EXPATRIATION AND THE AMERICAN CITIZEN

Table of Contents

1.  Introduction

2.  Background

3.  Judicial Interpretation

3.1  The Early Approach

3.2  The Turning Point

3.3  A Retreat

4.  The Concept of Voluntariness

5.  Concept of Intent

6.  Immigration and Nationality Act Amendments of 1986

7.  Conclusions

8.  Footnotes

 

Expatriation and the American Citizen

31 How. L.J. 453, *
Copyright (c) 1988 Howard University.
Howard Law Journal
1988
31 How. L.J. 453

 
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, 1978-85.

The author wishes to thank his former research assistants, Kathryn Price and Bernita Thigpen, for their help.

1. INTRODUCTION

"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 government. n6

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 expatriation case.

2.  BACKGROUND

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 republic. n30

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 citizenship.

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 to act.

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 intent. n64

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 desertion.

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 deserter. n87

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 their commitment.

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 citizenship. n113

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 citizenship clause.

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 naturalization. n134

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. n145

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 conduct." n161

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 children. n189

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 satisfactory excuse.

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. n212

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 intent. n215

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 intent.

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 citizenship.

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 renounce. n234

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.

6.  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. n259

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 citizenship. n270

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).

7.  CONCLUSION

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.

8.  FOOTNOTES:

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 (1950).

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. 261.

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 377.

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 of expatriation.

n45. Mackenzie, 239 U.S. at 311-12.

n46. Id.

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 (1950).

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 Act.)

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 [a]mendment.

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 citizenship.)

n80. Id. at 92.

n81. Id.

n82. Id. at 101.

n83. Id. at 102.

n84. Id. at 105.

n85. Id. at 112.

n86. Id. at 113.

n87. Id.

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 and desertion.

n90. Trop, 356 U.S. at 126 (Frankfurter, J., dissenting) (citing Mackenzie, 239 U.S. at 299, Savorgnan, 338 U.S. at 491).

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. 1484(a)(1) (1970):

(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 allegiance.

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, 1152 (1958).

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 as follows:

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 shall make.

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 naturalization).

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.

n129. Id.

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 & n.172.

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 Stat. 604.

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 845.

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.

n163. Id.

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 44.

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. 1985).

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 sick mother).

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 7.4.

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. 1948).

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.

n207. Id.

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) (1982).

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.

n234. Id.

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 follows:

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. 1481(a)(4)(A) (1982).

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 issues.

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 allegiance theory.

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 1421.

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. 1481(a)(1) (1982).

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 (1986)).

n264. Immigration and Naturalization Act, 351(b), 8 U.S.C. 1483(b) (1982).

n265. Id. at 349(a)(3), 8 U.S.C. 1481(a)(3) (Supp. IV (1986)).

n266. Id. at 351(b), 8 U.S.C. 1483(b) (Supp. IV (1986)).

n267. Id.

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 1986).

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 Stat.) 3655.

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 officer; or

(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.

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