577 F.2d 7 (7th Cir. 1978), 77-2007, Terrazas v. Vance

Docket Nº:77-2007.
Citation:577 F.2d 7
Party Name:Laurence J. TERRAZAS, Plaintiff-Appellant, v. Cyrus VANCE, Secretary of State, Defendant-Appellee.
Case Date:May 26, 1978
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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577 F.2d 7 (7th Cir. 1978)

Laurence J. TERRAZAS, Plaintiff-Appellant,

v.

Cyrus VANCE, Secretary of State, Defendant-Appellee.

No. 77-2007.

United States Court of Appeals, Seventh Circuit

May 26, 1978

Argued April 13, 1978.

Kenneth K. Ditkowsky, Chicago, Ill., for plaintiff-appellant.

Thomas P. Sullivan, Michael Lee Diegel, U. S. Atty., Chicago, Ill., for defendant-appellee.

Before CASTLE, Senior Circuit Judge, and SWYGERT and SPRECHER, Circuit Judges.

SPRECHER, Circuit Judge.

The issue in this appeal is what standard of proof a district court should apply in deciding whether an individual voluntarily renounced his United States citizenship and thereby expatriated himself under 8 U.S.C. § 1481.

I

Plaintiff was born in Takoma Park, Maryland on December 13, 1947. His father was a citizen of Mexico and his mother was a citizen of the United States. Plaintiff, therefore, under the Fourteenth Amendment 1 and the laws of Mexico was at birth a citizen of both the United States and Mexico.

The events surrounding plaintiff's apparent expatriation transpired in 1970-71 while plaintiff was a student at the Colegio Comercial Ingles in Monterrey, Mexico. Plaintiff claims that he was told by an official of that college that a Certificate of Mexican Nationality was necessary as evidence of his citizenship which in turn was a requirement for graduation. 2 Thus, in September 1970, while plaintiff was in the United States for a Selective Service physical examination for possible induction in the army, his father procured an application for a Certificate which he instructed the plaintiff to sign.

On the application was printed in Spanish the following translated material:

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I therefore hereby expressly renounce ______ citizenship, as well as any submission, obedience, and loyalty to my foreign government, especially to that of ______, of which I might have been subject, all protection foreign to the laws and authorities of Mexico, all rights which treaties or international law grant to foreigners; and furthermore I swear adherence, obedience, and submission to the law and authorities of the Mexican Republic.

Ultimately, the blanks were filled in with the Spanish equivalents of the words "United States" ("Estados Unidos") and "North America" ("Norteamericana"), respectively. Plaintiff, however, maintains that when he signed the application, none of the blanks were filled in and that he had no idea that he was renouncing his United States citizenship.

Plaintiff's application was sent to Mexico City and submitted by a brother of plaintiff's father to the Mexican government on November 16, 1970. On April 13, 1971, plaintiff was issued a Certificate of Mexican Nationality. Plaintiff used the Certificate to apply for a job as an insurance salesman in Mexico and to acquire a Mexican passport in order to return to the United States. 3 Plaintiff also acquired a Mexican social security card and he registered with the Mexican military. Neither of these acts, however, required plaintiff to have a Certificate or to be a Mexican national.

In August 1971, plaintiff went to the United States Consulate in Monterrey, Mexico because he had been told informally by a State Department employee that the Certificate may have affected his United States citizenship. At the Consulate plaintiff met with Wesley Parsons, the Chief of the Passport Citizenship Welfare Protection Whereabouts Unit which dealt with nationality cases. Plaintiff apparently asked Mr. Parsons about the legality of dual citizenship (Tr. at 173). Mr. Parsons explained that there was no legal impediment to dual citizenship, but that plaintiff must be careful not to acquire a Certificate of Mexican Nationality (Tr. at 177). When plaintiff informed Mr. Parsons that he had acquired such a Certificate, Mr. Parsons told him "as far as I am concerned, . . . you have expatriated yourself" (Tr. at 177). 4

According to Mr. Parsons, plaintiff responded to this news with two distinct reactions. First, he was surprised to learn that he had lost his United States citizenship (Tr. at 262). Second, plaintiff asked Mr. Parsons to provide him with a letter informing his draft board in Chicago that he was no longer an American citizen (Tr. at 178). 5

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Mr. Parsons explained to plaintiff that he lacked the authority to make a final determination as to plaintiff's citizenship and that it would be necessary to "document this case" 6 by filing certain forms with the Department of State. To that end Mr. Parsons asked plaintiff to fill out various forms explaining the circumstances surrounding his acquisition of the Certificate of Mexican Nationality.

In November 1971, plaintiff returned to the Consulate with the various necessary documents to be included in his Application for Registration. 7 On one form, plaintiff responded "no" to the question: "Did you intend by this Oath, or affirmation, to abandon your allegiance to the United States, or transfer your allegiance to the foreign state?" In a separate statement drafted by plaintiff, he acknowledged that he felt "more Mexican than American," but nonetheless said that "(b)y taking this oath I did not consider that I was relinquishing my rights as an American citizen. . . ." In a third statement, also drafted by the plaintiff and submitted that same day, plaintiff, contrary to his other two statements, stated that he took the "oath of allegiance" voluntarily and "that it was done with the intention of relinquishing my United States citizenship." Except for this one statement, plaintiff has unswervingly contended in all other documents and testimony that he never intended to relinquish his United States citizenship when in April 1970 he signed the application for the Certificate of Mexican Nationality.

A Certificate of Loss of Nationality was approved by the State Department in December 1971. The day after it was mailed to plaintiff he called Mr. Parsons to find out "what he could do to reverse the process. . . . He wanted to regain his American nationality" (Tr. at 208). Mr. Parsons responded, "You have got to talk to the Department of State. Don't talk to me" (Tr. at 208).

Plaintiff did seek reinstatement of his citizenship by taking an appeal from the issuance of the Certificate of Loss of Nationality to the Board of Appellate Review of the Department of State. On April 29, 1975, following a full hearing, that body affirmed the administrative finding of plaintiff's expatriation, and denied plaintiff's application for a United States passport.

Plaintiff instituted this action against the Secretary of State, seeking the issuance of a passport and a declaration of his United States citizenship, pursuant to 8 U.S.C. § 1503(c). After a three-day bench trial, the district court found for the Secretary-defendant and held that the denial of plaintiff's application for a passport by reason of expatriation was proper. Plaintiff appeals that judgment and our jurisdiction derives from 28 U.S.C. § 1291.

II

The district court in its memorandum decision applied the burden of proof standards created in 8 U.S.C. § 1481(c), which require the government to prove that plaintiff has taken an oath, made an affirmation or declared his allegiance to Mexico by a "preponderance of the evidence." If the government satisfies its burden, then the statute presumes that plaintiff acted voluntarily unless he can prove by a preponderance of the evidence that his actions were involuntary. See King v. Rogers, 463 F.2d 1188, 1189 (9th Cir. 1972).

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The district court in applying those standards to this case found that the government proved that plaintiff had declared his allegiance to Mexico by the preponderance of the evidence. In addition, the court concluded that plaintiff's evidence was insufficient to rebut the presumption of voluntariness. Assuming that the proper standards were applied, we are convinced that the record fully supports the court's findings. Therefore, it is necessary for us to evaluate the constitutional appropriateness of section 1481(c).

In considering the constitutionality of that provision our analysis must begin with the Supreme Court's opinion in Afroyim v. Rusk, 387 U.S. 253, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967). In Afroyim, the Court held unconstitutional section 1481(a)(5), which made voting in a political election of a foreign state an expatriating act. In so holding, the Court reasoned that the Fourteenth Amendment protects "every citizen of this Nation against a congressional forcible destruction of his citizenship." 8 Id. at 268, 87 S.Ct. at 1668. Therefore, in the Court's view every citizen has "a constitutional right to remain a citizen" of this country "unless he voluntarily relinquishes that citizenship." Id. (emphasis added). 9

In light of the Court's holding in Afroyim that Congress is constitutionally devoid of the power to impose expatriation on a citizen, the issue becomes whether Congress nonetheless retains the power to legislate as to the evidentiary standard for voluntariness or whether instead that term must be defined constitutionally. It seems to us absolutely inconsistent with the spirit of Afroyim to conclude that Congress somehow retains the power to define in the way it has here the conditions under which an individual is said to have relinquished voluntarily that citizenship.

In fact, the legislative history surrounding section 1481 demonstrates that Congress recognized that the citizen's ability to retain his citizenship can be very much a function of the standard of proof. Congress lowered the standard to a preponderance of the evidence because it felt that there were individuals who should be expatriated but who were avoiding that result in administrative...

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