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DAVIS v. DISTRICT DIR.

December 19, 1979

GARRY DAVIS, Plaintiff,
v.
DISTRICT DIRECTOR, IMMIGRATION & NATURALIZATION SERVICE, Defendant.



The opinion of the court was delivered by: FLANNERY

MEMORANDUM OPINION & ORDER

This case presents the issue whether a native born American may renounce primary allegiance to the United States and still retain rights to enter and remain in this country without a proper visa. Petitioner Garry Davis brings this suit in the form of a writ of habeas corpus. The petitioner seeks the writ to relieve him of the restraint and custody imposed by the Immigration and Naturalization Service ("INS"). The Board of Immigration Appeals on May 24, 1978 voted to exclude and deport the petitioner.

 The petitioner is a native of the United States and served as a bomber pilot during World War II. On May 25, 1948, he voluntarily signed an oath of renunciation of United States nationality at the American Embassy in Paris, France.

 The petitioner executed the oath in conformity with then Section 401(f) of the Nationality Act. Now codified at 8 U.S.C. § 1481(a)(5), this section allows a native born American to voluntarily renounce United States citizenship. The statute reads the same today as in 1948:

 
(a) . . . a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by
 
(5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State . . .

 The petitioner signed the oath of renunciation before the United States Consul. The oath of renunciation included the statement:

 
I desire to make a formal renunciation of my American nationality, as provided by Section 401(f) of the Nationality Act of 1940, and pursuant thereto I hereby absolutely and entirely renounce my nationality in the United States, and all rights and privileges thereunder pertaining and abjure all allegiance and fidelity to the United States of America.

 The petitioner, on May 25, 1948, also filed a statement of his beliefs with the United States Consul in Paris. The relevant portion of this statement, which forms the basis of one of petitioner's legal arguments, reads as follows:

 The United States Consul issued the petitioner a Certificate of Loss of Nationality of the United States on May 25, 1948. Petitioner henceforth devoted his time and energy toward the establishment of world government and the furtherance of world citizenship. He frequently travels abroad to promote these principles and goals. He has at various times entered the United States on a permanent resident alien or on a visitor's visa.

 On May 13, 1977, the petitioner attempted to enter the United States on a passport issued by the "World Service Authority", an organization formed to promote world citizenship. The Immigration and Naturalization Service conducted an exclusion hearing four days later, on May 17, 1977. The petitioner stated at the hearing that "I am the president and the chairman of the Board of an organization called the World Service Authority." The administrative law judge found the petitioner deportable. The Board of Immigration Appeals affirmed this decision on May 24, 1978. The Board, relying on 8 U.S.C. § 1182(a)(20), found the petitioner excludable because he lacked a valid document of entry. The petitioner filed the instant writ of habeas corpus on July 19, 1979.

 The petitioner contends that he never expatriated himself. He alleges that the statement of beliefs he filed with the United States Embassy creates sufficient ambiguity to preclude renunciation of citizenship. The petitioner secondly argues that renunciation of citizenship requires the acquisition of another nationality. Finally, the petitioner alleges that Article 13(2) of the Universal Declaration of Human Rights, providing that "everyone has the right . . . to return to his country," requires the INS to allow the petitioner to enter and remain in the United States without any immigration papers.

 The Immigration and Naturalization Service argues that the petitioner is neither a citizen nor a national of the United States. He therefore qualifies only as an alien who must be excluded under 8 U.S.C. § 1182(a)(20). This statute requires exclusion if a person does not possess a "valid unexpired immigration visa." The ...


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