Richards v. Secretary of State, Dept. of State, 82-5991

• Decision Date: 04 February 1985
• Docket Number: No. 82-5991,82-5991
• Parties: William Anthony RICHARDS, Plaintiff-Appellant, v. SECRETARY OF STATE, DEPARTMENT OF STATE, United States of America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1413

752 F.2d 1413

William Anthony RICHARDS, Plaintiff-Appellant, v. SECRETARY OF STATE, DEPARTMENT OF STATE, United States of America, Defendants-Appellees.

No. 82-5991.

United States Court of Appeals Ninth Circuit.

Argued Sept. 9, 1983.

Submitted Nov. 21, 1983.

Decided Feb. 4, 1985.

David Leung, Santa Ana, Cal., for plaintiff-appellant.

Ronald K. Silver, Asst. U.S. Atty., Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before HUG and REINHARDT, Circuit Judges, and PANNER, ^* District Judge.

REINHARDT, Circuit Judge:

William Anthony Richards was issued a Certificate of Loss of Nationality by the Department of State ("the Department") on June 22, 1978. The Department found that he had expatriated himself on February 23, 1971, when he became a citizen of Canada and, in doing so, took an oath of allegiance to the Queen of England and expressly renounced allegiance to any other sovereign. Richards brought this suit seeking a declaration that the procedures the Department used in issuing the Certificate violated the due process, equal protection, and bill of attainder clauses of the Constitution. U.S. Const. amend. V; ¹

U.S. Const. art. I, Sec. 9, cl. 3. He also sought a declaration that he is a citizen of the United States. The district court declined to reach the constitutional claims, finding that a de novo trial to determine whether or not he is a United States citizen would provide him full relief. The district court conducted such a trial and concluded that Richards is not a United States citizen. Richards appeals. We affirm.

FACTS

William Anthony Richards acquired United States citizenship when he was born in San Luis Obispo, California, on September 13, 1938. He received a Bachelor of Arts degree from the University of Southern California in 1964, and, in 1965, he left the United States and established residence in Canada. He taught school in Vancouver, British Columbia, until 1969.

In 1969, Richards applied for employment with the Boy Scouts of Canada. He was informed that employees must either be Canadian citizens or have declared an intention to acquire Canadian citizenship upon becoming eligible. As Richards was not a Canadian citizen, he was employed only after he declared his intention to become one.

Less than two years later, Richards became eligible for Canadian citizenship. He applied for and was granted Canadian citizenship on February 23, 1971. On that date, he signed the following Declaration of Renunciation and Oath of Allegiance:

I HEREBY RENOUNCE ALL ALLEGIANCE AND FIDELITY TO ANY FOREIGN SOVEREIGN OR STATE OF WHOM OR WHICH I MAY AT THIS TIME BE A SUBJECT OR CITIZEN.

I SWEAR THAT I WILL BE FAITHFUL AND BEAR TRUE ALLEGIANCE TO HER MAJESTY QUEEN ELIZABETH THE SECOND, HER HEIRS AND SUCCESSORS, ACCORDING TO LAW, AND THAT I WILL FAITHFULLY OBSERVE THE LAWS OF CANADA AND FULFIL MY DUTIES AS A CANADIAN CITIZEN SO HELP ME GOD.

In March, 1971, Richards obtained a Canadian passport, which he used when he returned to the United States in 1972 for graduate study. He registered as a foreign student at the University of Southern California. In 1973, he returned to Canada where he worked as a school teacher until 1975. He then became a freelance writer and trail guide.

In March, 1976, he applied for and received a new Canadian passport, which he used when he travelled to Ireland later that year. He married a Canadian citizen in April, 1976, and the following month he visited the United States Consulate General at Vancouver ("the Consulate") to file visa petitions for his wife and step-children. It was at that point that United States authorities first became aware of Richards' naturalization in Canada.

After Canadian authorities confirmed that Richards had obtained Canadian citizenship, the Consulate prepared a Certificate of Loss of Nationality and forwarded it to the Department for approval. The Department instructed the Consulate to invite Richards to execute an "affidavit of expatriated person." It further instructed the Consulate that, if Richards refused to execute such an affidavit, the Consulate should send him by registered mail a "preliminary finding of loss of nationality letter." The letter was to inform Richards that he may have lost his United States nationality, and it was to notify him that he had 30 days in which to present any evidence to support any contention that he did not intend to relinquish his United States citizenship when he became a Canadian citizen. The Consulate prepared the letter but was unable to locate Richards. The Department then retired Richards' case to inactive status without approving the Certificate of Loss of Nationality.

On December 2, 1977, Richards visited the Consulate for the purpose of determining Richards appealed to the Department's Board of Appellate Review. He argued that the statutes and regulations authorizing the issuance of Certificates of Loss of Nationality are invalid and void because they deny him due process and equal protection of the laws. U.S. Const. amend. V; see supra note 1. He also argued that the statute authorizing the issuance of the Certificate without a prior judicial trial, 8 U.S.C. Sec. 1501 (1982), constitutes a bill of attainder. U.S. Const. art. I, Sec. 9, cl. 3. Finally, he argued that the Department's conclusion that he had lost his United States citizenship was erroneous. Richards waived his right to a hearing before the Board.

                his citizenship status. 2   He was asked to complete questionnaires relating to his Canadian citizenship and his intent to relinquish his United States citizenship.  He submitted the forms on December 6.  He was also interviewed by a consular official.  Based on the completed questionnaire and the interview, the Consulate determined that Richards had lost his United States citizenship.  It sent the Department a letter summarizing the reasons behind its conclusion.  The Department then approved the Certificate of Loss of Nationality, which was issued on June 22, 1978, and delivered to Richards in California, where he had returned in December of 1977.  His marriage ended in divorce in July of 1978
                

The Board determined that it lacked jurisdiction to consider Richards' constitutional arguments. It then rejected all of Richards' other arguments. It concluded that Richards had lost his United States citizenship upon becoming a Canadian citizen.

Richards then instituted this suit. Seeking a declaratory judgment, he again argued that the procedures used by the Department in issuing the Certificate violate the due process, equal protection, and bill of attainder clauses. He also sought a declaration that he is a United States citizen.

The district court declined to address the constitutional claims. It believed that Richards would receive full relief if the court conducted a de novo trial on whether he is or is not a United States citizen. The court then proceeded to conduct such a trial. It concluded that Richards lost his United States citizenship when he voluntarily and with specific intent to renounce his United States citizenship became a Canadian citizen and took an oath of allegiance to Canada.

DISCUSSION

I. Richards' Citizenship Status

Richards seeks a declaratory judgment under 8 U.S.C. Sec. 1503(a) (1982). That section authorizes, with certain exceptions inapplicable here, any person within the United States who has been denied a right or privilege on the ground that he is not a national of the United States to institute a declaratory judgment action to determine whether he is a national of the United States. A suit under section 1503(a) is not one for judicial review of the agency's action. Rather, section 1503(a) authorizes a de novo judicial determination of the status of the plaintiff as a United States national. Because Richards has been issued a Certificate of Loss of Nationality, the district court had jurisdiction.

A. Background

In Afroyim v. Rusk, 387 U.S. 253, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967), the Supreme Court held that the government has no power to take away United States citizenship. The Court overruled its holding In Vance v. Terrazas, 444 U.S. 252, 100 S.Ct. 540, 62 L.Ed.2d 461 (1980), the Supreme Court elaborated on the "voluntary relinquishment" proviso. It rejected the Secretary of State's argument that a citizen loses his citizenship simply by voluntarily performing an act that Congress has designated an expatriating act. The Court stated that a person loses his citizenship only if he intends to relinquish his citizenship, "whether the intent is expressed in words or is found as a fair inference from proved conduct." 444 U.S. at 260, 100 S.Ct. at 545. "In the last analysis," the Court said, "expatriation depends on the will of the citizen rather than on the will of Congress and its assessment of his conduct." Id.

                in Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568, 2 L.Ed.2d 603 (1958), that such a power is encompassed in the government's implied power to conduct the nation's foreign affairs.  Recognizing that in other nations the government has the power to strip people of their citizenship, the Court held in Afroyim that "[i]n our country the people are sovereign and the government cannot sever its relationship to the people by taking away their citizenship."    387 U.S. at 257, 87 S.Ct. at 1662.  The Court held that a United States citizen possesses "a constitutional right to remain a citizen ... unless he voluntarily relinquishes that citizenship."   Id. at 268, 87 S.Ct. at 1668. 3
                

Under Terrazas, a person loses his United States citizenship if he voluntarily performs one of the expatriating acts enumerated by Congress and if, in performing that act, he intends to relinquish his citizenship. Under 8 U.S.C. Sec. 1481(c) (1982), the government has to show voluntariness and specific intent only by a preponderance of the evidence. That section also provides...