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May 21, 1963

Angelika L. SCHNEIDER, Plaintiff,
Dean RUSK, individually and as Secretary of State, Defendant

The opinion of the court was delivered by: MATTHEWS

The plaintiff, a national of Germany

The plaintiff, a national of Germany citizen of the United States, has been declared to have lost her American citizenship by reason of residing continuously in the foreign country of her origin for three years. The issue she raises before the court is whether this divesture of citizenship accords with the Constitution. The statute *fn1" relied upon by the Government to effect the expatriation of plaintiff, hereafter referred to as Section 352(a) (1), reads in pertinent part:

 '(a) A person who has become a national by naturalization shall lose his nationality by --

 '(1) having a continuous residence for three years in the territory of a foreign state of which he was formerly a national or in which the place of his birth is situated * * *.'

 Residence as the term is used in Section 352(a)(1) is defined as follows:

 'The term 'residence' means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent. Residence shall be considered continuous for the purposes of sections * * * and 352 * * * where there is a continuity of stay but not necessarily an uninterrupted physical presence in a foreign state * * *.' *fn2"

 In February 1960, plaintiff brought this suit for a judgment declaring her to be a citizen of the United States and enjoining the enforcement of Section 352(a)(1) by the Secretary of State. She moved for the convening of a three-judge court pursuant to 28 U.S.C. §§ 2282 and 2284 to try the case. The District Court concluded that plaintiff's complaint presented no substantial constitutional issue and denied her motion to convene a three-judge court, relying on Lapides v. Clark, 85 U.S.App.D.C. 101, 176 F.2d 619, cert. denied, 338 U.S. 860, 70 S. Ct. 101, 94 L. Ed. 527, rehearing denied, 338 U.S. 888, 70 S. Ct. 187, 94 L. Ed. 545, in which the Court of Appeals for the District of Columbia Circuit had directly upheld the predecessor of a companion provision *fn3" which deprived the naturalized American of citizenship for continuous residence for five years in any foreign state.

 Thereafter, the court granted a motion of the defendant Secretary of State for judgment on the pleadings and on the basis of Lapides the Court of Appeals affirmed. But the Supreme Court vacated these judgments, stating in a per curiam opinion that its intervening decisions in perez v. Brownell, 356 U.S. 44, 78 S. Ct. 568, 2 L. Ed. 2d 603, and Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d 630, reveal that the constitutional questions involving deprivation of nationality which were presented to the district judge were not plainly insubstantial, and the case was remanded to the District Court for hearing on its merits by a three-judge court. Schneider v. Rusk, 372 U.S. 224, 83 S. Ct. 621, 9 L. Ed. 2d 695. Accordingly this three-judge court has been convened, and the matters before the court are the motion of the plaintiff for summary judgment and that of the defendant for judgment on the pleadings.

 The facts are not in dispute. The plaintiff was born in 1934 in Rimstingam-Chiemsee, Bavaria, in what is now the Federal Republic of Germany, and in 1939 came to the United States with her family. In 1950 she became a naturalized citizen of the United States through the naturalization of her mother. She lived in the United States from 1939 to 1954. During 1954 and 1955 she studied at a University in Switzerland and in the following year was a fulltime student at the Sorbonne in Paris. Returning to the United States in April 1956, she was employed in New York for a few months and on June 6, 1956 left for Germany where she married a German national on July 4, 1956. Since that time plaintiff has lived continuously with her husband in Germany for a period of more than three years except for one visit of six weeks to relatives in the United States in 1957. She intends to continue to live in Germany and has no definite intention to return to the United States to reside. In June 1959 the United States Consulate at Dusseldorf refused to grant an extension of the plaintiff's United States passport, contending that she had lost her American citizenship. The plaintiff was requested by the American Consulate in September 1959 to surrender her naturalization certificate which she did under protest. On November 25, 1959, the plaintiff was given a 'Certificate of the Loss of the Nationality of the United States.' The Board of Review on the Loss of Nationality in the State Department in Washington affirmed the previous administrative decision that plaintiff had expatriated herself pursuant to Section 352(a)(1). This action on January 20, 1960 was the final administrative determination of the State Department.

 The plaintiff is now stateless, the provision of the German Nationality Act imposing German nationality upon a woman marrying a German national having been repealed. *fn4" But upon her application plaintiff may easily resume German citizenship because of her husband's German nationality. *fn5" She has not done so because of her desire to retain United States citizenship. Two sons born in Germany of her marriage, one in 1957 and the other in 1958, have been registered with the United States Consulate as citizens of the United States but they are also German nationals. *fn6" Moreover, each child is subject to loss of his American citizenship if he fails to meet the requirement of continuous physical presence in the United States for at least five years following his attainment of the age of fourteen years and previous to his arrival at the age of twenty-eight years. *fn7"

 In challenging Section 352(a)(1) plaintiff contends that it bears no reasonable relationship to any power granted to Congress and therefore is outside the bounds of the Constitution. She maintains that she cannot validly be expatriated against her will and that her American citizenship remains intact, despite her continuous residence for three years in the foreign country of her origin. She also argues that since native-born citizens are not divested of their American nationality for prolonged residence abroad, Section 352(a)(1) discriminates against naturalized citizens and thus denies them liberty and due process of law, contrary to the Fifth Amendment. A further contention of plaintiff is that her purported deprivation of citizenship constitutes cruel and unusual punishment in contravention of the Eighth Amendment to the Constitution.

 From the historical evolution of the legislation in question it appears that Congress was attempting to exercise its power to regulate foreign affairs when it decreed that continuous residence for three years by a naturalized citizen in the country of his origin should result in expatriation. While the Constitution contains no specific grant to Congress of power to legislate for the effective regulation of foreign affairs, 'there can be no doubt of the existence of this power in the law-making organ of the Nation.' Perez v. Brownell, 356 U.S. 44, 78 S. Ct. 568, 2 L. Ed. 2d 603. As was there said at page 57 of 356 U.S., 78 S. Ct. at page 575:

 'The States that joined together to form a single Nation and to create, through the Constitution, a Federal Government to conduct the affairs of that Nation must be held to have granted that Government the powers indispensable to its functioning effectively in the company of sovereign nations. The Government must be able not only to deal affirmatively with foreign nations, as it does through the maintenance of diplomatic relations with them and the protection of American can citizens sojourning within their territories. It must also be able to reduce to a minimum the frictions that are unavoidable in a world of sovereigns sensitive in matters touching their dignity and interests.'

 Prior to the Nationality Act of 1907 Congress had not defined by statute or otherwise what may constitute expatriation, and the Department of State was forced to look elsewhere for an enumeration of the acts which might have that effect. *fn8" The policy of the United States varied as to the assistance and protection which it would afford naturalized citizens who returned to their native land. The many executive utterances on this subject throughout the 19th Century show the magnitude of the problem. *fn9" It is clear that even prior to 1907 the State Department considered in many instances that a naturalized citizen who returned to his native land for a protracted period had expatriated himself or forfeited the protection of this Government, especially if he manifested no intention of returning to the United States. *fn10"

  The rationale for this policy was set forth in a Circular *fn11" of March 27, 1899, issued by Mr. Hay, Secretary of State, to United States diplomats and consular officer, as follows:

 'This Government does not discriminate between native-born and naturalized citizens in according them protection while they are abroad * * *. But in determining the question of conservation of American citizenship and the right to receive a passport, it is only reasonable to take into account the purpose for which the citizenship is obtained. A naturalized citizen who returns to the country of his origin and there resides without any tangible manifestation of an intention to return to the United States may * * * generally be assumed to have lost the right to receive the protection of the United States. His naturalization in the United States can not be used as a cloak to protect him from obligations to the country of his origin while he performs none of the duties of citizenship to the country which naturalized him. The statements of loyalty to this Government which he may make are contradicted by the circumstance of his residence, and are open to the suspicion of being influenced by the advantages he derives by avoiding the performance of the duties of citizenship to any country. It is not to be understood by this that naturalized American citizens returning to the country of their origin are to be refused the protection of a passport. On the contrary, full protection should be accorded to them, until they manifest an effectual abandonment of their residence and domicil in the United States.'

 Until 1868 there was doubt as to how far the doctrine of perpetual allegiance derived from our former colonial relations with Great Britain was applicable to American citizens. In that year Congress swept away these doubts by decreeing that it is 'a natural and inherent right of all people' to divest themselves of allegiance to any state, 15 Stat. 223, R.S. § 1999, being motivated, at least in part, by the refusal of England and other nations to recognize the right in naturalized Americans to cast off their former allegiance. This legislation has been applied to the divestment by native-born and naturalized Americans of their United States citizenship. But Congress did not in this law indicate what acts were to be deemed to work expatriation.

 At about this same time the United States negotiated a naturalization treaty with the North German Confederation by which each country agreed to recognize the naturalization of its own natives by the other. This treaty further provided that if a German naturalized in America renewed his residence in North Germany without the intent to return to America he would be held to have renounced his naturalization in the United States and that the intent not to return could be held to exist when the person naturalized in the one country resided more than two years in the other country. 15 Stat. 615, 616-617. Thereafter the United States concluded similar naturalization treaties with other nations. E.g., 15 Stat. 687, (Mexico), 17 Stat. 941 (Denmark). However, some nations, including a number of important ones, refused to enter into such treaties. E.g., 3 Moore, Digest of International Law, pp. 604-607 (Greece), 609 (Italy), 622 (Russia). Moreover, the treaties themselves required administrative construction. 3 id., pp. 744-757.

 Meanwhile, the Executive Department urged Congress to enact further legislation defining the acts by which citizens should be held to have expatriated themselves, especially in view of the problems raised by citizens residing permanently abroad. E.g., Message of President Grant to Congress, Dec. 1, 1873, 6 Messages and Papers of the Presidents, Richardson Ed., 1897, pp. 4193-4194, and Message of President Grant to Congress, Dec. 7, 1874, id. at pp. 4245-4246. In his message of December 1, 1873, President Grant pointed out:

 'In some cases * * * naturalized citizens of the United States have returned to the land of their birth with intent to remain there, and their children, the issue of a marriage contracted there after their return, and who have never been in the United States, have laid claim to our protection when the lapse of many years had imposed upon them the ...

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