EXPATRIATION-EFFECT OF AFROYIM v. RUSK, 387 U.S. 253

Expatriation provisions of the Immigration and Nationality Act, 8 U.S.C. 1481, 1482, 1101 note, are interpreted for administrative purposes in light of Afroyim v. Rusk, 387 U.S. 253, which held that a citizen of the United States has a constitutional right to remain a citizen unless he "voluntarily relinquishes" citizenship. Pending further clarification by the courts, executive officials should apply such provisions on the basis that voluntary relinquishment of citizenship is not confined to a written renunciation, but can be manifested by other acts declared expatriative by these provisions insofar as they reasonably manifest an individual's transfer or abandonment of allegiance to the United States.

However, even in such instances the individual may raise the issue of his intent. In each case the administrative authorities must determine whether on all the evidence the individual comes within the terms of an expatriation provision and has in fact voluntarily relinquished his citizenship.

ATTORNEY GENERAL'S STATEMENT OF INTERPRETATION CONCERNING EXPATRIATION OF UNITED STATES CITIZENS

JANUARY 18, 1969.

In Afroyim v. Rusk, 387 U.S. 253 (1967), the Supreme Court held unconstitutional section 401 (e) of the Nationality Act of 1940 (Oct. 14, 1940, c. 876, 54 Stat. 1137, 1169), which provided that a citizen of the United States shall lose his citizenship by voting in a foreign political election.1

The sweeping language of the Afroyim opinion raises questions as to its effect on the validity of expatriation provisions, other than those relating to voting, in the Immigration and Nationality Act ("the act") or in former law preserved

1 This provision was reenacted as section 349(a)(5) of the Immigration and Nationality Act, June 27, 1952, c. 477, 66 Stat. 267, 8 U.S.C. 1481 (a) (5). The latter is therefore also unconstitutional under Afroyim.

by section 405 (c) of the act, 8 U.S.C. 1101 note. These questions are of importance to the Department of State in the administration of the passport laws and to the Immigration and Naturalization Service of the Department of Justice in the administration of the immigration laws.

3

Of course, the ultimate determination of the effect of Afroyim is a matter for the courts. The act empowers the Attorney General, however, to determine Afroyim's effect on the act for administrative purposes. This Statement of Interpretation will serve to guide both the Department of State and the Immigration and Naturalization Service in the performance of their functions insofar as they involve questions of loss of citizenship.

1. Section 401 (e) of the 1940 act had been ruled constitutional in the Court's earlier decision in Perez v. Brownell, 356 U.S. 44 (1958). The majority opinion in Perez rejected the argument that "the power of Congress to terminate citizenship depends upon the citizen's assent." 356 U.S. at 61. Afroyim expressly overruled Perez and held, in agreement with the Chief Justice's dissent in Perez, that the Government is without power to deprive a citizen of his citizenship for voting in a foreign election. 387 U.S. at 267. The rule laid down in Afroyim is that a United States citizen has a constitutional right to remain a citizen "unless he voluntarily relinquishes that citizenship." 387 U.S. at 268.

Afroyim did not expressly address itself to the question of defining what declarations or other conduct can properly be regarded as a "voluntary relinquishment" of citizenship. As a consequence, it did not provide guidelines of sufficient detail to permit me to pass definitely upon the validity of other expatriating provisions of the act. It did, however, stress the constitutional mandate that no citizen born or naturalized in the United States can be deprived of his citizenship unless he has "voluntarily relinquished" it.

2 In Trop v. Dulles, 356 U.S. 86 (1958), the Court held unconstitutional section 349 (a) (8) of the act, pertaining to desertion from the armed forces, and in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), it held unconstitutional section 349 (a) (10), pertaining to leaving the United States to avoid military service. In Schneider v. Rusk, 377 U.S. 183 (1964), the Court invalidated section 352 (a) (1), 8 U.S.C. 1484 (a) (1), pertaining to residence in a foreign country by a naturalized citizen.

3 Section 103 (a) of the act, 8 U.S.C. 1103 (a).

On the question of what constitutes "voluntary relinquishment," we must look to earlier cases in the Supreme Court. Some guidance may be found in earlier opinions of the Justices who joined in the Court's opinion in Afroyim. Particularly relevant are the Chief Justice's dissent in Perez, which was cited in Afroyim with approval, and the concurring opinion of Justice Black (who wrote the opinion of the Court in Afroyim) in Nishikawa v. Dulles, 356 U.S. 129, 138 (1958), decided the same day as Perez.

In Perez, the Chief Justice stated (356 U.S. at 68-69; footnotes omitted):

"It has long been recognized that citizenship may not only be voluntarily renounced through exercise of the right of expatriation but also by other actions in derogation of undivided allegiance to this country. While the essential qualities of the citizen-state relationship under our Constitution preclude the exercise of governmental power to divest United States citizenship, the establishment of that relationship did not impair the principle that conduct of a citizen showing a voluntary transfer of allegiance is an abandonment of citizenship. Nearly all sovereignties recognize that acquisition of foreign nationality ordinarily shows a renunciation of citizenship. Nor is this the only act by which the citizen may show a voluntary abandonment of his citizenship. Any action by which he manifests allegiance to a foreign state may be so inconsistent with the retention of citizenship as to result in loss of that status. In recognizing the consequences of such action, the Government is not taking away United States citizenship to implement its general regulatory powers, for, as previously indicated, in my judgment citizenship is immune from divestment under these powers. Rather, the Government is simply giving formal recognition to the inevitable consequence of the citizen's own voluntary surrender of his citizenship."

In Nishikawa, Mr. Justice Black stated (356 U.S. at 139) : "Of course a citizen has the right to abandon or renounce his citizenship and Congress can enact measures to regulate and affirm such abjuration. But whether citizenship has been voluntarily relinquished is a question to be determined on the facts of each case after a judicial trial in full conformity

with the Bill of Rights. Although Congress may provide rules of evidence for such trials, it cannot declare that such equivocal acts as service in a foreign army, participation in a foreign election or desertion from our armed forces, establish a conclusive presumption of intention to throw off American nationality. Cf. Tot. v. United States, 319 U.S. 463. Of course such conduct may be highly persuasive evidence in the particular case of a purpose to abandon citizenship."

The foregoing quotations do not come from majority opinions, and Afroyim does not adopt them. Indeed, Afroyim does not reach the question of whether it may be possible under some circumstances for allegiance to be transferred or abandoned without constituting a voluntary relinquishment of the status of citizenship. That question must await further court decisions. Under any reading of Afroyim, however, it is clear that an act which does not reasonably manifest an individual's transfer or abandonment of allegiance to the United States cannot be made a basis for expatriation.

2. For administrative purposes, and until the courts have clarified the scope of Afroyim, I have concluded that it is the duty of executive officials to apply the act on the following basis. "Voluntary relinquishment" of citizenship is not confined to a written renunciation, as under section 349 (a) (6) and (7) of the act, 8 U.S.C. 1481 (a) (6) and (7). It can also be manifested by other actions declared expatriative under the act, if such actions are in derogation of allegiance to this country. Yet even in those cases, Afroyim leaves it open to the individual to raise the issue of intent.

Once the issue of intent is raised, the act makes it clear that the burden of proof is on the party asserting that expatriation has occurred.* Afroyim suggests that this burden is not easily satisfied by the Government. In the words of Justice Black quoted above from his concurring opinion in Nishikawa, the voluntary performance of some acts can "be highly persuasive evidence in the particular case of a purpose to abandon citizenship." Yet some kinds of conduct, though within the proscription of the statute, simply will not be sufficiently probative to support a finding of voluntary expatriation.

• Section 349 (c) of the act, added in 1961, 8 U.S.C. 1481 (c)

For instance, it is obviously not enough to establish a voluntary relinquishment of citizenship that an individual accepts employment as a public school teacher in a foreign country. This I have already decided in the case of a dual national, Matter of Sally Ann Becher, 12 I.&N. 380; Interim Decision 1771 (August 21, 1967). A different case would be presented by an individual's acceptance of an important political post in a foreign government.5

A similar approach can be taken with respect to service in a foreign army, depending on the particular circumstances involved. Thus, an individual who enlists in the armed forces of an allied country does not necessarily evidence that by so doing he intends to abandon his United States citizenship. But it is highly persuasive evidence, to say the least, of an intent to abandon United States citizenship if one enlists voluntarily in the armed forces of a foreign government engaged in hostilities against the United States.

The examples mentioned above are, of course, merely illustrative. In each case the administrative authorities must make a judgment, based on all the evidence, whether the individual comes within the terms of an expatriation provision and has in fact voluntarily relinquished his citizenship. In order to avoid conflicts in interpretation between the Department of State and the Immigration and Naturalization Service, these agencies should undertake to consult with each other; if any substantial difference should arise as to any particular type of situation, it should be referred to the Attorney General for resolution.

3. Finally, note should be made as to the scope of this Statement of Interpretation. I believe the Afroyim principles reach, and therefore this Statement covers, all of section 349 (a) of the act, section 350 insofar as it relates to dual nationals born or naturalized in the United States, and section 405 (c) insofar as it purports to continue the effectiveness of individual losses of nationality under the similar provisions of sections 401 and 404 of the Nationality Act of 1940. There are additional considerations relating to dual na

See section 349 (a)(4) (A) and (B) of the act, 8 U.S.C. 1481(a)(4) (A) and (B).

See section 349 (a) (3), 8 U.S.C. 1481 (a) (3).