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1708 When Does Expatriation Occur
1708 When Does Expatriation Occur
1708 When Does Expatriation Occur
1708 ----When does expatriation occur [SUPPLEMENT] [3A Am Jur 2d ALIENS AND CITIZENS]
Statutes:
The provisions of INA 349(a) [8 USCS 1481(a)] which enumerate acts which may cause a citizen,
whether native born or naturalized, to lose United States nationality are amended to require that the
person perform such acts voluntarily with the intention of relinquishing United States nationality.
Immigration and Nationality Act Amendments of 1986, 18(a).
The conclusive presumption of voluntariness for acts of expatriation performed under certain
circumstances, INA 349(b) [8 USCS 1481(b)], was repealed. Immigration and Nationality Act
Amendments of 1986, 19.
Obersvation:: While the burden of proof remains with the Government to prove by a preponderance of
the evidence that an act of expatriation was performed voluntarily, it appears that the citizen yet has the
burden of production of evidence to rebut the statutory presumption of voluntariness under INA 349(c)
[8 USCS 1481(c)].
Footnotes
Footnote 16. United States ex rel. Marks v Esperdy (1963, CA2 NY) 315 F2d 673, affd 377 US 214, 12
L Ed 2d 292, 84 S Ct 1224, reh den 377 US 1010, 12 L Ed 2d 1059, 84 S Ct 1904.
Footnote 17. United States ex rel. Marks v Esperdy (1963, CA2 NY) 315 F2d 673, affd 377 US 214, 12
L Ed 2d 292, 84 S Ct 1224, reh den 377 US 1010, 12 L Ed 2d 1059, 84 S Ct 1904.
Except where a conclusive presumption applies, 24 the citizen has the burden of coming forth with
evidence to rebut the statutory presumption that his alleged expatriative act was committed voluntarily. 25
Such presumption must be rebutted by a preponderance of the evidence. 26
Comment: Neither the citizenship clause of the Fourteenth Amendment nor the due process clause of the
Fifth Amendment require that a claim of loss of citizenship be established by clear and convincing
evidence rather than by a preponderance of the evidence. 27 The presumption of voluntariness
provided in 8 USCS 1481(c) is not unconstitutional. 28
Statutes:
The conclusive presumption of voluntariness for acts of expatriation performed under certain
circumstances, INA 349(b) [8 USCS 1481(b)], was repealed. Immigration and Nationality Act
Amendments of 1986, 19.
Observation:: While the burden of proof remains with the Government to prove by a preponderance of
the evidence that an act of expatriation was performed voluntarily, it appears that the citizen yet has the
burden of production of evidence to rebut the statutory presumption of voluntariness under INA 349(c)
[8 USCS 1481(c)].
Footnotes
Footnote 21. Monaco v Dulles (1954, CA2 NY) 210 F2d 760.
Footnote 22. Stipa v Dulles (1956, CA3 Pa) 233 F2d 551.
Footnote 27. Vance v Terrazas (1980) 444 US 252, 62 L Ed 2d 461, 100 S Ct 540, reh den 445 US 920,
63 L Ed 2d 606, 100 S Ct 1285 and on remand (ND Ill) 494 F Supp 1017, affd (CA7 Ill) 653 F2d 285.
Footnote 28. Vance v Terrazas (1980) 445 US 920, 63 L Ed 2d 606, 100 S Ct 1285.
1710 State Department proceedingsdetermination of nationality by consular or diplomatic officer [3A
Am Jur 2d ALIENS AND CITIZENS]
If a diplomatic or consular officer has reason to believe that a person, while in a foreign country, has lost
his United States nationality under the nationality laws, he must prepare a certificate of loss of nationality
containing the facts upon which such belief is based and forward it to the Department of State, 31 along
with the affidavit of the person subject to investigation if that person admits he has expatriated himself by
the voluntary performance of an act or fulfillment of a condition of the nationality laws and consents to
the execution of the affidavit. 32 The diplomatic or consular office in which the certificate is prepared
must forward a copy of the certificate to the person to whom it relates or his representative if the
certificate is approved by the Department of State. 33
Footnotes
Case authorities:
Expatriating act under 8 USCS 1481(a)(5) of making formal renunciation of American citizenship by
executing oath of renunciation before American Consulate in Jerusalem was done voluntarily where
evidence revealed that plaintiff chose to renounce American citizenship in order to further his political
career in Israel and run for election to Israeli parliament, and that he specifically acknowledged at time of
making oath of renunciation that he would become an alien with respect to the United States; fact that
plaintiff's political ambitions were thwarted by decision of Israeli Supreme Court barring plaintiff from
running for election does not entitle plaintiff to declaration that he is, nonetheless, still a United States
citizen. Kahane v Secretary of State (1988, DC Dist Col) 700 F Supp 1162.
Footnotes
Case authorities:
A Certificate of Loss of Nationality does not effect an alleged loss of nationality, but is merely an
administrative method for the government to keep track, for informational purposes, of those persons it
considers to have voluntarily relinquished citizenship. United States v Schiffer (1992, ED Pa) 798 F Supp
1128.
Footnotes
Practice guide: Legal conclusions of the State Department's Board of Appellate Review arrived at in
deciding an issue of expatriation may not be considered binding on the Attorney General in subsequent
proceedings involving the same individual's citizenship. 42 In the event of a conflict between federal
agencies, a citizen may resolve the conflict by bringing an action under 8 USCS 1503 for a judicial
declaration of nationality. 43 The issuance of a certificate of loss of nationality constitutes a "final
administrative denial" under 8 USCS 1503(a), so that the person to whom the certificate has been issued
may file a declaratory judgment action under that section for a declaration of United States nationality. 44
Footnotes
Footnote 42. Cartier v Secretary of State (1974) 165 App DC 130, 506 F2d 191, cert den 421 US 947, 44
L Ed 2d 101, 95 S Ct 1677; Lun Kwai Tsui v Atty. Gen. of United States (1978, DC Dist Col) 445 F Supp
832.
Footnote 43. Cartier v Secretary of State (1974) 165 App DC 130, 506 F2d 191, cert den 421 US 947, 44
L Ed 2d 101, 95 S Ct 1677.
Footnote 44. Cartier v Secretary of State (1974) 165 App DC 130, 506 F2d 191, cert den 421 US 947, 44
L Ed 2d 101, 95 S Ct 1677; Linzalone v Dulles (1954, DC NY) 120 F Supp 107.
Practice Aids: Allegation in complaintFor declaratory judgment and injunctive relief against Secretary
of State issuing certificate of loss of nationalityExpatriation determination contrary to fact. 11 Federal
Procedural Forms 40:112.
Footnotes
Footnote 45. Acheson v Murakami (1949, CA9 Cal) 176 F2d 953.
Footnotes
Footnotes
Practice Aids: Consequences of acquiring dual citizenship, 67 Law Inst J 957 (1993).
Footnotes
Footnote 51. Jalbuena v Dulles (1958, CA3 Pa) 254 F2d 379.
Footnote 52. Jalbuena v Dulles (1958, CA3 Pa) 254 F2d 379.
Footnotes
1719 Restrictions on expatriationacts in United States [3A Am Jur 2d ALIENS AND CITIZENS]
Statutes:
As amended in 1994, (8 USCS 1483) is expressed in terms of "loss of nationality" rather than
"expatriation."
Footnotes
Footnote 55. 8 USCS 1483(a).
Statutes:
As amended in 1994, (8 USCS 1483) is expressed in terms of "loss of nationality" rather than
"expatriation."
Footnotes
A citizen may rebut the statutory presumption of voluntariness by introducing evidence that the
expatriating act was performed under circumstances involving duress, mistake, 62 or incapacity negating
a free choice. 63 If the citizen submits evidence of a lack of mental capacity, the burden is then on the
government to show that at the time of his expatriative act the respondent was experiencing a lucid
interval during which he had sufficient capacity to understand in a reasonable manner the nature and
effect of the act which he was doing. 64 A citizen is not exculpated from the consequences of
expatriating acts by the fact that alternatives open to the citizen were painful or that the acts involved
commendable motives. 65
The statutory presumption of voluntariness does not apply to acts demonstrating a specific intent to
relinquish United States citizenship unless these are the same as acts which are designated as expatriation
by the statute. 66
Statutes:
Observation:: While the burden of proof remains with the Government to prove by a preponderance of
the evidence that an act of expatriation was performed voluntarily, it appears that the citizen yet has the
burden of production of evidence to rebut the statutory presumption of voluntariness under INA 349(c)
[8 USCS 1481(c)]. The provisions of INA 349(a) [8 USCS 1481(a)] which enumerate acts which
may cause a citizen, whether native born or naturalized, to lose United States nationality are amended to
require that the person perform such acts voluntarily with the intention of relinquishing United States
nationality. Immigration and Nationality Act Amendments of 1986, 18(a).
Case authorities:
Statutory presumption under 8 USCS 1481(c) that an expatriating act was taken voluntarily requires that
Government prove by preponderance of evidence that former citizen had specific intent to relinquish
American citizenship; hence, former citizen failed to support claim that he did not voluntarily renounce
citizenship, but rather was compelled to do so by change in Israeli law which required that members of
Israeli parliament, the Knessett, be citizens only of Israel, because plaintiff's primary motivation for
expatriating act of formal renunciation of American citizenship was to participate in Israeli politics and
run for seat in Knesset. Kahane v Secretary of State (1988, DC Dist Col) 700 F Supp 1162.
Footnotes
Footnote 59. Re Gonzalez-Hernandez (1964, BIA) 10 I & N Dec 472; Re Russo (1965, BIA) 11 I & N
Dec 12; Re Jolley (1970, BIA) 13 I & N Dec 543, affd (CA5) 441 F2d 1245, cert den 404 US 946, 30 L
Ed 2d 262, 92 S Ct 302.
Footnote 61. Re Gonzalez-Hernandez (1964, BIA) 10 I & N Dec 472; Re Russo (1965, BIA) 11 I & N
Dec 12.
Footnote 63. Re Sinclitico (1975, BIA) 15 I & N Dec 320; Re Kekich (1984, BIA) I & N Interim Dec No
2983.
Footnote 66. Richards v Secretary of State, Dept. of State (1985, CA9 Cal) 752 F2d 1413.
1722 --Conclusive presumption [3A Am Jur 2d ALIENS AND CITIZENS]
Statutes:
The conclusive presumption of voluntariness for acts of expatriation performed under certain
circumstances, INA 349(b) [8 USCS 1481(b)], was repealed. Immigration and Nationality Act
Amendments of 1986, 19.
Footnotes
Footnote 68. Re S (1958, BIA) 8 I & N Dec 226 (foreign military service); Re P (1959, BIA) 8 I & N
Dec 307.
Footnotes
Footnote 70. Takehara v Dulles (1953, CA9 Wash) 205 F2d 560; Perri v Dulles (1953, CA3 NJ) 206 F2d
586; Fukumoto v Dulles (1954, CA9 Hawaii) 216 F2d 553; Stipa v Dulles (1956, CA3 Pa) 233 F2d 551.
Footnote 71. Vance v Terrazas (1980) 445 US 920, 63 L Ed 2d 606, 100 S Ct 1285.
Footnote 72. Fukumoto v Dulles (1954, CA9 Hawaii) 216 F2d 553.
Footnote 73. Stipa v Dulles (1956, CA3 Pa) 233 F2d 551.
Footnote 74. Acheson v Murakami (1949, CA9 Cal) 176 F2d 953.
Footnote 76. Insogna v Dulles (1953, DC Dist Col) 116 F Supp 473.
Footnote 77. Acheson v Murakami (1949, CA9 Cal) 176 F2d 953.
Footnote 78. 3rd CircuitStipa v Dulles (1956, CA3 Pa) 233 F2d 551.
9th CircuitTakehara v Dulles (1953, CA9 Wash) 205 F2d 560 (loss of a ration card); Richards v
Secretary of State, Dept. of State (1985, CA9 Cal) 752 F2d 1413; Kamada v Dulles (1956, DC Cal) 145 F
Supp 457.
DC CircuitSoccodato v Dulles (1955) 96 App DC 337, 226 F2d 243; Insogna v Dulles (1953, DC Dist
Col) 116 F Supp 473 (fear of the consequences of being unable to find work).
Footnote 80. Richards v Secretary of State, Dept. of State (1985, CA9 Cal) 752 F2d 1413.
Footnote 81. Pandolfo v Acheson (1953, CA2 NY) 202 F2d 38; Insogna v Dulles (1953, DC Dist Col) 116
F Supp 473.
Footnote 82. Re M G (1958, BIA) 7 I & N Dec 665 (foreign voting); Re C (1960, BIA) 9 I & N
Dec 41 (foreign military service); Re Russo (1965, BIA) 11 I & N Dec 12 (foreign voting).
In order to prove a specific intent to relinquish citizenship, the government must show more than
knowledge on the part of the citizen that Congress has declared an act to be expatriating. 87 On the other
hand, a citizen may relinquish his United States citizenship by performing an expatriating act with an
intent to renounce citizenship whether or not he knew that the act was an expatriating act under the statute
and indeed whether or not he knew that expatriation was possible under United States law. 88
Voluntary acts which manifestly involve dilution of allegiance to the United States may be considered
highly persuasive evidence in themselves of intent to abandon United States citizenship, and may shift the
burden to the citizen to come forth with evidence that he had no such intent. 89 Nevertheless, any
such act is neither the equivalent, nor conclusive evidence, of intent to relinquish citizenship, 90 and
the individual alleged to have relinquished citizenship is always free to raise the issue of intent regardless
of the expatriative act involved. 91
Intent rarely will be established by direct evidenceproof by circumstantial evidence is more common. 92
The government may prove intent by evidence of an explicit renunciation, 93 acts inconsistent with
United States citizenship, or affirmative voluntary acts clearly manifesting a decision to accept foreign
nationality. 94
Proof of intent may be by a preponderance of the evidence and need not be by clear and convincing
evidence. 95