401 U.S. 815 (1971), 24, Rogers v. Bellei

Docket Nº:No. 24
Citation:401 U.S. 815, 91 S.Ct. 1060, 28 L.Ed.2d 499
Party Name:Rogers v. Bellei
Case Date:April 05, 1971
Court:United States Supreme Court

Page 815

401 U.S. 815 (1971)

91 S.Ct. 1060, 28 L.Ed.2d 499




No. 24

United States Supreme Court

April 5, 1971

Argued January 15, 1970

Reargued November 12, 1970




Appellee challenges the constitutionality of § 301(b) of the Immigration and Nationality Act of 1952, which provides that one who acquires United States citizenship by virtue of having been born abroad to parents, one of whom is an American citizen, who has met certain residence requirements, shall lose his citizenship unless he resides in this country continuously for five years between the ages of 14 and 28. The three-judge District Court held the section unconstitutional, citing Afroyim v. Rusk, 387 U.S. 253, and Schneider v. Rusk, 377 U.S. 163.

Held: Congress has the power to impose the condition subsequent of residence in this country on appellee, who does not come within the Fourteenth Amendment's definition of citizens as those "born or naturalized in the United States," and its imposition is not unreasonable, arbitrary, or unlawful. Afroyim v. Rusk, supra, and Schneider v. Rusk, supra, distinguished. Pp. 820-836.

296 F.Supp. 1247, reversed.

BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and HARLAN, STEWART, and WHITE, JJ., joined. BLACK, J., filed a dissenting opinion, in which DOUGLAS and MARSHALL, JJ., joined, post, p. 836. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS, J., joined, post, p. 845.

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BLACKMUN, J., lead opinion

MR. JUSTICE BLACKMUN delivered the opinion of the Court.

Under constitutional challenge here, primarily on Fifth Amendment due process grounds, but also on Fourteenth Amendment grounds, is § 301(b) of the Immigration and Nationality Act of June 27, 1952, 66 Stat. 236, 8 U.S.C.§ 1401(b).

[91 S.Ct. 1062] Section 301(a) of the Act, 8 U.S.C. § 1401(a), defines those persons who "shall be nationals and citizens of the United States at birth." Paragraph (7) of § 301(a) includes in that definition a person born abroad "of parents one of whom is an alien, and the other a citizen of the United States" who has met specified conditions of residence in this country. Section 301(b), however, provides that one who is a citizen at birth under § 301(a)(7) shall lose his citizenship unless, after age 14 and before age 28, he shall come to the United States and be physically present here continuously for at least five years. We quote the statute in the margin.1

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The plan thus adopted by Congress with respect to a person of this classification was to bestow citizenship at birth, but to take it away upon the person's failure to comply with a post-age-14 and pre-age-28 residential requirement. It is this deprival of citizenship, once bestowed, that is under attack here.


The facts are stipulated:

1. The appellee, Aldo Mario Bellei (hereinafter the plaintiff), was born in Italy on December 22, 1939. He is now 31 years of age.

2. The plaintiff's father has always been a citizen of Italy, and never has acquired United States citizenship. The plaintiff's mother, however, was born in Philadelphia in 1915, and thus was a native-born United States citizen. She has retained that citizenship. Moreover, she has fulfilled the requirement of § 301(a)(7) for physical presence

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in the United States for 10 years, more than five of which were after she attained the age of 14 years. The mother and father were married in Philadelphia on the mother's 24th birthday, March 14, 1939. Nine days later, on March 23, the newlyweds departed for Italy. They have resided there ever since.

3. By Italian law, the plaintiff acquired Italian citizenship upon his birth in Italy. He retains that citizenship. He also acquired United States citizenship at his birth under Rev.Stat. § 1993, as amended by the Act of May 24, 1934, § 1, 48 Stat. 797, then in effect.2 That version of the statute, as does the present one, contained a residence condition applicable to a child born abroad with one alien parent.

[91 S.Ct. 1063] 4. The plaintiff resided in Italy from the time of his birth until recently. He currently resides in England, where he has employment as an electronics engineer with an organization engaged in the NATO defense program.

5. The plaintiff has come to the United States five different times. He was physically present here during the following periods:

April 27 to July 31, 1948

July 10 to October 5, 1951

June to October 1955

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December 18, 1962 to February 13, 1963

May 26 to June 13, 1965.

On the first two occasions, when the plaintiff was a boy of eight and 11, he entered the country with his mother on her United States passport. On the next two occasions, when he was 15 and just under 23, he entered on his own United States passport, and was admitted as a citizen of this country. His passport was first issued on June 27, 1952. His last application approval, in August, 1961, contains the notation "Warned abt. 301(b)." The plaintiff's United States passport was periodically approved to and including December 22, 1962, his 23d birthday.

6. On his fifth visit to the United States, in 1965, the plaintiff entered with an Italian passport and as an alien visitor. He had just been married, and he came with his bride to visit his maternal grandparents.

7. The plaintiff was warned in writing by United States authorities of the impact of § 301(b) when he was in this country in January, 1963, and again in November of that year, when he was in Italy. Sometime after February 11, 1964, he was orally advised by the American Embassy at Rome that he had lost his United States citizenship pursuant to § 301(b). In November, 1966, he was so notified in writing by the American Consul in Rome when the plaintiff requested another American passport.

8. On March 28, 1960, plaintiff registered under the United States Selective Service laws with the American Consul in Rome. At that time, he already was 20 years of age. He took in Italy, and passed, a United States Army physical examination. On December 11, 1963, he was asked to report for induction in the District of Columbia. This induction, however, was then deferred because of his NATO defense program employment. At the time of deferment, he was warned of the danger of losing his United States citizenship if he did not comply

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with the residence requirement. After February 14, 1964, Selective Service advised him by letter that, due to the loss of his citizenship, he had no further obligation for United States military service.

Plaintiff thus concededly failed to comply with the conditions imposed by § 301(b) of the Act.


The plaintiff instituted the present action against the Secretary of State in the Southern District of New York. He asked that the Secretary be enjoined from carrying out and enforcing § 301(b), and also requested a declaratory judgment that § 301(b) is unconstitutional as violative of the Fifth Amendment's Due Process Clause, the Eighth Amendment's Punishment Clause, and the Ninth Amendment, and that he is, [91 S.Ct. 1064] and always has been, a native-born United States citizen. Because, under 28 U.S.C. § 1391(e), the New York venue was improper, the case was transferred to the District of Columbia. 28 U.S.C. § 1406(a).

A three-judge District Court was convened. With the facts stipulated, cross-motions for summary judgment were filed. The District Court ruled that § 301(b) was unconstitutional, citing Afroyim v. Rusk, 387 U.S. 253 (1967), and Schneider v. Rusk, 377 U.S. 163 (1964), and sustained the plaintiff's summary judgment motion. Bellei v. Rusk, 296 F.Supp. 1247 (DC 1969). This Court noted probable jurisdiction, 396 U.S. 811 (1969), and, after argument at the 1969 Term, restored the case to the calendar for reargument. 397 U.S. 1060 (1970).


The two cases primarily relied upon by the three-judge District Court are, of course, of particular significance here.

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Schneider v. Rusk, 377 U.S. 163 (1964). Mrs. Schneider, a German national by birth, acquired United States citizenship derivatively through her mother's naturalization in the United States. She came to this country as a small child with her parents and remained here until she finished college. She then went abroad for graduate work, was engaged to a German national, married in Germany, and stayed in residence there. She declared that she had no intention of returning to the United States. In 1959, a passport was denied by the State Department on the ground that she had lost her United States citizenship under the specific provisions of § 352(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1484(a)(1), by continuous residence for three years in a foreign state of which she was formerly a national. The Court, by a five-to-three vote, held the statute violative of Fifth Amendment due process because there was no like restriction against foreign residence by native-born citizens.

The dissent (Mr. Justice Clark, joined by JUSTICES HARLAN and WHITE) based its position on what it regarded as the long acceptance of expatriating naturalized citizens who voluntarily return to residence in their native lands; possible international complications; past decisions approving the power of Congress to enact statutes of that type; and the Constitution's distinctions between native-born and naturalized citizens.

Afroyim v. Rusk, 387 U.S. 253 (1967). Mr. Afroyim, a Polish national by birth, immigrated to the United States at age 19, and, after 14 years here, acquired United States citizenship by naturalization. Twenty-four years later, he went to Israel and voted in a political election there. In 1960, a passport was denied him by the State Department on the ground that he had lost his United States citizenship under the specific provisions of § 349(a)(5) of the Act, 8 U.S.C. § 1481(a)(5), by


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