361 F.2d 102 (2nd Cir. 1966), 393, Afroyim v. Rusk

Docket Nº:393, 30413.
Citation:361 F.2d 102
Party Name:Beys AFROYIM, Plaintiff-Appellant, v. Dean RUSK, as Secretary of State, Defendant-Appellee.
Case Date:May 24, 1966
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 102

361 F.2d 102 (2nd Cir. 1966)

Beys AFROYIM, Plaintiff-Appellant,

v.

Dean RUSK, as Secretary of State, Defendant-Appellee.

No. 393, 30413.

United States Court of Appeals, Second Circuit.

May 24, 1966

Argued May 10, 1966.

Page 103

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.

WATERMAN, Circuit Judge.

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:

'1. Plaintiff, who was born in Poland in 1893, emigrated to the United States in 1912. Plaintiff under the name of Ephraim Bernstein, also known as Beys Afroyim, became a naturalized citizen by order of this Court on June 14, 1926.

'2. On July 30, 1951 plaintiff voted in the elections for the second Knesset, the Parliament of the State of Israel.

'3. The election for the second Knesset was a political election in a foreign state within the contemplation of Section 401(e) of the Nationality Act of 1940.

'4. Plaintiff voluntarily voted in the said election.

'5. Plaintiff contends that neither at the time of the election nor at any other time did he have any intention or desire to lose or abandon his American citizenship. Plaintiff also contends that he considered himself at all times an American citizen with allegiance to the United States. Defendant will not stipulate with respect to the truthfulness of these allegations. Defendant also maintains that these allegations are irrelevant since a specific intent or desire to lose or abandon American citizenship is not a requisite for expatriation under Section 401(e) of the Nationality Act of 1940.

'6. On November 14, 1960 the American Vice Consul at Haifa, Israel, issued a Certificate of Loss of Nationality

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to plaintiff on the ground that he expatriated himself on July 30, 1951 under Section 401(e) of the Nationality Act of 1940 by voting in a political election in a foreign state. The Vice Consul's action was approved by the Passport Office of the Department of State on January 4, 1961. Plaintiff on January 27, 1965 appealed to the State Department's Board of Review on the Loss of...

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