ELWIN GRIFFITH *
* The author is a Professor of Law, The Florida State University,
B.A. (1960, Long Island University); J.D. (1963, Brooklyn Law School);
LL.M. (1964, New York University).
Mr. Griffith is a former Dean of DePaul University College of Law,
The author wishes to thank his former research assistants, Kathryn
Price and Bernita Thigpen, for their help.
"Citizenship is man's basic right for it is nothing else
than the right to have rights." n1 A loss of citizenship is
therefore not a routine matter. Such a loss can change the citizen's
fortunes overnight. A citizen can lose his citizenship through
denaturalization n2 or expatriation. n3 The latter may occur when a
citizen performs certain acts, n4 such as becoming naturalized in
another country n5 or accepting a top-level assignment with a foreign
For a long time a citizen could lose his citizenship without
realizing it. Many adventurous citizens pursued their goals without any
thought of jeopardizing their status. However, in the final analysis, it
was the expatriation provisions that created the difficulty by
prescribing loss of citizenship as a consequence of certain acts. n7
Citizens questioned the early presumptions that gave rise to
expatriation and challenged the statutory provisions that did not pay
full respect to their intent. It was natural for citizens to query how
they could lose their citizenship so easily, n8 since the Constitution
seemed to give a certain security to citizenship. n9 The concern
centered on the extent of this protection. n10
There are some important issues affecting loss of citizenship and it
is the Secretary of State who has the difficult task of dealing with
them. n11 The Department of State has only the citizen's conduct to
consider when determining loss of citizenship and it is often difficult
to tell if a citizen's acts have met the statutory requirements. n12 A
loss of citizenship is a serious matter and there is a natural
reluctance for the Department of State to conclude too quickly that
expatriation has occurred. n13 When a citizen disagrees with the
Department's determination, he can appeal to the State Department's
Board of Appellate Review. n14 Further questions about congressional
authority over expatriation may sometimes reach the Supreme Court. n15
This article will consider some of these issues. It will explore the
statutory and constitutional developments in expatriation and the role
of the Board of Appellate Review. The article will also discuss the
important role of voluntariness and intent in a citizen's expatriation,
n16 for those elements provide the greatest challenge in any
The early Constitution neither mentioned expatriation nor defined
citizenship. n17 This omission resulted largely from the draftsmen's
inability to decide whether citizenship was within the province of the
states or of the federal government. n18 There was also a lack of
consensus about the status of Blacks. n19 Furthermore, with the
assimilation into the United States of the common law doctrine of
perpetual allegiance, n20 the prevailing view was that no one could
sever ties to his country. n21
The initial constitutional definition of citizenship came with the
ratification of the fourteenth amendment n22 in 1868, following closely
on the heels of a similar provision in the Civil Rights Act of 1866. n23
These provisions did not address the issue of expatriation and they did
nothing to quell the debate about it in Congress n24 and the courts. n25
The Supreme Court had its own misgivings about the doctrine when it had
an opportunity in The Santissima Trinidad n26 to adjudicate title
to a prize ship taken by an American who had renounced his citizenship.
The Court would give no opinion whether that renunciation of allegiance
was valid in the absence of statute. n27 A little later, the Court
expressed the view in Shanks v. Dupont n28 that "no persons
can by any act of their own, without the consent of the government, put
off their allegiance and become aliens." n29
However, there was a feeling in some quarters that it was senseless
to deny a right of expatriation since the United States was in turn
admitting many immigrants from other countries. There was also concern
that recognizing such a right would promote subversion in the new
In 1868, Congress passed the Expatriation Act n31 which proclaimed
that 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." n32 The Act recognized the
rights of naturalized citizens and gave to such citizens abroad the same
governmental protection accorded to natural-born citizens. n33 It seemed
then that the primary objective was to secure the rights of naturalized
citizens. n34 However, surprisingly, the Act did not prescribe the
method by which a citizen could exercise a right of expatriation. n35 It
was left to the Attorney General to confirm that the Act recognized a
citizen's right of expatriation and to suggest that renunciation and
naturalization were two ways of exercising that right. n36 Leaving
nothing to chance, the United States concluded treaties with various
countries to establish once and for all that naturalization would be an
effective route to expatriation. n37 Nevertheless, a problem still
remained of deciding which acts would result in expatriation.
In 1906, the Secretary of State appointed a citizenship Board to look
into the matter. Based on the Board's report, Congress passed the
Expatriation Act of 1907, n38 which for the first time detailed those
acts that would lead to the loss of United States citizenship.
Thereafter, expatriation occurred not only if a citizen was naturalized
in, or swore allegiance to, a foreign state, but also if a naturalized
United States citizen took up residence in a foreign state for a certain
period of time. n39
This was, perhaps, a genuine attempt to avoid the problems inherent
in dual nationality, for American citizens were exposed to some
difficult experiences when they returned home. n40 More significantly,
it was now possible for a citizen to expatriate himself without
realizing it. n41 Thus, while the Act confirmed an individual right of
expatriation, it also defined the circumstances under which it would
infer an individual's assent. In this way the statute established
congressional power over expatriation. n42 The focus now shifted to the
government's right to prescribe the formula for an individual's loss of
The first test of the 1907 Act occurred in Mackenzie v. Hare
n43 when an American woman who had lost her citizenship by marrying a
foreigner n44 claimed that the Constitution did not give Congress the
express power of expatriation. The Supreme Court held that the
expatriation power of Congress was really an implementation of the
"inherent power of sovereignty" in foreign relations and that
Congress was exercising "powers implied, necessary or incidental to
the expressed powers." n45 The Mackenzie Court inferred that
the plaintiff had assented to her expatriation through an act
"voluntarily entered into, with notice of the consequences."
n46 The Court conceded that Congress could not arbitrarily impose loss
of citizenship, but found that the citizen's voluntary act of marrying a
foreigner met the statutory requirement for expatriation regardless of
whether she intended to relinquish such citizenship. n47
The Nationality Act of 1940 n48 expanded the grounds for
expatriation. The Act provided for loss of citizenship through
naturalization in a foreign state, n49 as well as through foreign
government service, n50 voting in a foreign election, n51 service in
foreign armed services, n52 desertion, n53 committing treason, n54 and
residence by naturalized citizens in their homeland for certain periods.
n55 These expatriation grounds were codified in the Immigration and
Nationality Act of 1952. n56
3. JUDICIAL INTERPRETATION
3.1 The Early Approach
Understandably, the early uncertainty about the right of expatriation
led to confusion between expatriation and denationalization. n57 It is
certainly one thing to recognize a citizen's right to expatriate
himself; it is another to tell that citizen that he has exercised that
right by virtue of his acts, whether he intended to or not. It is
possible that the common law doctrine of perpetual allegiance set the
stage for some confusion in subsequent developments. The 1868
congressional declaration n58 that a restriction on expatriation was
inconsistent with the principles underlying government in this country
could account for the later judicial emphasis on the citizen's freedom
Early on, courts had to grapple with the fundamental question whether
Congress had the power to say which voluntary acts would result in
expatriation. In Savorgnan v. United States, n59 the petitioner
signed an oath of allegiance to Italy and renounced her American
citizenship because she wanted to marry an Italian. Although the
documents were in Italian, the petitioner understood what she was
signing. There was no question that she acted voluntarily.
Unfortunately, section 401 of the Nationality Act of 1940 n60 provided
for a loss of citizenship if a citizen became naturalized elsewhere or
took an oath of allegiance to another country.
The petitioner's only defense was that she did not intend to give up
her American citizenship even though there was no dispute about the
voluntary nature of her act. n61 Her defense seemed reasonable enough in
light of the trial court's finding that her intention to assume Italian
citizenship did not include renouncing her American citizenship. The
Supreme Court found that the statute did not condition the effect of the
petitioner's voluntary acts upon the petitioner's undisclosed intent.
The petitioner was bound by the legal consequences of her acts. n62
The petitioner provided ample evidence that she wanted Italian
citizenship in order to marry. She was certainly not ambivalent.
Therefore, the court was not concerned with any question of
congressional power. n63 The court interpreted the statute and found
that Mrs. Savorgnan voluntarily gave up her United States citizenship to
become an Italian citizen.
The Supreme Court's approach in Savorgnan reflected the view
that it was the citizen who had accomplished her expatriation through
her own act of naturalization in another country. The Supreme Court
agreed that the statute did not impose a condition that the citizen had
not bargained for. Thus, the Court's concern was whether the
petitioner's voluntary act was based on the objective standard in the
statute. The Court was not concerned with the citizen's subjective
Savorgnan was not surprising in light of Mackenzie,
where the Court held in favor of expatriation. Although the citizen did
not intend to give up her American citizenship, the Court in Savorgnan
was comfortable with its assessment that the government was merely
acceding to the citizen's wishes on expatriation. The real issue was
whether Congress had the power to designate certain acts as conclusively
expatriating. If congress had no power to expatriate, then a conclusive
presumption could not apply to a citizen's acts, no matter how voluntary
they were. n65
Three cases decided on the same day in 1958 shattered the holdings in
Mackenzie and Savorgnan. One of these cases was Perez
v. Brownwell, n66 where a citizen voted in a political election in
Mexico. n67 The issue was whether the government could attach
consequences to an act of voting in a foreign election, and based on its
power to regulate foreign affairs, revoke a person's citizenship. The
Court in Perez reiterated that the government's power to
"denationalize" did not depend on the citizen's assent. n68
Instead the "denationalization" power arose from the
government's implied power to deal with foreign affairs, which when
combined with the necessary and proper clause of the Constitution,
allowed Congress to choose appropriate modes of effectuating this
attribute of sovereignty. This assessment clarified existing doubts
about the government's role in the scheme of things. There was no longer
a pretense that the government was merely accommodating the citizen's
wishes. The Court was even unwilling to entertain the notion of inferred
assent by virtue of the citizen's conduct. n69 It was commendable in the
sense that there would be such forthrightness in reflecting the true
nature of the citizen's loss.
It was, in fact, denationalization and not expatriation. n70 While
the Court's majority accepted the government's power in this area, Chief
Justice Warren's dissent pointed out that "[t]he power to
denationalize is not within the letter or the spirit of the powers with
which our Government was endowed." n71 He saw the possibility of a
citizen renouncing his citizenship or abandoning it through conduct that
compromised his allegiance. n72 Chief Justice Warren's emphasis seemed
to be on the citizen's abandonment of his status rather than the
government's divestment powers. While the majority was unwilling to pay
any attention to a citizen's "intentions and desires," Chief
Justice Warren thought it appropriate to relate the citizen's acts to
the voluntary abandonment of citizenship.
The Perez Court did not consider a citizen's vote in a foreign
election to be an statement of a citizen's decision to surrender
citizenship. The Court wanted to preserve the right of Congress to avoid
embarrassing situations in foreign relations by providing for the
withdrawal of citizenship under such circumstances. n73 It was
unfortunate that the Court once again ignored the relationship between a
citizen's voting and a citizen's desire to abandon citizenship. The
overbreadth of the statute was highlighted. There was a possibility that
a person would lose his citizenship by voting in some inconsequential
election that bore no rational relationship to his allegiance. n74
Therefore, in ignoring the requirement of a rational connection, the
Court failed to deal with the true ingredient of expatriation, that is
voluntary abandonment of citizenship.
The Court did recognize some aspects of voluntariness, but only with
respect to the citizen's performance of the statutory act. n75 Nothing
further was required because of the conclusion that Congress had the
power to prescribe loss of citizenship. The combination of the
government's denationalization power and the citizen's voluntary act was
enough to complete the process. A better formulation of the problem came
in the dissent. Chief Justice Warren acknowledged that some
"actions in derogation of undivided allegiance to this
country" might constitute a voluntary abandonment of citizenship.
n76 However, the surrender occurred not through the government's
divestment process, but rather as a consequence of the individual's
action. n77 In Perez, the citizen's voluntary act went to the
very heart of the matter. The act was so inconsistent with continued
allegiance to the United States that the Court was not bothered about
the citizen's intent.
The argument about allegiance lost its force if a foreign state
allowed American citizens to vote. If an American citizen voted in a
foreign election that was legally open to him, it could hardly be said
that such an act alone would dilute his allegiance to the United States.
Furthermore, the foreign state's recognition of that voting as a legal
act would undercut the allegations that this activity would embarrass
the United States in the conduct of its foreign affairs. This was
particularly significant because the United States allowed aliens to
vote in presidential elections until 1928. n78
The Perez majority, therefore, failed to establish the
necessary rational connection between voting and the abandonment of
citizenship and it recognized the government's power of
denationalization rather than the citizen's right of expatriation.
The Court had another chance to deal with expatriation in Trop v.
Dulles, n79 a case decided on the same day as Perez. This
time Chief Justice Warren found himself writing the plurality opinion,
joined by Justices Black, Douglas and Whittaker. The issue was whether a
citizen could lose his citizenship because of a conviction for wartime
The Chief Justice restated his Perez position that citizenship
"may be voluntarily relinquished or abandoned either by express
language or by language and conduct that show a renunciation of
citizenship." n80 There was no evidence in Trop that the
citizen had transferred his allegiance to the enemy and there was no
language or conduct to support a renunciation. n81 The Chief Justice
attempted to convince a majority of the Court that Congress did not have
denationalization power. However, in the final analysis, he had to rely
on the eighth amendment because a majority of the Court was not yet
ready to accept that proposition.
Chief Justice Warren rejected the statute, viewing denationalization
as "a form of punishment more primitive than torture, for it
destroys for the individual the political existence that was centuries
in the development." n82 In short, denationalization results in the
citizen's loss of "the right to have rights." n83
Justice Brennan provided the important fifth vote for the majority in
Trop. In Perez he had agreed with the Court that there was
nothing wrong with the statute that deprived the citizen of his
citizenship for voting in a foreign election. Nevertheless, in Trop
he argued that it was unconstitutional for Congress to expatriate a
wartime deserter. n84 He saw no rational relationship between the
statute and the war power; therefore, could not support the government's
position that the citizen should forfeit his citizenship because of
"a refusal to perform one of the highest duties of American
citizenship -- the bearing of arms in a time of desperate national
peril." n85 Justice Brennan knew that desertion did not mean in
every case that a citizen had failed to perform this ultimate duty. The
citizen might have re-enlisted in another branch without receiving a
proper discharge. n86 Although that would only be a technical desertion,
there would still be a penalty and Justice Brennan would not accept any
relation between mere retribution and the objectives of expatriating the
Justice Frankfurter, who wrote the majority opinion in Perez,
also wrote the dissenting opinion in Trop. He did not recognize
denationalization as punishment, and would not in any event regard it as
cruel and unusual. n88 This was a difficult argument for Justice
Frankfurter and he might have been on safer ground had he stuck to the
proposition that there was a rational relationship between
denationalization and congressional power. n89 Justice Frankfurter
recognized the incongruity of the Court sanctioning a loss of
citizenship when a citizen married a foreigner, n90 but branding such a
loss in Trop as cruel and unusual even when it was a consequence
of criminal conduct. n91
The question arose again in Kennedy v. Mendoza-Martinez n92
and it is not hard to understand why the Court found that forfeiture of
citizenship was used as punishment in that case. In its haste to adopt
some procedure for dealing with draft evaders, Congress ran afoul of the
fifth and sixth amendments, believing all the while that its action
would be protected by its power to conduct foreign affairs and to wage
war. The congressional objective was to deal with the "conspicuous
manifestation of nonallegiance." n93 However, there was little room
for accommodating this objective without the proper procedural
safeguards applicable to a criminal trial. n94 Congress could not
automatically decree loss of citizenship for those who remained outside
the United States to avoid military service. The problem in Mendoza-Martinez
was similar to that in Trop. The government had to devise some
mechanism for maintaining morale and loyalty among the troops. The
threat of expatriation might have been an effective deterrent in the
case of the citizen who contemplated leaving the country. However, once
the citizen left, the government's action amounted to punishment. n95
By the time of Schneider v. Rusk, n96 the majority of the
Court still did not support the proposition that Congress had no power
to denationalize. n97 Therefore, Justice Douglas could not rely on that
ground to invalidate a statute which took away the citizenship of a
person who resided continuously for three years in his former homeland.
n98 Instead, he relied on the due process clause of the fifth amendment
to support the fact that native-born citizens could live abroad without
being subject to the same restrictions as naturalized citizens was
impermissible discrimination. According to Douglas the statute "proceed[ed]
on the impermissible assumption that naturalized citizens as a class are
less reliable and bear less allegiance to this country than the native
born." n99 The statute might have been directed towards those
aliens who experienced conflicting allegiances once they returned home
for an extended stay. However, the Court's approach was understandable.
Considering its recent confrontation with issues surrounding the
allegiance of naturalized citizens, n100 it may be that Justice Douglas
saw this case as an opportunity to deal with any lingering doubts about
The government defended the statute on the basis of its foreign
relations power just as it had done in Perez. The government's
contention was that the United States had to protect itself from the
possibility that its new citizens would embroil it in some international
controversy as a result of their conflicting loyalties. n101 While this
argument was appealing, the difficulty was in finding a nexus between
congressional power over foreign affairs and the right to deprive
someone of citizenship for certain conduct.
3.2 The Turning Point
The exact scope of congressional power in expatriation cases was
determined in Afroyim v. Rusk. n102 The Court had to deal with
the same problem of a citizen voting in a foreign election. n103 Relying
on the citizenship clause of the fourteenth amendment for a resolution,
the Court found that Congress was powerless to take away a person's
citizenship without that person's assent. n104
The amendment seemed so definitive: "All persons born or
naturalized in the United States . . . are citizens of the United
States. . . ." n105 There is no comparable provision for taking
away that citizenship. The fourteenth amendment gave citizenship a
quality of permanence that would not have been otherwise possible. This
is not to suggest that in deciding the question of expatriation, the Afroyim
majority resolved all doubts about the citizenship clause. n106 However,
this was as good a time as any to make an unmistakable pronouncement
about citizenship generally, and the amendment did this with language
affecting all citizens. n107 Thereafter, the government could not tamper
with the citizenship of anyone.
Before the fourteenth amendment, the only other provision in the
Constitution relating to the acquisition of citizenship was that
granting Congress the power "to establish an uniform Rule of
Naturalization." n108 There is no evidence that a power to
denationalize exists. It is submitted, therefore, that the Afroyim
majority was right in denying congressional power to take away a
person's citizenship. If the mere act of voting was sufficient to divest
citizenship, a statute would then override a constitutional provision.
As a result, it would be necessary to change the language of the
fourteenth amendment to clarify the status of persons covered by the
amendment. n109 In the alternative, the amendment might require a
reading that a person could retain his citizenship as long as Congress
did not withdraw it. Congress knew how to provide for qualifications and
powers that were subject to legislative change. n110 Thus, the Afroyim
Court affirmed a person's constitutional right to keep his citizenship
"unless he voluntarily relinquishes that citizenship." n111
The Afroyim majority was aware that the Court had already
spoken in United States v. Wong Kim Ark n112 about the quality of
fourteenth-amendment citizenship. In Wong Kim Ark, the question
posed was whether the petitioner, born in the United States of Chinese
parents, could be excluded by the Chinese Exclusion Acts because he was
not a citizen of the United States. In its dicta, the Court recognized
that Wong Kim Ark was a citizen of the United States and that Congress
could not abridge citizenship conferred by the fourteenth amendment. But
the Afroyim Court relied also upon the Wong Kim Ark formulation
that while the amendment left the naturalization power in Congress, it
did not give Congress the authority to restrict the effect of birth in
the United States, because this was constitutionally sufficient for
The Court in Afroyim was not content to rely entirely or even
principally on the legislative history of the fourteenth amendment, n114
knowing that conflicting inferences could be drawn from that history.
The language and purpose of the amendment itself led the Court to its
conclusion: "The very nature of our free government makes it
completely incongruous to have a rule of law under which a group of
citizens temporarily in office can deprive another group of citizens of
their citizenship." n115
Justice Black found some consolation in the legislative history.
However, he gave no response to Justice Harlan's observations concerning
congressional action on the Wade-Davis bill in 1864 and the Enrollment
Act of 1865. The Wade-Davis bill, designed "to provide
reconstruction governments for the states which had seceded to form the
Confederacy," revoked the citizenship of any person who held any
office in the rebel service. n116 Section 21 of the Enrollment Act of
1865 provided that deserters were deemed "to have voluntarily
relinquished and forfeited their rights of citizenship and their right
to become citizens." n117
These two bills, passed not long before the fourteenth amendment,
provided some evidence of Congress' belief that it had the power of
expatriation. n118 Other references to individual comments of
legislators did not add much to the historical support for Justice
Black's interpretation of legislative events. n119 However, the
conflicting inferences were not enough to convince the majority to
ignore the force of the amendment itself.
3.3 A Retreat
One would have thought that by overruling Perez, the Court in Afroyim
had settled the expatriation question and the importance of the
fourteenth amendment in the scheme of things. However, another
proposition was presented in Rogers v. Bellei. n120 Mr. Bellei
was born in Italy to an Italian father and an American mother. Under the
then applicable law, n121 he was deemed to be a citizen but he had to
fulfill certain requirements of physical presence in the United States
in order to maintain his citizenship. n122 Bellei did not do this and he
lost his citizenship. He challenged the statute on constitutional
grounds, relying principally on the fifth amendment's due process
clause. The Supreme Court upheld the statute in a 5-4 decision.
The Court's first observation was that the Mr. Bellei was born abroad
and therefore was not protected by the fourteenth amendment. The Court
could not characterize him as a
"Fourteenth-Amendment-first-sentence citizen." n123 Obviously
if he was within that category, then the court would have had to deal
with its previous mandate in Afroyim concerning the scope of the
The Court's holding has caused some confusion. Mr. Bellei was not
born in the United States and thus there is no difficulty on that count.
However, the assertion that the amendment did not protect him because he
was not naturalized in the United States needed clarification. It was
unclear whether Mr. Bellei missed the amendment's protection because he
was not naturalized, constitutionally speaking, or because he was not in
the United States at the time of naturalization. n124
In determining Mr. Bellei's status, it is necessary to consider
whether the Constitution recognizes more than two sources of
citizenship. n125 Although the early common law recognized only the jus
soli doctrine of citizenship, n126 later the doctrine of jus
sanguinis came into its own. n127 In furtherance of the latter
concept, Congress passed the Naturalization Act of 1790. n128 Among
other things, it allowed citizenship to be granted to "the children
of citizens of the United States that may be born beyond sea or out of
the limits of the United States." n129 Although this section
regarded such children as natural-born citizens, it came within the Act
which was entitled "An Act to establish an uniform Rule of
Naturalization." While it is reasonable to infer that Congress was
carrying out its constitutional power to deal with naturalization, one
should be careful not to base such an inference merely on a title. n130
It was significant that the statute did not refer to the citizenship of
persons born in the United States. Such an omission could lend
credibility to the theory that Congress was addressing citizenship by
naturalization and no other. n131
Somewhat later, the Supreme Court recognized in Wong Kim Ark
n132 that the fourteenth amendment contemplated "two sources of
citizenship, and two only: birth and naturalization." n133 Justice
Gray, commenting further on the amendment said:
[I]t has not touched the acquisition of citizenship by being born
abroad of American parents; and has left that subject to be regulated,
as it had always been, by Congress, in the exercise of the power
conferred by the Constitution to establish an uniform rule of
The Court's dicta recognized the other side of the proposition that
those persons who were born outside the United States could enjoy
citizenship only through statutory grace. n135 Once again, the common
law jus soli concept that settled a question of citizenship and
the constitutional requirement of jurisdiction excluded only those
persons who were born to foreign ambassadors, to alien enemies or on
foreign vessels. n136
Even if the Court did not provide a definitive answer about
constitutional naturalization, the 1934 Act which granted Mr. Bellei his
citizenship did not confine naturalization to citizenship after birth.
n137 Therefore, it is arguable that even the Act recognized that Mr.
Bellei's kind of citizenship fell within the naturalization scheme. A
refusal to recognize this method of naturalization would suggest that
Mr. Bellei obtained his citizenship through the government's exercise of
the foreign affairs power or the exercise of a sovereign state's
inherent power to confer citizenship. n138 However, even the dissenters
viewed the majority's decision as simply excluding Mr. Bellei from
fourteenth amendment protection because of his physical absence from the
United States. n139 There was no hint of the exercise of congressional
power outside the naturalization clause of article I. n140
The difficulty in fitting Mr. Bellei under the fourteenth amendment
umbrella arose because he was not born or naturalized in the
United States. n141 The Court took a strict approach in interpreting
that language and applied territorial significance to the word
"in." In his dissent, Justice Black did not read the
naturalization requirement as a restriction to the territorial confines
of the United States but suggested instead that "naturalized
in" could be read as "naturalized into" the United
States. n142 The confusion resulting from such an interpretation
surfaced when Justice Black suggested that with respect to those born
"in" the United States, the language could be read as born
"within" the United States. n143 If the framers had intended
to cover persons such as Mr. Bellei, a foreign-born citizen, there is
every indication that they would have used language other than
"naturalized in" the United States and subject to the
jurisdiction thereof." Before the Civil War, Congress passed three
statutes dealing with citizenship which used the specific language,
"born out of the limits and jurisdiction of the United
States." n144 Congress was therefore quite familiar with the
concept of derivative citizenship and the implications of foreign birth.
Justice Black defined a naturalized citizen as one who acquired his
citizenship other than by birth in the United States. He interpreted
naturalization as a generic term which described any form of citizenship
granted pursuant to congressional enactment. n146 Therefore, under his
definition, foreign-born children of American citizens acquired their
citizenship through the naturalization power which the Constitution
granted to Congress. This position is more tenable than asserting some
other basis for the exercise of this congressional power. In light of
this, it appears that the Court in Bellei was more concerned with
the fact that Mr. Bellei was not physically present in the United States
when he acquired citizenship. n147
There may be some hesitation in accepting the Court's dependence upon
Justice Gray's pronouncements in Wong Kim Ark. Justice Gray did
say that the fourteenth amendment did not cover citizenship by foreign
birth but he also went on to state that the amendment left that
citizenship to congressional regulation under a uniform rule of
naturalization. n148 It is arguable that Justice Gray's statements were
inconsistent because if the amendment covers naturalization, and the
acquisition of citizenship by birth abroad constitutes naturalization,
then the amendment does protect citizenship by foreign birth. However,
there is also room for consistency in Justice Gray's approach if one
assigns territorial significance to the naturalization itself. Under
such a reading, Justice Gray and Justice Black would both be consistent
in treating birth abroad as a constitutional naturalization without
necessarily bringing it within the amendment. n149
Justice Black had written the majority opinion in Afroyim and
he was not content to see the majority in Bellei tamper with the
concept of fourteenth-amendment citizenship. Yet he did not do very well
in relying on the amendment's legislative history to support his
contention. The citizenship clause originally covered all those
"born in the United States or naturalized by the laws
thereof." n150 Its final version was changed to reflect the current
wording. Despite this, Justice Black believed that the clause was
intended to have the same scope. The phrase "naturalized by the
laws thereof" did not impose any territorial restrictions but it
was replaced by language, "naturalized in," which certainly
did. This seemed to be an insurmountable hurdle for him. There was
little that he could do to explain this curious linguistic change.
On the other hand, the pronouncement in Afroyim that "the
[f]ourteenth [a]mendment was designed to, and does, protect every
citizen of this Nation against a congressional forcible destruction of
his citizenship, whatever his creed, color, or race," n151 could
not be easily dismissed. It was obvious to Justice Black that the Bellei
Court did not accept the broad sweep of Afroyim or that the
amendment did not really protect every citizen. n152 The Bellei
Court deprived a citizen of his citizenship without his assent and
Justice Black reiterated his Afroyim position that a citizen must
intend or desire to give up his citizenship. n153 Without saying as
much, the Court retreated from the concept of protection for all
citizens, limiting the Afroyim principle to those citizens who
could bring themselves within the citizenship clause. n154
The Bellei Court did not give any indication that Afroyim
was overruled, thus in effect leaving some lingering doubts about the
congressional power of expatriation. The Court retreated, however, from
the liberal language of Afroyim which seemed to give all citizens
the right to retain their citizenship in the absence of voluntary
abandonment. By categorizing Bellei as a non-fourteenth-amendment
citizen, the Court found no difficulty with a condition subsequent
attached to Bellei's citizenship. It was not necessary, therefore, to
reach the question whether there was a conceptual difference between
expatriation and conditions subsequent. However, in light of the court's
discussion, it is submitted that there is a meaningful distinction
between statutory and constitutional citizenship and it would be
inappropriate to impose conditions subsequent to fourteenth-amendment
citizenship. n155 Afroyim Revived: Vance v. Terrazas
The Afroyim Court imposed a rather stringent requirement that
a person's citizenship could not be taken away without his
"assent." n156 The question about the nature of this
"assent" was still to be resolved. The opportunity to answer
that question came in Vance v. Terrazas. n157 Mr. Terrazas had
dual citizenship, having been born in the United States to a Mexican
citizen. He signed an application for a certificate of Mexican
Nationality and expressly renounced his United States citizenship in the
process. The certificate of Mexican nationality was issued and it
acknowledged that Terrazas had sworn allegiance to Mexico and had given
up rights to United States nationality. n158 Based on these facts, the
Department of State decided that Terrazas had lost his United States
citizenship and Terrazas challenged that determination. n159
The government alleged that since the voluntary act of swearing
allegiance to Mexico was so inconsistent with the retention of American
citizenship, Congress could impose loss of nationality as a result. The
Court did not accept this formulation, for the Afroyim
prescription of assent required not only a voluntary act, but also an
intent to relinquish citizenship. n160 That intent could be found
"expressed in words" or as a "fair inference from proved
The government relied also on the dissent of Chief Justice Warren in Perez
that loss of citizenship could occur without regard to intent if an
individual's conduct was inconsistent with undivided allegiance to the
United States. n162 However, the Terrazas Court interpreted the
Chief Justice's language as recognizing the importance of assent, for
the Chief Justice had characterized such expatriating acts as the
government's way of granting formal recognition to the citizen's
voluntary surrender of citizenship. In explaining the Chief Justice's
statement, the Court was careful to point out that the Afroyim
opinion, which had overruled Perez, was not limited to the
dissent in Perez. n163 This seemed logical since the Chief
Justice's conception of "actions in derogation of undivided
allegiance to this country" was not very clear. n164 This language
could be interpreted to mean the citizen would be held to the
consequences of his inconsistent conduct, as long as it was voluntary.
The Terrazas Court went further to hold that there must be an
intent as well.
4. THE CONCEPT OF VOLUNTARINESS
Even before Afroyim, a citizen could lose his citizenship only
by his voluntary act. n165 Prior to Terrazas, this requirement of
voluntariness was satisfied simply by deciding whether the individual
performed the statutory act of expatriation of his own free will. n166
Since this was the central question, persons who were at odds with the
government over their citizenship planted the seeds of doubt about their
conduct. These arguments usually revolved around economic duress,
emotional distress, family concerns and governmental pressures.
It has been held that duress avoids the effect of an expatriating
act. n167 Therefore, when a dual citizen in Stipa v. Dulles took
a job with the Italian auxiliary police "for the purpose of earning
a livelihood," the court viewed his act as involuntary. n168 The
same result was obtained in Insogna v. Dulles when another dual
citizen accepted government employment in Italy "to subsist."
n169 Such claims are usually convincing if the citizen's claims of
economic duress are supported by common knowledge of dire economic
conditions existing in the place of the citizen's employment. But even
in the absence of extreme circumstances, the citizen must show at least
some degree of hardship. n170 It is different, though, if the citizen is
looking only to his economic security when he acts. Therefore, the
desire to advance one's position or to become eligible for certain jobs
does not suffice for a defense of duress. n171
It is sometimes difficult to prove economic duress because a citizen
is unable to show that there is no alternative to the expatriating act.
n172 There is usually an alternative, even if it is one that makes the
citizen less comfortable. If the citizen has a choice, the degree of
difficulty involved in making that choice does not make the action
involuntary. n173 This is not to say that the citizen must always be in
dire economic straits but there must be more than an inability to obtain
a particular job because one does not have the proper citizenship.
Although the Ninth Circuit in Richards v. Secretary of State
n174 did not decide that economic duress was possible only under extreme
circumstances, it seemed clear that more than ordinary hardship was
necessary. n175 The court in Richards was not interested in
breaking any new ground on this issue of economic hardship; after all,
the issue before the court was whether the lower court's finding on
voluntariness was clearly erroneous. The Ninth Circuit agreed with the
district court's finding that Mr. Richards had been naturalized as a
Canadian solely to advance his career. n176 Mr. Richards had difficulty
showing any degree of hardship. The decision to take a position
requiring Canadian citizenship was his own, without any kind of pressure
from anyone. Therefore, since Mr. Richards could not explain the
conditions of hardship that drove him to take the challenged assignment,
the duress standard could not be met.
Under some circumstances, family pressures may be sufficient to
constitute duress. As far back as Takehara v. Dulles, n177 it was
held that a citizen did not lose his citizenship by voting in Japan
because his upbringing required him to obey his parents. This kind of
family pressure is also recognized in other decisions. n178 In In re
H.H.L., n179 the State Department Board of Appellate Review n180
held that a citizen had not expatriated himself, because he was subject
to parental, religious and economic pressures. The citizen-appellant was
only sixteen years old at the time that he renounced his American
citizenship because his father wanted him to travel to the United States
on a Saudi passport. The citizen was born in the United States of Saudi
Arabian parents and therefore had dual citizenship. He alleged that his
parents were not going to send him to study in the United States if he
did not renounce his citizenship and, being a Muslim and a student of
the Koran, it was his duty to follow his father's wishes. The Board
found that the citizen was entirely dependent on his parents for support
and that he would not have been allowed to attend school in the United
States if he did not comply with his parents' wishes. n181 The Court
found also that he was morally bound by the code of ethics in the Koran
which required a child to obey his father. n182
This was a unique case in the sense that the citizen was affected by
"parental pressure, religious conviction and economic
considerations." n183 Although the Board does not usually accept a
citizen's interest in self-improvement as a reason for renunciation,
n184 in In re H.H.L. there was more than mere personal
advancement involved. A father was exerting family pressure on his son.
Although the son signed the appropriate renunciation form, it was done
at the embassy in the father's presence and at his urging. The father
acted as witness and interpreter for the renunciation proceeding, and
orchestrated the entire program of pressure tactics. n185
Sometimes the defense of duress may arise out of family devotion when
the life or health of a loved one is at stake. For example, it was held
in Mendelsohn v. Dulles n186 that a naturalized citizen who
remained abroad to look after his very sick wife beyond the time then
allowed to naturalized citizens acted under "the coercion of
marital affection." n187 His act of expatriation was not voluntary
because his wife could not travel and leaving her behind would have
seriously affected her health. The defense is not available in
situations where a citizen acts merely to advance a spouse's career or
to enhance the family's condition. In In re D. n188 an American
citizen became a naturalized Canadian to accommodate her husband's
political career in Canada. She contended, among other things, that the
pressure to help her husband's career amounted to duress because she was
subject to constant criticism for not being a Canadian and for not
participating fully in her husband's political life. Furthermore, her
failure to take on Canadian citizenship had a negative effect on her
In re D. was certainly unlike Doreau v. Marshall, n190
where an American woman took French citizenship to protect herself and
her family during the German occupation of France; and it could not be
measured against the plight of the naturalized citizen in Mendelsohn.
According to the Board, the citizen in In re D. "could have
acted differently without running the risk of almost certain dire
consequences." n191 This was not the kind of pressure that relieved
the citizen from the consequences of her expatriating act. It was not
"'just as compelling as physical restraint.'" n192 It would
have been advantageous for her to be assimilated through naturalization
into the fabric of political life in Canada but that was hardly the
coercion envisaged by cases like Doreau and Mendelsohn.
A citizen's act is not deemed to be involuntary simply because the
alternatives are painful. In Jolley v. INS, n193 the petitioner
renounced his citizenship before a United States consul in Canada and
remained outside the United States to avoid military service. The
petitioner's defense to the government's charge of expatriation was that
his renunciation was made under duress. He did not want to break the
Selective Service laws of the United States; therefore, he had to
renounce. The court held that there was no duress here, for the
petitioner simply made a personal choice not to serve in the armed
forces and chose an alternative, renunciation of his citizenship. n194
This position was different from that of the dual national in Nishikawa
v. Dulles n195 who was inducted into the Japanese Army. The question
there was whether the citizen's service resulted in his expatriation
from the United States. The citizen had a choice either to evade
Japanese service and subject himself to Japanese penal sanctions or to
serve and lose his United States citizenship. The conflicting laws of
Japan and the United States placed Nishikawa in an untenable position.
He was forced by Japanese law to engage in an expatriating act and this
rendered either alternative involuntary. It was on this basis that the
court in Jolley distinguished Nishikawa. n196 Thus, there
is a difference between duress and motivation. An expatriating act may
flow from different motivations and may lead to difficult choices, but
that alone is not sufficient to constitute duress. n197
However, if the citizen acts through mistake n198 or incapacity, n199
thus negating a free choice, there can be a finding of involuntariness.
The mistake may occur sometimes because of erroneous official advice
n200 or through improper governmental action that deprives the citizen
of an opportunity to preserve his citizenship. n201 There should be a
similar conclusion if the citizen acts in ignorance of his citizenship
status, for then he could not be accused of making a free choice in
giving up a status of which he is unaware. n202
Sometimes there is a question about the difference between
unawareness of a claim to citizenship and ignorance of conditions
applied to citizenship. The petitioner in Ramos-Hernandez v. INS
n203 was unsuccessful in convincing the Ninth Circuit that he should be
absolved of the residence requirements applicable to his citizenship.
The court in Ramos-Hernandez treated as dicta the language of the
Bellei Court which suggested that there might be situations where
failure to comply with the residence requirements might be excused. n204
Furthermore, the legislative history supported a literal application of
the statute. The petitioner could not avoid the condition subsequent
even though he knew nothing about the retention requirements.
The Third Circuit had a similar problem in Rucker v. Saxbe.
n205 The citizen pleaded that he knew nothing about the residence
requirements because his father did not tell him. The court found that
the plaintiff had ample time to ascertain the requirements, even after
he reached the age of majority. n206 The court recognized that while
there could be cases of unfairness in applying the residence
requirements, Mr. Rucker's situation did not qualify him for a hardship
exception. n207 Thus, both Bellei and Rucker adverted to
the possibility of an excuse based on ignorance of the retention
provisions. However, neither court articulated the criteria for a
5. CONCEPT OF INTENT
After Terrazas the concept of voluntariness took on a new
definition. It was no longer merely a question of deciding whether a
citizen voluntarily and freely performed a statutory act; an additional
inquiry was now required -- whether the citizen who voluntarily
perfformed the act intended thereby to give up his citizenship. This
subjective aspect has proved troublesome to courts but it has given
challengers their best weapon in fighting a claim of expatriation. Since
intent is subjective, the Terrazas mandate permits the government
to prove intent through inferences drawn not only from the citizen's
words but also from the citizen's conduct. n208 Thus, it is not enough
merely to perform an act that Congress has designated as expatriating. A
citizen must intend that the act be a renunciation in itself.
Intent may gleaned from circumstantial evidence as the Seventh
Circuit showed on remand of the Terrazas case. n209 Mr. Terrazas'
application for a certificate of Mexican nationality followed one week
after he passed the examination for induction into the armed forces of
the United States. n210 The plaintiff then sought to inform his draft
board of his renunciation of American citizenship, and he subsequently
signed an affidavit which evidenced his intent to give up that
citizenship. n211 In the face of all this, the plaintiff was
unsuccessful in convincing the court that the government did not meet
its burden of proof. Even Mr. Terrazas' allegations of parental pressure
did not persuade the court, for the plaintiff did nothing to regain his
citizenship when he was no longer subject to his father's influence.
Richards was also concerned with the issue of intent. Mr.
Richards renounced his United States citizenship and became a Canadian
citizen. He argued, though, that he did so to qualify for certain
employment opportunities and that he would not have done so except to
gain this advantage. n213 The court interpreted his argument to mean
that intent could be satisfied only by "a principled, abstract
desire to sever allegiance to the United States." n214 This was but
another formulation of the motivation argument and the court would not
yield to it. Intent was not lacking simply because the citizen
reluctantly gave up his citizenship to pursue an opportunity. This is an
unfortunate predicament, for the citizen usually wants to maintain his
citizenship while improving his lot in life. Mr. Richards took the
necessary steps to qualify himself for a better job. He did not want to
give up his citizenship but he had to, once he made the choice to go
after his new position. Thus his motivation could not displace his
If a right of expatriation depended on a citizen's
"public-spirited reasons," it would rarely be exercised
because there is usually some ulterior motive behind the expatriating
act. Therefore, the narrow definition proposed by Mr. Richards would
effectively deny to citizens the constitutional right of voluntary
expatriation clearly recognized by Afroyim. n216 That would
certainly be the result if a citizen could renounce only on the basis of
some "principled, abstract desire." The important question is
whether the citizen has the intent to expatriate himself and not whether
he has a motivation for doing so.
The intent requirement allows a citizen to perform an act that
Congress has designated as expatriating, without losing his citizenship.
Once the intent is lacking, citizenship continues even if the citizen
knew about the statutory grounds at the time the act was performed. The
performance of the expatriation act with the required intent is enough
to forfeit citizenship. n217
Sometimes, it is difficult for the government to prove the citizen's
intent by a preponderance of the evidence. That difficulty arises partly
from the fact that, unlike the voluntariness of the citizen's acts,
there is no statutory presumption about the citizen's intent. n218
Therefore, in a given case, the government may have no difficulty with
the element of voluntariness but will encounter problems once the
citizen makes intent an issue.
In In re S.A.K. n219 the citizen inquired specifically of the
United States consulate in the Netherlands whether she would be able to
retain her citizenship after her naturalization as a Dutch citizen. A
consular employee advised her that she would have to choose between
United States and Dutch citizenship but told her nothing about the
relevance of her intent not to relinquish her citizenship. n220 The
Board of Appellate Review looked upon the citizen's inquiry at the
consulate as persuasive contemporary evidence of the citizen's lack of
A remarkable feature of this case was that the citizen surrendered
her United States passport, used a Dutch passport with an American visa
and signed a statement acknowledging her awareness that her Dutch
naturalization could result in the loss of her citizenship. n221 The
Board stated that this awareness, without more, could not amount to an
intent to surrender citizenship. n222
Similar doubts about intent also arise if an American citizen is
naturalized in another country without renouncing his American
citizenship. n223 In such a case there is no direct evidence that the
citizen is acting in derogation of his allegiance to the United States.
Dual citizenship does not automatically satisfy the intent requirement
because a citizen may desire the benefits of another citizenship simply
as a matter of convenience rather than as a feature of some singular
allegiance. n224 The absence of a renunciation creates difficulty for
the government, which has the burden of proving the citizen's intent.
Since there seems to be some tolerance for dual citizenship, a citizen
can become naturalized elsewhere and still make it clear that he does
not intend to forfeit his citizenship at home. Therefore, when a
natural-born United States citizen registered as a British citizen by
virtue of her marriage to a citizen of the United Kingdom, she did not
lose her American citizenship. n225 The Board of Appellate Review
overruled the State Department's determination that the citizen intended
to give up her allegiance to the United States. The citizen treated her
registration merely as a recognition of the rights of dual citizenship.
There was no requirement in the British registration process that she
should renounce her American citizenship and she had stated clearly on
the registration form that she was a citizen of the United States. n226
The Board attached significance to the fact that she continued to vote
and work both in the United States and England; thus there was some
external evidence of her intent to preserve American citizenship. n227
There was little similarity between British registration and American
naturalization, for the registration was completed by mail and did not
involve any oath of allegiance to the British Crown. n228 The Board was
convinced, therefore, that when the citizen registered as a British
citizen, she did not have any intention of giving up her other
When foreign naturalization requires the renunciation of all other
allegiances, this will usually be treated as a renunciation of American
citizenship. n229 There is no need for there to be a specific reference
to such citizenship. A general renunciation clause includes renunciation
of the citizen's specific citizenship and the only question is whether
the citizen has formed the specific intent to give up all allegiances.
When a citizen's post-naturalization conduct is ambiguous, the issue
of intent is usually resolved in the citizen's favor. Therefore, it is
not sufficient for the government to show that the citizen did not take
any affirmative steps to indicate an intent to retain citizenship. n230
The citizen's failure in this respect is not probative of his intent to
surrender his citizenship. A citizen must do certain specific acts for
there to be a finding of intent to renounce and this requirement is not
satisfied by his subsequent failure to act. n231 The important question
is whether the citizen has taken steps in derogation of his allegiance
to the United States. Obviously a petitioner who raises the issue of
intent will want to show that his actions did not contain the necessary
ingredients. Thus, in one case, the petitioner tried to show negative
intent by arguing that he did not join in the oath of allegiance at the
formal naturalization ceremony. n232 The Board looked to the substance
of the matter and held that the petitioner's presence at, and
participation in, the ceremony reflected his acquiescence to the oath of
allegiance and renunciation. n233 The Board found that the petitioner
understood the terms and conditions of his foreign naturalization and
his alleged silence at the ceremony did not weaken his intent to
A similar result would follow if a petitioner takes an oath of
allegiance to a foreign power at a naturalization ceremony without
renouncing other allegiances, but signs an application for such
naturalization that contains a renunciation. n235 The petitioner's
intent can be gleaned, therefore, from the entire procedure and the
petitioner will find it difficult to support his position that he was
unaware of the renunciation clause. The Board will look to see whether
the petitioner acted knowingly.
Expatriation may occur even in the absence of a formal renunciation.
In In re M.S.B. n236 an American citizen was naturalized as a
Swiss citizen and signed a declaration that he did not intend to keep
his American citizenship and that he would renounce such citizenship, if
necessary. The Board found that the appellant's intent should be
determined by his conduct at the time of the expatriating act rather
than by the appellant's expressions some years after. n237 The
naturalization questionnaire reflected the appellant's desire to treat
Switzerland as his home and his declaration that he would renounce his
citizenship, if necessary, convinced the Board that the appellant had
assented to his loss of citizenship. n238 This was confirmed when the
appellant obtained a visitor's visa for the United States with his Swiss
passport. Thus, even though there was no formal renunciation, the Board
was still convinced of the appellant's loss of citizenship.
Quite often the Board has justified its recognition of a person's
expatriation by emphasizing the person's failure to provide evidence of
his intent to retain his citizenship at the time of the expatriating
act. This does not mean that the Board will readily accept the
appellant's version of the events. In In re Kahane, n239 the
appellant took a position in the Israeli Parliament after advising the
State Department that he did not intend to relinquish his citizenship.
n240 The appellant, a rabbi, also maintained a residence in the United
States, paid income taxes and spent at least four months a year here.
The Board looked beyond the appellant's mere words to determine his true
intent; it compared his words and conduct with his active involvement in
Israeli parliamentary affairs and found that the latter was inconsistent
with retention of United States citizenship. n241 The Board saw a
distinction between voting and serving in the legislature and was not
persuaded that the Afroyim doctrine, which held voting to be
insufficient evidence of intent to relinquish citizenship, should be
applied to legislative service. n242
Despite its pretense of not being bothered by its previous decision
in In re M.F., n243 which involved a citizen's legislative
service in Israel, the Board justified its Kahane position by
documenting the rabbi's extended involvement in the political life of
the country. In In re M.F., the citizen did not exhibit as much
energy as Rabbi Kahane and did not seem as thoroughly devoted to her
legislative agenda. n244 Her activity was not enough to relinquish her
American citizenship. On the other hand, in Kahane the Board did
not believe that it was dealing with mere service in the Knesset but
rather with service and involvement that "transcend[ed] mere
empathy and a disposition to support a friendly foreign state."
n245 However, it is unclear why the Board had to go to such alarming
lengths to carve out a distinction if it thought that "serving in
the legislature of a foreign state, friendly or not, is on its face
inconsistent with an intent to retain United States citizenship."
n246 The Board offered no evidence that there would be an inevitable
clash of loyalties here and it would have been much more palatable for
all if the Board had specified the acts that led it to that conclusion.
The Board's emphasis seemed to be on Kahane's thoughts rather than his
conduct. It searched Kahane's speeches and writings for evidence of a
transfer of allegiance, n247 instead of ascertaining Kahane's intent to
give up his citizenship.
It was no surprise, therefore, when the district court in Kahane
v. Shultz n248 granted Mr. Kahane's motion for summary judgment on
appeal. After all, the Board had already acknowledged in In re M.F.
that there was no inherent inconsistency in retaining American
citizenship while serving in the Knesset. The issue of inherent
inconsistency had also surfaced in Richards v. Secretary of State
n249 where the Ninth Circuit suggested that some acts might be so
inherently inconsistent with citizenship that intent to give up
citizenship might be inferred. n250 This formulation did not lead the Kahane
court astray for the court recognized the Terrazas prescription
of intent as a necessary part of the equation. n251 The court was not
prepared to accept Kahane's loss of citizenship as a necessary
consequence of his act. But even if it was prepared to entertain the
concept that citizenship could be lost because of the inherent nature of
the act, that would not have helped the government's case in Kahane.
The government had hardly showed the incompatibility of American
citizenship and Knesset membership. n252
Having decided that there was no inherent inconsistency between
Kahane's service in the legislature and his American citizenship, the
court looked to Kahane's intent at the time of the expatriating act. The
court thought that his conduct before and after the act was probative of
that intent. n253 Kahane was on solid ground here for he had long
indicated to the government his intent to retain his American
citizenship. n254 He knew that giving up this citizenship would make it
difficult for him to go back and forth between Israel and the United
States. This was a little unsettling to the government which believed
that Kahane was using his citizenship as a mere convenience, while his
true allegiance lay with Israel. n255 The court stated that Kahane's
motive for retaining his citizenship should not be confused with his
intent. n256 The Afroyim and Terrazas courts had settled
the point that there was no difference whether intent arose out of
hypocrisy or altruism. n257 Obviously the government was confused by
Kahane's observations that no one should have dual citizenship.
IMMIGRATION AND NATIONALITY ACT AMENDMENTS OF 1986
Since the Supreme Court spoke some time ago on the requirements for
loss of citizenship, n258 one would have expected some congressional
action on the expatriation statute. That time finally arrived when
Congress passed the Immigration and Nationality Act Amendments of 1986.
Among the provisions affected was the section dealing with loss of
citizenship. The statute now makes explicit what the Supreme Court has
said in Afroyim and Terrazas. A citizen must act
voluntarily and intentionally in giving up his citizenship. The statute
now states that a person shall lose his nationality by "voluntarily
performing any of the [statutory] acts with the intention of
relinquishing United States nationality." n260
The amendments go further. Previously, a person would not lose his
citizenship through any action taken by his parents while he was under
twenty-one, unless that person failed to establish permanent residence
in the United States before twenty-five years of age. n261 Under the
amendments, a person of at least eighteen years of age who obtains
foreign naturalization either on his own or through an agent will lose
his citizenship once voluntariness and intent are present. n262 This is
an improvement over the previous language which left in limbo the status
of a citizen whose naturalization took place while he was under the age
of twenty-one. The present language is clear and precise and sets the
age of eighteen years as the demarcation line for loss of citizenship
through foreign naturalization, without any provisos.
The amendments take the same approach in the case of loss of
citizenship by a declaration of allegiance to a foreign state. The loss
occurs if the person is at least eighteen years when he declares his
allegiance to the foreign power. n263 Under the prior approach, a
citizen who declared his foreign allegiance while under eighteen could
still later assert his claim to United States citizenship within six
months after he reached eighteen. n264
Service in the armed services of a foreign country has sometimes
proved troublesome and the amendments now provide for loss of
citizenship only if the foreign country is at war with the United States
or the person is serving as a commissioned or non-commissioned officer.
n265 This section takes a realistic approach to the problems of dual
nationals. There is no age requirement for this provision to be
effective but the citizen can still retrieve his status by asserting a
claim to United States citizenship within six months after reaching
eighteen. n266 The same opportunity is available for the citizen to
assert his claim if he renounces his citizenship while he is under
eighteen. n267 The underlying rationale is that the citizen should be
given the opportunity to declare this position once he has reached the
age of maturity. One need only look to the case of In re H.H.L.
n268 to realize the implications of renunciation at a tender age and the
preservation of this right to assert a claim at a later date seems to be
in tune with the concept that renunciation is a serious step.
A citizen used to be afforded a second chance if he took a government
position in his former homeland or took any foreign government position
which required an oath of allegiance. n269 The amendments now prescribe
a loss of citizenship if a citizen is at least eighteen when he takes
the job and there is no mechanism for asserting a later claim to
A provision was repealed n271 which provided a conclusive presumption
of voluntariness about an expatriating act performed by a person who was
physically present in his homeland for ten years. n272 The legislators
realized that there was no sound basis for this conclusive presumption.
The citizen is now relieved from having to counteract a fiction that his
physical presence for ten years within his former homeland constituted
some magical formulation of voluntariness. n273 The removal of the
section is more in line with the concept that the citizen can rebut the
presumption of voluntariness and that concept continues with the
retention of section 349(c).
There is little doubt that the concept of expatriation has undergone
some changes over the years. There has been a gradual shift from the
government's power of denationalization to the citizen's right of
expatriation. No longer is it enough for the citizen to do a prescribed
act. There must be a finding of intent. However, there is still a
lingering doubt about the quality of citizenship.
The Bellei Court neither affirmed nor overruled the Afroyim
decision, thus leaving in doubt the extent of congressional power to
expatriate. There was a short-lived enthusiasm over the seemingly safe
status of citizenship. The Court obviously thought that it had exceeded
its own requirements in creating an absolute protection for citizenship
and so retreated behind the fourteenth amendment in Bellei. n274
The Court could have avoided such a narrow interpretation by
distinguishing Afroyim as preventing Congress from taking away
citizenship that was granted unconditionally. n275 In this way Bellei's
citizenship could be reasonably categorized as conditional because it
was subject in the first place to a condition subsequent. n276 By
failing to distinguish between expatriation cases and the use of
conditions subsequent, the Court gave no guidance on congressional power
to create a condition subsequent for fourteenth-amendment citizens. n277
The Court could have taken another route to avoid its narrow
categorization. The concept of fourteenth amendment citizenship denotes
that expatriation results from the individual's decision. The issue in Bellei
was whether Congress could impute expatriation to a citizen who decided
not to live in the United States for a substantial period. The Court
could have distinguished that situation from one like Afroyim
where the individual became a naturalized citizen and merely voted in a
foreign election. The two cases might be distinguished by the level of
commitment to the citizenship which the individuals claimed. n278 In Bellei
the individual did not take sufficient action to affirm his citizenship,
whereas in Afroyim he did so. Thus the Court could have examined
these different levels of commitment to reach a standard of review that
would have avoided the problem. n279
Although the Court has prescribed the element of intent for
expatriation to occur, the difficulty arises in ascertaining when that
requirement is met. The individual's problem lies in trying to take
advantage of other opportunities, while at the same time maintaining
enough contacts with the United States and avoiding the renunciation of
his current citizenship. If he can avoid renunciation and indicate a
contemporaneous intent to keep his United States citizenship, then the
citizen will have a greater chance of prevailing.
The constitutional requirements for expatriation have proved
difficult for the government. There must be proof that the individual
took a conscious step to forfeit his citizenship rather than an
indication that he believed his citizenship to be in danger. The Board
of Appellate Review has tended to assess a person's actions in light of
the demands of a shrinking world and it does not regard dual loyalties
as an automatic indicator of intent. n280 The recent amendments to the
Act have clarified the expatriation provisions, n281 by codifying the
Supreme Court's pronouncements in this area.
n1. Perez v. Brownell, 356 U.S. 44, 64 (1958) (Warren, C.J.,
dissenting) (emphasis in original).
n2. The Constitution grants Congress the power to "establish an
uniform Rule of Naturalization . . . throughout the United States."
U.S. CONST. art. I, § 8, cl. 4. Denaturalization is a judicial
proceeding that revokes the citizenship of a naturalized citizen on the
ground that such citizenship was obtained illegally, or through
concealment of a material fact or by willful misrepresentation.
Immigration and Nationality Act, § 340, 8 U.S.C. § 1451 (1982 &
Supp. IV 1986).
n3. Expatriation does not involve any judicial process but results
from a citizen's voluntary act in surrendering or abandoning his
citizenship. It is relevant to citizens who acquire citizenship by birth
or naturalization. A citizen automatically loses his citizenship when he
performs any of the acts prescribed by the INA. Immigration and
Naturalization Act, § 349, 8 U.S.C. § 1481 (1982 & Supp. IV 1986).
The citizen's acts will normally come to light when the citizen applies
for a passport or an American consul finds out by some other means. The
consul then sends a questionnaire to the citizen and prepares a
certificate of loss of nationality on the basis of information obtained.
The consul sends the certificate to the United States Department of
State together with supporting documents and his recommendations. The
Department of State makes the final determination. Immigration and
Naturalization Act, § 358, 8 U.S.C. § 1501 (1982); Certification of
Loss of U.S. Nationality 22 C.F.R. § 50.41 (1987).
n4. Immigration and Naturalization Act, § 349(a), 8 U.S.C. §
1481(a) (1982 & Supp. IV 1986) sets out the acts that are regarded
as expatriating. The current version is set out at note 281 infra.
n5. Immigration and Naturalization Act, § 349(a)(1), 8 U.S.C. §
1481(a)(1) (Supp. IV 1986).
n6. Immigration and Naturalization Act, § 349(a)(4)(B), 8 U.S.C. §
1481(a)(4)(B) (Supp. IV 1986).
n7. See, e.g., Expatriation Act of 1907, ch. 2534, 34 Stat.
1228 (1907); Nationality Act of 1940, ch. 876, § 401, 54 Stat. 1168
(1940). Section 401 of the latter Act subsequently became section 349 of
the Immigration and Nationality Act of 1952, ch. 477, 66 Stat. 267
(codified at 8 U.S.C. § 1481 (1982)).
n8. See, e.g., Savorgnan v. United States, 338 U.S. 491
(1950); Mackenzie v. Hare, 239 U.S. 299 (1915).
n9. "All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside." U.S. CONST. amend. XIV, §
1, cl. 1.
n10. See Rogers v. Bellei, 401 U.S. 815 (1971); Afroyim v.
Rusk, 387 U.S. 253 (1967); United States v. Matheson, 532 F.2d 809 (2d
Cir. 1976), cert. denied, 429 U.S. 823 (1976).
n11. Immigration and Naturalization Act, § 104(a)(3), 8 U.S.C. §
1104(a)(3) (1982) provides as follows:
The Secretary of State shall be charged with the administration and
enforcement of the provisions of this Act and all other immigration and
nationality laws relating to. . . . (3) the determination of nationality
of a person not in the United States. . . .
n12. A citizen loses his citizenship automatically by performing an
act of expatriation defined in the statute. Therefore, the Department of
State determines whether the citizen has already lost his citizenship,
not whether he should lose it. A United States consul overseas usually
reports the citizen's expatriation to the Department of State. 22 C.F.R.
§ 50.41 (1987). The consul follows the procedure outlined in the August
27, 1980 airgram which the Department sent to all consuls after the
decision in Vance v. Terrazas, 444 U.S. 252 (1980). The consul
eventually issues a Certificate of Loss of Nationality. See
Immigration and Naturalization Service Interpretation.
n13. See 3 C. GORDON & H. ROSENFIELD, IMMIGRATION LAW AND
PROCEDURE § 20.11b (rev. ed. 1987); Abramson, United States Loss of
Citizenship Law After Terrazas: Decisions of the Board of Appellate
Review, 16 N.Y.U.J. INT'L L. & POL. 829, 843 & n.98 (1984).
n14. The Board of Appellate Review was established in 1967 by merging
the Board of Review on Loss of Nationality and the Board of Passport
Appeals. This merger in effect centralized the appeals process. 3 C.
GORDON & H. ROSENFIELD, supra note 13, § 19.6d. The Board is
an autonomous body which sits as a three-member panel within the
Department of State.
n15. See, e.g., Vance v. Terrazas, 444 U.S. 252 (1980); Rogers
v. Bellei, 401 U.S. 815 (1971); Schneider v. Rusk, 377 U.S. 163 (1964);
Trop v. Dulles, 356 U.S. 86 (1958).
n16. See Vance v. Terrazas, 444 U.S. 252 (1980); Afroyim v.
Rusk, 387 U.S. 253 (1967); Savorgnan v. United States, 338 U.S. 491
n17. The original Constitution mentioned citizenship in four
contexts: eligibility for holding office as representative or senator,
U.S. CONST. art. I, § 2, cl. 2; U.S. CONST. art. I, § 3, cl. 3;
eligibility for president, U.S. CONST. art. II, § 1, cl. 4; application
of judicial power, U.S. CONST. art. III, § 2, cl. 1; privileges and
immunities, U.S. CONST. art. IV, § 2, cl. 1. There was a provision,
however, authorizing Congress "[t]o establish an uniform Rule of
Naturalization." U.S. CONST., art. I, § 8, cl. 4. See
Duvall, Expatriation Under United States Law, Perez to Afroyim: The
Search for a Philosophy of American Citizenship, 56 VA. L. REV. 408
(1970); Schwartz, American Citizenship After Afroyim and Bellei:
Continuing Controversy, 2 HASTINGS CONST. L.Q. 1003 (1975).
n18. See Roche, The Expatriation Cases: "Breathes
There The Man, with Soul So Dead . . .?" 1963 SUP. CT. REV.
325, 329 (1963); Comment, Expatriation -- A Concept in Need of
Clarification, 8 U.C. DAVIS. L. REV. 375, 376 (1975).
n19. Gordon, The Citizen and the State, 53 GEO. L.J., 315, 318
(1965); Roche, supra note 18, at 328.
n20. IX W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 83-84 (1926).
n21. Shanks v. Dupont, 28 U.S. (3 Pet.) 242, 246 (1830); 3 C. GORDON
& H. ROSENFIELD, supra note 13, § 20.7b; Flournoy, Naturalization
and Expatriation, 31 YALE L.J. 702, 709 (1922).
n22. "All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside." U.S. CONST., amend. XIV, §
1, cl. 1.
n23. The first section of the Act read as follows:
All persons born in the United States and not subject to any foreign
power, excluding Indians not taxed, are hereby declared to be citizens
of the United States; and such citizens, of every race and color without
regard to any previous condition of slavery or involuntary servitude,
except as a punishment for crime whereof the party shall have been duly
convicted, shall have the same right, in every state and Territory in
the United States, to make and enforce contracts, to sue, be parties,
and give evidence, to inherit, purchase, lease, sell, hold and convey
real and personal property, and to full and equal benefit of all laws
and proceedings for the security of person and property, as is enjoyed
by white citizens, and shall be subject to like punishment, pains, and
penalties, and to none other, any law, statute, ordinance, regulation,
or custom, to the contrary notwithstanding.
Ch. 31, § 1, 14 Stat. 27 (1866). This was a statutory recognition of
the jus soli doctrine and the statute was intended to protect the
citizenship of the recently freed Negroes. See Duval, supra
note 17, at 412; Gordon, Who Can Be President of the United States:
the Unresolved Enigma, 28 MD. L. REV. 1, 10 (1968). Dred Scott v.
Sanford, 60 U.S. (19 How.) 393 (1856), rejecting blacks as citizens, was
repudiated. See Karst, The Supreme Court, 1976 Term Foreword:
Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV.
1, 14 (1977).
n24. See TSIANG, THE QUESTION OF EXPATRIATION IN AMERICA PRIOR
TO 1907, 85-86 (1942); Gordon, supra note 19, at 318.
n25. See Murray v. The Schooner Charming Betsy, 6 U.S. (2
Cranch) 64 (1804); Talbot v. Janson, 3 U.S. (3 Dall.) 133 (1795).
n26. The Santissima Trinidad, 20 U.S. (7 Wheat.) 283 (1822).
n27. Id. at 347. The court said as follows: "Assuming,
for the purposes of argument, that an American citizen may,
independently of any legislative act to this effect, throw off his own
allegiance to his native country, as to which we give no opinion . .
n28. Shanks v. Dupont, 28 U.S. (3 Pet.) 242 (1830).
n29. Id. a 246.
n30. See TSIANG, supra note 24, at 28-29; Gordon, supra
note 19, at 319.
n31. Act of July 27, 1868, ch. 249, 15 Stat. 223.
n32. Preamble to Act of July 27, 1868, ch. 249, 15 Stat. 223. There
was language in the Act of March 3, 1865, ch. 79, § 21, 13 Stat. 490
(1868), which provided that deserters and draft evaders "shall be
deemed and taken to have voluntarily relinquished and forfeited their
rights of citizenship and their rights to become citizens. . . ."
n33. Act of July 27, 1868, ch. 249, § 2, 15 Stat. 223.
n34. C. GORDON & H. ROSENFIELD, supra note 13, § 20.7b.
n35. Id.; Duvall, supra note 17, at 413.
n36. 14 Op. Att'y Gen. 295, 296 (1873).
n37. Convention with Great Britain on Naturalization, May 13, 1870,
art. I, 16 Stat. 775, T.S. No. 130; Convention with Sweden and Norway on
Naturalization, May 26, 1869, art. I, 17 Stat. 809, T.S. No. 350; Treaty
with the King of Prussia, Feb. 22, 1868, art. I, 15 Stat. 615, T.S. No.
n38. The Expatriation Act of 1907, ch. 2534, 34 Stat. 1228 (1907).
The Act was largely a codification of prior administrative practice. See
Developments in the Law-Immigration and Nationality, 66 HARV. L.
REV. 643, 732 (1953).
n39. The Expatriation Act of 1907, ch. 2534, § 2, 34 Stat. 1228.
Section 3 of the Act provided that an American woman would be
expatriated if she married a foreigner. Id. § 3. This seemed to
be a deviation from the concept of voluntary expatriation but the
Supreme Court held in Mackenzie v. Hare, 239 U.S. 299 (1915), that the
expatriation resulted from the voluntary act of marriage and the legal
consequences arising therefrom.
n40. Duvall, supra note 17, at 414.
n41. 3 C. GORDON & H. ROSENFIELD, supra note 13, § 20.7b;
Comment, Limiting Congressional Denationalization After Afroyim,
17 SAN DIEGO L. REV. 121, 131 (1979); Comment, supra note 18, at
n42. Comment, Limiting Congressional Denationalization, After
Afroyim, 17 SAN DIEGO L. REV., at 131; Comment, supra note
18, at 377.
n43. Mackenzie v. Hare, 239 U.S. 299 (1915).
n44. Act of March 2, 1907, § 3, 34 Stat. 1228. Act of Sept. 22,
1922, ch. 411, § 3, 42 Stat. 1022 and the Act of March 3, 1931, ch.
442, § 4(a), 46 Stat. 1511, removed marriage to a foreigner as an act
n45. Mackenzie, 239 U.S. at 311-12.
n47. Id. As a matter of fact, referring to Mrs. Mackenzie, the
Supreme Court later acknowledged that "(t)he woman had not intended
to give up her American citizenship." Savorgnan v. United States,
338 U.S. 491, 501 (1950). Section 3 of the Act of 1907 provided that
"any American woman who marries a foreigner shall take the
nationality of her husband." This was interpreted as loss of
American citizenship through marriage, although the United States
obviously couldn't confer the husband's nationality on the American
wife. See Roche, The Loss of American Nationality -- The
Development of Statutory Expatriatioon, 99 U. PA. L. REV. 25, 44
n48. Nationality Act, ch. 876, 54 Stat. 1137 (1940).
n49. Nationality Act, ch. 876, § 401(a), 54 Stat. 1137, 1168 (1960).
n50. Id. at § 401(d).
n51. Id. at § 401(e).
n52. Id. at § 401(c).
n53. Id. at § 401(g).
n54. Id. at § 401(h).
n55. Id. at § 402.
n56. Section 401 of the Nationality Act of 1940 (codified as § 349
of the Immigration and Nationality Act of 1952, ch. 477, 66 Stat. 163,
267) (current version at 8 U.S.C. § 1481 (1982 & Supp. IV 1986).
(The Expatriation Act of 1954, Ch. 1256, 68 Stat. 1146, added as
additional grounds for loss of citizenship, conviction under the Smith
n57. The loss of citizenship has been traditionally categorized as
expatriation. However, a distinction can be drawn between true
expatriation involving a voluntary surrender of citizenship and
denationalization pursuant to statute without any concern for the
citizen's wishes. See Gordon, supra note 19, at 316.
Expatriation has been described as "the voluntary renunciation or
abandonment of nationality and allegiance." Perkins v. Elg, 307
U.S. 325, 334 (1939). It has also been said that "Congress decided
that certain activities were inconsistent with the national interest and
prescribed denationalization as the penalty for engaging in such
activities. Schwartz, supra note 17, at 1005.
n58. Preamble to the Act of July 27, 1868, Ch. 249, 15 Stat. 223. The
arrest in Ireland of naturalized citizens of British origin proved to be
the last straw. The Act was passed soon thereafter. E. BORCHARD, THE
DIPLOMATIC PROTECTION OF CITIZENS ABROAD 676 (1915). Although the
statute's primary objective was to protect naturalized citizens, it was
the Attorney General's view that the statute recognized the rights of
all Americans to expatriation. 14 Op. Att'y Gen. 295, 296 (1873).
n59. Savorgnan, 338 U.S. at 491.
n60. The Nationality Act of 1940, ch. 876, § 401, 54 Stat. 1137,
1168 (1940). The Act came about as a result of a recommendation of a
Cabinet committee composed of the Secretary of State, the Attorney
General and the Secretary of Labor; NATIONALITY LAWS OF THE UNITED
STATES: REVISION AND CODIFICATION OF THE NATIONALITY LAWS OF THE UNITED
STATES. House Committee Print, 76th Cong., 1st Sess. (1939).
n61. Savorgnan, 338 U.S. at 499.
n62. Id. at 502.
n63. The Court did not think that subjective intent was material to
the issue of expatriation. As matter of fact the Court conceded that the
petitioner in Mackenzie had not intended to give up her American
citizenship but her expatriation was upheld. Id. at 500-02 &
n.17. See also Hurst, Can Congress Take Away Citizenship,
29 ROCKY MTN. L. REV. 62, 73 (1956).
n64. Savorgnan, 338 U.S. at 499, 502.
n65. See Hurst, supra note 63, at 80. Although the
Court said that a citizen could not be expatriated without her
concurrence, it still held for expatriation in Mackenzie. In so
doing the Court treated the citizen's marriage to a foreigner as an
irrebuttable presumption of expatriation.
n66. Perez, 356 U.S. at 44.
n67. The Court construed section 401(e) of the Nationality Act of
1940, which read as follows:
A person who is a national of the United States, whether by birth or
naturalization, shall lose his nationality by:
* * * * (e) Voting in a political election in a foreign state or
participating in an election or plebiscite to determine the sovereignty
over foreign territory;
ch. 876, § 401(e), 54 Stat. 1169. (This section was deleted in 1978.
Pub. L. 95-432, § 2, 4, 92 Stat. 1046.)
n68. The Court, relying on Mackenzie, 239 U.S. at 299 and Savorgnan,
338 U.S. at 491, said as follows: "Those two cases mean nothing --
indeed, they are deceptive -- if their essential significance is not
rejection of the notion that the power of Congress to terminate
citizenship depends upon the citizen's assent." Perez, 356
U.S. at 61.
n69. The Court saw this possibility as a fiction -- "a fiction
baseless in law and contradicted by the facts of the cases." Perez,
356 U.S. at 62.
n70. The Court seemed to make the point that the government had the
right to take the person's citizenship regardless of the person's
intentions. Justice Frankfurter put it this way: "But it would be a
mockery of this Court's decisions to suggest that a person, in order to
lose his citizenship, must intend or desire to do so." Id.
at 61. In this context, expatriation represents the voluntary act of the
individual while denationalization represents governmental action in
taking away a person's citizenship. However, they both have come to
denote a person's loss of citizenship. See Abramson, supra
note 13, at 831.
n71. Perez, 356 U.S. at 78 (Warren, C.J. dissenting). The
Chief Justice's view was inconsistent with the notion that congress had
the sovereign power to take away citizenship. Justice Douglas also
dissented and denied that there was any such congressional power.
What the Constitution grants the Constitution can take away. But
there is not a word in that document that covers expatriation. The
numerous legislative powers granted by Art. I, § 8, do not mention it.
I do not know of any legislative power large enough to modify or wipe
out rights granted or created by § 1, cl. 1, of the [f]ourteenth
Id. at 79 (Douglas, J., dissenting).
n72. Id. at 78.
n73. The Court relied on the necessary and proper clause of the
Constitution to justify the congressional act of taking away the
citizenship of the citizen who voted in a foreign election. The means,
withdrawal of citizenship, was reasonably calculated to achieve the end,
avoidance of embarrassment in foreign relations. The problem of
embarrassment could be terminated by terminating the voter's
citizenship. Id. at 60. This broad approach seemed to be
inconsistent with the idea that our government is one of enumerated
powers. Thus, there was little basis for the Court to infer the
congressional power of terminating citizenship from the express powers. See
Boudin, Involuntary Loss of American Nationality, 73 HARV. L.
REV. 1510, 1525 (1960).
n74. Perez, 356 U.S. at 77 (Warren, C.J., dissenting). The
Chief Justice referred to the decision of a former attorney general that
a citizen had lost her citizenship by voting in an election in a
Canadian town on whether beer and wine should be sold. Id.
(citing In the Matter of F , 2 I. & N. Dec. 427).
There was little in that case to suggest that the citizen had
compromised her allegiance.
n75. The Court made its point that "Congress can attach loss of
citizenship only as a consequence of conduct engaged in
voluntarily." Id. at 61. But it went on: "But it would
be a mockery of this Court's decisions to suggest that a person, in
order to lose his citizenship, must intend or desire to do so." Id.
n76. Id. at 68 (Warren, C.J., dissenting).
n77. Id. at 69.
n78. Id. at 77 (citing Aylsworth, The Passing of Alien
Suffrage, 25 AM. POL. SCI. REV. 114).
n79. Trop v. Dulles, 356 U.S. 86 (1958). The other decision decided
with Trop and Perez was Nishikawa v. Dulles, 356 U.S. 129
(1958). (The Court found that the citizen's service in the Japanese army
was not voluntary and therefore the petitioner did not lose his
n80. Id. at 92.
n82. Id. at 101.
n83. Id. at 102.
n84. Id. at 105.
n85. Id. at 112.
n86. Id. at 113.
n88. Id. at 124 (Frankfurter, J., dissenting).
n89. See Roche, supra note 18, at 345. In Professor
Roche's view, the issue of punishment should have been immaterial to
Justice Frankfurter if he had persisted in a Perez-type argument
that there was a rational relation between the threat of expatriation
n90. Trop, 356 U.S. at 126 (Frankfurter, J., dissenting)
(citing Mackenzie, 239 U.S. at 299, Savorgnan, 338 U.S. at
n91. Trop, 356 U.S. at 126.
n92. Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). The Court held
unconstitutional section 401(j) of the Nationality Act of 1940 and its
successor provision, section 349(a)(10) of the Immigration and
Nationality Act of 1952, which divested an American of citizenship for
"departing from or remaining outside of the jurisdiction of the
United States in time of war or during a period declared by the
President to be a period of national emergency for the purpose of
evading or avoiding training and service in the military." Kennedy,
372 U.S. at 147.
n93. Kennedy, 372 U.S. at 215 (Stewart, J., dissenting).
n94. Id. at 167. With respect to the fifth amendment, the
Court said that "the great powers of Congress to conduct war and to
regulate the Nation's foreign relations are subject to the
constitutional requirements of due process." Id. at 164. As
to the sixth amendment, "punishment cannot be imposed without a
prior criminal trial and all its incidents." Id. at 168.
n95. Four Justices felt that the statutory objective was
unconstitutional (Black, Douglas, Brennan, Warren). Justice Goldberg
obviously thought it was penal but seemed disposed to uphold it if there
were sufficient procedural safeguards. See Roche, supra
note 18, at 352.
n96. Schneider v. Rusk, 377 U.S. 163 (1964).
n97. Id. at 166. The court did not become entangled in the
power issue because it found that the statute violated due process.
n98. Immigration Naturalization Act, § 352(a)(1), 8 U.S.C. §
(a) A person who has become a national by naturalization shall lose
his nationality by -- (1) having a continuous residence for three years
in the territory of a foreign state of which he was formerly a national
or in which the place of his birth is situated, except as provided in
section 353 of this title, whether such residence commenced before or
after the effective date of this Act. * * * *
Congress repealed section 352 in 1978. Pub. L. No. 95-1432, § 2, 92
Stat. 1046 (1978).
n99. Schneider, 377 U.S. at 168.
n100. See, e.g., Klapprott v. United States, 335 U.S. 601
(1949); Knauer v. United States, 328 U.S. 654 (1946); Baumgartner v.
United States, 322 U.S. 665 (1944).
n101. Justice Clark articulated the issue well in his dissent:
"As the history shows, the naturalized citizen who returns to his
homeland is often the cause of the difficulties." Schneider,
377 U.S. at 176. But his real objection lay in these words:
Here appellant has been away from the country for 10 years, has
married a foreign citizen, has continuously lived with him in her native
land for eight years, has borne four sons who are German nationals, and
admits that she has no intention to return to this country. She wishes
to retain her citizenship on a standby basis for her own benefit in the
event of trouble.
Id. at 178.
n102. Afroyim v. Rusk, 387 U.S. 253 (1967).
n103. In 1951, Afroyim had voted in an election in Israel. In 1960
his application for passport renewal was denied on the ground that he
had lost his citizenship by virtue of section 401(e) of the Nationality
Act of 1940, Ch. 876, § 401(e), 54 Stat. 1137, which provided that a
person would lose his citizenship by voting in a foreign election.
n104. Afroyim, 387 U.S. at 262.
n105. U.S. CONST. amend. XIV, § 1.
n106. The majority created some ambiguity in its holding. It stated
that the fourteenth amendment protected every citizen from a
"congressional forcible destruction of his citizenship" and
that a person should remain a citizen unless he voluntarily relinquished
his citizenship. 387 U.S. at 268. This seemed to incorporate Chief
Justice Warren's approach in Perez. The Chief Justice's concern
was that Congress' classification was so broad that it included conduct
which did not evidence a voluntary abandonment of citizenship. 356 U.S.
at 76. The Afroyim majority could have given better guidelines
for determining voluntariness. Justice Harlan accused the majority of
giving voluntariness a fixed meaning. 387 U.S. at 269 & n.1. One
could not really tell if the majority was referring to a specific intent
to renounce or to the commission of an act in derogation of undivided
n107. See Karst, supra note 23, at 17; The Supreme
Court, 1966 Term, 81 HARV. L. REV. 69, 135 (1967).
n108. U.S. CONST. art. I, § 8.
n109. See Boudin, supra note 73, at 1528. In Afroyim
the majority agreed with the dissent of Chief Justice Warren in Perez
that the fourteenth amendment could not be undercut by statute. It found
support too in the court's dictum in United States v. Wong Kim Ark, 169
U.S. 649 (1898) that Congress could do nothing to abridge or affect
citizenship granted by the fourteenth amendment. Afroyim, 387
U.S. at 266. Some authors have even regarded the Court's language in Wong
Kim Ark to be the holding. See Hurst, supra note 63,
at 78-79; Comment, Constitutional Law -- Citizenship -- Power of
Congress to Effect Involuntary Expatriation, 56 MICH. L. REV. 1142,
n110. See Hurst, supra note 63, at 77-78. The
Constitution grants Congress the power to intervene in other areas. For
example in fixing the jurisdiction of the Supreme Court, it prescribes
In all cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be a Party, the Supreme Court
shall have original jurisdiction. In all other cases before mentioned,
the Supreme Court shall have appellate Jurisdiction, both as to Law and
Fact, with such Exceptions, and under such Regulations as the congress
U.S. CONST. art. III, § 2 cl. 2.
n111. Afroyim, 387 U.S. at 268.
n112. United States v. Wong Kim Ark, 169 U.S. 649 (1898).
n113. The passage of the fourteenth amendment raised two basic issues
about congressional power over citizenship. In following Wong Kim
Ark, one would have to say that the amendment did not impliedly
allow Congress to take away citizenship and secondly, that it impliedly
prevented Congress from taking away citizenship through the exercise of
other powers. See Wong Kim Ark, 169 U.S. at 703.
n114. Afroyim, 387 U.S. at 267.
n115. Id. at 268.
n116. Id. at 279.
n117. Act of March 3, 1865, § 21, 13 Stat. 487, 490 (1865).
n118. The Wade-Davis bill never became law because President Lincoln
did not sign it before Congress adjourned. Afroyim, 387 U.S. at
279-80. However, it evidenced congressional thinking in 1864, which was
not too long before the amendment cleared Congress in 1866. See
Roche, supra note 18, at 343 & n.76.
n119. For example, Justice Black quoted Senator Howard to support his
thesis that the amendment put the question of citizenship beyond
legislative power. Afroyim, 387 U.S. at 263. But Senator Howard
also said that a citizen could lose his citizenship "by
expatriation or [upon] the commission of some crime by which his
citizenship shall be forfeited." Cong. Globe, 39th Cong., 1st
Sess., 2895 (1866). See also The Supreme Court, 1966 Term, 81
HARV. L. REV. 69, 135 (1867).
n120. Rogers v. Bellei, 401 U.S. 815 (1971).
n121. Immigration Naturalization Act, ch. 477, § 301(a), 66 Stat.
235 (amending Act of May 24, 1934, 48 Stat. 797).
n122. Id. The law mandated loss of citizenship in his case
because he did not reside in the United States for at least 5 years
prior to age of twenty-eight. The conditions subsequent were deleted in
1978. Act of October 10, 1978, Pub. L. No. 95-432, 92 Stat. 1046.
n123. Bellei, 401 U.S. at 827.
n124. In formulating the problem, the Court said of Mr. Bellei:
"He was not born in the United States. He was not naturalized in
the United States. And he has not been subject to the jurisdiction of
the United States." This left the matter unclear concerning Mr.
Bellei's failure to qualify for protection. See Hertz, Limits
to the Naturalization Power, 64 GEO. L.J. 1007, 1034 (1976); The
Supreme Court, 1970 Term, 85 HARV. L. REV. 3, 66 (1971).
n125. The question would be whether all persons who obtained
citizenship other than by birth should be regarded as naturalized
citizens and whether these are the only two categories, constitutionally
speaking. See Wong Kim Ark, 169 U.S. at 702 (fourteenth amendment
contemplates "two sources of citizenship, and two only: birth and
naturalization."); Elk v. Wilkins, 112 U.S. 94, 101 (1884)
(distinction exists between citizenship by birth and citizenship by
n126. Weedin v. Chin Bow, 274 U.S. 657, 660 (1927); Wong Kim Ark,
169 U.S. at 649.
n127. W. BLACKSTONE, COMMENTARIES 154 (Gavit ed. 1941); IX W.
HOLDSWORTH, supra note 20 at 74-89.
n128. Act of March 26, 1790, ch. 3, 1 Stat. 103, 104.
n130. See 2 A. SUTHERLAND, STATUTORY CONSTRUCTION § 47.03
(4th ed. 1984); E. CRAWFORD, CONSTRUCTION OF STATUTES § 87 (1940).
n131. See Gordon, supra note 23, at 10. In addition to
the 1790 statute, Congress passed three other pre-Civil War statutes
which granted citizenship to children born abroad of American citizens.
Act of Jan. 29, 1795, ch. 20, § 3, 1 Stat. 415; Act of April 14, 1802,
ch. 28, § 4, 2 Stat. 155; Act of Feb. 10, 1855, ch. 71, 10 Stat. 604.
They contained the language "born out of the limits and
jurisdiction of the United States." It is reasonable to assume that
if Congress wanted to include foreign-born derivative citizens like Mr.
Bellei within the amendment's coverage, it knew how to use the language
to accomplish that objective. See Note, Citizenship --
Statutory Citizenship Subject to Congressional "Condition
Subsequent" -- Foreign-Born National not Protected by Fourteenth
Amendment Citizenship Clause, 13 HARV. INT. L.J. 151, 156 (1972).
The Cabinet Committee which proposed the statutory definition of
naturalization in the Nationality Act of 1940 took note of the fact that
the framers of the Constitution might have intended a broader definition
of naturalization which would include citizenship by birth abroad.
NATIONALITY LAWS OF THE UNITED STATES, supra note 60, at 3-4.
n132. Wong Kim Ark, 169 U.S. at 649.
n133. Id. at 702.
n134. Id. at 688. The Court found some support in previous
dicta. See Elk, 112 U.S. at 101; Minor v. Happersett, 88 U.S. (21
Wall) 162, 167-69 (1874).
n135. Wong Kim Ark, 169 U.S. at 703.
n136. Id. at 693. The court also excluded "children of
members of the Indian tribes owing direct allegiance to their several
tribes." Id.; see also Gordon, supra note 23, at 17.
n137. Act of May 24, 1934, ch. 344, § 1993, 48 Stat. 797. As a
matter of fact in two cases decided under the 1934 Act, the courts
rejected contentions that citizens who obtained derivative citizenship
through birth abroad were natural-born but instead treated such citizens
as naturalized. See Zimmer v. Acheson, 191 F.2d 209, 211 (10th
Cir. 1951); Schaufus v. Attorney General, 45 F. Supp. 61, 66 (D. Md.
1942). See also Hertz, supra note 124, at 1034 &
n138. See The Supreme Court, supra note 124 at 67; Hertz, supra
note 124, at 1035.
n139. Bellei, 401 U.S. at 841 (Black, J., dissenting); Id.
at 845 (Brennan, J., dissenting).
n140. See Hertz, supra note 124, at 1037.
n141. Bellei, 401 U.S. at 827 (emphasis added).
n142. Id. at 843.
n143. Id. Justice Black argued that the word "in" as
it appeared in the phrase "in the United States" was used in
two different senses. Id.
n144. Act of Jan. 29, 1795, ch. 20, § 3, 1 Stat. 415; Act of April
14, 1802, ch. 28, § 4, 2 Stat. 155; Act of Feb. 10, 1855, ch. 71, 10
n145. See Note, supra note 131, at 156.
n146. Bellei, 401 U.S. at 841.
n147. See The Supreme Court, supra note 124 at 67. There
seemed to be little doubt that soon after the adoption of the fourteenth
amendment the Court itself recognized that a person like Mr. Bellei,
born outside the United States, would be a naturalized citizen. See
Wong Kim Ark, 169 U.S. at 702-03. It was not until the Nationality
Act of 1940 that naturalization was defined as citizenship conferred
after birth. However, the Committee which recommended that definition
did not view this definition as precluding citizenship obtained through
birth abroad. See NATIONALITY LAWS OF THE UNITED SATES, supra
note 60, at 3.
n148. Wong Kim Ark, 169 U.S. at 688.
n149. See Comment, Expatriation: Constitution and
Non-Constitutional Citizenship, 60 CALIF. L. REV. 1587, 1603 (1972).
n150. H. FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT 88 (1908);
88 CONG. GLOBE; 39th Cong., 1st Sess. 2545 (1866).
n151. Afroyim, 387 U.S. at 268.
n152. Bellei, 401 U.S. at 843.
n153. Id. at 837. Justice Brennan, joined by Justice Douglas,
said very much the same thing in a separate dissent: "Congress was
therefore powerless to strip Bellei of his citizenship he could lose it
only if he voluntarily renounced or relinquished it." Id. at
n154. The Afroyim Court seemed definite and confident enough
in its holding that "the Fourteenth Amendment was designed to, and
does, protect every citizen of this Nation against a
congressional forcible destruction of his citizenship, whatever his
creed, color, or race. Afroyim, 387 U.S. at 268 (emphasis
supplied). The Bellei Court must have interpreted that to mean
the protection of every citizen who qualified as a
"fourteenth-amendment first-sentence citizen." Bellei,
401 U.S. at 827.
n155. Had the court wished to avoid this dilemma, it could have
distinguished Afroyim by confining that decision to situations
where there was an unconditional grant of citizenship. This would have
allowed the Court to treat Bellei differently since his citizenship was
originally conditional. Bellei, 401 U.S. at 839 (Black, J.,
dissenting); see also Schwartz, supra note 17, at 1027; see
The Supreme Court, supra note 124 at 73.
n156. Afroyim, 387 U.S. at 257.
n157. Vance v. Terrazas, 444 U.S. 252 (1980).
n158. Id. at 256-57.
n159. Id. at 256.
n160. Id. at 262.
n161. Id. at 260. In Perez Chief Justice Warren had
urged in his dissent that expatriation could occur through conduct that
was contrary to the citizen's undivided allegiance. Perez, 356
U.S. at 68. In Terrazas the government wanted the Court to
interpret this to mean that the person's intent was therefore not
important. Terrazas, 444 U.S. at 261. But the Court regarded the
Chief Justice's position as simply recognizing that the government could
accept the "inevitable consequence of the citizen's own voluntary
surrender of his citizenship." Terrazas, 444 U.S. at 261.
n162. Terrazas, 444 U.S. at 260-61.
n164. Similar language was used on other occasions. Perez v.
Brownell, 356 U.S. at 78 (Douglas, J., dissenting); Kennedy v.
Mendoza-Martinez, 372 U.S. at 19 n.11; Nishikawa v. Dulles, 356 U.S.
129, 139 (1958) (Black, J., concurring).
n165. Nishikama, 356 U.S. at 129 (1958); Mandoli v. Acheson,
344 U.S. 133 (1952); Perkins v. Elg, 307 U.S. 325 (1939).
n166. Mackenzie, 239 U.S. at 299; Perez, 356 U.S. at
n167. Stipa v. Dulles, 233 F.2d 551 (3d Cir. 1956); Acheson v.
Maenza, 202 F.2d 453, (D.C. Cir. 1953); Insogna v. Dulles, 116 F. Supp.
473 (D.D.C. 1953).
n168. Stipa, 233 F.2d at 554.
n169. Insogna, 116 F. Supp. at 475.
n170. Richards v. Secretary of State, 752 F.2d 1413, 1419 (9th Cir.
n171. Id. at 1420-2; In re PHM (Bd. App. Rev. Nov. 24,
1981) (citizen taking Canadian oath to practice in Canada not duress); In
re F.J.B., (Bd. App. Rev. Dec. 30, 1982) (possibility of losing job
is not duress).
n172. See Doreau v. Marshall, 170 F.2d 721 (3d Cir. 1948); In
re T.S., (Bd. App. Rev. Jan. 23, 1986); In re D.R.L., (Bd.
App. Rev. July 6, 1984); In re K.A. MacD., (Bd. App. Rev. April
11, 1986); In re P.W.P., (Bd. App. Rev. Dec. 5, 1985).
n173. Richards v. Secretary of State, 752 F.2d 1413 (9th Cir. 1985); In
re Kekich, Int. Dec. 2983 (BIA Nov. 16, 1984).
n174. Richards, 752 F.2d at 1413.
n175. Id. at 1419. See James, The Board of Appellate
Review of The Department of State: The Right To Appellate Review of
Administrative Determinations of Loss of Nationality, 23 SAN DIEGO
L. REV. 261, 292 (1986).
n176. Richards, 752 F.2d at 1419.
n177. Takehara v. Dulles, 205 F.2d 560 (9th Cir. 1953).
n178. Mendelsohn v. Dulles, 207 F.2d 37 (D.C. Cir. 1953) (duress
because citizen had to care for seriously ill wife); Ryckman v. Acheson,
106 F. Supp. 739 (S.D. Tex. 1952) (duress because of duty to care for
n179. In re H.H.L., (Bd. App. Rev. Aug. 8, 1985).
n180. The State Board of Appellate Review is an independent tribunal
within the United States State Department. That department determines
whether a citizen has expatriated himself. A citizen has the right to
appeal to the Board from an adverse decision. The Board derives its
authority from the Code of Federal regulations. 22 C.F.R. Part 7, §§
7.1-.11 (1987). The Legal Adviser of the Department of State appoints
the Board members and the Board sits as a panel of three. Id. at
n181. In re H.H.L., slip op. at 15.
n182. Id. at 16.
n183. Id. at 20.
n184. See, e.g., In re P.W.P., (Bd. App. Rev. Dec. 5, 1985); In
re H, (Bd. App. Rev. Mar. 1, 1984); In re D.R.L., (Bd. App.
Rev. July 6, 1984); In re C.I.B., (Bd. App. Rev. Nov. 25, 1985).
n185. In re H.H.L., slip op. at 19.
n186. Mendelsohn, 207 F.2d at 37.
n187. Id. at 39; see also Ryckman v. Acheson, 106 F.
Supp. 739 (S.D. Tex. 1952); Nakashima v. Acheson 98 F. Supp. 11 (S.D.
Calif. 1951); Schioler v. United States, 75 F. Supp. 353 (N.D. Ill.
n188. In re D., (Bd. App. Rev. Oct. 17, 1985).
n189. Id. at 6.
n190. Dorean v. Marshall, 170 F.2d 721 (3d Cir. 1948).
n191. In re D, slip op. at 8.
n192. Id. (quoting Mendelsohn, 207 F.2d at 39).
n193. Jolley v. INS, 441 F.2d 1245 (5th Cir. 1971), cert. denied,
404 U.S. 946 (1971).
n194. Id. at 1251.
n195. Nishikawa, 356 U.S. at 129.
n196. Jolley, 441 F.2d at 1250.
n197. Prieto v. United States, 289 F.2d 12 (5th Cir. 1961) (no duress
through family influence); Jubran v. United States, 255 F.2d 81 (5th
Cir. 1958) (no duress despite family considerations); In re
Kekich, Int. Dec. 2983 (BIA Nov. 16, 1984) (citizen had difficult
alternatives but naturalization not coerced).
n198. Baker v. Rusk, 296 F. Supp. 1244 (C.D. Cal. 1969) (mistake
about oath of allegiance), In re S., 8 I & N Dec. 226 (BIA
1958) (erroneous advice about loss of citizenship).
n199. In re Sinclitico, 15 I & N Dec. 320 (BIA 1975)
(mental incompetence precluded voluntariness of naturalization).
n200. In re Wayne, 16 I.&N. Dec. 248 (BIA 1977); In re
S-, 8 I.&N. Dec. 226 (BIA 1958).
n201. Hong v. Dulles 214 F.2d 753 (7th Cir. 1954) (government's
refusal to issue passport); Podea v. Acheson, 179 F.2d 306 (2d Cir.
1950) (government's refusal to issue passport).
n202. Rogers v. Patokoski, 271 F.2d 858 (9th Cir. 1959); Matter of
C.A., 9 I.&N. Dec. 482 (1961); In re Farley, 11 I & N
Dec. 51 (1965).
n203. Ramos-Hernandez v. INS, 566 F.2d 638 (9th Cir. 1977).
n204. Id. at 645.
n205. Rucker v. Saxbe, 552 F.2d 998 (3rd Cir.), cert. denied, sub
nom; Rucker v. Bell, 434 U.S. 919 (1977).
n206. Rucker, 552 F.2d at 1003. Mr. Rucker did not come to the
United States until twenty-nine years of age.
n208. Terrazas, 444 U.S. at 260; see also King v.
Rogers, 463 F.2d 1188 (9th Cir. 1972).
n209. Terrazas v. Haig, 653 F.2d 285 (7th Cir. 1981).
n210. Id. at 288.
n211. Id. at 289.
n212. Id. at 288.
n213. Richards, 752 F.2d at 1419.
n214. Id. at 1421.
n215. Id. Expatriation will occur even if the citizen's motive
is to avoid military service, Jolley v. INS, 441 F.2d 1245 (5th Cir.
1971), or to avoid taxes, United States v. Lucienne D'Hotelle de Benitez
Rexach, 558 F.2d 37 (1st Cir. 1977). Congress itself has recognized
expatriation even if it is the taxpayer's motivation to avoid taxes. 26
U.S.C. § 877(a) (1982). However, the person is treated as a citizen for
tax purposes for ten years after expatriation. Id.
n216. See Lucienne D'Hotelle de Benitez Rexach, 558 F.2d 37
(1st Cir. 1977); Jolley, 441 F.2d at 1245.
n217. Afroyim, 387 U.S. at 262.
n218. Immigration Naturalization Act §§ 349(c), 8 U.S.C. § 1481(c)
n219. In re S.A.K. (Bd. App. Rev. Nov. 21, 1985).
n220. Id. at 10.
n221. Id. at 6-7. (Knowledge that performance of an
expatriating act might result in a loss of citizenship was not
sufficient by itself to constitute intent.).
n222. Id. at 12.
n223. See King, 463 F.2d at 1188; In re D.R.L., (Bd.
App. Rev. July 6, 1984).
n224. In re E.B., (Bd. App. Rev. Dec. 11, 1984).
n225. In re H., (Bd. App. Rev. March 1, 1984).
n226. Id. at 11.
n227. Id. at 14.
n228. Id. at 11 & n.15.
n229. In re M.T.P.B., (Bd. App. Rev. April 24, 1984) (citizen
renounced "all other allegiance."); see also In re
M.J.C., (Bd. App. Rev. July 12, 1984); In re P.W.P., (Bd. App.
Rev. Dec. 5, 1985).
n230. In re C.P.B., (Bd. App. Rev. July 27, 1984).
n231. In re E.J.A., (Bd. App. Rev. Oct. 3, 1984); In re
B.T.L., (Bd. App. Rev. July 27, 1984).
n232. In re P.W.P., (Bd. App. Rev. Dec. 5, 1985).
n233. Id. at 15.
n235. In re E.S.T., (Bd. App. Rev. Dec. 10, 1984).
n236. In re M.S.B., (Bd. App. Rev. Jan. 16, 1985).
n237. Id. at 13.
n238. The Board said as follows: "Appellant's subsequent actions
taken in 1980 and thereafter to assert his United States status are not
strictly relevant with respect to assessing appellant's intent during
the period from 1976 to 1978, when he applied for and was granted Swiss
citizenship by naturalization." Id. Some time before his
naturalization the appellant signed a declaration which required him to
"refrain from taking any action in order to keep his present
nationality," and to "renounce this nationality, if
necessary." Id. at 3.
n239. In re Kahane, (Bd. App. Rev. May 1, 1986).
n240. The Department of State alleged that Rabbi Kahane had lost his
citizenship on the basis of section 349(a)(4)(A) which provided as
From and after the effective date of this Act a person who is a
national of the United States whether by birth or naturalization, shall
lose his nationality by:
. . .
(4)(A) accepting, serving in, or performing the duties of any office,
post, or employment under the government of a foreign state or a
political subdivision thereof, if he has or acquires the nationality of
such foreign state. . . .
Immigration Naturalization Act, § 349(a)(4)(A), 8 U.S.C. §
n241. In re Kahane, slip op. at 15 (quoting Perez, 356
U.S. 44, (Warren, C.J., dissenting)).
n242. Id. at 11.
n243. In re M.F., (Bd. App. Rev. Jan. 29, 1982). The Board did
not consider In re M.F. either "precedential or
opposite." In re Kahane, slip op. at 12.
n244. In re Kahane, slip op. at 12. It was said that
"M.F. appeared rarely in the Knesset and when she did, was mainly
active on women's rights issues; she did not involve herself in the
broader political issues in Israel." Id. One wonders whether
the Board in In re M.F. assigned a rather low priority to women's
n245. Id. at 13.
n246. Id. at 12.
n247. See Aleinikoff, Theories of Loss of Citizenship,
86 MICH. L. REV. 1471, 1500 & n.114 (1986) where the author
discusses the difficulties of moving from an intent theory to an
n248. Kahane v. Shultz, 653 F. Supp. 1486 (E.D.N.Y. 1987). The
plaintiff challenged the decision of the Board of Appellate Review under
8 U.S.C. § 1503(a)(1982) which provides for a declaratory judgment.
n249. Richards, 752 F.2d at 1413.
n250. Id. at 1420 n.5.
n251. Kahane, 653 F. Supp. at 1493 (citing Vance, 444
U.S. at 258-59 (1980)).
n252. Id. The court distinguished Richards v. Secretary of
State, 752 F.2d 1413 (9th Cir. 1985) on the grounds that the citizen's
oath contained an explicit renunciation of American citizenship, thus
evidencing a specific intent to give up that citizen.
n253. Kahane, 653 F. Supp. at 1493.
n254. The State Department had evidence as far back as 1972 of
Kahane's intent to keep his American citizenship while Kahane was
running for the Knesset. When he was drafted into the Israeli army in
1979, Kahane filed an affidavit of intent to retain his American
citizenship. Id. at 1489.
n255. The government seemed preoccupied with Kahane's supposed
transfer of allegiance. But even if he had transferred allegiance to
Israel, the government still had to show Kahane's intent to surrender
American citizenship. The Kahane court would not follow the
Board's lead in shifting the emphasis from intent to allegiance. See
id. at 1494. See also Aleinikoff, Theories of Loss of
Citizenship, 84 MICH. L. REV. 1471, 1473 (1986).
n256. Kahane, 653 F. Supp. at 1494. The court was on sound
ground here for the Ninth Circuit had to deal with the same issue in
Richards v. Secretary of State, 752 F.2d 1413 (9th Cir. 1985), and that
court would not accept the argument that a citizen's intent could be
fulfilled only by "a principled, abstract desire to sever
allegiance to the United States." Richards, 752 F.2d at
n257. See Vance, 444 U.S. at 252 (1980); Afroyim, 387
U.S. at 253 (1967).
n258. Kahane, 653 F. Supp. at 1494 (citing Afroyim, 387
U.S. at 253 and Vance, 444 U.S. at 252).
n259. Immigration and Nationality Act Amendments of 1986, Pub. L. No.
99-653, 100 Stat. 3658 (codified at 8 U.S.C. § 1481 (Supp. IV 1986)).
n260. Immigration and Naturalization Act, § 349(a), 8 U.S.C. §
1481(a) (Supp. IV 1986).
n261. Immigration and Naturalization Act, § 349(a)(1), 8 U.S.C. §
n262. Immigration and Naturalization Act, § 349(a)(1), 8 U.S.C. §
1481(a)(1) (Supp. IV 1986).
n263. Id. at § 349(a)(2), 8 U.S.C. § 1481(a)(2) (Supp. IV
n264. Immigration and Naturalization Act, § 351(b), 8 U.S.C. §
n265. Id. at § 349(a)(3), 8 U.S.C. § 1481(a)(3) (Supp. IV
n266. Id. at § 351(b), 8 U.S.C. § 1483(b) (Supp. IV (1986)).
n268. In re H.H.L., (Bd. App. Rev. Aug. 8, 1985).
n269. Immigration and Naturalization Act, § 349(a)(4)(A)(B), 8
U.S.C. § 1481(a)(4)(A)(B) (1982).
n270. Id. at § 349(a)(4), 8 U.S.C. § 1481(a)(4) (Supp. IV
n271. Id. at § 349(b), 8 U.S.C. § 1481(b) (1982) (repealed
by Pub. L. No. 99-653, § 19, 100 Stat. 3655, 3658 (1986)).
n272. Immigration and Nationality Act Amendments of 1986, Pub. L. No.
99-653, § 19, 100 Stat. 3658, 1986 U.S. Code & Admin. News (100
n273. This provision was not often invoked and its constitutionality
was questionable. See 3 GORDON & ROSENFIELD, supra
note 13, § 20.9b & n.15.
n274. See Bellei, 401 U.S. at 834-35.
n275. See Afroyim, 387 U.S. at 268.
n276. See The Supreme Court, supra note 124, at 73.
n277. Id. at 68, 72.
n278. L. TRIBE, AMERICAN CONSTITUTIONAL LAW 358 (2d ed. 1988).
n279. This approach may have the ring of a minimal allegiance test. See
The Supreme Court, supra note 124, at 72.
n280. See In re H., (Bd. App. Rev. March 1, 1984) (United
States citizen did not lose citizenship by becoming naturalized as
British citizen); In re D.R.L., (Bd. App. Rev. July 6, 1984)
(United States citizen did not lose citizenship by taking naturalized
citizenship in Canada.).
n281. 8 U.S.C. § 1481(a) (1982 & Supp. IV 1986) provides:
(a) From and after the effective date of this chapter a person who is
a national of the United States whether by birth or naturalization shall
lose his nationality by voluntarily performing any of the following acts
with the intention of relinquishing United States nationality --
(1) obtaining naturalization in a foreign state upon his own
application or upon an application filed by a duly authorized agent,
after having attained the age of eighteen years; or
(2) taking an oath or making an affirmation or other formal
declaration of allegiance to a foreign state or subdivision thereof
after having attained the age of eighteen years; or
(3) entering, or serving in the armed forces of a foreign state if
(a) such armed forces are engaged in hostilities against the United
Sates, or (b) such person serves as a commissioned or non-commissioned
(4)(A) accepting, serving in, or performing the duties of any office,
post, or employment under the government of a foreign state or a
political subdivision thereof, after attaining the age of eighteen
years, if he has or acquired the nationality of such foreign state or
(B) accepting, serving in, or performing the duties of any office, post,
or employment under the government of a foreign state or a political
subdivision thereof, after attaining the age of eighteen years for which
office, post, or employment or an oath, affirmation, or declaration of
allegiance is required; or
(5) making a formal renunciation of nationality before a diplomatic
or consular officer of the United States in a foreign state, in such
form as may be prescribed by the Secretary of State; or
(6) making in the United States a formal written renunciation in such
form as may be prescribed by, and before such officer as may be
designated by, the Attorney General, whenever the United States shall be
in a state of war and the Attorney General shall approve such
renunciation as not contrary to the interests of national defense; or
(7) committing any act of treason against, or attempting by force to
overthrow, or bearing arms against, the United States, violating or
conspiring to violate any of the provisions of section 2383 of Title 18,
or willfully performing any act in violation of section 2385 of Title
18, or violating section 2384 of Title 18 by engaging in a conspiracy to
overthrow, put down, or to destroy by force the Government of the United
States, or to levy war against them, if and when he is convicted thereof
by a court martial or by a court of competent jurisdiction.