Voluntariness of Renunciations of Citizenship Under 8 U.S.C. §1481(a)(6)
| Decision Date | 27 September 1984 |
| Docket Number | 84-20 |
| Citation | 8 Op. O.L.C. 220 |
| Court | Opinions of the Office of Legal Counsel of the Department of Justice |
| Parties | Voluntariness of Renunciations of Citizenship Under 8 U.S.C. §1481a6 |
Ralph W. Tarr Deputy Assistant Attorney General Office of Legal Counsel.
Voluntariness of Renunciations of Citizenship Under 8 U.S.C. § 1481(a)(6)
A renunciation of citizenship would likely not be held involuntary by a court solely because it was undertaken as part of an agreement whereby federal prosecutors agreed not to proceed with denaturalization and deportation proceedings if the subjects of the investigation agreed to renounce their U.S. citizenship. In the analogous context of plea bargaining in criminal cases, courts have consistently held that the threat of greater punishment by prosecutors does not by itself deprive the defendant of the ability to voluntarily choose to plea bargain, absent other indicia of improper coercion. In the absence of facts indicating further government coercion, a court would likely look to principles applicable to the determination of voluntariness in criminal plea bargains and conclude that renunciation of citizenship pursuant to the agreements at issue did not violate the constitutional requirement of voluntariness per se.
MEMORANDUM OPINION FOR. THE ACTING LEGAL ADVISOR DEPARTMENT OF STATEThis responds to your request for our opinion whether renunciations of United States citizenship under 8 U.S.C. § 1481(a)(6)[1] by two naturalized United States citizens who are alleged to have been involved in Nazi persecution are voluntary. These individuals, Mr. A and Mr B, have formally renounced their United States citizenship pursuant to agreements negotiated with the Office of Special Investigations of the Department of Justice (OSI), whose mission is to identify, denaturalize, and deport persons who entered the United States subsequent to World War II and who obtained United States citizenship by concealing their involvement in Nazi persecution. Under those agreements, OSI agreed not to institute denaturalization and deportation proceedings if those individuals left the United States and formally renounced their citizenship.[2] [ 221]
You are concerned that the formal renunciations of citizenship made by Mr. A and Mr. B may not meet the constitutional requirement that expatriation be a voluntary act, [3] because of the direct and substantial involvement of the United States Government in encouraging and facilitating the renunciations. Accordingly, you have asked this Office to review the background of these cases and to advise you whether the renunciations would be considered voluntary under applicable law. We understand that OSI and the Criminal Division of this Department have agreed to our consideration of these cases.
We believe it would be inappropriate, and indeed impossible, for this Office to provide you with a definitive answer as to whether these particular renunciations were in fact voluntary. We obviously cannot undertake any independent investigation of the underlying facts, and are not competent to resolve any factual disputes or contradictions that could conceivably arise in the course of such an investigation. Accordingly, our advice here focuses on the underlying legal standards and precedents that we believe should be applied to determine whether these renunciations were voluntary, and how we believe a court would apply those standards, based on the facts presented to us.
The question we address is whether, under applicable precedent, a court would find that the renunciations of citizenship pursuant to agreements with United States prosecutors are voluntary, in light of the influence brought to bear upon those individuals by the United States Government and the arguably coercive effect of the threatened denaturalization and deportation proceedings. For the reasons set forth below we believe that a court would not conclude that a formal renunciation of citizenship is involuntary solely because it was undertaken pursuant to such an agreement. We do not believe that the involvement of United States prosecutors in influencing and facilitating such decisions necessarily amounts to duress or coercion that would vitiate the voluntariness of the choice faced by those individuals i.e., whether to renounce citizenship or to face the denaturalization and deportation proceedings. In reaching this conclusion, we find highly relevant judicial consideration in the criminal context of similar voluntariness questions raised by plea bargaining. The analogy is not exact, but we believe it is apt, and the reasoning used by the courts in evaluating the voluntariness of plea bargains is quite similar to that used in determining the voluntariness of expatriating acts under 8 U.S.C. § 1481.
We believe that circumstances could arise in which a renunciation of citizenship pursuant to an agreement by the United States Government not to institute denaturalization and deportation proceedings could be considered involuntary by the courts. If, for example, the prosecutors used threats of physical or mental intimidation, materially misrepresented the basis for and consequences of the agreement, withheld material evidence, or refused to allow the individual the assistance of counsel in meetings with prosecutors, the resulting renunciation of citizenship might well be considered by the courts to be involuntary. Similarly, if the individual was not competent to understand the terms of the [ 222] agreement and the consequences of his actions, or was not informed of the nature of the charges against him and of the consequences of his actions, his renunciation could well be considered to be involuntary. As far as we are aware, the Mr A and Mr. B cases present none of these particular circumstances, and therefore we believe a court would find the renunciations to be voluntary.
OSI was created by Attorney General Civiletti in 1979 to consolidate enforcement of immigration statutes and policy against suspected Nazi persecutors.[4] The usual practice of OSI has been to institute denaturalization proceedings under 8 U.S.C. § 1451(a)[5] if an investigation reveals that a Nazi persecutor obtained United States citizenship fraudulently or illegally, and then to institute deportation proceedings under 8 U.S.C. § 1251(a)(19) upon successful completion of denaturalization proceedings.[6] This process inevitably takes substantial time, effort, and resources, and its success depends in general on finding another country that is willing to accept the deported individual.[7] [ 223]
OSI has informed us that, in accordance with its standard practice, it conducted investigations of Mr. A and Mr. B that included questioning of those individuals under oath by OSI attorneys. After OSI completed its investigations, it contacted lawyers for Mr. A and Mr. B and advised them that their respective clients were serious targets for denaturalization and deportation because of their wartime activities on behalf of the Nazi regime. According to OSI, after reviewing the evidence against their clients the lawyers for those individuals asked OSI how potential litigation could be avoided. They were advised that OSI would refrain from litigating only if it could secure all the relief to which it would be entitled through denaturalization and deportation proceedings.
After further discussions between OSI and counsel for Mr. A and Mr. B, separate agreements were reached and executed by Mr. A and by Mr. B. Each agreement was also executed by their respective counsel, and by representatives of OSI and the Criminal Division.
The two agreements differ slightly in their terms, but their essential elements are the same. In the agreements, Mr. A and Mr. B recited that they are familiar with the allegations made against them by OSI, that they are subject to denaturalization and deportation, and that they were involved in Nazi activities. Both agreed permanently to depart the United States, and to renounce formally their United States citizenship before an appropriate United States official abroad. They further consented to the entry of orders of denaturalization and deportation if they failed to comply with the terms of the agreement, and waived any right to apply for discretionary relief, appeal, or any other procedure that would have the effect of reviewing or contesting either the agreement itself or any order of denaturalization or deportation entered pursuant to the agreement. Each agreement recites expressly that it is entered into ''freely and voluntarily upon consultation with counsel, '' that the agreement had been personally reviewed and discussed with counsel, and that the signatory is not, and has not been, ''under duress or compulsion of any kind.'' OSI has informed us that both Mr. A and Mr. B acknowledged in the presence of OSI representatives that they understood the terms of the agreements and the consequences of their actions.
For its part, OSI agreed not to commence any litigation seeking denaturalization or deportation against Mr. A and Mr. B and, in accordance with its existing policy, not to commence litigation seeking the revocation of United States citizenship of any family member whose citizenship was derived from the subject. The agreements further recite that ''[t]he United States recognizes that'' if the subject complies fully with the terms of the agreement, ''there is no basis under U.S. law for limiting in any way [the] receipt of Social Security benefits.''[8] [ 224]
In accordance with these agreements, Mr. A and Mr. B have executed formal oaths of renunciation, coincidentally both before United States consular officers in the Federal Republic of Germany. In both cases, they were counseled by those officers as to the seriousness and significance of a...
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