on Immigration and Nationalization. Mr. Flournoy, Assistant Legal Adviser of the State Department, in commenting on the provision regarding naturalized citizens stated:
'We have every day in the State Department cases of persons applying to us for passports or protection, or asking us to support claims, who have been naturalized in the United States and then have gone back and settled down in their native countries and resided there for years.' Id. at p. 134.
At the conclusion of the hearings in June 1940 a new bill was drawn up and introduced as H.R. 9980. Although there were changes from the draft code submitted by the President, the Nationality Act adopted in 1940 incorporated -- as Section 404(b) the precise provision of the draft code for expatriating naturalized citizens who reside in their country of origin for three years. 54 Stat. 1170. Since then the provision has been incorporated into the Immigration and Nationality Act of 1952 as Section 352(a)(1).
It seems plain from the background of Section 352(a)(1) that problems in the field of international relations gave rise to its enactment by Congress -- problems attributable to naturalized citizens who take up residence for prolonged periods in the foreign country of their origin.
The question of the power of Congress to enact legislation depriving individuals of their American citizenship was first raised in the courts by Mackenzie v. Hare, 239 U.S. 299, 36 S. Ct. 106, 60 L. Ed. 297. The plaintiff in that case, Mrs. Mackenzie, a native-born American married a British subject permanently residing in this country. They continued after their marriage to reside here. There was then in force a statute (since repealed) providing: 'That any American woman who marries a foreigner shall take the nationality of her husband.' 34 Stat. 1228. Registration as a voter was denied Mrs. Mackenzie on the ground that she had ceased to be an American citizen. The question before the Supreme Court was: 'Did she cease to be a citizen by her marriage?' 239 U.S. 299, 307, 36 S. Ct. 106. She had never intended or desired to give up her American citizenship. She challenged the constitutionality of the statute insisting that it was 'beyond the authority of Congress' to take her citizenship away, and that her citizenship 'was an incident to her birth in the United States, and, under the Constitution and laws of the United States, it became a right * * * which could not be taken away from her except as a punishment for crime or by her voluntary expatriation.' The court upheld her expatriation, stating in part:
'As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other countries. * * * It may be conceded that a change of citizenship cannot be arbitrarily imposed * * *. The law in controversy does not have that feature. It deals with a condition voluntarily entered into, with notice of the consequences. We concur with counsel that citizenship is of tangible worth, and we sympathize with plaintiff in her desire to retain it and in her earnest assertion of it. But there is involved more than personal considerations. As we have seen, the legislation was urged by conditions of national moment. * * * The marriage of an American woman with a foreigner * * * may involve national complications of like kind, as her physical expatriation may involve. Therefore, as long as the relation lasts it is made tantamount to expatriation. This is no arbitrary exercise of government. * * * It is the conception of the legislation under review that such an act may bring the Government into embarrassments and, it may be, into controversies.'
Recent cases bearing on expatriation of a citizen without his consent include: 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, decided in 1958; Kennedy v. Mendoza-Martinez and Rusk v. Cort, 372 U.S. 144, 83 S. Ct. 554, 9 L. Ed. 2d 644, decided in 1963. Each of these cases involved a man who had acquired United States citizenship by birth in this country, and had committed some act which a statute of the United States ordained should automatically terminate his American nationality.
In Perez v. Brownell, supra, the plaintiff, Perez, was born in Texas. He moved to Mexico with his parents when he was about ten years old. He entered the United States in each of the years 1943 and 1944 for temporary employment. At that time he was about 34 years of age and claimed to be a native-born citizen of Mexico. In 1946 he voted in Mexico in a political election. In 1952 he again entered the United States for employment. Following an order for his deportation in 1953 as an alien not in possession of a valid immigration visa, he brought suit for a judgment declaring him to be a national of the United States. Relief was denied on the ground that he had expatriated himself under a statute imposing loss of nationality upon a citizen for 'voting in a political election in a foreign state * * *.' 8 U.S.C. § 1481(a)(5).
The rationale of the Supreme Court in Perez was that the withdrawal of citizenship of Americans who vote in foreign political elections is reasonably calculated to effect the avoidance of embarrassment in the conduct of foreign relations and that Congress acted 'pursuant to its power to regulate the relations of the United States with foreign countries' when it provided 'that anyone who votes in a foreign election of significance politically in the life of another country shall lose his American citizenship.' Accordingly the denationalization of Perez for such voting was sustained. Four members of the court dissented, three on the ground that Congress lacks power to take away the citizenship of a native-born American. The fourth dissenter, although believing that Congress may expatriate a citizen for an act likely to embarrass the Government in the conduct of foreign affairs, deemed the statute 'too broadly written to be sustained on that ground.'
In Trop v. Dulles, supra, the alleged expatriating act was 'deserting the military * * * forces of the United States in time of war' followed by conviction and dishonorable discharge. 8 U.S.C. § 1481(a)(8). In Kennedy v. Mendoza-Martinez and in Rusk v. Cort, supra, the alleged expatriating act was remaining outside the United States in time of war or during a period declared by the President to be a period of national emergency for the purpose of evading or avoiding training and service in the military or naval forces of the United States. 8 U.S.C. 1481(a)(10). In each of these three cases the majority of the Supreme Court characterized the statute involved as punitive and held it unconstitutional, four members of the court dissenting on the ground that the statute resulted from the proper exercise by Congress of its war powers.
We turn now to the questions presented in this case, bearing in mind the diplomatic and legislative history already related as well as the Supreme Court decisions to which we have referred. The plaintiff says that Section 352(a)(1) bears no reasonable relation to any power granted to Congress. We believe, however, that the requisite rational relation exists between this statute and the power of Congress to deal with foreign affairs. Stated differently, we believe that the denationalization imposed by this provision is reasonably calculated to effect the end that is within the power of Congress to achieve -- the avoidance of embarrassment and controversies in the relations of the United States with other countries. 'The termination of citizenship terminates the problem.' Perez v. Brownell, 356 U.S. 44, at 60, 78 S. Ct. 568, at 577.
Now, we come to the contention of the plaintiff that the challenged statute is discriminatory and violative of due process in that it withdraws citizenship from naturalized Americans for continuous foreign residence while native-born Americans, without losing their citizenship, may reside abroad indefinitely. Like any other congressional enactment, a law passed by Congress in the exercise of its power to regulate foreign affairs must meet the requirement of due process. Kennedy v. Mendoza-Martinez, 372 U.S. 144 at 164, 83 S. Ct. 554, at 565. The due process guaranty of the Fifth Amendment, in the field of federal activity, and the Fourteenth, as respects state action, 'demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.' Nebbia v. New York, 291 U.S. 502, at 525, 54 S. Ct. 505, at 510, 78 L. Ed. 940.
Due process does not require that all citizens be treated in the same way. Hirabayashi v. United States, 320 U.S. 81, 63 S. Ct. 1375, 87 L. Ed. 1774. Cafeteria and Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886 at 895, 81 S. Ct. 1743, at 1748, 6 L. Ed. 2d 1230. In legislating within the scope of its powers, a lawmaking body has discretion in classification, and due process is not offended where the classification has a rational basis and is reasonably related to the legislative purpose. Under this concept, for example, the Supreme Court upheld in Mackenzie v. Hare, supra, a federal law divesting the citizenship of women but not of men marrying foreigners, and in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S. Ct. 578, 81 L. Ed. 703, a state law for the setting of minimum wages for women even though the law did not extend to men. See also Hoyt v. Florida, 368 U.S. 57, 82 S. Ct. 159, 7 L. Ed. 2d 118.
The statute which the plaintiff challenges applies only to a particular class of naturalized citizens -- those residing continuously for three years in the foreign country of their birth. It does not apply to other naturalized citizens nor to native-born citizens. By this statute the Congress recognized, on the basis of experience and history, that the problem of naturalized citizens residing at length in the country of their origin has far greater potential for causing international problems than foreign residence by citizens under other circumstances.
Stated differently, the application of the statute in question to foreign-born persons who become naturalized in the United States and return to reside for prolonged periods in the country of their origin is accounted for by the long history of friction between the United States and other nations relative to this particular class of naturalized citizens. The statute deals with them as the principal source of the problem of maintaining international relations in the face of demands for protection and similar relief.
If a law presumably provides a remedy where it is most needed, it is not to be overthrown because there are other instances to which it might have been applied. West Coast Hotel Co. v. Parrish, supra, 300 U.S. at page 400, 57 S. Ct. at page 585.
We think that Section 352(a)(1) satisfies the requirement of due process. It rests on a rational foundation, and has a substantial relation to the object which Congress sought to accomplish by its enactment.
The remaining principal contention of the plaintiff is that the withdrawal of nationality under the challenged statute constitutes cruel and unusual punishment in a constitutional sense. Congress, in enacting this legislation, did not aim at punishment of the persons coming within its purview, but at lessening friction and controversies in our relations with other nations. In the light of these circumstances, it cannot fairly be said that the statute is punitive in nature. Flemming v. Nestor, 363 U.S. 603, 613 et seq., 80 S. Ct. 1367, 4 L. Ed. 2d 1435.
We touch now on some of the arguments urged upon us by the plaintiff in support of her main contentions.
As the plaintiff is not a dual national it is suggested that her foreign residence does not entail any problems incident to a dual nationality status. However, it is to be noted that in each of the two years following her marriage the plaintiff gave birth to a son in Germany who is now possessed of dual nationality, that is, the nationality of Germany and the nationality of the United States. International complications may reasonably be foreseen from such a situation since dual nationality 'refers to the fact that two States make equal claim to the allegiance of an individual at the same time.' Perkins v. Elg, 307 U.S. 325, at 344, 59 S. Ct. 884, at 894, 83 L. Ed. 1320. Moreover, dual nationality has long been a perennial source of friction between nations. Section 352(a)(1) having terminated the plaintiff's American citizenship in 1959, any child or children since or hereafter born to her in Germany would have the nationality of Germany but not that of the United States.
The Congress that passed the Nationality Act of 1940 (the statute that brought Section 352(a)(1) to its present form) was fully conscious of the problems incident to dual nationality. Among the reasons Congress had for terminating the American nationality of naturalized citizens taking up residence abroad is that such termination will prevent them from transmitting American nationality to their foreign born children and embroiling this government in controversies which they may have with the governments of the foreign countries in which they reside.
According to the plaintiff, the upholding of the challenged statute 'as a proper exercise of the foreign affairs power would require a showing that the mere residence abroad of naturalized citizens in and of itself raises serious problems affecting the conduct of our foreign affairs * * *'
However, according to the Supreme Court in Borden's Farm Products Co. v. Ten Eyck, 297 U.S. 251, at 263, 56 S. Ct. 453, at 456, 80 L. Ed. 669:
'Judicial inquiry does not concern itself with the accuracy of the legislative finding, but only with the question whether it so lacks any reasonable basis as to be arbitrary.'
The long recognized test is set forth in Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, at 209, 55 S. Ct. 187, at 191, 79 L. Ed. 281, by the then Chief Justice (Charles Evans Hughes) as follows:
'But that is a presumption of fact, of the existence of factual conditions supporting the legislation. As such, it is a rebuttable presumption. * * * When the classification made by the legislature is called in question, if any state of facts reasonably can be conceived that would sustain it, there is a presumption of the existence of that state of facts, and one who assails the classification must carry the burden of showing by a resort to common knowledge or other matters which may be judicially noticed, or to other legitimate proof, that the action is arbitrary.'
Certainly in this case there has been shown a reasonably conceivable relation between the method chosen and the problem which Congress saw and sought to remedy under its foreign affairs power.
It has also been suggested that foreign residence by the plaintiff is a neutral act. However, settlement by a naturalized citizen in the foreign country of his nativity and the centering there of all his primary interests, as the plaintiff has done, is conduct traditionally regarded by this government as evidence tending to show an intentional surrender of American citizenship or as importing some transfer of allegiance to the foreign country.
Finally, the plaintiff insists that she is an American by training, in thought and in feeling, and that she values highly her American citizenship. But these sentiments, however sincere, were not conducive to her retention of residence in the United States. Nor is there anything in the record to show that since leaving this country she has performed any of this country she has performed or that she ever intends to return to assume them. By voluntarily going to the foreign country of her birth and there continuously residing for three years, she has brought on her expatriation.
We conclude that the challenged statute must be upheld as a constitutional exercise by Congress of its power to regulate foreign affairs, and hence that the plaintiff is not a citizen of the United States. Accordingly the motion of the plaintiff for summary judgment will be denied, and the motion of the defendant for judgment on the pleadings will be granted.