The opinion of the court was delivered by: LEVENTHAL
Plaintiff, Aldo Mario Bellei, is a citizen of the United States by virtue of section 301(a)(7) of the Immigration and Nationality Act of 1952. That section confers American citizenship on children born of at least one American parent, even though such child is born outside of the United States.
Plaintiff brought this action against the Secretary of State to enjoin enforcement of section 301(b) of the 1952 Act, which if operative would terminate his American citizenship. Subsection (b) of § 301 places a limitation on the grant of citizenship made by section 301(a)(7) by making retention of American citizenship conditional upon completing a term of five years residence in the United States before age twenty-eight.
We hold that this section violates the requirements of the due process clause of the Fifth Amendment.
The pertinent facts have been stipulated. Plaintiff was born in Italy in December, 1939, of an Italian-born father and an American-born mother. Plaintiff's parents have always been and continue to be citizens of their respective native lands.
Plaintiff, from birth, has been treated as an American citizen by the United States Government. He has been welcomed to this country without visas or other immigration papers required of foreigners. He has availed himself of his unlimited access to come to this country on several occasions and to visit with his mother's family. Plaintiff has also traveled at all times under American diplomatic protection. On his first two visits Bellei traveled on his mother's American passport. On the last two occasions when plaintiff visited the United States, he journeyed under his own American passport, which had been issued in 1952 and periodically renewed until 1964. He was subject to the military service laws and he registered for the draft in 1960.
This controversy arises out of the State Department's refusal to extend or renew plaintiff's passport. When plaintiff sought to have his passport renewed in 1964, the Department denied his request. In 1961 the passport renewal office had noted on plaintiff's passport, "Warned abt. 301(b)." Plaintiff, after that warning, sought renewal in January, 1963, stating in his application that he resided in Havertown, Pennsylvania, giving his occupation as student, and indicating that he intended to remain abroad only three months. His application was granted, but the passport was validated only through July, 1963. At the time of this renewal plaintiff was twenty-three years old.
In July, 1963, plaintiff applied through the United States Embassy in Italy for a further extension. Again his request was honored, but he was reminded that he would no longer be considered a citizen, in view of section 301(b), if he remained abroad. The extension expired as of February 11, 1964. When plaintiff failed to return to this country prior to that date, the Department of State concluded that he was no longer a United States citizen, and he was orally informed of that conclusion by the American Embassy at Rome. His passport was accordingly deemed revoked. On February 14, plaintiff was also notified by the United States Selective Service that his liability for military service had terminated in view of his loss of citizenship. At that time plaintiff was over twenty-four years of age. Since 1964, plaintiff has again applied for an American passport and has had his request turned down by a formal letter from the American consul in Italy.
Plaintiff contends that enforcement of section 301(b) is contrary to the Fifth, Eighth, and Ninth Amendments to the Constitution. A three-judge court has been convened since the constitutionality of a federal law is drawn into question by this litigation.
Plaintiff contends that section 301(b) operates to strip a citizen of his citizenship and rests his case primarily on the pillar of due process which has become a bulwark for the protection of citizenship in recent Supreme Court decisions. See Afroyim v. Rusk, 387 U.S. 253, 87 S. Ct. 1660, 18 L. Ed. 2d 757 (1967); Schneider v. Rusk, 377 U.S. 163, 84 S. Ct. 1187, 12 L. Ed. 2d 218 (1964). While the facts of both cases are distinguishable, we think the Afroyim and Schneider opinions do stand for the proposition that in the absence of fraud Congress may not withdraw a citizenship, whether acquired at birth or by subsequent grant, that is not voluntarily renounced.
The position urged by the Government would require us to accord a "niggardly" reading that we think is incompatible with the broad and forceful position put forward by the Supreme Court to protect an important constitutional right. Cf. Ullmann v. United States, 350 U.S. 422, 426, 76 S. Ct. 497, 100 L. Ed. 511 (1956).
We turn first to Schneider v. Rusk, supra.7 That case involved a statutory provision which provided:
(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, except as provided in section 353 of this title, whether such residence commenced before or after the effective date of this Act * * *. Section 352, Immigration and Nationality Act of 1952, 66 Stat. 163, 269, 8 U.S.C. §§ 1101, 1484.
In holding that Congress could not constitutionally restrict the freedom of naturalized citizens to reside abroad in ...