Afroyim v. Rusk
Citation | 361 F.2d 102 |
Decision Date | 24 May 1966 |
Docket Number | Docket 30413.,No. 393,393 |
Parties | Beys AFROYIM, Plaintiff-Appellant, v. Dean RUSK, as Secretary of State, Defendant-Appellee. |
Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Nanette Dembitz, New York City, for appellant.
James G. Greilsheimer, Spec. Asst. U. S. Atty.; Robert M. Morgenthau, U. S. Atty., S. D. N. Y.; Francis J. Lyons, Spec. Asst. U. S. Atty., for appellee.
Before WATERMAN, KAUFMAN and ANDERSON, Circuit Judges.
Plaintiff commenced a declaratory judgment action in the United States District Court for the Southern District of New York challenging the constitutionality of 8 U.S.C. § 1481(a) (5). He alleged that the section is both unconstitutional on its face and as applied to him in that it violates the due process guarantee of the Fifth Amendment and violates Section 1, Clause 1 of the Fourteenth Amendment.
After cross-motions for summary judgment had been filed by both parties, the court below in a reasoned opinion, reported at 250 F.Supp. 686 (S.D.N.Y. 1966), granted the motion filed by the defendant Secretary of State and dismissed plaintiff's complaint on the ground that there was no genuine issue as to any material fact and that the Secretary was entitled to judgment as a matter of law.
Plaintiff, who had been a naturalized citizen of the United States, had suffered the loss of that citizenship on November 14, 1960, on the ground that he had expatriated himself on July 30, 1951, when he had voluntarily voted in an Israeli parliamentary election.1
The court below handed down its order upon a stipulation of the parties which set forth the material facts:
In his brief upon appeal appellant claims the statute violates the First, Sixth, and Eighth Amendments as well as the Fifth and Fourteenth; the First because Congress has sought by the Act to impose a drastic sanction upon a citizen's freedom to express his opinion on political, social or economic issues, and the Sixth and Eighth because the statute appears to have a punitive ring to it and the safeguards guaranteed by the Sixth to one charged with crime are not made available to one who may suffer, as did this appellant, a claimed "unusual punishment" barred by the Eighth.
We are of course bound by the authority of Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568, 2 L.Ed.2d 603 (1958) wherein a native-born American citizen who voted in a Mexican political election, and who had lost his citizenship thereby, sought to have the U. S. Supreme Court hold that the predecessor statutory provision here challenged was beyond the power of Congress to enact — and wherein the constitutionality of the legislation was upheld.
Appellant contends that subsequent decisions of the Court have so devitalized Perez that its holding is no longer a binding precedent. Our attention is directed as evidence of this claimed devitalization to the case of Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), which held, as to the citizens involved, 8 U.S.C. § 1481(a) (10), a different provision of 8 U.S.C. § 1481(a) from the one before us here, unconstitutional. However, the result reached in Perez was not affected by Mendoza-Martinez, see the opinion for the Court, 372 U.S. 144, at 162-163, 83 S.Ct. 554, the reservations of concurring Justices, pp. 186, 187, 83 S.Ct. pp. 576, 577, and the statement for the dissenting Justices, pp. 202, 203, 83 S.Ct. p. 585.
Also, we are asked to consider the result the Court reached in Schneider v. Rusk, 377 U.S. 163, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964) as also indicative of a weakening of the Perez authority. However, 377 U.S. at 166-167, 84 S.Ct. 1187 of the Court's opinion, written by a Perez dissenter, there is a careful explanation of the specific ground upon which Schneider was distinguished from Perez.
We are even urged to disregard Perez because of the holding in a case contemporaneously decided, Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). In Trop, on the facts there, the Court held that 8 U.S.C. § 401(g), now 8 U.S.C. § 1481(a) (8), again a different provision from 8 U.S.C. § 1481(a) (5), was as to Trop an unconstitutional enactment while at the same time holding 8 U.S.C. § 401(e) constitutional. The thrust of this argument is that the Court in Perez did not appear to consider that a denaturalization might be a punishment though the Court had that in mind in Trop, decided the same day.
Subsequent to all of the Supreme Court cases cited to us and set forth supra, we have, within the year, recognized in Tanaka v. Immigration & Naturalization Service, 346 F.2d 438 (2 Cir. 1965), the binding authority of Perez. We said there:
(Emphasis supplied.) 346 F.2d 438, 441.
Admittedly, as stipulated in this case, appellant's participation in the Israeli election was voluntary. Moreover, no claim is made on appeal that appellant has acquired Israeli citizenship and can therefore be claimed to have dual nationality.
We affirm the judgment below on the authority of Perez v. Brownell, supra, and Tanaka v. Immigration & Naturalization Service, supra.
The exposition by the court below of the present posture of the issues that were decided by the Court in Perez was exhaustive and most penetrating, and we adopt as the rationale for our own opinion the following language in the opinion below 250 F.Supp. at 690:
In Tanaka v. Immigration & Naturalization Service, 346 F.2d 438 (2d Cir. 1965) (dissenting opinion), I expressed grave doubt as to whether the Supreme Court's opinion in Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568 (1958) retained vitality. And, I questioned there whether Perez was not to be limited to its facts in the face of the Court's subsequent holdings in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554 (1963) and Schneider v. Rusk, 377 U.S. 163, 84 S.Ct....
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Afroyim v. Rusk
...naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States ** *.' 3. 250 F.Supp. 686; 361 F.2d 102, 105. 4. Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630; Nishikawa v. Dulles, 356 U.S. 129, 78 S.Ct. 612, 2 L.Ed.2d 659. 5. Kennedy ......
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American Immigration Law: A Comparative Legal, Economic, and Constitutional Analysis
...51387 U.S. 253 (1967). 52Id. at 254 (quoting 8 U.S.C. § 801 (1946)). 53250 F. Supp. 686, 690, aff’d, 361 F.2d 102 (2d Cir. 1966), rev’d, 387 U.S. 253 (1967). 54361 F.2d 102, 105 (2d Cir. 1966), rev’d, 387 U.S. 253 (1967). 55387 U.S. at 268. 56Id. Page 755 2009] AMERICAN IMMIGRATION LAW 755 ......