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SCHNEIDER v. RUSK

UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA


May 21, 1963

Angelika L. SCHNEIDER, Plaintiff,
v.
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 duty of military service to the only government which had over known them personally.'

 In his message of Dec. 7, 1874, President Grant said:

 'I have again to call the attention of Congress to the unsatisfactory condition of the existing laws with reference to expatriation and the election of nationality. * * * Congress by the Act of the 27th of July, 1868, asserted the abstract right of expatriation as a fundamental principle of this Government. Notwithstanding such assertion and the necessity of frequent application of the principle, no legislation has been had defining what acts or formalities shall work expatriation or when a citizen shall be deemed to have renounced or to have lost his citizenship. The importance of such definition is obvious. The representatives of the United States in foreign countries are continually called upon to lend their aid and the protection of the United States to persons concerning the good faith or the reality of whose citizenship there is at least great question. In some cases the provisions of the treaties furnish some guide; in others it seems left to the person claiming the benefits of citizenship, while living in a foreign country, contributing in no manner to the performance of the duties of a citizen of the United States, and without intention at any time to return and undertake those duties, to use the claims to citizenship of the United States simply as a shield from the performance of the obligations of a citizen elsewhere.'

 Finally in 1906 a Senate Resolution and a recommendation of the House Committee on Foreign Affairs called for an examination of the problems relating to American citizenship, expatriation, and protection abroad. This led to the appointment by the Secretary of State of a Citizenship Board composed of the Solicitor of the State Department, the Minister to the Netherlands and the chief of the Passport Bureau. After a study this Board made a report with recommendations. In its report, H.R. Doc. No. 326, 59th Congress, 2nd Session, the Board noted at pages 25-27 that 'expressed renunciation of American citizenship is * * * extremely rare; but the class of Americans who separate themselves from the United States and live within the jurisdiction of foreign countries is becoming larger every year, and the question of their protection causes increasing embarrassment to this Government in its relation with foreign powers'; that immigration 'to the United States has of recent years reached proportions hitherto unheard of, and many of these immigrants will become naturalized citizens of the United States'; that 'naturalized citizens are more apt to go abroad than native citizens'; that having 'already changed their domicile, they are more apt to change it again'; that one reason 'why the attempts which have been made in the past to secure a legislative definition of expatriation have failed is undoubtedly because the necessity has been slight in comparison with the necessity which now exists'; that it 'is difficult to determine when those who have been absent from the United States for a long time and who give no tangible evidence of an intention of returning should be left without protection'; that when 'they are refused they are aware that it is in the discretion of the Executive to accord them protection;' that 'they are aware that the policy toward them has not been stable and that one official may grant what another has refused'; that they 'do not accept, therefore, a refusal as final, but strain their energies to induce a change of decision, and their cases remain open while their status remains undefined'; and that it 'seems to be clear that these people have by their own act worked their own expatriation, and that their status should be put beyond the uncertainty or fluctuations of executive policy by a declaratory law.'

 The Board recommended that a law be passed providing among other things that 'expatriation of an American citizen may be assumed' when in time of peace, he obtains naturalization in a foreign state, or engages in the service of a foreign state where such service involves the taking of an oath of allegiance to that state, or 'becomes domiciled in a foreign state, and such domicil may be assumed when he shall have resided in a foreign state for five years without intent to return to the United States', the presumption of expatriation to be rebuttable. Id. at p. 23.

 On the basis of this report and recommendations Congress in passing the Nationality Act of 1907, 34 Stat. 1228, provided in Section 2 that when any naturalized citizen had resided for two years in the foreign state from which he came, or for five years in any other foreign state, it would be presumed that he had ceased to be an American citizen, and the place of his general abode would be deemed his place of residence during said years. However, it was further provided that such presumption might be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States under such rules and regulations as the Department of State might prescribe. It was stated in the House by the Representative who introduced the measure that the provisions regarding naturalized citizens were designed to discourage people from evading responsibilities both to other countries and to the United States and to save our Government from 'becoming involved in any trouble or question with foreign countries where there is no just reason.' 41 Cong.Rec. 1463-1464.

 However, the provision of the 1907 law regarding expatriation of naturalized citizens did not prove satisfactory. In 1928 Attorney General John G. Sargent described it as being 'so loosely drawn that its operation and effect have been in doubt ever since its passage.' 35 Ops.Attys.Gen. 399, 404. He deemed it 'obvious that clarifying legislation is desirable', citing the 1795 decision of the Supreme Court in Talbot v. Jansen, 3 Dall. 133, 154, 1 L. Ed. 540, in which it is declared that a statute of the United States 'relative to expatriation, is much wanted' and besides 'ascertaining by positive law the manner in which expatriation may be effected, would obviate doubts, render the subject notorious and easy of apprehension, and furnish the rule of civil conduct on a very interesting point.'

 At the request of the House Committee on Immigration and Naturalization, 86 Cong.Rec. 11943, President Roosevelt appointed in 1933 a committee composed of the Secretary of State, the Attorney General and the Secretary of Labor to study the existing laws governing nationality, to codify them, and to recommend such changes as might seem desirable. Five years were spent in study and research by specialists representing the three departments. A draft code submitted by this committee contained a provision that a naturalized citizen (unless he came within specified exceptions) should lose his citizenship by residing continuously for three years in the territory of a foreign state of which he was formerly a national or in which his place of birth is situated. Nationality Laws of the United States, 1938, Part 1, House Committee Print, 76 Congress, 1st Sess., p. 69.

 The Committee concluded in its report that the existing law had been found 'to a considerable extent to be insufficient and unsatisfactory, since, as construed by the courts, the presumption of loss of citizenship arising under its terms never became final, regardless of the length and cause of the foreign residence * * *.' Id. p. 70. The report further pointed out that

 '* * * before an alien is admitted to the privilege of citizenship, under the law of the United States, he is required to declare under oath that he intends to reside in the United States, and, if he fails to observe this obligation, he cannot complain of the withdrawal of the privilege granted.

 'The problem presented by naturalized citizens residing, for insufficient reasons, in the foreign states in which they were born or of which they were formerly nationals, of whom there are thousands at the present day, has been a cause of difficulty and embarrassment to the Government of the United States in its efforts to extend protection to other naturalized citizens in meritorious cases.'

 Consideration was given by the Committee of whether the loss of nationality should be made to result directly from the fact of foreign residence, or should be made dependent upon proceedings in the courts. It was concluded by the committee that the termination of American nationality should be automatic, resulting directly from the fact of foreign residence since proceedings in the courts would be cumbersome, long drawn out and expensive to the Government. It was deemed desirable, however, to frame the provision in such a way as to avoid making the termination dependent upon the judgment or discretion of a diplomatic or consular officer or of officers of the Department of State itself or any other branch of the executive. It was thought that the function of these officers should be limited as far as possible to the findings of fact and the application of the statute to each case accordingly. Id. at p. 71.

 The report of the committee appointed by President Roosevelt further stated that while a provision for loss of nationality in cases of naturalized citizens who reside for three years in their countries of origin may appear to be 'somewhat drastic', it was believed to be

 'fully warranted by the numerous cases which have been brought to the Department's attention in past years, especially in connection with applications for passports or consular registration, for diplomatic protection, or for the support of claims against the governments of such countries. This provision is not in conflict with the position taken by the Government of the United States in past years with regard to the protection of naturalized citizens or with the treaties on that subject to which the United States is, or has been a party * * *. On the contrary, it agrees in spirit with the provisions in the naturalization treaties concerning naturalized citizens who return to their countries of origin for permanent or indefinite residence. It is not to the advantage of the United States to attempt to extend diplomatic protection to such persons, who are a distinct liability, rather than an asset, to this country. Moreover (what is quite important), it is believed that a definite provision for the termination of American nationality in these cases will have the effect of persuading foreign states with which the United States has no treaties of naturalization to conclude such treaties and to recognize the American nationality of the persons concerned when they return to their countries of origin for legitimate objects and for residence of a temporary character.' Id. at p. 71.

 In stating their reasons for support of a provision denationalizing naturalized citizens for prolonged residence in the foreign countries in which they were born or of which they were formerly nationals, the committee named by President Roosevelt, pointed out, Id. at page 71, that

 'Reports from diplomatic and consular officers show that, in the vast majority of cases of naturalized citizens residing abroad, they have their residence in such foreign states. The number of these cases is very large, and they are a constant source of irritation. Their existence has rendered it difficult to make fully effective the principle, which this Government has long sought to maintain, that naturalization involves a complete change of national character and termination of the prior allegiance * * *.' 'Needless to say, naturalized citizens who resume residence in the foreign lands from which they came are apt to renew old associations and ways of living and thinking, and thus become merged in the native population, losing, to a great degree, if not completely, their American character and feeling. This makes it all the more desirable that their American nationality, and not merely their right to the diplomatic protection of this Government, should be terminated. Naturally, in these cases, identification with the native population is much more likely to occur than in the cases of naturalized citizens who reside in foreign countries other than those from which they came.' 'For the reasons mentioned, Congress, in the provision of the second paragraph of section 2 of the act of March 2, 1907 (34 Stat. 1228) drew a clear distinction between native and naturalized citizens with reference to the effect of foreign residence upon the right to continued recognition and protection as citizens of the United States. The presumption of loss of citizenship, provided therein, as a result of protracted residence abroad, is expressly limited to naturalized citizens.'

 The report then described 13 cases as 'illustrative of many presented to the Department of State in recent years, in which naturalized citizens of the United States who had resumed residence in their native lands called upon the Department for recognition and protection as citizens of the United States.' Id. at p. 72.

 The letter of the Committee transmitting its report and draft code to President Roosevelt included the following statement:

 'Important reasons for terminating American nationality in cases of persons who reside in foreign countries and have to all intents and purposes abandoned the United States lie in the fact that it will prevent them from transmitting American nationality to their foreign-born children having little or no connection with the United States, and embroiling this Government in controversies which they may have with the governments of the foreign countries in which they reside.' Id. at p. vii.

 The letter also stated that none of the provisions in the draft code submitted by the committee were 'designed to be punitive or to interfere with freedom of action' but were intended to deprive of citizenship those persons who had shown that 'their real attachment is to the foreign country and not to the United States.' Id. at p. vii.

 After the President transmitted the report and draft code of the committee to Congress in 1938 the code was introduced as a bill in the House and extensive hearings were held by the House Committee 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. *fn12"

 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 * * *' *fn13" 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. *fn14"

 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.


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