duration and that, therefore, she must be deemed to have resided in a foreign country for over five years, and consequently has lost her citizenship. While this argument is not without weight, the Court is unable to agree with it.
Once it is conceded or established that a person is a citizen of the United States, the burden of proof that expatriation has taken place is on the Government. This onus is heavier than that generally imposed on a party to a civil action. Expatriation must be established not by the ordinary preponderance of the evidence, but by proof that is clear, convincing and unequivocal.
Thus in Nishikawa v. Dulles, 356 U.S. 129, 133, 78 S. Ct. 612, 615, 2 L. Ed. 2d 659, it was stated by Mr. Chief Justice Warren, that 'when a citizenship claimant proves his birth in this country or acquisition of American citizenship in some other way, the burden is upon the Government to prove an act that shows expatriation by clear, convincing and unequivocal evidence.'
Numerous other cases enunciate and apply the same principle. Among them are Gonzales v. Landon, 350 U.S. 920, 76 S. Ct. 210, 100 L. Ed. 806; Gonzalez-Jasso v. Rogers, 105 U.S.App.D.C. 111, 113, 264 F.2d 584; and Dulles v. Katamoto, 9 Cir., 256 F.2d 545, 547.
In this instance, the burden is on the Government to establish by clear, convincing, and unequivocal evidence that the plaintiff resided continuously in a foreign state or states for a period of five years. Since the admitted facts are that during the alleged five years' absence from this country, the plaintiff on two occasions sojourned in the United States for what might be deemed substantial periods, the Government has the additional burden of establishing that her stay in this country in 1956 and again in 1957, did not break the continuity of the plaintiff's residence abroad, Strupp v. Herter, D.C., 180 F.Supp. 440. Government counsel with commendable candor admit that it has no other evidence to adduce than that contained in the papers before the Court on these motions. No proof is submitted to show that these trips to the United States did not break the continuity of her foreign residence.
Citizenship of the United States is precious. It may not be lightly disturbed or destroyed. This doctrine is particularly applicable in those instances in which it is established that the person had lawfully acquired citizenship of the United States either by birth or naturalization and it is sought to deprive him of this status. Expatriation is a serious, solemn matter giving rise to grave and at times even disastrous consequences. It may not be inferred from dubious or inconclusive circumstances.
A case involving the question of law presented here, as well as similar facts, is Strupp v. Herter, D.C., 180 F.Supp. 440, 443, decided in the Southern District of New York by Judge Dimock, to which reference has already been made. The plaintiff in that case was born in Germany in 1882 and was naturalized as a citizen of the United States in 1928. Subsequently he lived in Argentina and Uruguay for a considerable period of time. In 1954 the American Vice Consul at Buenos Aires executed a certificate that the plaintiff had lost his nationality by expatriation as a result of continuous residence for five years in foreign states. The uncontroverted facts were that during the five year period preceding December 24, 1952, which was deemed the effective date of the loss of nationality, the plaintiff lived in Argentina and Uruguay, but had visited the United States on three occasions: from January 19 to April 17, 1949, i.e., three months; from January 5, 1951 to March 11, 1951, slightly over two months; and from June 4, 1952 to December 20, 1952, about 6 1/2 months. The Court held that these trips to the United States had broken the continuity of the alleged five year residence abroad and explicitly concluded that the Government had failed to show continuity of stay in foreign states for five years. Accordingly the Court rendered judgment declaring the plaintiff to be a citizen of the United States.
While here the periods of sojourn in the United States were of somewhat shorter duration, they were nevertheless also of substantial length. The principle of the Strupp case is clearly applicable. The learned judge in that case made the following significant comment:
'Here again the burden is upon the Government to show that, where plaintiff's residence was interrupted by three periods of presence in the United States aggregating almost a year, there was a 'continuity of stay' for five years within the meaning of the statute.
'* * * If the only interruptions of actual physical presence in South America were brief holidays or visits to a surgeon that might have indicated that continuity of stay was intended.'
In the instant case, too, the visits to the United States were not merely brief holidays or short trips on a particular mission.
In the course of its discussion, the Court in the Strupp case made the following additional comments:
'The Government has the burden of proving that plaintiff 'resided' in a foreign state or states for five years and that such residence was 'continuous'.'
Accordingly this Court concludes that on the admitted facts the Government in the instant case did not establish that the plaintiff continuously resided for five years in a foreign state or states.
Plaintiff's motion for summary judgment is granted, and the defendant's motion for summary judgment is denied. Judgment will be rendered declaring that the plaintiff has not lost her nationality as a citizen of the United States by reason of residence abroad and that she is a citizen of the United States.