EXPATRIATION

Expatriation was defined by the Supreme Court in Perkins v. Elg (1939) as "the voluntary renunciation or abandonment of nationality and allegiance." It refers to the loss of citizenship as a result of voluntary action taken by a citizen, either native-born or naturalized. By expatriation, a citizen becomes an alien; he divests himself of the obligations of citizenship and loses the rights connected with those obligations. In general, he can regain citizenship only by the process of naturalization.

At common law, a person owed perpetual allegiance to the country of his birth and could not expatriate himself without the consent of that country. Initially, there was an inclination in the United States to follow this rule. In 1868, however, Congress explicitly broke with that tradition and declared by statute that "the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness." Congress did so in order to establish that persons naturalized in the United States did not continue to owe allegiance to foreign governments. Congress seemed to rely on the simple mechanism of formal renunciation to determine whether a citizen actually wished to expatriate himself. Because the statute made expatriation dependent upon the voluntary action of the individual, it raised no constitutional questions about Congress's power over expatriation.

Determination of volition, however, has never been limited to formal renunciation, and through a series of nationality statutes, culminating in the Immigration and Nationality Act of 1952, Congress has identified various actions that indicate a citizen's desire voluntarily to expatriate himself. These actions include obtaining naturalization in a foreign state, taking an oath of allegiance to a foreign state, serving in a foreign army, voting in a foreign election, desertion from the armed forces, treason against the United States, assuming public office under the government of a foreign state for which only nationals of that state are eligible, formal renunciation of citizenship either in the United States or abroad, and leaving or remaining outside the United States during either a war or a national emergency for the purpose of evading military service.

Congress's power to declare that such actions constitute voluntary renunciation, even when the individual who so acts claims not to have intended to renounce his citizenship, was rarely challenged by the courts until the 1960s. Nationality laws were shielded from judicial scrutiny because the courts believed it was beyond their competence to examine matters so intimately related to foreign affairs. However, in the landmark decision of afroyim v. rusk (1967), the Supreme Court restored citizenship to a naturalized citizen who was considered by the government to have expatriated himself by voting in an Israeli parliamentary election. The Court held that although Congress can provide a mechanism by which an individual can voluntarily expatriate himself, volition is a judicially ascertainable quality and the government bears the burden of proof that the citizen's renunciation was truly voluntary. Put simply, Afroyim made the statutory presumption of volition rebuttable rather than conclusive.

While the burger court seemed to retreat from these principles in Rogers v. Bellei (1971), in Vance v. Terrazas (1980) it reaffirmed Afroyim and held that the government must prove specific intent to surrender citizenship and not simply the voluntary commission of an expatriating act. At the same time, the Court upheld the rebuttable presumption that an act of expatriation is performed with the specific intention of relinquishing citizenship and held that Congress is free to prescribe as the evidentiary standard for proving this intention the "preponderance-of-the-evidence" standard of proof.

Ralph A. Rossum
(1986)

Bibliography

Gordon, Charles and Rosenfield, Harry N. 1984 Immigration Law and Procedure, Vol. 3, chap. 20. New York: Matthew Bender.

Schwartz, David F. 1975 American Citizenship after Afroyim and Bellei: Continuing Controversy. Hastings Constitutional Law Quarterly 2:1003–1028.