8 FAM 102.4
AppeLlate court Decisions
(CT:CITZ-24; 08-07-2019)
(Office of Origin: CA/PPT/S/A)
8 FAM 102.4-1 Introduction
(CT:CITZ-7; 08-14-2018)
This subchapter summarizes various appellate courts
decisions which have considered the issues of acquisition and retention of U.S.
citizenship on various occasions.
8 FAM 102.4-2 Rucker v. Saxbe
(CT:CITZ-7; 08-14-2018)
a. In Rucker v. Saxbe, 552 F.2d 998 (1977), the Third
Circuit Court found that the government has no affirmative duty to inform
citizens residing abroad of changes in U.S. nationality laws on a continuing
basis, and that it was not barred from applying the retention requirements to
Mr. Rucker by its failure to inform him directly of the amendments to those
requirements.
b. Unawareness of the requirements of INA 301(b), when
accompanied by an awareness of a claim to U.S. citizenship, does not prevent
application of the retention requirements. The Supreme Court declined to review
Rucker.
c. The court found that the Government has no
affirmative duty to inform citizens residing abroad of changes in U.S.
nationality laws on a continuing basis, and that it was not barred from
applying the retention requirements to Mr. Rucker by its failure to inform him
directly of the amendments to those requirements. This opinion coincides with
the Department's longtime belief that citizens are obliged to keep themselves
informed of the duties imposed on them by their citizenship.
8 FAM 102.4-3 Runnett v. Shultz
(CT:CITZ-7; 08-14-2018)
In Runnett v. Schultz, 902 F. 2d 782 (1990), the Ninth
Circuit Court held that the applicable law for transmitting citizenship to a
child born abroad when one parent is a U.S. citizen is the statute that was in
effect at the time of the child's birth.
8 FAM 102.4-4 Drozd v.
Immigration and Naturalization Service
(CT:CITZ-7; 08-14-2018)
In Drozd v. INS, 155 F. 3d 81 (1998), the Second
Circuit Court found that:
Because Congress has expressly specified certain
exceptions from the physical presence requirement of section 301(a)(7), Drozd's
request for an additional exception to the physical presence requirement for
citizens who could not be physically present in the United States because of
financial reasons or war or imprisonment cannot be accommodated in the absence
of evidence of a contrary legislative intent.
Nothing in the legislative history of the 1952 Act
dictates a contrary construction.
8 FAM 102.4-5 Tullius v. Albright
(CT:CITZ-7; 08-14-2018)
In Tullius v. Albright, 240 F.3d 1317 (2001), the Eleventh
Circuit Court found that:
"the district court properly found that the
doctrine of constructive physical presence does not apply to the physical
presence requirement for transmission of United States citizenship under 8
U.S.C. 1401(a)(7) (1973)"
8 FAM 102.4-6 Perri v. Dulles
(CT:CITZ-7; 08-14-2018)
In Perri V. Dulles, 206 F.2d 586 (3rd Cir. 1953), the
Third Circuit Court found that:
"Moreover for the constitutional reasons
already referred to we conclude that the two years period of limitation must
also be regarded as not beginning to run until the plaintiff learned that he
had a claim to American citizenship. For to provide that a citizen "shall
be forever estopped" from claiming citizenship by his failure to return to
the United States at a time when he was wholly unaware of his citizenship would
certainly be to deprive him of it arbitrarily and without his knowledge, much
less his concurrence."
8 FAM 102.4-7 Petition of
Acchione
(CT:CITZ-7; 08-14-2018)
In Petition of Acchione, 213 F.2d 845 (3rd Cir. 1954), the
Third Circuit Court found that:
"[E]ven though appellee had no knowledge of her
right to American citizenship until 1948 since she did not come to America
within two years of January 13, 1941 (the effective date of the Act) she
committed an overt act of expatriation and should be considered as having
elected to remain a citizen of Italy. This contention is squarely opposed to
our decision in Perri v. Dulles, 3 Cir., 1953, 206 F.2d 586."
8 FAM 102.4-8 Rogers v. Patokoski
(CT:CITZ-7; 08-14-2018)
In Rogers v. Patokoski, 271 F.2d 858 (9th Cir. 1959), the
Ninth Circuit Court held that expatriating acts committed by an individual
while he was unaware of his claim to U.S. citizenship did not cause him to lose
his U.S. citizenship. Despite the applicant's admission in that case that he
knew that his father was a U.S. citizen, the court accepted his claim of
unawareness of his own citizenship since there was no evidence to the
contrary. His lack of awareness was demonstrated by evidence that he had
entered the United States on several occasions as a nonimmigrant. In effect,
the court stated that the applicant met the burden of proof on the basis of his
own credible and convincing testimony. (Although this case does not directly
relate to the retention requirements, its development of the notion of
unawareness can be applied by analogy in this context.)
""The plaintiff could not expatriate
himself or lose or abandon his United States of America citizenship by taking
an oath of allegiance to the Finnish Government or by serving in the Finnish
Army or by voting in a Finnish election because he did not know he was a
citizen of the United States of America when he did those things, and the
plaintiff has not expatriated himself or lost or abandoned his United States of
America citizenship by doing those things with such lack of knowledge."
8 FAM
102.4-9 Dela Cruz v. United States
(CT: CITZ-24; 08-07-2019)
Dela Cruz v. United
States (U.S.D. Ct. CNMI, July 31, 1987) granted citizenship to persons who were
under the age of 18 on November 4, 1986, were domiciled in the CNMI or the U.S.
on that date and were born in the CNMI of at least one parent born in the
former Trust Territory. The Dela Cruz decision went further to define all
persons as used in section 301 as any person and his or her child or children.
Child is defined in section 101(b)(1) INA. Such children did not have to be
born in the CNMI nor did they have to be domiciled in the CNMI or U.S. on
November 4, 1986.
8 FAM
102.4-10 Shoda and Reyes v. United
States
(CT: CITZ-24; 08-07-2019)
Shoda and Reyes v. United
States (U.S.D. Ct. CNMI, August 3, 1988) allowed for acquisition of citizenship
for persons who were 18 or older on November 4, 1986, were domiciled in the
CNMI or the U.S. on that date and were born in the CNMI of at least one parent
born in the former Trust Territory.
8 FAM
102.4-11 Barasi v. United States
(CT: CITZ-24; 08-07-2019)
Barasi v. United States
(U.S.D. Ct. CNMI, August 3, 1988) provided guidelines for determining whether
an applicant met the continuous domicile requirement of section 301(c) of the
Covenant, as follows:
(1) The totality of the
applicant's conduct will be used to determine domicile;
(2) The substantially
continuous presence of the applicant in the CNMI since before 1974 will be
viewed as affirmative evidence of his or her intent to remain in the CNMI
indefinitely and accorded great weight; and
(3) Any official statement
to the contrary about his or her residence made by the applicant will not by
itself serve to negate his or her true intent.
8 FAM
102.4-12 Amog v. United States
(CT: CITZ-24; 08-07-2019)
Amog v. United States
(U.S.D. Ct. CNMI, May 1, 1991) reaffirmed the Departments position that
persons born in the CNMI on or after January 1, 1974 and before November 4,
1986 of two alien parents, neither of who acquired U.S. citizenship under the
Covenant did not acquire U.S. citizenship pursuant to the Covenant. Caution:
Some of these individuals were admitted to the United States by showing only
their CNMI birth certificate, and may file a U.S. passport application. However,
as a result of Sabangan, now the Amog class consists of only persons born in
the CNMI between January 1, 1974 and 11 a.m., Saipan time January 9, 1978 (8
p.m. EST January 8, 1978) of two alien parents, neither of whom acquired U.S. citizenship
under the Covenant. This subset of the original Amog class does not acquire
U.S. citizenship pursuant to the covenant.
8 FAM
102.4-13 Sabangan v. Powell
(CT: CITZ-24; 08-07-2019)
In Sabangan v. Powell, 375
F.3d 818 (2004), a panel of the U.S. Court of Appeals (9th Circuit) held that
two individuals born in the Northern Mariana Islands between January 9, 1978,
and November 3, 1986, acquired U.S. citizenship under section 501(a) of the
covenant to establish a Commonwealth of the Northern Mariana Islands in
Political Union with the United States of America. The court reasoned
that beginning at 11 A.M. January 9, 1978 (Saipan time), when section 501(a)
made section 1 of Amendment 14 of the U.S. Constitution applicable in the
Northern Marianas Islands under section 501(a) as if the Northern Mariana
Islands were one of the several States, the Northern Mariana Islands were to
be treated as if they were in the United States for purposes of the
Citizenship Clause in the first sentence of section 1 of Amendment 14. Although
the Department (CA and L/CA) believed the decision was clearly erroneous, the
Solicitor Generals office did not seek Supreme Court review, and it is now
final. In order to maintain a uniform application of the nationality laws and
for operations reasons, the Department (CA) decided to apply the decision
worldwide. Applications from individuals who were born in the Northern Mariana
Islands between 11 a.m., Saipan time January 9, 1978 (8 P.M. EST, January 8,
1978) and 12:01 a.m. November 4, 1986 (9 a.m. EST, November 3, 1986), who
provide satisfactory birth records and evidence of identity, and who otherwise
meet the requirements and qualifications may be approved and a U.S. passport
may be issued.