Kahane v. Shultz, 85 Civ. 3754.

• Decision Date: 21 February 1987
• Docket Number: No. 85 Civ. 3754.,85 Civ. 3754.
• Citation: 653 F. Supp. 1486
• Parties: Rabbi Meir KAHANE, Plaintiff, v. George P. SHULTZ, Secretary of State and Edwin Meese, Attorney General, Defendants.
• Court: U.S. District Court — Eastern District of New York

653 F. Supp. 1486

Rabbi Meir KAHANE, Plaintiff, v. George P. SHULTZ, Secretary of State and Edwin Meese, Attorney General, Defendants.

No. 85 Civ. 3754.

United States District Court, E.D. New York.

February 21, 1987.

Burt Neuborne, Jack D. Novik, American Civil Liberties Union Foundation, Barry Slotnick, New York City, for plaintiff.

Robert L. Begleiter, Asst. U.S. Atty. (Andrew J. Maloney, U.S. Atty., of counsel), Brooklyn, New York, for defendants.

MEMORANDUM AND ORDER

GLASSER, District Judge:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States...." U.S. Const. amend. XIV, § 1. In this case, the court must decide whether the plaintiff, Rabbi Meir Kahane, has lost the precious right of American citizenship. The government must prove three things if Kahane is to be deprived of his citizenship:

(1) that he committed an expatriating act, as defined by statute;

(2) that he did so voluntarily; and

(3) that he intended to relinquish his citizenship.

The parties agree that Kahane has committed an expatriating act, because he accepted a seat in the parliament of a foreign state, the Israeli Knesset. See 8 U.S.C. § 1481(a)(4)(A). The parties also agree that Kahane performed the expatriating act voluntarily, as required by Nishikawa v. Dulles, 356 U.S. 129, 133, 78 S.Ct. 612, 615, 2 L.Ed.2d 659 (1958). The only dispute between the parties is whether Kahane "intended to relinquish his citizenship," as required by Vance v. Terrazas, 444 U.S. 252, 261, 100 S.Ct. 540, 545, 62 L.Ed.2d 461 (1980).

The State Department's Board of Appellate Review found that Kahane intended to relinquish his citizenship when he joined the Knesset; the Board therefore held that Kahane had expatriated himself. In this action, Kahane challenges the Board's determination, which is subject to de novo review, 8 U.S.C. § 1503(a); see Richards v. Secretary of State, 752 F.2d 1413, 1417 (9th Cir.1985); Note, United States Loss of Citizenship After Terrazas: Decisions of the Board of Appellate Review, 16 N.Y. U.J. Int'l L. & Pol. 829, 844 (1984) ("NYU Note"). The parties have cross-moved for summary judgment, Fed.R.Civ.P. 56, and, for the reasons that follow, the government's motion is denied and Kahane's motion is granted.

I. Background

Kahane became an American citizen by virtue of his birth in New York City on August 1, 1932. He took up permanent residence in Israel in September 1971 and, in December 1972, he became a citizen of Israel by operation of that country's Law of Return. The administrative record indicates that the Law of Return operated automatically to confer Israeli citizenship on Kahane, and the government does not contend that Kahane's dual citizenship is a ground for expatriation. Defendants' Memorandum of Law in Support of their Motion for Summary Judgment and Judgment on the Pleadings at 31 n. 19; see NYU Note, supra, at 861 n. 225 ("The dual citizenship conferred upon American Jews under the Israeli Law of Return will normally not affect U.S. citizenship because it is presumed that Israeli citizenship is accepted without the intent to relinquish U.S. citizenship.").

Since becoming a resident of Israel, Kahane has participated vigorously in that nation's political life. He founded the Kach Party and has run at the head of its ticket in parliamentary elections. Under Israeli's system of proportional representation, the Kach Party received insufficient votes to garner even one seat in the Knesset following the elections of 1973, 1977, and 1981. In 1984, however, Kach received sufficient votes to seat one candidate, and Kahane took that seat on August 13. On the same day, Edward A. Betancourt of the State Department wrote to one of Kahane's attorneys, Barry Ivan Slotnick, stating that Kahane had performed a potentially expatriating act and reminding Slotnick of Kahane's right to submit evidence "regarding his ... intent toward U.S. citizenship at the time of the expatriating act and any other information believed relevant." On September 10, 1984, Kahane wrote to Ray E. Clore, the United States Consul in Jerusalem, and enclosed a partially completed questionnaire entitled "Information for Determining U.S. Citizenship." In responding to the questionnaire, Kahane reiterated his understanding that he did not intend to relinquish American citizenship when he took a seat in the Knesset. His cover letter to Clore expressed his displeasure with the State Department's inquiries and concluded: "Now, stop bothering me." Clore signed a Certificate of Loss of Nationality of the United States ("CLN") with regard to Kahane on December 18, 1984. See 8 U.S.C. § 1501. The CLN was approved on October 2, 1985 by Carmen A. DiPlacido, Director of the Office of Citizens sic Consular Services in the Bureau of Consular Affairs of the State Department.

Kahane appealed to the Board of Appellate Review on October 11, 1985 and commenced this action on October 18, 1985. The action was stayed pending disposition by the Board. The Board rejected Kahane's argument that the question of his intent was controlled by statements that he and his attorney had made, before and after his seating in the Knesset, to the effect that he did not intend to relinquish his citizenship. Finding that Kahane had expatriated himself, the Board characterized his argument as leading "to the anomalous result ... that the government would be foreclosed (except perhaps where perjury could be proved) from making a determination of loss of nationality simply because a citizen says at the crucial time he did not intend to relinquish citizenship." In re Kahane, slip op. at 8 (Dep't of State Bd. of App.Rev. May 1, 1986). The Board distinguished its prior decision that another member of the Knesset had not expatriated herself:

M.F. had gained her seat in the Knesset only because the Civil Rights party had won an unexpected number of seats, she being third on the list of candidates; M.F. appeared rarely in the Knesset and when she did, was mainly active on women's rights issues; she did not involve herself in the broader political issues in Israel.

Id. at 12 (citing In re M.F. (Dep't of State Bd. of App.Rev. Jan. 29, 1982)). The Board summarized the evidence regarding Kahane that manifested, in its view, "a commitment to and involvement in the public affairs of Israel that transcend mere empathy and a disposition to support a friendly foreign state." Id. at 13. The Board stated:

Rabbi Kahane long ago became a citizen of Israel. He has served in the armed forces of Israel. His taking a seat in the Knesset climaxed fourteen years of political activism characterized by a professed ambition to change the social and political land scape sic of Israel. Shortly after arriving in Israel he founded a political party, and beginning in 1973 he ran for the Knesset in every national election. Before he was finally elected to the Knesset, Rabbi Kahane attempted, through speeches and public manifestations, to influence the direction of government policies and programs. Upon election in 1984, he took a seat in the Knesset, the supreme authority in the Israeli governmental structure. He made a declaration of allegiance to Israel, as required by law, at the first session of the Knesset, pledging to be faithful to the State of Israel and to serve faithfully in the Knesset. Entering the Knesset was, by his own admission, one more step along the road he has travelled to make Israel his "permanent home." As leader of a political party, Rabbi Kahane enjoys a status and influence in the Knesset greater than that of an ordinary member. He has made himself a factor in Israeli politics, arguably a formidable one, and aspires to become Prime Minister as he told a National Press Club audience in Washington, D.C. on September 12, 1985.

Id.

II. Facts

Each side points to specific facts in the record in support of its motion for summary judgment. Kahane emphasizes his continuing ties to the United States, as manifested, for instance, by his decision to remain the head of the Jewish Defense League ("J.D.L."), an organization he had founded in 1968, for more than one year following his seating in the Knesset. A State Department telegram of October 4, 1972 recorded Kahane's intent to retain his American citizenship even while running for the Knesset (R3).¹ On the questionnaire he filled out, Kahane noted that he retained a residence in the United States, filed United States income tax returns, and spent one-third of each year in the United States (R95). Kahane continued to utilize a United States passport (R36, 51). Kahane's wife and four children, all born in the United States, have been registered with the United States Consul General in Jerusalem since 1972 (R65).

In addition to his vigorous litigation of the question of his citizenship, Kahane has made a series of statements expressing his intent to remain an American citizen. Upon his conscription by the Israel Defense Force in 1979, Kahane filed an affidavit indicating that he did not wish to relinquish his American citizenship and that he would not have joined the IDF had he not been conscripted (R34). The United States Consul determined that there was insufficient evidence to show an intent to relinquish citizenship and approved Kahane's application for documentation as a United States citizen (R35). On August 1, 1984, after Kahane had been elected to the Knesset but twelve days before he was seated, his attorney Slotnick wrote to the State Department "to reassert Kahane's ... firm resolve ... to remain a national of the United States" (R45). The key paragraph of the letter stated:

I therefore reiterate that Citizen Kahane has never intended nor does he ever intend to relinquish voluntarily his valued status as a national of the United States of America. His compaign sic for and election to the Israeli Knesset is a wholly separate act, totally unrelated to and independent of

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