7 FAM 1200 Appendix B
U.s. supreme court decisions on loss of nationality
(CT:CON-804; 04-30-2018)
(Office of Origin: CA/OCS)
7 FAM 1210 Appendix B introduction
(CT:CON-285; 03-06-2009)
The United States Supreme Court has considered the issue
of loss of nationality many times. Statistically speaking, the Court has
agreed to hear a much higher percentage of citizenship cases brought to its
attention compared, for example, to criminal or tax law.
7 FAM 1220 APPENDIX B THE nineteenth
CENTURY
(CT:CON-285; 03-06-2009)
U.S. v. Wong Kim Ark, 164 U.S. 644 (1898). This U.S.
Supreme Court case held that Congress had no power to restrict the acquisition
of citizenship conferred at birth in the United States; a person born in the
United States of Chinese citizen parents was a U.S. citizen under the
Fourteenth Amendment and therefore not subject to the Chinese Exclusion Act;
and although Wong Kim Ark could renounce this citizenship and become a citizen
of... any other country, he had never done so. Conduct constituting
renunciation of citizenship was not defined. This was the law until the
Expatriation Act of 1907 took effect.
7 fam 1230 APPENDIX B THE 1950S
(CT:CON-789; 02-16-2018)
a. On January 9, 1950, in the matter of Savorgnan v.
United States et al., 338 U.S. 49 (1950), the U.S. Supreme Court held that a native-born
American citizen who, in the United States, became an Italian citizen in 1940,
and lived in Italy with her husband from 1941 to 1945, thereby lost her
American citizenship even if, when she applied for and accepted Italian
citizenship, she did not intend to give up her American citizenship.
b. On March 31, 1958, the U.S. Supreme Court ruled on
three cases regarding loss of nationality. The decisions of that day
demonstrated that on loss-of-nationality issues the Supreme Court had abandoned
the Savorgnan precepts of the past and that every statute for involuntary
expatriation was in jeopardy:
(1) Nishikawa v. Dulles, 356 U.S.
129 (1958). The case involved loss of nationality for service in the armed
forces of a foreign state. It concerned a dual U.S.-Japanese citizen who had
been held to have lost U.S. citizenship by serving in the Japanese army in
World War II. The court deemed it unnecessary to reach the constitutional
issue and ruled that the U.S. Government had not established, with the
requisite certainty, that the military service was voluntary. The Court held
that when the issue of voluntariness is raised, the U.S. Government has the
burden of proving the voluntariness of the potentially expatriating act and
must do so by clear, convincing, and unequivocal evidence. Largely as a result
of this decision, Congress enacted Section 349(c) INA creating a rebuttable
presumption that a potentially expatriating act was performed voluntarily.
Congress thereby modified the Courts decision concerning the burden-of-proof
requirement in loss-of-nationality cases;
(2) Perez v. Brownell, 356 U.S. 44 (1958).
(SUBSEQUENTLY OVERRULED by Afroyim v. Rusk). This case concerned the loss of
nationality by a native born U.S. citizen who had voted in a political election
in Mexico. The constitutionality of the statute was upheld, but only by a
five-to-four vote. The majority opinion written by Justice Frankfurter
extensively reviewed the historical background, finding that the power to
prescribe loss of nationality emerged from the power to conduct foreign affairs
and the Necessary and Proper Clause of the Constitution. However, since
Congress cannot act arbitrarily, there had to be a ''rational nexus'' or
''relevant connection'' between such power and the means chosen to effectuate
it. Loss of nationality was found to conform to this standard of
reasonableness, inasmuch as the termination of the citizenship of a person who
becomes involved in the political affairs of a foreign nation reasonably
implemented the government's power to conduct foreign affairs. The dissenting
opinion of Chief Justice Warren found that ''under our form of government, as
established by the Constitution, the citizenship of the lawfully naturalized
and the native born cannot be taken from them.'' The Chief Justice recognized
that citizenship could be lost by voluntary renunciation or ''by other actions
in derogation of undivided allegiance to this country.'' Another dissenting
opinion filed by Justice Douglas, with Justice Black concurring, declared that
citizenship ''may be waived or surrendered, but I see no constitutional method
by which it can be taken from him'';
(3) Trop v. Dulles, 356 U.S. 86 (1958). In this case
the Supreme Court for the first time struck down a loss-of-nationality
statute. This statute provided for loss of nationality upon conviction for
desertion from the armed forces of the United States during time of war. In
this decision the vote was again five-to-four, and Chief Justice Warren's
plurality opinion, speaking for the four dissenters in Perez, found this a
penal statute, improperly visiting cruel and unusual punishment since it had
left the expatriated citizen stateless. Justice Brennan's swing vote was
explained in a concurring opinion, concluding that the loss-of-nationality
penalty was not rationally related to a demonstrated national need. The four
dissenters comprised the remainder of the Perez majority, and found the statute
a reasonable and constitutional measure. This rendered Section 401(g) of
Nationality Act of 1940 (54 Statutes at Large 1137), as amended, and INA
Section 349(b)(x) invalid.
7 fam 1240 Appendix B THE 1960S
(CT:CON-378; 06-08-2011)
a. Five years later, in another five-to-four vote, the
Court invalidated a statute prescribing loss of nationality as a consequence
for evading military service. The majority opinion of Justice Goldberg in
Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) deemed the statute punitive
and found it defective because the penalty was imposed without observing the
constitutional safeguards relating to penal sanctions. This rendered INA
Section 349 (a)(10) and Section 401(j) NA unconstitutional.
b. The following year another loss of citizenship
statute was demolished in Schneider v. Rusk, 377 U.S. 163 (1964). There the
law provided for expatriation of a naturalized citizen who resided in his
native country for a continuous period of years. A five-to-three majority
vitiated INA Section 352 (a)(1) as an invalid discrimination against
naturalized citizens. This rendered INA Section 352 unconstitutional.
c. Afroyim v. Rusk, 387 U.S. 253 (1967). The U.S.
Supreme Court declared Section 401(e) NA unconstitutional. This section had
held that U.S. citizens expatriated themselves by voting in foreign political
elections. Afroyim went beyond Section 401(e) and established the rule that a U.S. citizen has a constitutional right to remain a citizen unless he voluntarily
relinquishes that citizenship. Because of this decision, which was
retroactive in effect, most of the substantive analysis in loss-of-citizenship
cases now requires a judgment as to whether a person intended to relinquish U.S. citizenship at the time of committing the potentially expatriating act. This rendered
Section 401(e) of the Nationality Act of 1940, and INA Section 349(a)(6), as
originally enacted, unconstitutional under the Fourteenth Amendment. In
Afroyim, the Court overruled Perez v. Brownell, 356 U.S. 44, 2 L. Ed. 2d 603,
78 S. Ct. 568 (1958), and rejected the latter's idea that Congress has any
general power, express or implied, to take away an American citizen's
citizenship without his assent."
d. See 7 FAM 1215
(chart) for a summary of grounds for potential expatriation, including a list
of impermissible bases for loss of citizenship invalidated by the Supreme
Court.
7 FAM 1250 appendix b 1980: the
TERRAZAS decision
(CT:CON-285; 03-06-2009)
a. In 1980, in the matter of Vance v. Terrazas, 444
U.S. 252 (1980), the U.S. Supreme Court upheld the constitutionality of Section
349(c) INA establishing a rebuttable presumption that a potentially
expatriating act was voluntary. The U.S. Government tried to persuade the
Court that some voluntary acts are so inconsistent with retention of American
citizenship that they may result, automatically, in loss of nationality. The
Court disagreed, noting that it is difficult to understand that assent to
loss of citizenship would mean anything less than an intent to relinquish
citizenship, whether the intent is expressed in words or is found as a fair
inference from proved conduct."
b. The Court elaborated on its opinion in Afroyim,
stating that the trier of fact must... conclude that the citizen not only
voluntarily committed the expatriating act proscribed in the statute, but also
intended to relinquish his citizenship.
c. Under the Afroyim rationale, the Terrazas court
added that one is not free to treat the expatriating acts specified in (the
statutes) as the indispensable voluntary assent of the citizen.
d. The Court concluded: In the last analysis,
expatriation depends on the will of the citizen rather than on the will of
Congress and its assessment of his conduct.
e. The Court noted that a persons intent to relinquish
U.S. citizenship could be discerned not only from the persons words but as a
fair inference from proven conduct. The consular officer and the Department
perform this latter task in developing loss cases, though as a matter of
practice, the Department generally requires a verbal expression of will to
relinquish citizenship in order to find loss.
7 FAM 1260 appendix b Post-terrazas:
the 1980s
(CT:CON-285; 03-06-2009)
a. In 1985, in Richards v. Secretary of State,
Department of State (1985, CA9 Cal) 752 F2d 1413 the U.S. Court of Appeals, 9th
Circuit held that Richards naturalization in Canada and taking of an oath
renouncing all allegiance and fidelity to a foreign sovereign resulted in a
knowing loss of citizenship. The Court ruled that a United
States citizen effectively renounces citizenship by performing act that
Congress has designated an expatriating act only if he means the act to
constitute a renunciation of his U.S. citizenship. In the absence of such an
intent, he does not lose his citizenship simply by performing expatriating act,
even if he knows that Congress has designated the act an expatriating act. By
the same token, we do not think that knowledge of expatriation law is
necessary, and a person who performs an expatriating act with an intent to
renounce his US citizenship loses his U.S. citizenship whether or not he knew
that act was expatriating act. The Court ruled that Congress is without power
to provide that citizens lose their citizenship by mere performance of
specified acts; a person loses citizenship if he voluntarily performs an
expatriating act enumerated by Congress and if, in performing the act, he
intends to relinquish citizenship.
b. In 1987, in Meretsky v. U.S. Department of Justice,
et al., 259 U.S. App. D.C. 487; 816 F.2d 791 (1987), the U.S. Court of Appeals
for the District of Columbia upheld the ruling of the District Court, which affirmed
the Department of State's issuance of a Certificate of Loss of Nationality
("CLN") against Meretsky, concluding that appellant had voluntarily
and intentionally renounced his U.S. citizenship in order to become a citizen
of Canada. Meretsky appealed his loss of citizenship to the Board of Appellate
Review, which affirmed the State Department's conclusion that Meretsky had
performed an expatriating act "with the intent to relinquish
citizenship." Meretsky then brought an action in Federal district court
under 8 U.S.C. 1503, seeking a declaratory judgment that he had not indeed lost
his U.S. citizenship. Finding no material facts in dispute, and on cross
motions for summary judgments, on December 30, 1985 the court upheld the
issuance of the CLN. The Ninth Circuit rejected an argument that the appellant
had become a Canadian citizen to avoid economic hardship, ruling [t]he cases
make it abundantly clear that a person's free choice to renounce United States citizenship is effective whatever the motivation. Whether it is done in
order to make more money, to advance a career or other relationship, to gain
someone's hand in marriage, or to participate in the political process in the
country to which he has moved, a United States citizen's free choice to
renounce his citizenship results in the loss of that citizenship.
c. In 1987, in Kahane v. Shultz (1987, ED NY) 653 F
Supp 1486, the U.S. District Court for the Eastern District of New York ruled
that a United States citizen with dual citizenship in Israel did not intend to
relinquish his U.S. citizenship when he committed expatriating act of accepting
a seat in the Israeli Knesset, where acts and statements emphasize beyond doubt
that the individual wanted to remain an American citizen, such intent being
manifested both before and after he joined Israeli Parliament.