7 FAM 1200 Appendix A
LOSS OF NATIONALITY AND THE EARLY YEARS OF THE REPUBLIC
(CT:CON-825; 08-03-2018)
(Office of Origin: CA/OCS)
7 FAM 1210 APPENDIX A SUMMARY
(CT:CON-825; 08-03-2018)
a. 7 FAM 1200 Appendix A provides some historical
perspective regarding U.S. law and policy pertaining to loss of nationality in
the early years of the Republic. Two points emerge as having deep historical
roots:
(1) That a person has a right to expatriate; and
(2) That there has been from the beginning a belief
that we ought not to treat (a) native-born and (b) naturalized U.S. citizens differently.
b. It was one of the
earliest principles of the foreign and domestic policy of the United States
Government that aliens could come to the United States, be naturalized as
citizens of this country, and thereafter be considered as absolved from
allegiance to the countries of which they had previously been citizens. This
was one of the principles involved in our dispute with Great Britain which led
to the War of 1812. Under common law, it was generally held that no person
could discard his or her nationality and become an alien without the consent of
his or her sovereign or government (Shanks v. Dupont, 28 U.S. 242 (1830)).
This concept received some acceptance in the United States but was questioned
at an early date.
c. For most of the 19th
century and early 20th century, when questions about loss of nationality arose
in the United States, it was in the context of the right of expatriation and
the protection of naturalized U.S. citizens abroad.
d.. Current U.S.
nationality laws do not explicitly address dual nationality, but the U.S.
Supreme Court has stated that dual nationality is a status long recognized in
the law and that a person may have and exercise rights of nationality in two
countries and be subject to the responsibilities of both. See Kawakita v. United
States, 343 U.S. 717 (1952). 7 FAM 080 provides guidance on dual nationality and consular
protection.
7 FAM 1220 APPENDIX A The Constitution
(CT:CON-285; 03-06-2009)
a. In 1967, the U.S. Supreme Court, in the matter of
Afroyim v. Rusk, 387 U.S. 253, noted:
(1) The Constitution grants Congress no express power
to strip people of their citizenship, whether in the exercise of the implied
power to regulate foreign affairs or in the exercise of any specifically
granted power;
(2) And even before the adoption of the Fourteenth
Amendment, views were expressed in Congress and by this Court that under the
Constitution the Government was granted no power, even under its express power
to pass a uniform rule of naturalization, to determine what conduct should and
should not result in the loss of citizenship.
b. Fourteenth Amendment to the U.S. Constitution: The
first sentence of the Fourteenth Amendment (1868), as construed in Afroyim v.
Rusk, 387 U.S. 253, 268 (1967), [protects] every citizen of this Nation
against a congressional forcible destruction of his citizenship'" and that
every citizen has "'a constitutional right to remain a citizen . . .
unless he voluntarily relinquishes that citizenship.
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The Fourteenth Amendment, Section 1 reads: All
persons born or naturalized in the United States and subject to the
jurisdiction thereof, are citizens of the United States and the State wherein
they reside.
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c. In the matter of Osborn v. Bank of the United
States, 9 Wheat. 738, 827, 6 L Ed 204 (1824), the U.S. Supreme Court, speaking
through Chief Justice Marshall, declared that:
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Congress, once a person becomes a citizen, cannot
deprive him of that status: [The naturalized citizen] becomes a member of
the society, possessing all the rights of a native citizen, and standing, in
the view of the constitution, on the footing of a native. The Constitution
does not authorize Congress to enlarge or abridge those rights. The simple
power of the national Legislature, is to prescribe a uniform rule of
naturalization, and the exercise of this power exhausts it, so far as
respects the individual.
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7 FAM 1230 APPENDIX A EARLY
LEGISLATIVE ACTIVITY
(CT:CON-285; 03-06-2009)
a. The parent laws of our citizenship and
naturalization laws were the Virginia laws of 1779 and 1782, which were drawn
up by Thomas Jefferson and introduced by George Mason. President Thomas
Jefferson recommended the enactment of the Federal law of April 14, 1802 upon
which our system of naturalization rests. The Virginia law of 1779 is notable
because it contained a provision for expatriation in the following terms:
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That whensoever any citizen of this commonwealth
shall by word of mouth in the presence of the court of the county wherein he
resides, or of the general court, or by deed in writing under his hand and
seal, executed in the presence of three witnesses, and by them proved in
either of the said courts, openly declare to the same court that he
relinquishes the character of a citizen and exercises his natural right of
expatriating himself, and shall be deemed no citizen of this commonwealth
from the time of his departure.
(Source: Chapter IV, Vol. 10, p. 129, Henings
Statutes at Large.)
(Source: 59th Congress, 2nd Session, House Document
No. 326, Letter from the Secretary of State Submitting Report on the Subject
of Citizenship, Expatriation, and Protection Abroad, December 18, 1906.)
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b. On three occasions, in 1794, 1797, and 1818,
Congress considered and rejected proposals to enact laws which would describe
certain conduct as resulting in expatriation. On each occasion Congress was
considering bills that were concerned with recognizing the right of voluntary
expatriation and with providing some means of exercising that right.
c. In 1794 and 1797, many members of Congress still
adhered to the English doctrine of perpetual allegiance and doubted whether a
citizen could, even voluntarily, renounce his citizenship.
d. By 1818, however, almost no one doubted the
existence of the right of voluntary expatriation, but several judicial
decisions had indicated that the right could not be exercised by the citizen
without the consent of the Federal Government in the form of enabling
legislation:
(1) A bill was introduced to provide that a person
could voluntarily relinquish his citizenship by declaring such relinquishment
in writing before a district court and then departing from the country;
(2) The opponents of the bill argued that Congress had
no constitutional authority, either express or implied, under either the
Naturalization Clause or the Necessary and Proper Clause, to provide that a certain
act would constitute expatriation. They pointed to a proposed Thirteenth
Amendment, subsequently not ratified, which would have provided that a person
would lose his citizenship by accepting an office or emolument from a foreign
government. The bill was finally defeated.
7 FAM 1240 APPENDIX A CIVIL WAR
Developments
(CT:CON-285; 03-06-2009)
a. The Enrollment Act of March 3, 1865 - 13 Statutes at
Large 487; 38th Congress, Session II, Chapter 78, 79, 1865 contained a
provision (Section 21) concerning loss of nationality for deserters from the
military and naval service of the United States and for departing the United
States with the intent of avoiding any draft into such service. The law
provided:
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Section 21:
And be it further enacted, That, in addition to the other
lawful penalties of the crime of desertion from the military or naval
service, all persons who have deserted the military or naval service of the
United States, who shall not return to said service, or report themselves to
a provost-marshal within sixty days after the proclamation hereinafter
mentioned, shall be deemed and taken to have voluntarily relinquished and
forfeited their rights of citizenship and their rights to become citizens;
and such deserters shall be forever incapable of holding any office of trust
or profit under the United States, or of exercising any rights of citizens
thereof;
And all persons who shall hereafter desert the military or
naval service, and all persons who, being duly enrolled, shall depart the
jurisdiction of the district in which he is enrolled, or go beyond the limits
of the United States, with intent to avoid any draft into the military or
naval service, duly orders, shall be liable to the penalties of this section.
And the President is hereby authorized and required
forthwith, on the passage of this act, to issue his proclamation setting
forth the provisions of this section, in which proclamation the President is
requested to notify all deserts returning within sixty days as aforesaid that
they shall be pardoned on condition of returning to their regiments and
companies or to such other organizations as they may be assigned to, until
they shall have served for a period of time equal to their original term of
enlistment.
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b. In 1867, Congress passed An Act for the Relief of
Certain Soldiers and Sailors, 15 Statutes at Large 14, to remove any disability
incurred by loss of citizenship due to desertion.
c. In 1868, two years after the Fourteenth Amendment
had been proposed, Congress specifically considered the subject of
expatriation. Several bills were introduced to impose involuntary expatriation
on citizens who committed certain acts. With little discussion, these
proposals were defeated. Other bills, like the one proposed but defeated in
1818, provided merely a means by which the citizen could himself voluntarily
renounce his citizenship.
d. Then in the July 27, 1868 Act Concerning the Rights
of American Citizens in Foreign States 15 Statutes at Large 223; 40th Congress,
2nd Session, Chapter 248, 249 1868, Congress enacted legislation declaring that
expatriation is a natural and inherent right of all people.
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"WHEREAS the right of expatriation is a natural
and inherent right of all people, indispensable to the enjoyment of the
rights of life, liberty, and the pursuit of happiness; and whereas in the
recognition of this principle this Government has freely received emigrants
from all nations, and invested them with the rights of citizenship; and
whereas it is claimed that such American citizens, with their descendants,
are subjects of foreign states, owing allegiance to the governments thereof;
and whereas it is necessary to the maintenance of public peace that this
claim of foreign allegiance should be promptly and finally disavowed:
Therefore,
Be it enacted by the Senate and the House of
Representatives of the United States of America in Congress assembled,
Section 1.
That any declaration, instruction, opinion, order, or
decision of any officers of this government which denies, restricts, impairs,
or questions the right of expatriation, is hereby declared inconsistent with
the fundamental principles of this government."
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e. The July 27, 1868 Act Concerning the Rights of
American Citizens in Foreign States (15 Statutes at Large 223) provided no
method by which the right of expatriation might be exercised and, except for
the limited grounds specified in the Act of March 3, 1865, 13 Statutes at Large
487, legislative guidance as to the circumstances in which nationality might be
cast off was completely lacking until the Act of March 2, 1907, 34 Statutes at
Large 1228.
f. The primary aim of the July 27, 1868 Act Concerning
the Rights of American Citizens in Foreign States (15 Statutes at Large 223)
undoubtedly was to safeguard the status of aliens who had become U.S. citizens. The motivating force of this legislation appears to have been public
indignation aroused by the treatment of naturalized Irish-Americans who were
arrested in Ireland for participation in the Fenian movement and similar cases
in Germany.
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(Source: Moore, Digest of International Law, Volume
III, (1906), page 579-581.)
Among the naturalized citizens of the United States, in regard to whom the discrimination had been made, were some who had borne
arms in defence [sic.] of the United States during the Civil War. Her
Majestys Government could conceive how impossible it would be for the
Government of the United States to agree to a denial or abridgement of their
right to extend to them the same natural protection and care which the United
States extend to native-born citizens of the United States in similar
cases. (Mr. Seward, Secretary of State to Mr. Adams, Minister to England,
Diplomatic Correspondence 1866.) The foregoing cases grew out of the Fenian
movement. In consequence of the arrest of naturalized Americans on charges
connected with this movement, the question of expatriation assumed an acute
form. Among the numerous cases arising at that time, the most notable one,
historically, is that of Warren and Costello, two naturalized American
citizens who were tried and sentenced in Dublin in 1867, for treason-felony,
on account of participation in the Jacmel expedition. It was shown that they
had come over to Ireland in that vessel and had cruised along the coast for
the purpose of effecting a landing of men and arms, in order to raise an
insurrection. This incident, together with others, produced an excitement
that, as Mr. Seward stated, extended throughout the whole country, from Portland to San Francisco and from St. Paul to Pensacola. The subject was discussed in
Congress, and exhaustive reports were made both in the Senate and the House
of Representatives on the subject of expatriation.
(Source: 59th Congress, 2nd Session, House Document
No. 326, Letter from the Secretary of State Submitting Report on the Subject
of Citizenship, Expatriation, and Protection Abroad December 18, 1906, page
10.)
The immediate occasion which called forth the law
was the arrest of certain naturalized citizens by the authorities of their
parent countries, chiefly the German States, for nonperformance of military
service, and numerous arrests of naturalized citizens of Irish origin in the United Kingdom charged with crimes of a political character.
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7 FAM 1250 APPENDIX A SELECTED
SECRETARIES OF STATE VIEWS ON EXPATRIATION
(CT:CON-285; 03-06-2009)
a. Mr. Jefferson: In a communication to Gouverneur
Morris, U.S. Minister to France, dated August 16, 1793, Thomas Jefferson, then
Secretary of State, made the following statement:
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Our citizens are certainly free to divest
themselves of that character by emigration and other acts manifesting their
intention, and may then become the subjects of another power, and free to do
whatever the subjects of that power may do.
(Source: The Works of Thomas Jefferson in Twelve
Volumes. Federal Edition. Collected and Edited by Paul Leicester Ford.)
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b. Mr. Marshall: In an instruction to Mr. Humphreys,
U.S. Consul General in Spain, dated September 23, 1800, Secretary of State John
Marshall advised:
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The right of naturalizing aliens is claimed and
exercised by the different nations of Europe, as well as by the United States. When the laws adopt an individual no nation has a right to question the
validity of the act, unless it be one which may have a conflicting title to
the person adopted. Spain therefore cannot contest the fact that these
gentlemen are American citizens.
(Source: Moore, International Arbitrations, II, 1001
(1896); MS Inst. U. States Ministers, V 383.)
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Further, in an instruction to Rufus King, envoy at London,
Mr. Marshall stated on September 20, 1800:
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With the naturalization of foreigners no other
nation can interfere further than the rights of that other are affected
consequently those persons who, according to our laws, are citizens, must be
so considered by Britain, and by every other power not having a conflicting
claim to the person.
(Source: 59th Congress, 2nd Session, House Document
No. 326, Letter from the Secretary of State Submitting Report on the Subject
of Citizenship, Expatriation, and Protection Abroad, December 18, 1906.)
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c. Mr. Monroe: In a communiqu to Mr. Foster, British
Minister, dated May 30, 1812, Secretary of State James Monroe stated:
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Your proffered exertions to procure the discharge of
native American citizens from on board British ships of war, of which you
desire a list, has not escaped attention. It is impossible for the United States to discriminate between their native and naturalized citizens, nor ought your
Government to expect it, as it makes no such discrimination itself. There is
in this office a list of several thousand American seamen who have been
impressed into the British service, for whose release applications have from
time to time been already made; of this list a copy shall be forwarded to
you, to take advantage of any good offices you may be able to render.
(Source: 3 Moore, International Law Digest (1906)
563.)
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d. Mr. Adams: In an instruction to Mr. Shaler,
American Consul General at Algiers, dated January 13, 1818, Secretary of State
John Quincy Adams, in declining to extend the protection of the United
States to a native of Italy who has established himself in Tunis immediately
or shortly after procuring naturalization in this country, said:
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Without recurring to the litigious question, how far
his rights as a citizen might be affected in the judicial tribunals of this
country, by such a long and continued absence following almost immediately
after his naturalization, it must be obvious that the obligations of the
United States to protect and defend the interests of such a person, in
controversies originating in foreign countries, and against the rights of
their jurisdiction, cannot be supposed to bind them to the same extent at
which it might be proper to interpose in behalf of our resident or native
citizens.
(Source: 3 Moore, International Law Digest (1906)
735-736.)
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e. Mr. Calhoun: In a communiqu to Mr. Pageot, French
Minister, dated November 30, 1844, Secretary of State Calhoun stated:
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From these provisions [of the naturalization laws]
it would seem by necessary implication, that our laws presuppose a right on
the part of citizens and subjects of foreign powers to expatriate themselves
and transfer their allegiance, and, although the abstract right has not to my
knowledge been settled by any authoritative decision, I feel no difficulty in
expressing the opinion that the United States, acting upon these principles
in reference to the citizens and subjects of other countries, would not deny
their application to cases of naturalization of their own citizens by foreign
powers, and, of course, to the case of Demerlier, who, if he should be
naturalized by France, would on this view of the subject, be absolved from
his allegiance to the United States.
(Source: 3 Moore, International Law Digest (1906)
565.)
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f. Mr. Buchanan: In a letter to Mr. Rosset, dated
November 25, 1845, Secretary of State James Buchanan stated:
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The fact of your having become a citizen of the United States has the effect of entitling you to the same protection from this Government
that a native citizen would receive.
(Source: 3 Moore, Digest of International Law (1906)
566.)
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Further, Mr. Buchanan stated in a letter to Mr.
Huesman, dated March 10, 1847:
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The Government of the United States affords equal
protection to all our citizens, whether naturalized or native, and this
Department makes no distinction between the one and the other in granting
passports.
It is right to inform you, however, that difficulties
have arisen in cases similar to yours. In more than one instance European
governments have attempted to punish our naturalized citizens, who had
returned to their native country, for military offenses committed before
their emigration. In every such case, the Government has interposed, I
believe successfully, for their relief, but still they have in the meantime
been subjected to much inconvenience. Under these circumstances I could not
advise you to incur the risk of returning to Oldenburg, if the business which
calls for your presence can be transacted by any other person.
(Source: 3 Moore, Digest International Law (1906)
566.)
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And in a communiqu to Mr. Bancroft, Minister to England, dated October 28, 1848, Mr. Buchanan further stated:
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Whenever the occasion may require it, you will
resist the British doctrine of perpetual allegiance, and maintain the
American principle that British native born subjects, after they have been
naturalized under our laws, are, to all intents and purposes, as much American
citizens, and entitled to the same degree of protection, as though they had
been born in the United States.
(Source: 3 Moore, Digest of International Law (1906)
566.)
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And in a further communiqu to Mr. Bancroft, dated
December 18, 1848, Mr. Buchanan stated:
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Our obligation to protect both these classes
[naturalized and native American citizens] is in all respects equal. We can
recognize no difference between the one and the other, nor can we permit this
to be done by any foreign government, without protesting and remonstrating
against it in the strongest terms. The subjects of other countries, who,
from choice, have abandoned their native land, and, accepting the invitation
which our laws present, have emigrated to the United States and become American
citizens, are entitled to the very same rights and privileges, as if they had
been born in the country. To treat them in a different manner, would be a
violation of our plighted faith, as well as of our solemn duty.
(Source: 3 Moore, Digest of International Law (1906)
566-567.)
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7 FAM 1260 Appendix A EARLY OPINIONS
OF THE ATTORNEY GENERAL ON LOSS OF NATIONALITY
(CT:CON-285; 03-06-2009)
a. In 1856, the Department of State submitted to Mr.
Cushing, as Attorney General, the following question propounded by the Bavarian
Minister at Berlin: Whether, according to the laws of the United States, a
citizen thereof, when he desires to expatriate himself, needs to ask either
from the Government of the United States, or of the State of which he is the
immediate citizen, permission to emigrate; and if so, what are the penalties of
contravention of the law. The Attorney General advised the Secretary of
State, in part, that:
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Citizens of the United States possess the right of
voluntary expatriation, subject to such limitations, in the interest of the
State, as the law of nations or acts of Congress may impose.
(Source: 8 Op. Atty. Gen. 139 (1856))
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Further, Mr. Cushing, after averting to the fact that
the National Government had not undertaken to formalize any general law either
or citizenship or of emigration, referred to the laws of Virginia, which
required, he said, as conditions of the relinquishment of citizenship, (1) a
solemn declaration of intention to emigrate, with actual emigration and (2) the
assumption in good faith of a foreign allegiance, but declared (3) that the act
of expatriation should have no effect if done while in the State or the United
States was at war with a foreign power, nor could a citizen of Virginia by
emigration discharge himself from any obligation to the State, the
nonperformance of which involved by its laws any penal consequence. (3 Moore,
Digest International Law (1906) 570.)
b. On August 17, 1857, Attorney General Jeremiah S.
Black wrote to the Secretary of State an opinion regarding expatriation in the
matter of Julius Amther, a native of Immelhausen, in Bavaria:
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1. Any citizen of the United States, native or
naturalized, may remove from the country, and change his allegiance, provided
this be done in time of peace, and for a purpose not directly injurious to
the interests of this Government.
2. If he emigrates, carries his family and effects
along with him, manifests his intention not to return, takes up his residence
abroad, and assumes the obligation of a subject to a foreign government, this
implies a dissolution of his previous relations with the United States, and
no other evidence of that fact is required by our law.
3. A native of Bavaria naturalized in America
may return to his native country, and assume his political status as a
subject of the King of Bavaria, if there be no law there to forbid it.
4. The Bavarian government may require him to abjure
his allegiance to the United States in such form as they may choose to
prescribe, since we, on our part, make our own regulations for the admission
of Bavarian subjects as citizens of the United States.
(Source: 9 Op. Atty Gen. 62 (1857))
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c. In 1859 Attorney General Black wrote an opinion in
the case of Christian Ernst proclaiming in sweeping terms the right of
expatriation:
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1. The natural right of every free person, who owes no
debt and is not guilty of any crime, to leave the country of his birth, in
good faith and for an honest purpose, the privilege of throwing off his
natural allegiance and substituting another allegiance in its place, is
incontestible.
2. We take our knowledge of international law, not from
the municipal code of England, but from natural reason and justice, from
writers of known wisdom, and from the practice of civilized nations; and they
are all opposed to the doctrine of perpetual allegiance.
3. In the United States, ever since our independence,
we have upheld and maintained the right of expatriation by every form of
words and acts; and upon the faith of the pledge which we have given to it,
millions of persons have staked their most important interests.
4. Expatriation includes not only emigration, but also
naturalization.
5. Naturalization signifies the act of adopting a
foreigner and clothing him with all the privileges of a native citizen or
subject.
6. In regard to the protection of our citizens in their
rights at home and abroad we have, in the United States, no law which divides
them into classes or makes any difference whatever between them.
The Attorney General went on to say:
It was the natural right of every free person, who
owes no debts and is not guilty of any crime, to leave the country of his
birth in good faith and for an honest purpose, and to throw off his natural
allegiance and substitute another in its place; that although the common law
of England denied this right, and some of our own courts, misled by British
authority, have expressed, though not very decisively, the same opinion, this
was not to be taken as settling the question; that natural reason and
justice, writers of known wisdom, and the practice of civilized nations were
all opposed to the doctrine of perpetual allegiance, and that the United
States was pledged to the right of expatriation and could not without perfidy
repudiate it.
(Source: 9 Op. Atty. Gen. 356, 357 (1859))
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d. In 1873 Attorney General Williams ruled that the
1868 expatriation statute's sweeping language also recognized the right of U.S. citizens to cast off their nationality. The Attorney General indicated that it was
the duty of executive officers to determine if such loss of nationality had
taken place and suggested renunciation and foreign naturalization as two
methods of expatriation. Thereafter the Department of State assumed the
responsibility, in the absence of statute, of determining whether such loss of
nationality occurred.
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The declaration in the act of July 27, 1868, chap.
249, that the right of expatriation is a natural and inherent right of all
people, comprehends our own citizens as well as those of other countries;
and where a citizen of the United States emigrates to a foreign country, and
there, in the mode provided by its laws, formally renounces his American
citizenship with a view to become a citizen or subject of such country, this
should be regarded by our Government as an act of expatriation.
The selection and actual enjoyment of a foreign
domicile, with an intent not to return, would not alone constitute
expatriation; but where, in addition thereto, there are other acts done by
him which import a renunciation of his former citizenship, and a voluntary
assumption of the duties of a citizen of the country of his domicile, these
together with the former might be treated as presumptively amounting to
expatriation, even without proof of naturalization abroad; though the latter
is undoubtedly the highest evidence of expatriation.
(Source: (14 Op. Atty Gen. 295, 296 (1873))
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7 FAM 1270 Appendix A Naturalization
Treaties
(CT:CON-285; 03-06-2009)
a. Continuing problems with foreign governments taking
legal action against naturalized U.S. citizens lead to the negotiation of a
series of naturalization treaties which recognized naturalization as a means of
effecting loss of nationality.
b. Even before the passage of the Act of July 27, 1868,
a treaty was negotiated (May 27, 1868) by which the North German Confederation
agreed to recognize as Americans former Germans who had secured our
naturalization. Soon thereafter similar treaties were negotiated with Bavaria (October 8, 1868); Belgium (July 30, 1869); Hesse (August 7, 1870); Great
Britain (September 16, 1870 and May 5, 1871); Austria-Hungary (August 1,
1871); Norway and Sweden (January 12, 1872); and Denmark (April 15, 1873).
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(Source: Van Dyne, Citizenship of the United States
(1904), Page 327, et seq.)
(Source: 59th Congress, 2nd Session, House of
Representatives Document 326 (1906).)
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c. The United States entered into a number of
bilateral and multilateral treaties, commonly called the Bancroft Conventions
for their chief negotiator, George Bancroft, in the 19th Century and early
years of the 20th Century. The treaties provided for loss of citizenship by a
citizen of one state upon naturalization in the other state and for loss of the
second nationality upon resuming permanent residence in the original country.
d. From 1868 to 1937, the United States entered into 25
Bancroft treaties covering 34 foreign countries. In the matter of Reid v.
Covert, 354 U.S. 1 (1957), the U.S. Supreme Court established that provisions
of treaties or executive agreements are unenforceable if they conflict with the
Constitution. In Schneider v. Rusk, 377 U.S. 163 (1964), the Supreme Court
invalidated a section of the Immigration and Nationality Act of 1952 that
purported to strip naturalized Americans of their citizenship after three
years' continuous residence in their country of origin; and in Afroyim v. Rusk,
387 U.S. 253 (1967), the Supreme Court, reviewing part of the Nationality Act
of 1940, held that Congress has no power to strip anyone of their citizenship,
whether it is acquired by birth or by naturalization. These decisions strongly
implied that if a case of involuntary loss of citizenship under one of the
Bancroft treaties came before the Supreme Court, the expatriation provisions
would be found unconstitutional. Concluding that the treaties had become
unenforceable, in 1980, the administration of President Jimmy Carter, acting in
consultation with the Senate Committee on Foreign Relations, gave notice
terminating the treaties to the remaining 21 countries with whom the Bancroft
treaties were still in force.
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(Source: Borchard, The Diplomatic Protection of
Citizens Abroad, page 548 (1928).)
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7 FAM 1280 APPENDIX A THE ACT OF MARCH
2, 1907
(CT:CON-454; 04-15-2013)
a. The provisions of Section 1 of the Act of July 27,
1968, 15 Statutes at Large 223, were incorporated in Section 1999 of the
Revised Statutes, as codified in 1878.
b. On the 13th of April, 1906, the Senate passed a
joint resolution providing for a commission to examine the subjects of
citizenship of the United States, expatriation, and protection abroad. The
Commission consisted of Mr. James B. Scott, Solicitor for the Department of
State, Mr. David Jayne Hill, Minister of the United States to the Netherlands, and Mr. Gaillard Hunt, Chief of the Passport Bureau. The findings and
recommendations of the Commission were reported to Congress in 59th Congress,
2nd Session, House of Representatives Document 326 (1906). Congress took the
recommendations into account in preparing new legislation on expatriation.
c. The Act of March 2, 1907, 34 Stat. 1228, provided
in the first paragraph of section 2 that expatriation would result from the
naturalization of an American citizen in any foreign state in conformity with
its laws or upon his taking an oath of allegiance to any foreign state.
7 fAM 1290 Appendix A Later Twentieth
century developments
(CT:CON-315; 09-03-2009)
a. By 1940, the 1907 Act had been repealed, and the
Expatriation Act of 1868 was reenacted (8 U.S.C. 800). In 1940, Congress
enacted the Nationality Act, 54 Stat. 1137, to codify the nationality laws.
The Nationality Act expanded the grounds for loss of nationality to include
engaging in military or government service for a foreign government; voting in
a foreign political election; formally renouncing citizenship; deserting the
armed forces in time of war; treason; and residence for a specified time in
foreign countries by naturalized citizens. (Nationality Act of 1940, Sections
401-409.)
b. Later, Congress enacted the Immigration and
Nationality Act of 1952, 8 U.S.C. 1481, 66 Statutes at Large 280, which
incorporated the concepts of the Expatriation Act of 1868 and the Nationality
Act of 1940 and expanded the grounds for loss of nationality. These later
statutes included provisions affecting dual nationals and naturalized citizens
(Section 349 INA, Section 350 INA, Section 351 INA and Section 352) discussed
in 7 FAM 1200 Appendix C. The current statutory regime is discussed in 7 FAM 1210 and
in particular 7
FAM 1214.
c. While this Appendix reflects the very serious
attention given to the issue of the right of expatriation by a young nation
populated by immigrants, the United States has come to accept, as reflected in
the U.S. Supreme Courts decision in Kawakita v. United States, 343 U.S. 717
(1952), that dual nationality exists, and that when a person who possesses dual
nationality travels to the country of his or her other nationality, the person
comes within the authority of that nation. The United States will continue to
assert our interest in protecting the individual, but, as 7 FAM 080
explains, our ability to do so may be limited. (See also 7 FAM 080 and 7 FAM 416.3.)
d. The principle that a country shall determine who is
a national of that country for purposes of their domestic law is a concept
universally recognized under international law.
e. The United States has recognized the right of
expatriation as an inherent right of all people. Citizens of the United
States can expatriate themselves through the voluntary performance of a
statutorily specified expatriating act with the intention of relinquishing
citizenship.
f. The United States, in accordance with the general
principles of international law and practice, objects to the concept of
arbitrary deprivation of nationality.
g. The United States is not a party to the League of
Nations Convention on Certain Questions Relating to the Conflict of Nationality
Laws, done at The Hague April 12, 1930, registered no. 4137, League of Nations,
Treaty Series, volume 179, the U.N. Convention on Stateless Persons (1954), the
U.N. Convention on Reduction of Statelessness (1961), or the European
Convention on Nationality done at Strasbourg June 11, 1997.