The opinion of the court was delivered by: RICHEY
This case is before us as a result of an action for mandamus, declaratory and injunctive relief. At the request of the plaintiff, a three-judge Court was convened pursuant to 28 U.S.C. §§ 2282 and 2284 (1970), to hear plaintiff's challenge to the constitutionality of an Act of Congress, namely, section 349(a)(4)(A) of the Expatriation Act of 1954, 8 U.S.C. § 1481(a)(4)(A) (1970). Plaintiff also prays for such other relief as may be appropriate under the circumstances of this case and particularly for an order striking the certificate of loss of plaintiff's American citizenship (nationality) issued by the defendant. Plaintiff also sues for a declaration that the defendant should be and is required to register plaintiff as an American citizen.
The plaintiff, Sophie Anna Peter, was born in Poland in 1906 and at the age of eight immigrated to the United States with her parents. In 1934, at the age of 28, she was naturalized as a United States citizen. Eight years later, she married Jozsef Peter, a Hungarian citizen. By operation of Hungarian Law, marriage to a Hungarian citizen she became also a Hungarian national, and thus she was possessed of dual nationality. In 1949, plaintiff joined her husband in Hungary on his return there from the United States, and she has resided there ever since.
On July 19, 1971, the United States Vice-Consul at Budapest notified plaintiff that the Department of State had made a preliminary decision "that you have expatriated yourself under section 349(a)(4)(A)" of the Immigration and Nationality Act, 8 U.S.C. § 1481(a)(4)(A) (1970), "by accepting a position with the Hungarian Radio in Budapest."
Upon contest of this preliminary decision, followed by a supplemental questionnaire in which plaintiff explained her employment by the Foreign Department of the Hungarian Radio, the Passport Office of the Department of State affirmed the preliminary finding and approved the certificate of plaintiff's loss of nationality. The certificate recites that plaintiff acquired Hungarian nationality by her marriage in 1942 to an Hungarian citizen, that she had accepted a position with the Hungarian Radio, a political subdivision of the Hungarian Government, and "that thereby she expatriated herself." On her appeal to it, the Board of Appellate Review of the Department of State, on April 13, 1972, affirmed the prior determination.
In Afroyim v. Rusk, 387 U.S. 253, 87 S. Ct. 1660, 18 L. Ed. 2d 757 (1967), the Supreme Court considered the constitutionality of section 401(e) of the Nationality Act, 8 U.S.C. § 1481(a)(5) (1970), which provides that a citizen of the United States shall lose his citizenship if he votes "in a political election in a foreign state." In reversing the decision of the Secretary of State that by such conduct Afroyim had lost his citizenship, the Court held that Congress has no power under the Constitution to divest a person of his United States citizenship absent his voluntary renunciation thereof.
In affirming the prior determination the Board of Appellate Review in the present case recognized the necessity of applying section 349(a)(4)(A) in a manner consistent with the decision of the Supreme Court in Afroyim, as that section had been interpreted by the Attorney General of the United States in a Statement of Interpretation, 34 Fed. Reg. 79 (1969).
Having exhausted her administrative opportunities, as to which no question is raised, plaintiff instituted this suit. She challenges the constitutionality of the section relied upon, and as applied in her case, invoking, inter alia, the right of citizenship guaranteed by the Fourteenth Amendment, the Due Process clause of the Fifth Amendment, and the First Amendment protections securing freedom of speech and the press. The complaint also attacks the defendant's decision as unauthorized by the section relied upon, as construed by the Attorney General's Statement.
Substantial constitutional questions are thus presented by the complaint, authorizing the convening of this three-judge court pursuant to 28 U.S.C. §§ 2282 and 2284 (1970). The case is before us on cross motions for summary judgment.
Assuming arguendo that the Attorney General's Statement of Interpretation of Afroyim to be correct, and that as so construed section 349(a)(4)(A) is constitutional, the proof fails to meet the burden which must be assumed by defendant; and this is no less clear if Afroyim is considered independently of the Statement. Since proof of voluntary renunciation is lacking we are not called upon to decide more.
As our Court of Appeals said almost twenty years ago in Acheson v. Maenza, 92 U.S. App. D.C. 85, 202 F.2d 453, 456 (1953):
"American citizenship is perhaps the most precious right known to man today; it is not easily granted nor should it be lightly taken away. In denaturalization cases, the Government has always been held to a strict degree of proof; it is usually required to prove its case by clear, unequivocal, and convincing evidence, not by a bare preponderance which leaves the issue in doubt." Knauer v. United States, 1946, 328 U.S. 654, 66 S. Ct. 1304, 90 L. Ed. 1500; Baumgartner v. United States, 1944, 322 U.S. 665, 64 S. Ct. 1240, 88 L. Ed. 1525; Schneiderman v. United States, 1943, 320 U.S. 118, 125, 63 S. Ct. 1333, 1336, 87 L. Ed. 1796.
It is also clear that there can be no expatriation unless there is a voluntary act by which the American citizen unequivocally indicates relinquishment of American nationality in favor of allegiance to some foreign state. Nishikawa v. Dulles, 356 U.S. 129, 135, 78 S. Ct. 612, 2 L. Ed. 2d 659 (1958); Trop v. Dulles, 356 U.S. 86, 92, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958).
In 1949, when plaintiff joined her husband in Hungary, she registered with the Hungarian Police as an American citizen. In 1971 when she applied to the United States Embassy in Budapest to register as a citizen of the United States, in answering a questionnaire under oath she stated that she had always considered herself an American citizen since her naturalization. It is true that in 1950 she was employed by Hungarian Radio, Budapest, first as a translator and in 1952 had charge of the English Language Broadcast Station, and that in about 1960 she was appointed deputy head of the foreign language department, resigning that position in 1965 and later that year retiring. But these facts do not support "by clear, convincing and unequivocal evidence," Nishikawa v. Dulles, supra, 356 U.S. at 135, 78 S. Ct. at 616, an inference of an intent to forfeit her American citizenship, or voluntarily to renounce it. Nor were these acts shown to be "so inconsistent with the retention of [American] citizenship as to result in the loss of that status." Perez v. Brownell, 356 U.S. 44, 68, 78 S. Ct. 568, 2 L. Ed. 2d 603 (1958) (dissent of Chief Justice Warren cited in Afroyim with approval, supra, 387 U.S. at 256, n. 7, 87 S. Ct. 1660, 18 L. Ed. 2d 757) quoted by the Attorney General as controlling in the Statement of Interpretation, 34 C.F.R. 1079 (1969).