Survey of the Law of Expatriation, 02-9

• Decision Date: 12 June 2002
• Docket Number: 02-9
• Citation: 26 Op. O.L.C. 56
• Parties: Survey of the Law of Expatriation
• Court: Opinions of the Office of Legal Counsel of the Department of Justice

26 Op. O.L.C. 56

Survey of the Law of Expatriation

No. 02-9

United States Department of Justice

June 12, 2002

JOHN C. YOO, Deputy Assistant Attorney General Office of Legal Counsel

Survey of the Law of Expatriation

Expatriating a U.S. citizen subject to the Citizenship Clause of the Fourteenth Amendment on the ground that, after reaching the age of 18, the person has obtained foreign citizenship or declared allegiance to a foreign state generally will not be possible absent substantial evidence, apart from the act itself, that the individual specifically intended to relinquish U.S. citizenship. An express statement of renunciation of U.S. citizenship would suffice.

An intent to renounce citizenship can be inferred from the act of serving in the armed forces of a foreign state engaged in hostilities against the United States.

MEMORANDUM OPINION FOR THE SOLICITOR GENERAL

You have asked us for a general survey of the laws governing loss of citizenship, a process known as "expatriation" (also known within the specific context of naturalized citizens as "denaturalization"). See, e.g. Perkins v. Elg, 307 U.S. 325, 334 (1939) ("Expatriation is the voluntary renunciation or abandonment of nationality and allegiance."). Part I of this memorandum provides a general description of the expatriation process. Part II notes the relative difficulty of expatriating a person on the grounds that he has either obtained naturalization in, or declared allegiance to, a foreign state, absent evidence of a specific intention to relinquish U.S. citizenship apart from the act of naturalization or declaration itself. Part III analyzes the expatriation of a person who serves in a foreign armed force engaged in hostilities against the United States.^[1]

I. Law of Expatriation

It is now well settled that anyone may renounce his United States citizenship.^[2]"In 1794 and 1797, many members of Congress still adhered to the English doctrine of perpetual allegiance and doubted whether a citizen could even voluntarily renounce his citizenship. By 1818, however almost no one doubted the existence of the right of voluntary expatriation. . . ." Afroyim v. Rusk, 387 U.S 253, 258 (1967) (footnote omitted).^[3] In 1868, Congress declared that "the right of [ 57] expatriation is a natural and inherent right of all people indispensable to the enjoyment of the rights of life liberty, and the pursuit of happiness." Act of July 27, 1868, ch. 249, pmbl., 15 Stat. 223, 223; see also 8 U.S.C. § 1481 note (2000) (quoting Rev. Stat. § 1999 (2d. ordered. 1878), 18 Stat. pt. 1, at 350 (repl. vol.)) (same). That declaration further stated that "any declaration, instruction, opinion, , or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government." 15 Stat, at 224. Similarly, the Burlingame Treaty of 1868 between the United States and China recognized "the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of. . . free migration and emigration... for purposes of curiosity, of trade, or as permanent residents." U.S.-China, art. 5, July 28, 1868, 16 Stat. 739, 740. Congress provided specific legislative authority for nullifying citizenship when, in 1907, it enacted the predecessor of the modern federal expatriation statute. See Act of Mar. 2, 1907, ch. 2534, 34 Stat. 1228. As the Supreme Court has noted, such acts of Congress "are to be read in the light of [Congress's 1868] declaration of policy favoring freedom of expatriation which stands unrepealed." Savorgnan v. United States, 338 U.S. 491, 498-99 (1950).

By virtue of its express power "[t]o establish an uniform Rule of Naturalization, " U.S. Const, art. I, § 8, cl. 4, Congress has an implied power to set the terms of U.S. citizenship, including the power to expatriate.^[4] But that power is limited by [ 58] the Citizenship Clause of the Fourteenth Amendment. That provision states that "[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." U.S. Const, amend. XIV, § l.^[5] As that clause has been construed by the Supreme Court at least since 1967, the United States may not deprive a person "born or naturalized in the United States" of his U.S. citizenship '"unless he voluntarily relinquishes it.'" Vance v. Terrazas, 444 U.S. 252, 260 (1980) (quoting Afroyim, 387 U.S. at 262).^[6] Forced expatriation has also been thought to violate other provisions of the Constitution. See Trop v. Dulles, 356 U.S. 86, 101, 102, 103 (1958) (plurality opinion) ("[U]se of denationalization as a punishment is barred by the Eighth Amendment. . . . The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime.. . . [T]he Eighth Amendment forbids Congress to punish by taking away citizenship "); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 165-66 (1963) (striking down as unconstitutional "the sanction of deprivation of nationality as a punishment . . . without affording the procedural safeguards guaranteed by the Fifth and Sixth Amendments"). Accordingly, at least since the Supreme Court's ruling in Afroyim v. Rusk, 387 U.S. 253 (1967), it is no longer constitutionally sufficient that a person who was born or naturalized in the United States has voluntarily engaged in conduct deemed by law to be an act of expatriation. The person must also undertake such an act with the specific intention to relinquish his U.S. [ 59] citizenship. See Terrazas, 444 U.S. at 263 (requiring that "the expatriating act [be] accompanied by an intent to terminate United States citizenship"). "[B]ecause of the precious nature of citizenship, it can be relinquished only voluntarily, and not by legislative fiat." Jolley v. INS, 441 F.2d 1245, 1248 (5th Cir. 1971).

Under current federal law, any party claiming that a person has abandoned his U.S. citizenship must establish three elements. See 8 U.S.C. § 1481 (2000). First, the person must take one of the statutorily enumerated acts of expatriation, such as "obtaining naturalization in" or "taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state" after reaching the age of 18, "entering, or serving in, the armed forces of a foreign state . . . engaged in hostilities against the United States, " or formal renunciation before an appropriate United States official. 8 U.S.C. § 1481(a).^[7] Second, he must act "voluntarily." Id. See also Nishikawa, 356 U.S. at 133 ("no conduct results in expatriation unless the conduct is engaged in voluntarily"). Third, he must act "with the intention of relinquishing United States nationality." 8 U.S.C. § 1481(a).^[8] Expatriation occurs "at the time the expatriating acts were committed, not at the time his alienage was judicially determined." United States ex rel. Marks v. Esperdy, 315 F.2d 673, 676 (2d Cir. 1963), aff'd by an equally divided court, 377 U.S. 214 (1964); see also 8 U.S.C. § 1488 (2000) ("The loss of nationality under this part shall result solely from the performance by a national of the acts or fulfillment of the conditions specified in this part.").

Formal renunciation^[9] is therefore not the only way in which a U.S. citizen may express his "intention of relinquishing United States nationality." 8 U.S.C. § 1481(a). [ 60] An intention to abandon citizenship can also be manifested through various categories of conduct. See Terrazas, 444 U.S. at 260 ("intent to relinquish citizenship . . . [can be] expressed in words or . .. found as a fair inference from proved conduct"); Expatriation—Effect of Afroyim v. Rusk, 387 U.S. 253, 42 Op. Att'y Gen. 397, 400 (1969) ('"Voluntary relinquishment' of citizenship is not confined to a written renunciation.... It can also be manifested by other actions declared expatriative under the act. . .."). Thus, although the performance of an expatriating act cannot be used as "the equivalent of or as conclusive evidence of the indispensable voluntary assent of the citizen, " the Supreme Court has held that such conduct "may be highly persuasive evidence in the particular case of a purpose to abandon citizenship." Terrazas, 444 U.S. at 261 (quotations omitted). So long as "the trier of fact. . . conclude[s] that the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to relinquish his citizenship, " the statutory requirements for expatriation have been met. Id. Lower courts have similarly held that "specific subjective intent to [ 61] renounce United States citizenship. . . may [be] prove[d] ... by evidence of an explicit renunciation, acts inconsistent with United States citizenship, or by affirmative voluntary act[s] clearly manifesting a decision to accept [foreign] nationality." King v. Rogers, 463 F.2d 1188, 1189 (9th Cir. 1972) (citations and quotations omitted). "Specific intent may ... be proven by evidence of what steps the alleged expatriate did or did not take in connection with his expatriating acts." United States v. Schiffer, 831 F.Supp. 1166, 1194 (E.D. Pa. 1993), off d without op., 31 F.3d 1175 (3d Cir. 1994).

The party claiming that a person has lost his U.S. citizenship has the burden to prove by a preponderance of the evidence the performance of an act of expatriation and the intention to relinquish citizenship. 8 U.S.C. § 1481(b); Terrazas, 444 U.S. at 268; see also Id. at 264-67 (upholding preponderance of the evidence standard of proof against constitutional attack). Although any person who performs an act of expatriation is presumed to have done so voluntarily, that...