Expatriating a U.S. citizen subject to the Citizenship Clause of the Fourteenth Amendment on the ground that, after reaching the age of 18, the person has obtained foreign citizenship or declared allegiance to a foreign state generally will not be possible absent substantial evidence, apart from the act itself, that the individual specifically intended to relinquish U.S. citizenship. An express statement of renunciation of U.S. citizenship would suffice.
An intent to renounce citizenship can be inferred from the act of serving in the armed forces of a foreign state engaged in hostilities against the United States.
June 12, 2002
You have asked us for a general survey of the laws governing loss of citizenship, a process known as “expatriation” (also known within the specific context of naturalized citizens as “denaturalization”). See, e.g., Perkins v. Elg, 307 U.S. 325, 334 (1939) (“Expatriation is the voluntary renunciation or abandonment of nationality and allegiance.”). Part I of this memorandum provides a general description of the expatriation process. Part II notes the relative difficulty of expatriating a person on the grounds that he has either obtained naturalization in, or declared allegiance to, a foreign state, absent evidence of a specific intention to relinquish U.S. citizenship apart from the act of naturalization or declaration itself.
I. Law of expatriation
It is now well settled that anyone may renounce his United States citizenship. (2) “In 1794 and 1797, many members of Congress still adhered to the English doctrine of perpetual allegiance and doubted whether a citizen could even voluntarily renounce his citizenship. By 1818, however, almost no one doubted the existence of the right of voluntary expatriation.” Afroyim v. Rusk, 387 U.S. 253, 258 (1967). (3) In 1868, Congress declared 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.” Act of July 27, 1868, ch. 249, 15 Stat. 223, 223 (1868); see also 8 U.S.C. § 1481 note (2000) (quoting R.S. § 1999) (same). That declaration further stated that “any declaration, instruction, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government.” 15 Stat. at 224. Similarly, the Burlingame Treaty of 1868 between the United States and China recognized “the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of . . . free migration and emigration . . . for purposes of curiosity, of trade, or as permanent residents.” United States-China, July 28, 1868, art. 5, 16 Stat. 739, 740. Congress provided specific legislative authority for nullifying citizenship when, in 1907, it enacted the predecessor of the modern federal expatriation statute. See Act of Mar. 2, 1907, ch. 2534, 34 Stat. 1228 (1907). As the Supreme Court has noted, such acts of Congress “are to be read in the light of [Congress’s 1868] declaration of policy favoring freedom of expatriation which stands unrepealed.” Savorgnan v. United States, 338 U.S. 491, 498-99 (1950).
By virtue of its express power “[t]o establish an uniform Rule of Naturalization,” U.S. Const. art. I, § 8, cl. 4, Congress has an implied power to set the terms of U.S. citizenship, including the power to expatriate. (4) But that power is limited by the Citizenship Clause of the Fourteenth Amendment. That provision states that “[a]ll 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.(5) As that clause has been construed by the Supreme Court at least since 1967, the United States may not deprive a person “born or naturalized in the United States” of his U.S. citizenship “‘unless he voluntarily relinquishes it.'” Vance v. Terrazas, 444 U.S. 252, 260 (1980) (quoting Afroyim, 387 U.S. at 262). (6) Forced expatriation has also been thought to violate other provisions of the Constitution. See Trop v. Dulles, 356 U.S. 86, 101, 102, 103 (1958) (plurality opinion) (“[U]se of denationalization as a punishment is barred by the Eighth Amendment. . . . The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime. . . . [T]he Eighth Amendment forbids Congress to punish by taking away citizenship[.]”); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 165-66 (1963) (striking down as unconstitutional “the sanction of deprivation of nationality as a punishment . . . without affording the procedural safeguards guaranteed by the Fifth and Sixth Amendments”). Accordingly, at least since the Supreme Court’s ruling in Afroyim v. Rusk, 387 U.S. 253 (1967), it is no longer constitutionally sufficient that a person who was born or naturalized in the United States has voluntarily engaged in conduct deemed by law to be an act of expatriation. The person must also undertake such an act with the specific intention to relinquish his U.S. citizenship. See Terrazas, 444 U.S. at 263 (requiring that “the expatriating act [be] accompanied by an intent to terminate United States citizenship”). “[B]ecause of the precious nature of citizenship, it can be relinquished only voluntarily, and not by legislative fiat.” Jolley v. INS, 441 F.2d 1245, 1248 (5th Cir. 1971).
Under current federal law, any party claiming that a person has abandoned his U.S. citizenship must establish three elements. See 8 U.S.C. § 1481 (2000) (text provided in the attached appendix). First, the person must take one of the statutorily enumerated acts of expatriation, such as “obtaining naturalization in” or “taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state” after reaching the age of 18, “entering, or serving in, the armed forces of a foreign state . . . engaged in hostilities against the United States,” or formal renunciation before an appropriate United States official. 8 U.S.C. § 1481(a). (7) Second, he must act “voluntarily.” Id. See also Nishikawa, 356 U.S. at 133 (“no conduct results in expatriation unless the conduct is engaged in voluntarily”). Third, he must act “with the intention of relinquishing United States nationality.” 8 U.S.C. § 1481(a). (8) Expatriation occurs “at the time the expatriating acts were committed, not at the time his alienage was judicially determined.” United States ex rel. Marks v. Esperdy, 315 F.2d 673, 676 (2nd Cir. 1963), affirmed by an equally divided court, 377 U.S. 214 (1964); see also 8 U.S.C. § 1488 (2000) (“The loss of nationality under this part shall result solely from the performance by a national of the acts or fulfillment of the conditions specified in this part.”).
Formal renunciation (9) is therefore not the only way in which a U.S. citizen may express his “intention of relinquishing United States nationality.” 8 U.S.C. § 1481(a).
An intention to abandon citizenship can also be manifested through various categories of conduct. See Terrazas, 444 U.S. at 260 (“intent to relinquish citizenship . . . [can be] expressed in words or . . . found as a fair inference from proved conduct”); Expatriation–Effect of Afroyim v. Rusk, 387 U.S. 253, 42 Op. Att’y Gen. 397, 400 (1969) (“‘Voluntary relinquishment’ of citizenship is not confined to a written renunciation . . . . It can also be manifested by other actions declared expatriative under the act . . . .”). Thus, although the performance of an expatriating act cannot be used as “the equivalent of or as conclusive evidence of the indispensable voluntary assent of the citizen,” the Supreme Court has held that such conduct “may be highly persuasive evidence in the particular case of a purpose to abandon citizenship.” Terrazas, 444 U.S. at 261 (quotations omitted). So long as “the trier of fact . . . conclude[s] that the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to relinquish his citizenship,” the statutory requirements for expatriation have been met. Id. Lower courts have similarly held that “specific subjective intent to renounce United States citizenship . . . may [be] prove[d] . . . by evidence of an explicit renunciation, acts inconsistent with United States citizenship, or by affirmative voluntary act[s] clearly manifesting a decision to accept [foreign] nationality.” King v. Rogers, 463 F.2d 1188, 1189 (9th Cir. 1972) (citations and quotations omitted). “Specific intent may . . . be proven by evidence of what steps the alleged expatriate did or did not take in connection with his expatriating acts.” United States v. Schiffer, 831 F. Supp. 1166, 1194 (E.D. Pa. 1993), aff’d without opinion, 31 F.3d 1175 (3rd Cir. 1994).
The party claiming that a person has lost his U.S. citizenship has the burden to prove by a preponderance of the evidence the performance of an act of expatriation and the intention to relinquish citizenship. 8 U.S.C. § 1481(b); Terrazas, 444 U.S. at 268; see also id. at 264-67 (upholding preponderance of the evidence standard of proof against constitutional attack). Although any person who performs an act of expatriation is presumed to have done so voluntarily, that presumption can be rebutted with proof by a preponderance of the evidence that the act was performed involuntarily. 8 U.S.C. § 1481(b); see also Terrazas, 444 U.S. at 267-70 (upholding voluntariness presumption against constitutional attack).
Factual doubts in expatriation cases “are to be resolved in favor of citizenship.” Bruni v. Dulles, 235 F.2d 855, 856 (D.C. Cir. 1956). See also Nishikawa, 356 U.S. at 136 (“Rights of citizenship are not to be destroyed by an ambiguity.”) (quoting Elg, 307 U.S. at 337); Nishikawa, 356 U.S. at 136 (“evidentiary ambiguities are not to be resolved against the citizen”). In cases of legal ambiguity, we have previously concluded that the State Department has, as the agency charged with the implementation of the expatriation statute, the discretion to select from among reasonable interpretations of the statute. Letter for Catherine W. Brown, Assistant Legal Adviser for Consular Affairs, Department of State, from Todd David Peterson, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Voluntary Expatriation of Puerto Rican Nationalists, at 3 (Oct. 31, 1997) (concluding that Chevron deference applies to State Department decisions “to apply the construction of the statute that it believes is most consistent with the policies underlying the statute”). But see Savorgnan, 338 U.S. at 498-99 (concluding that expatriation statutes “are to be read in the light of [Congress’s 1868] declaration of policy favoring freedom of expatriation which stands unrepealed”).
The issue of expatriation can arise in litigation in a number of different ways. “Since United States citizenship is considered by most to be a prized status, it is usually the government which claims that the citizen has lost it, over the vigorous opposition of the person facing the loss.” United States v. Matheson, 532 F.2d 809, 811 (2nd Cir. 1976). Moreover, the Executive Branch need not seek a judicial determination that a particular individual has expatriated. It can simply treat that individual as an alien by denying him a right of U.S. citizenship and, if that action is challenged in court, defend that action on the ground that the individual is no longer a U.S. citizen. For example, any individual who is issued a certificate of loss of citizenship by the State Department pursuant to 8 U.S.C. § 1501 (2000), (10) or who is denied a right or privilege of a United States citizen by a government agency (such as a United States passport, see, e.g., Nishikawa, 356 U.S. at 131) on the ground that he is not a citizen of the United States, may file a declaratory judgment action in federal court under 28 U.S.C. § 2201 for a declaration that he is in fact a national of the United States. 8 U.S.C. § 1503(a) (2000). See, e.g., Terrazas, 444 U.S. at 256 (§ 1503 suit filed following issuance of certificate of loss of nationality). Alternatively, a person might claim U.S. citizenship through a petition for a writ of habeas corpus challenging, for example, a deportation action. See, e.g., Marks, 315 F.2d at 675. (11)
On the other hand, a U.S. citizen who is accused of treason might claim that he had renounced his U.S. citizenship before undertaking his allegedly treasonous acts and was therefore legally incapable of committing the crime of treason against the United States. The assertion of such a defense would require a court to determine whether or not the defendant had in fact renounced his citizenship. See, e.g., Kawakita v. United States, 343 U.S. 717, 722 (1952) (noting defense argument that acquittal on treason charge is required “since his duty of allegiance would have ceased with the termination of his American citizenship”). Similarly, one might claim loss of citizenship to avoid liability under U.S. tax laws. See, e.g., Matheson, 532 F.2d at 811 (“Here the estate of a wealthy deceased United States citizen seeks to establish over the government’s opposition that she expatriated herself. As might be suspected, the reason is several million dollars in tax liability, which the estate might escape if it could sustain the burden of showing that the deceased lost her United States citizenship.”).
II. Foreign naturalization or declaration of foreign allegiance
Under federal law, a U.S. citizen can lose his nationality if he voluntarily “obtain[s] naturalization in a foreign state . . . after having attained the age of eighteen years.” 8 U.S.C. § 1481(a)(1). Likewise, a citizen of the United States could be expatriated if he voluntarily “tak[es] an oath or mak[es] an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years.” 8 U.S.C. § 1481(a)(2). In either case, however, no loss of citizenship may result unless the citizen acts “with the intention of relinquishing United States nationality.” 8 U.S.C. § 1481(a).
The most common obstacle to expatriation in cases involving foreign naturalization or declaration of foreign allegiance is sufficient proof of a specific intention to renounce U.S. citizenship. Intent need not be proved with direct evidence, to be sure. It can be demonstrated circumstantially through conduct. Thus, in some cases, such as service in a hostile foreign military at war with the United States, the act of expatriation itself may even constitute “highly persuasive evidence . . . of a purpose to abandon citizenship.” Terrazas, 444 U.S. at 261 (quotations omitted). See generally Section III. Because, however, both foreign naturalization and declaration of foreign allegiance are, with respect to U.S. citizenship, more ambiguous acts, they constitute weaker evidence of “a purpose to abandon citizenship.” Terrazas, 444 U.S. at 261 (quotations omitted).
Dual nationality, the Supreme Court has explained, is “a status long recognized in the law.” Kawakita, 343 U.S. at 723. See also id. at 734 (“Dual nationality . . . is the unavoidable consequence of the conflicting laws of different countries. One who becomes a citizen of this country by reason of birth retains it, even though by the law of another country he is also a citizen of it.”) (citation omitted); Savorgnan, 338 U.S. at 500 (although “[t]he United States has long recognized the general undesirability of dual allegiances[,] . . . [t]emporary or limited duality of citizenship has arisen inevitably from differences in the laws of the respective nations as to when naturalization and expatriation shall become effective”); Elg, 307 U.S. at 329 (“As municipal law determines how citizenship may be acquired, it follows that persons may have a dual nationality.”). The mere assertion by an individual of citizenship in one country thus need not manifest an intention to relinquish citizenship in another country, for “[t]he concept of dual citizenship recognizes that a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both. The mere fact that he