to establish eligibility for Israeli citizenship were left unanswered. The clerk never indicated how long Parness had lived in Israel over the course of the past five years. The clerk never designated whether Parness planned to settle or had settled in Israel. Throughout the document, as translated, Parness is spelled with one "s," as "Parnes." Neither Parness nor the Israeli ministry clerk dignified the document with an attitude more than casual. In March 1984, Parness' application for Israeli citizenship was accepted, and he signed an oath of allegiance to Israel. See DX-P. The oath made no mention of renunciation of other citizenship. Thereafter, Parness voted in Israeli elections and traveled with an Israeli passport. Confident that he was a dual citizen of both the United States and Israel, in February 1979, Parness decided to renew his U.S. passport. Since he traveled frequently in his capacity as senior sales manager for a kibbutz, he could travel more easily and to more countries on that passport. Parness testified that it was at this time that he first learned his Israeli citizenship might have voided his U.S. citizenship. Parness' application for U.S. passport renewal was denied after he told U.S. Embassy officials that he had become an Israeli citizen. He was advised that he would have to provide further documentation before his application would be reconsidered.
Parness immediately set out to protect his rights and the rights of his three sons. Two of these sons were granted U.S. citizenship status in 1980. A third son was barred from becoming a U.S. citizen for technical reasons unrelated to this case. Parness complied with requests for documentation in a continuing effort to have his U.S. citizenship assured. In February 1980, the U.S. Embassy prepared a document which Parness signed and in which he acknowledged that he had acquired Israeli citizenship in 1974. He crossed out a phrase in this document which stated that he intended to renounce his U.S. citizenship. See DX-V. After reviewing all documentation, including a questionnaire which Parness completed, the State Department concluded that Parness ceased to be a U.S. citizen in 1974, at the time he acquired Israeli citizenship. The State Department then issued Parness a Certificate of Loss of Nationality on May 29, 1981. Once again, in 1984, when he returned to Milwaukee, Wisconsin for his birth certificate, he made another, but equally unsuccessful attempt to obtain a U.S. passport.
Although Parness is now the managing director of sales for his kibbutz, he has operated and continues to operate his personal life with a remarkable degree of trust and naivete. While he has told this Court that he does not believe affirmation of his United States citizenship will affect his Israeli citizenship, he admits that he has not investigated the matter, despite the troubles he has encountered in this case. The file in this case indicates that at least one Israeli consular official has determined that Parness is not exempt from the foreign citizenship renunciation requirement of Israel's Nationality Law. See DX-R. However, Parness has consistently maintained that he never intended to renounce his U.S. citizenship, and a State Department official, in a memorandum for the file dated July 10, 1984, see DX-FF, acknowledged that Parness' actions do not clearly show an intent to renounce citizenship, and suggested that while "the decision reached at that time was correct" the passage of time "makes me now consider, under our present thinking, that Mr. Parness' loss of nationality might be reversed." The official notes, "At no time did he seek the advice of any U.S. official regarding the consequences of his naturalization as an Israeli citizen."
Parness' actions show merely that he persistently failed to investigate all of his options and to act with utmost care in handling the more important transactions of his personal life. The evidence is compelling that Parness never intended to expatriate himself.
In 1966, through Afroyim, it was established that the government had no power under the Constitution to "rob a citizen of his citizenship without his consent." 387 U.S. at 263. In Afroyim, the Supreme Court held that Congress may not exercise any power to divest a person of U.S. citizenship without first showing that the person voluntarily renounced allegiance to the United States. The Afroyim decision overruled Perez v. Brownell, 356 U.S. 44, 78 S. Ct. 568, 2 L. Ed. 2d 603 (1958), which recognized a general government power to take away a person's citizenship without that person's consent. The plaintiff in Afroyim was a naturalized Polish-American who was stripped of his citizenship under the U.S. Nationality Act of 1940 because he had voted in an Israeli election in 1951. His citizenship was restored in a reversal of a lower court's denial of his motion for declaratory judgment.
The Supreme Court extended the Afroyim rule in Vance v. Terrazas, 444 U.S. 252, 62 L. Ed. 2d 461, 100 S. Ct. 540 (1980), to include a requirement that the government prove by a preponderance of evidence that a person had a specific intent to renounce his or her citizenship. The Court held that the government may not rest its case on mere evidence that a person had voluntarily committed an expatriating act. It was the government's burden to prove that the acts were committed with a specific intent to renounce citizenship and to demonstrate this by a preponderance of the evidence. Id., at 253.
Under the Immigration and Nationality Act, a United States national may lose his or her nationality by committing an act of voluntary expatriation listed in the statute. Section 349(a)(2) & (c), as amended, 8 U.S.C. § 1481 (Supp. 1987). The statute lists the following, among others, as expatriating acts: applying for and obtaining naturalization in a foreign state while an adult; serving as an officer with the armed services of a foreign state; making a formal renunciation of nationality before a United States consular officer or diplomat; or making a formal renunciation of citizenship in writing in the United States in wartime. Section 1481(a). After Vance, however, these acts by themselves are insufficient to show specific intent. In that case, a dual citizen of Mexico and the United States had expressly stated that he renounced his U.S. citizenship. On remand, the District Court held for the government, applying the test set out by the Supreme Court and finding that the preponderance of the evidence showed that plaintiff intended to lose his United States citizenship. Terrazas v. Muskie, 494 F. Supp. 1017, 1020 (N.D. Ill. 1980). The Court of Appeals for the Seventh Circuit affirmed, noting that circumstantial evidence surrounding a voluntary act may be used to establish intent and that the circumstantial evidence showed intent to renounce citizenship. The Court further stated that the government had the burden to show that at the time of the alleged expatriating act the person intended to renounce citizenship, and to show this by a preponderance of the evidence. Terrazas v. Haig, 653 F.2d 285, 288 (7th Cir. 1981) (per curiam).
Like the instant one, citizenship cases are generally fact specific and can only be decided after scrutiny of the evidence at trial. See, e.g., Richards v. Secretary of State, 752 F.2d 1413 (9th Cir. 1985); Kahane v. Shultz, 653 F. Supp. 1486, 1493 (E.D.N.Y. Feb. 21, 1987).
In this case, acts, omissions, and statements of Parness strongly exhibit that his gross negligence endangered his U.S. citizenship; he has suffered the consequences of his casual attitude.' Nonetheless, the government has failed to show, as it must, by a preponderance of the evidence, that Parness ever specifically intended to relinquish his U.S. citizenship. Parness' overall testimony has been highly credible and most persuasive. His demeanor, his responsiveness to examination, his obvious sincerity, and his general conduct all clearly demonstrate that he never had specific intent to renounce his U.S. citizenship. The circumstances of his application for Israeli citizenship were unique; the testimony and much documentation in this case support plaintiff's position. The Court cannot conclude on these facts that Parness knowingly, intelligently, and intentionally renounced his U.S. citizenship.
This Court need not decide whether an award of attorneys' fees and costs, as prayed for, would be otherwise appropriate in this action, since the plaintiff's conceded negligence led to this litigation and the expenses incurred thereby.
Accordingly, Eugene M. Parness, native-born, is declared to be a citizen of the United States of America, entitled to all rights and privileges pertaining thereto.
IT IS SO ORDERED.
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