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ArtI.S8.C4.1.6.5 Judicial Limits on Congress's Expatriation Power

Article I, Section 8, Clause 4:

[The Congress shall have Power . . . ] To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; . . .

In a series of cases decided in the 1950s and 1960s, the Supreme Court established some constraints upon Congress’s expatriation power.1 As for the standard of proof to establish expatriation, the Supreme Court in the 1958 case of Nishikawa v. Dulles held that the standard adopted in Schneiderman v. United States for denaturalization applied to expatriation cases.2 Under this standard, the government has the burden of proving by “clear, convincing and unequivocal evidence” that a U.S. citizen voluntarily performed one of the statutorily enumerated acts that results in loss of citizenship.3 Applying this standard, the Court held that the government failed to prove that a dual U.S.-Japanese citizen, Nishikawa, lost his U.S. citizenship by serving in the Japanese military during World War II because, according to his testimony, he had been drafted into the Japanese military under the country’s penal conscription law while visiting Japan.4

Apart from setting the standard of proof for expatriation, the Supreme Court has struck down certain expatriation provisions as unconstitutional. In Trop v. Dulles, decided the same day as Nishikawa, the Court held that the statutory provision revoking citizenship of U.S. citizens convicted by general court martial of desertion was unconstitutional because it exceeded Congress’s war power.5 The Court reasoned that “[d]esertion in wartime, though it may merit the ultimate penalty, does not necessarily signify allegiance to a foreign state.” 6 The Court declared that “[c]itizenship is not a license that expires upon misbehavior,” and concluded that “[a]s long as a person does not voluntarily renounce or abandon his citizenship, . . . his fundamental right of citizenship is secure.” 7

In the alternative, the Court held that revoking citizenship as punishment for a crime violates the Eighth Amendment’s prohibition against “cruel and unusual” punishment because it causes “the total destruction of the individual’s status in organized society.” 8 For instance, the Court explained, the individual would become stateless, “a condition deplored in the international community of democracies,” and subject only to the limited and potentially temporary protections available in the country where he happens to reside.9 Furthermore, although the crime of desertion was punishable by death under criminal statutes, “the existence of the death penalty is not a license to the Government to devise any punishment short of death within the limit of its imagination.” 10

In the 1963 case of Kennedy v. Mendoza-Martinez, the Supreme Court struck down the statutory provision that divested citizenship for leaving or remaining outside the United States at a time of war or national emergency to evade military service.11 As in Trop, the Court construed the Immigration and Nationality Act (INA) provision as punitive because it strictly imposed penalties on those who engaged in specified conduct.12 The Court held that the provision violated the Fifth and Sixth Amendments because it exacted a punishment (loss of citizenship) without providing any procedural safeguards, such as notice, the right to trial, the right to counsel, and the right to present witnesses.13

The term after it decided Mendoza-Martinez, the Supreme Court in Schneider v. Rusk considered the constitutionality of the INA’s expatriation provision for naturalized U.S. citizens who maintained a continuous residence in their native country for three years.14 The case involved a German national, Angelika Schneider, who had derived U.S. citizenship through her mother when she was a child, but later resided in Germany following her marriage to a German national.15 Eventually, the State Department denied Schneider a passport on the ground that she lost her citizenship by maintaining a continuous residence in Germany, her native country, for at least three years.16

Because “the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive,” the Supreme Court held that the INA’s expatriation provision violated due process by unjustifiably discriminating between naturalized U.S. citizens and native-born U.S. citizens, who were not subject to the INA’s foreign residence restriction.17 The Court reasoned that, although Congress has the power to set forth the various requirements for naturalization, “[t]he constitution does not authorize Congress to enlarge or abridge those rights” that are equally conferred upon both naturalized and native-born U.S. citizens.18

During this period, the Supreme Court also considered the constitutionality of removing citizenship from those who voted in a foreign political election. In its 1958 decision in Perez v. Brownell, the Supreme Court had initially ruled that Congress’s inherent authority to regulate foreign affairs enabled it to make voting in foreign elections an act of expatriation resulting in loss of U.S. citizenship.19 A few years later in Afroyim v. Rusk, however, the Supreme Court in 1967 reexamined this issue and reached a different conclusion.20 Afroyim involved a naturalized U.S. citizen, Beys Afroyim, who voted in an Israeli election and was denied the opportunity to renew his U.S. passport on the ground that he had lost his U.S. citizenship.21 Afroyim argued that the government’s termination of his citizenship without his voluntary renunciation of it violated his right to due process under the Fifth Amendment, as well as the Fourteenth Amendment’s command 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.” 22

In striking down the relevant statute, the Court turned away from the view expressed in Perez that Congress “has any general power, express or implied, to take away an American citizen’s citizenship without his assent.” 23 The Court rejected the theory that Congress derived the power to forcefully remove citizenship from its power to regulate foreign affairs, or “as an implied attribute of sovereignty possessed by all nations.” 24 Further, the Court observed that the Fourteenth Amendment declares that all persons born or naturalized in the United States are U.S. citizens, and that “[t]here is no indication in these words of a fleeting citizenship, good at the moment it is acquired but subject to destruction by the Government at any time.” 25 Instead, the Court held, a U.S. citizen has a constitutional right under the Fourteenth Amendment to remain a citizen unless he voluntarily relinquishes his citizenship, and the Federal Government has no power to terminate citizenship without the individual’s consent.26 This conclusion, the Court determined, “comports more nearly than Perez with the principles of liberty and equal justice to all that the entire Fourteenth Amendment was adopted to guarantee.” 27

The Supreme Court most recently addressed expatriation in the 1980 case of Vance v. Terrazas.28 In that case, a native-born U.S. citizen of Mexican descent, Laurence Terrazas, applied for and obtained a certificate of Mexican nationality while he was in Mexico, and renounced his allegiance to the United States in his application.29 The Department of State determined that, based on these actions, Terrazas voluntarily relinquished his U.S. citizenship.30 The Supreme Court disagreed, holding that, under Afroyim, evidence must show that “the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to relinquish his citizenship.” 31 Because the evidence failed to show that Terrazas specifically intended to relinquish his U.S. citizenship when he applied for Mexican nationality, the Court held that he did not expatriate himself.32

The Supreme Court’s post-Perez jurisprudence signals that the government may not remove an individual’s citizenship unless that person voluntarily commits a specified act with intent to renounce citizenship.33 In response, Congress amended the INA to clarify that the government has the burden of proving by “a preponderance of the evidence” that an individual committed an expatriating act “with the intention of relinquishing nationality.” 34 The amendments clarified that, when an individual commits one of the enumerated acts, there is a presumption that the individual acted voluntarily, but this presumption may be rebutted by a preponderance of evidence that the act was involuntary.35 Congress also repealed INA provisions that removed citizenship based on voting abroad, military desertion, departure from the United States during a time of war, and maintaining a foreign residence—provisions ruled unconstitutional by the Supreme Court.36

See Afroyim v. Rusk, 387 U.S. 253, 255 (1967) ( “[I]n the other cases decided with and since Perez, this Court has consistently invalidated on a case-by-case basis various statutory sections providing for involuntary expatriation.” ). back
Nishikawa v. Dulles, 356 U.S. 129, 134–35 (1958), superseded by statute, 8 U.S.C. § 1481(b). back
Id. at 135–37, 137; see also Schneiderman v. United States, 320 U.S. 118, 122 (1943) (declaring that the right of citizenship “should not be taken away without the clearest sort of justification and proof” ). The Court reasoned that, given the “drastic” consequences of depriving someone of his or her citizenship, the government should have the burden of proving voluntariness, which the Court described as “the essential ingredient of expatriation.” Nishikawa, 356 U.S. at 134–35, 137. However, if voluntariness is not at issue, “the Government makes its case simply by proving the objective expatriating act.” Id. at 136. back
Nishikawa, 356 U.S. at 136–37. back
356 U.S. 86, 92–93 (1958). back
Id. at 92. back
Id. at 92–93; see also id. at 92 ( “The right may be voluntarily relinquished or abandoned either by express language or by language and conduct that show a renunciation of citizenship.” ). back
Id. at 99, 101–02. The Court rejected the government’s contention that the statute authorizing expatriation based on military desertion was regulatory, rather than penal, in nature, concluding that “[t]he purpose of taking away citizenship from a convicted deserter is simply to punish him. There is no other legitimate purpose that the statute could serve.” Id. at 97. back
Id. at 101–02. back
Id. at 99. back
372 U.S. 144, 165–66 (1963). back
Id. at 180–84. back
Id. at 166–67. back
377 U.S. 163 (1964). back
Id. at 164. back
Id. back
Id. at 165, 168–69. back
Id. at 166. The Court rejected the government’s contention that the expatriation provision reasonably advanced concerns that a naturalized citizen’s prolonged residence in his or her native country would call into question allegiance to the United States and reliability as a U.S. citizen. Id. at 165, 168. Noting that native-born citizens may reside abroad indefinitely without losing their citizenship, the Court determined that “[l]iving abroad, whether the citizen be naturalized or native born, is no badge of lack of allegiance and in no way evidences a voluntary renunciation of nationality and allegiance.” Id. at 168–69. In fact, the Court observed, residing abroad “may indeed be compelled by family, business, or other legitimate reasons.” Id. at 169. Accordingly, the Court held that the foreign residence restriction significantly impeded a naturalized U.S. citizen’s ability “to live and work abroad in a way that other citizens may,” and essentially created “a second-class citizenship.” Id. at 168–69. back
356 U.S. 44, 59–62 (1958), overruled by Afroyim v. Rusk, 387 U.S. 253 (1967). back
387 U.S. 253 (1967). back
Id. at 254. back
Id. at 254–55; see also U.S. Const. amend. XIV, § 1, cl. 1. back
Afroyim, 387 U.S. at 257. back
Id. at 257, 263. back
Id. at 262. back
Id. at 262, 267–68. back
Id. at 267. back
444 U.S. 252 (1980). back
Id. at 255. back
Id. at 256. back
Id. at 261. back
Id. at 263. back
See Afroyim, 387 U.S. at 255 (observing that, since Perez, the Court “has refused to hold that citizens can be expatriated without their voluntary renunciation of citizenship” ). back
Immigration and Nationality Act Amendments of 1986, Pub. L. No. 99-653, §§ 18, 19, 100 Stat. 3655, 3658; Act of Sept. 26, 1961, Pub. L. No. 87-301, § 19, 75 Stat. 650, 656. In Terrazas, the Supreme Court rejected the argument that the standard of proof in expatriation cases should be a “clear and convincing evidence” standard rather than the “preponderance of the evidence” standard established by Congress. Terrazas, 444 U.S. at 264–65. The Court recognized that, in Nishikawa, it had required (in the absence of legislative guidance) the government to prove a voluntary expatriating act by clear and convincing evidence, but determined that Congress had constitutional authority to prescribe the evidentiary standards in repatriation cases. Id. at 265–66. back
Act of Sept. 26, 1961, § 19. Congress later removed the INA provision that “conclusively presumed” that a person voluntarily committed one of the enumerated acts if he or she was a national of the state in which the act was performed and had been physically present there for at least ten years. Immigration and Nationality Act Amendments of 1986, Pub. L. No. 99-653, § 19, 100 Stat. 3655, 3658. In Terrazas, the Supreme Court held that it was constitutional for Congress to create a presumption that the commission of an expatriating act is committed voluntarily. Terrazas, 444 U.S. at 270. But there is no presumption that the act was performed with the intent to relinquish citizenship. Id. at 268. The government still has the burden of proving that intent by a preponderance of the evidence. Id. back
Act of Oct. 10, 1978, Pub. L. No. 95-432, § 2, 92 Stat. 1046, 1046; Act of Sept. 14, 1976, Pub. L. No. 94-412, § 501(a), 90 Stat. 1255, 1258. back