED ONLY IF THE FEES WERE IMPROPERLY COLLECTED AS A RESULT OF THE FAULT OR NEGLIGENCE OF THE OFFICERS OR EMPLOYEES OF THE CONSULATES. WHERE A UNITED STATES CITIZEN BY BIRTH WENT AS A MINOR WITH HER FATHER TO A FOREIGN COUNTRY WHERE THE FATHER WAS LATER NATURALIZED AND, UPON HER RETURN TO THE UNITED STATES, WAS CHARGED A FEE FOR TAKING AN APPLICATION AND ISSUING AN IMMIGRATION VISA ON THE BASIS THAT SHE HAD LOST HER UNITED STATES CITIZENSHIP BY HER FATHER'S FOREIGN NATURALIZATION, WHICH WAS THE THEN EXISTING INTERPRETATION OF THE LAW, THE FACT THAT THE SUPREME COURT SUBSEQUENTLY INTERPRETED THE LAW OTHERWISE DOES NOT JUSTIFY REFUNDING THE FEES SO PAID.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF STATE, DECEMBER 15, 1939:

I HAVE YOUR LETTER OF DECEMBER 1, 1939, AS FOLLOWS:

THE DEPARTMENT HAS UNDER CONSIDERATION A CASE INVOLVING A REQUEST FOR THE REFUNDMENT OF IMMIGRATION VISA FEES COLLECTED BY A CONSULAR OFFICER UNDER THE FOLLOWING PROVISIONS OF THE " IMMIGRATION ACT OF 1924" (43 STAT. 153):

"SECTION 2 (H). A FEE OF $9 SHALL BE CHARGED FOR THE ISSUANCE OF EACH IMMIGRATION VISA, WHICH SHALL BE COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.'

"SECTION 7 (H). A FEE OF $1 SHALL BE CHARGED FOR THE FURNISHING AND VERIFICATION OF EACH APPLICATION, WHICH SHALL INCLUDE THE FURNISHING AND VERIFICATION OF THE DUPLICATE, AND SHALL BE COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.'

IN THIS CASE THE PERSON CONCERNED ACQUIRED UNITED STATES CITIZENSHIP UNDER THE FOURTEENTH AMENDMENT TO THE CONSTITUTION, BY REASON OF BIRTH IN THIS COUNTRY. LATER, SHE WENT WITH HER FATHER TO RESIDE IN CANADA. DURING MINORITY, SHE ACQUIRED CANADIAN NATIONALITY UNDER THE LAWS OF CANADA, THROUGH HER FATHER'S NATURALIZATION IN THAT COUNTRY.

THE DEPARTMENT, UNDER THE AUTHORITY OF AN OPINION OF THE ATTORNEY GENERAL, DATED JUNE 16, 1932, IN THE CASE OF INGRID THERESE TOBIASSEN, 36 OP. ATTY. GEN. 535, INFORMED ITS CONSULAR OFFICERS IN A CIRCULAR INSTRUCTION OF JULY 6, 1932, THAT THE LAW WITH RESPECT TO CASES OF THE ABOVE NATURE, WAS AS FOLLOWS:

"IT IS CLEAR THAT WHEN AN AMERICAN FATHER VOLUNTARILY ACQUIRED THE NATIONALITY OF A FOREIGN COUNTRY IN CONFORMITY WITH ITS LAWS AND HIS MINOR CHILDREN RESIDING WITH HIM ALSO ACQUIRED THE NATIONALITY OF SUCH FOREIGN COUNTRY UNDER ITS LAWS THE FATHER AND CHILDREN MUST BE HELD TO HAVE LOST AMERICAN CITIZENSHIP UNDER THE PROVISIONS OF THE FIRST PARAGRAPH OF SECTION 2 OF THE ACT OF MARCH 2, 1907, REGARDLESS OF THE QUESTION WHETHER THERE EXISTS A TREATY OF NATURALIZATION BETWEEN THE UNITED STATES AND THE FOREIGN COUNTRY CONCERNED.' ( DIPLOMATIC SERIAL NO. 2191.)

THIS VIEW OF THE LAW WAS SUPPORTED BY THE CIRCUIT COURT OF APPEALS, NINTH CIRCUIT, IN A DECISION OF OCTOBER 15, 1934, IN THE CASE OF UNITED STATES V. REID, 73 F./2D) 153.

AT THE AGE OF 20 YEARS AND APPROXIMATELY 6 MONTHS, THE PERSON UNDER CONSIDERATION, BEING UNABLE TO OBTAIN AN AMERICAN PASSPORT, BECAUSE SHE WAS CONSIDERED UNDER THE LAW NOT TO BE AN AMERICAN CITIZEN, SECURED AN IMMIGRATION VISA AND CAME TO THIS COUNTRY.

THE SUPREME COURT IN A DECISION OF MAY 29, 1939, IN THE CASE OF PERKINS V. ELG, 307 U.S. 325, HELD THAT INDIVIDUALS SUCH AS THE ONE WHO IS THE SUBJECT OF THIS LETTER, HAD A RIGHT OF ELECTION, UPON REACHING MAJORITY, TO TAKE EITHER AMERICAN NATIONALITY OR THE FOREIGN NATIONALITY WHICH THEY HAD ACQUIRED UNDER FOREIGN LAW AND THAT THEY WERE NOT DIVESTED DURING MINORITY OF AMERICAN NATIONALITY BY REASON OF THEIR FATHERS' NATURALIZATION IN A FOREIGN COUNTRY.

PRIOR TO RECEIVING FROM THE DEPARTMENT NOTICE OF THE DECISION OF THE SUPREME COURT IN THE ELG CASE, CONSULAR OFFICERS, UNDER THE AUTHORITY OF INSTRUCTIONS FROM THE DEPARTMENT, COLLECTED FEES AMOUNTING TO $10 FOR TAKING APPLICATIONS AND ISSUING IMMIGRATION VISAS TO PERSONS SITUATED AS WAS THE ONE UNDER DISCUSSION. SUCH A PERSON WOULD NOW BE CONSIDERED TO BE AN AMERICAN CITIZEN, AND THEREFORE ENTITLED TO AN AMERICAN PASSPORT. MAY BE MENTIONED THAT CONSULAR OFFICERS ARE PRECLUDED BY NOTE 2, SUPPLEMENT A, TO PART II OF THE FOREIGN SERVICE REGULATIONS FROM GIVING A VISA OF ANY SORT TO AN AMERICAN CITIZEN.

IN THE DECISIONS OF THE COMPTROLLER GENERAL IT HAS BEEN HELD, AS STATED IN SECTION 531, NOTE 5 OF PART II OF THE FOREIGN SERVICE REGULATIONS, THAT A REFUND OF A VISA FEE MAY BE MADE WHEN IT HAS BEEN " * * * SHOWN THAT THE FEE WAS COLLECTED IMPROPERLY.' UNDER THE FACTS AS OUTLINED ABOVE, THE DEPARTMENT WOULD THEREFORE APPRECIATE BEING INFORMED WHETHER YOU CONSIDER THAT THE FEES OF $1 AND $9 COLLECTED IN THE CASE MENTIONED WERE IMPROPERLY COLLECTED. IN VIEW OF THE FACT THAT THERE DOUBTLESS WILL BE OTHER CASES PRESENTED TO THE DEPARTMENT SIMILAR IN NATURE TO THE PRESENT ONE, THE IMPORTANCE OF OBTAINING YOUR OPINION IN THIS REGARD IS APPARENT.

THE GENERAL RULE RELATING TO REFUND OF FEES COLLECTED FOR VISAS IS THAT A REFUND THEREOF IS AUTHORIZED ONLY IF IMPROPERLY COLLECTED AS A RESULT OF THE FAULT OR NEGLIGENCE OF THE OFFICERS OR EMPLOYEES OF THE CONSULATES. COMP. GEN. 115; 4 ID. 518; 6 ID. 313, 812; 16 ID. 608, 646; 487; AND A- 87884, AUGUST 11, 1937, TO YOU. THE FEES REFERRED TO IN YOUR SUBMISSION APPEAR TO HAVE BEEN COLLECTED UPON THE BASIS OF THE INTERPRETATION OF THE LAW AS IT EXISTED AT THE TIME OF THE PAYMENT OF THE FEES AND THE ADMINISTRATIVE INSTRUCTIONS ISSUED IN ACCORDANCE THEREWITH AND THEN IN EFFECT. SUCH BEING THE CASE, THE FACT THAT THE SUPREME COURT, IN THE CASE OF PERKINS V. ELG, 307 U.S. 325, SUBSEQUENTLY INTERPRETED THE LAW OTHERWISE AS TO THE CITIZENSHIP OF MINORS UNDER CIRCUMSTANCES SUCH AS REFERRED TO IN YOUR LETTER, MAY NOT BE REGARDED AS A BASIS FOR HOLDING THAT SUCH FEES COLLECTED PRIOR THERETO WERE IMPROPERLY COLLECTED AS A RESULT OF THE FAULT OR NEGLIGENCE OF THE OFFICERS OR EMPLOYEES OF THE CONSULATES.

THEREFORE, SINCE THE SERVICES FOR WHICH THE FEES WERE PAID WERE PROPERLY RENDERED BY AN AMERICAN CONSULAR OFFICER UPON THE BASIS OF THE FACTS BEFORE HIM AND UNDER THE LAW AS THEN INTERPRETED, THERE IS NO AUTHORITY TO MAKE REFUND OF THE AMOUNT OF SUCH FEES.