Bellei v. Rusk

LEVENTHAL, Before WRIGHT and Judges, SMITH, Circuit District Judge. LEVENTHAL, Judge: Circuit

Plaintiff, Bellei, Aldo Mario United States virtue 301(a) Immigra (7) section of the Nationality tion and Act of 1952. That section confers American on children born of least at one American parent, though such child is born outside of the United States.1 Plaintiff brought against action the Secre tary enjoin of State to enforcement 301(b) Act, if operative would terminate his American Subsection § places grant a limitation of citizen ship 301(a) (7) by made mak ing retention of American upon completing conditional a term of years the United States age twenty-eight.2 We hold that (Supp. 8 U.S.C. one of birth: and its graphical and citizens (a) ^[*] III, whom an person outlying possessions § following ifi limits of the 1968) born outside : the United ^[*] alien, shall be and the other 5¡! as amended States nationals parents ^[*] geo- at vision 8 U.S.C. physically present prior a citizen of years, or its attaining ** periods requires ^ outlying possessions the birth least five totaling the United States in the such fourteen less than ten for person, were spend after who, pro- Department requirements his re- of in the denied the this section violates passport quest. renewal of Fifth In 1961 the the clause the due passport, plaintiff’s office had noted Amendment. Plaintiff, 301(b).” after “Warned abt. I sought warning, in Jan- renewal stipu- pertinent have been facts uary, 1963, stating application in his Italy in in born lated. Plaintiff was Havertown, that he Penn- resided in fa- December, Italian-born of an sylvania, giving occupation as stu- his mother. ther an American-born and dent, indicating to and that he intended always and parents have been Plaintiff’s only His remain abroad three months. respective- of their continue to be citizens granted, pass- application but the was native lands. July, through port validated was Plaintiff, birth, treat has been from plain- 1963. At the time this of renewal by United the ed citizen as an American twenty-three years old. tiff was has; wel He been States Government. country visas through comed this 1963, plaintiff applied to July, In of immigration papers required Embassy Italy in the United States foreigners. of himself Again He availed has request a further extension. his come to to access unlimited his honored, was but he was reminded visit to country and on several occasions longer he a would no be considered family. has Plaintiff mother’s his citizen, 301(b), if he in of view section Amer under times also all traveled expired remained abroad. The extension protection. first diplomatic hisOn ican February 11, plain- as of When mother’s on his two Bellei traveled visits prior country tiff failed return to to this oc passport. two last On American date, Department to that State United plaintiff visited the casions when longer that he concluded a was journeyed his own under he citizen, orally and he inform- States was is passport, been had which by ed of that conclusion the American periodically renewed sued in 1952 and Embassy passport was at Rome. His subject mil He until 1964. was accordingly deemed revoked. Feb- On registered for itary laws and service ruary 14, plaintiff was notified in draft 1960.3 United States Service Selective liability military controversy his had arises out service Department’s in view loss to extend terminated of his of citizen- refusal State ship. plaintiff plain- At that over time passport. was plaintiff’s When renew twenty-four years age. passport Since sought renewed tiff have his 1401(b) In years between the administration in this five least title, twenty-eight: from ages absences the United and fourteen Any person less twelve in and States of than months a national during aggregate, the United presence physical (a) in pargraph of- continuous of subsection under nationality this, required, section, United States is shall his lose shall continuity be to break the come considered shall unless he physical presence. prior attain- such Congress originally years twenty-three age When included this ing requirement years following any immediately it five such shall coming age pres- continuously physically the child reached eighteen. See 48 for at Stat. 797. The 1940 [sic] the United State ent generous, Provided, years: reenactment was more That five least present physical presence the attain- Stat. law follows strict, allowing age even less until of fourteen ment age twenty-eight complete years. twenty-eight precedes his years of residence. requirement presence The “continuous” 3. 1-Iis 1401(b) scheduled induction was liberalized employment 1401b deferred because 8 U.S.C. program. defense NATO (1964): again applied Rusk, for an We turn first Amer Schneider v. supra.7 That request passport statutory and has had his ican case involved provision provided: formal letter from turned down Italy.4 the American consul in (a) person who has a na- become that enforcement Plaintiff contends tional naturalization shall lose his contrary nationality by— Fifth, Eighth, Ninth Amendments (1) having a continuous residence for three-judge court to the Constitution. years territory three in the for a has been convened the constitution since eign formerly state of which he was a ality ques of a federal law is drawn into place national or in which the of his by litigation.5 tion this situated, except provided birth is in as title, section 353 of whether II residence before or after commenced * * the effective date of this Act *. Plaintiff contends that section 352, Immigration operates Section strip a of his citizen Nation ality 1952, 269, ship 163, primarily Act of on the 66 Stat. and rests his case 1101, pillar 8 U.S.C. 1484. of due which has become §§ a bulwark for the ship of citizen holding In that could not con- Supreme in recent decisions. Court stitutionally restrict the freedom of Afroyim Rusk, 253, 387 v. U.S. 87 S. naturalized citizens to reside abroad in 1660, (1967); 18 Ct. L.Ed.2d 757 their native lands the Court said: Rusk, 163, Schneider 377 84 v. U.S. S. 1187, (1964). Ct. 12 L.Ed.2d 218 While A native-born citizen free to reside distinguish facts both are cases suffering indefinitely abroad Afroyim able, we think the and Schneid loss of The discrimina opinions proposition er do stand for the tion aimed at naturalized citizens in the absence of fraud drastically rights limits their to live may not withdraw whether way and work abroad in a that other acquired by grant, subsequent at birth or may. citizens It creates a sec indeed voluntarily not The renounced.6 citizenship. Living abroad, ond-class position urged by the Government would whether the citizen naturalized require “niggardly” us to accord a read born, badge native is no of lack of ing incompatible think with we allegiance way and in no evidences put position the broad and forceful for nationality renunciation of allegiance. by Supreme protect ward important Court to indeed be com right. pelled by business, family, constitutional Ull Cf. or other 422, legitimate mann v. United 350 U.S. reasons. 377 at 168- U.S. 426, (1956). 169, 76 511 84 S.Ct. 100 L.Ed. S.Ct. at 1190.8 reproduce approved Sep- We the letter from the Section here 16 of the Act on American consul: tember reply your request In verbal for (1964). 5. 28 U.S.C. 2282 your passport in issuance of an American exception person 6. The who has name, your request hereby denied since citizenship by fraud is noted you longer nationality. hold American Afroyim Rusk, v. 267 action is on based an instruction n. 87 S.Ct. 18 L.Ed.2d 757 Department from the of State (1967). September 1, 1964, Embassy on in which 7. 377 U.S. 84 S.Ct. 1187 Department you held that lost had nationality February 12, Compare American as of enactment, the 1940 by your physically 301, dropped failure to be of what is now section present protest (see Cong.Rec. over in 1952 your Cong., between fourteenth 1952), provid- 82d 2d Sess. twentythird birthdays, ing specially re- [sic] 301(b) as for children Ameri- whose quired by Immigra- parent engaged Section abroad on Ameri- Nationality by tion and Act as amended can-related business. Supreme approach (Em- at 1668. The Court's broad S.Ct. emerged clearly Afroyim added.) phasis more Rusk,9 that Con where the held Court terms confers its gress away could not take plain at birth.10 Persons voluntarily re from one not who has tiff’s situation are endowed Afroy significance linquished it. citizenship and its incidents all pre im is illuminated the fact they enjoy during their its benefits following Brownell, viously, Perez v. years. provisions formative of sub L.Ed.2d operate to terminate would had, in Justice Black’s the Court persons, those status “consistently a case- words invalidated recognized citizens, previously as statutory by-ease basis various sec (b). steps forth in do take set involuntary expatria providing for tions up not take While did grounds tion. It. done so on various provided in this can and has refused to hold that citizens 301(b), in he had section declared his expatriated their be During this tention to -do so. Afroy citizenship.” In renunciation of citizenship, subject to Amer of he was Perez, im discarded the Court overruled jurisdiction also ican a citizen11 and ease-by-case approach, a and sounded citizenship subject of to duties general contrary to theme that was military he is such as service. Now previously assumption that Con stated family independent youthful ties to gress expatriate power citizens had the to and wants to come to the United States. circumstances. certain grant citizenship prior In view plaintiff * * to we not think do light *. Citizenship no trifle is can now slam door his face. What govern- very our free nature of remained ever reason incongruous completely it ment makes abroad, family schooling, Con ties or a rule of under to have a law gress citizenship cannot terminate his group temporarily in office of citizens only ground enjoyed he a on the that group deprive citizens another citizenship, that restrict second-class one citizenship. that We hold of their “rights his ed to and work abroad life designed Amendment was Fourteenth way may.” in a that other citizens every does, protect to, citizen and contrary Afroyim. is to Schneider and against destruc- forcible Nation citizenship, his whatever

tion his IU holding color, creed, Our or race. give to this relies on the fact to Government no more than does own, Afroyim protected a con- that Schneider is that which plaintiffs citizenship right to a citizen their remain traced stitutional voluntarily argued country .naturalization. It is that free unless in a relinquishes process 387 U.S. Fourteenth due Amendment’s that sary (1967). comply requirements with the 87 S.Ct. U.S. citizenship attach, could predecessor § to section 10. The Attorney contemporane- General in a question Statutes, open left Revised ous construction concluded that the Act acquired beneficiary of whether citizenship conferred at birth. See 38 only upon citizenship birth, com- or Ops. Atty. (1934) ; Gen. 16-18 declaring pliance an with conditions Bow, see also Weedin v. Chin taking resident and become intention to 675, 47 S.Ct. 71 L.Ed. 1284 by allegiance section oath of by concluding, implication, that Act of March citizenship the benefit of under the 1855 the re- substituted 1934 Act 1229. The Act attached birth. presence quirement United of sub- Blackmer forerunner which is (b). floor debates 76 L.Ed. 375 While suggested neces- that it. was 1934 Act guards citizenship protection only that granted citizenship clause citizenship by conferred, constitutionally a naturalization is act that did not ex by granted tend acquired citizenship in the another inapplicable by naturalization, act.14 and is statute that conferred argues The Government in the alterna naturalization. We not an act of congressional tive power that even if the distinction. basis enact conditions on is limited more than one Consti there be process, 301(b) due contains Congressional author tutional source is, therefore, reasonable conditions and ity grant define urged constitutional. It is that section deriving power natu from the there is simply way a reasonable I, clause, cl. Act ralization assuring origin hybrid that children of deriving implied authority12 from give some indication of affirmative de event, any Congress.13 powers In siring part society to of our as well grant however, recognition of U. as avail themselves of our because is lawful S. opportunity to come to this power within the under proves expedient.15 whenever it Our at the Constitution. background tention is directed to the legislative history which, concluding We see no basis according declaring Government, Supreme due to the Court was reveals power appears an- Government is 12. to be the earliest without to What citizenship away take from is the Act of a native- cestor lawfully 1790, 26, born or naturalized Ameri- March rule can. The Act to a uniform Fourteenth Amendment rec- was an establish ognizes right 16, priceless that See n. infra. is im- of naturalization. arbitrary mune from the exercise of governmental powers. Congress' I, “to 13. authorizes Article 8§ Rule of Naturaliza establish an uniform 77-78, 356 U.S. at 78 S.Ct. at 586. decide whether tion.” We need not here foreign implied power in there exists an hardly It is consistent with far- the justify legislation relations that would reaching holding Afroyim of to attribute Henkin, The us. See like that before language to Justice Black’s an intention Treaty and the Law Makers: Makers unprotected to leave a broad class of Foreign Re The Law of the Land and lations, holding citizens. The is case in broad (1959). U.Pa.L.Rev. 903 107 among terms and draws no distinction justifying possibilities Other exist for types citizenship. Afroyim of congressional legislation to define citi Rusk, 387 U.S. 87 S.Ct. zenship. ap The term “naturalization” Moreover, at 1668. there is no reason pears in text of the Constitution to believe that Justice Black meant to explica definition. The need vary settled doctrine that due may legislation. tion well serve to sustain protects persons. Compare Morgan, Katzenbach v. U.S. 86 S.Ct. 16 L.Ed.2d 828 Compare Elg, Perkins v. (1966). (1939), ap 59 S.Ct. proving by implication 83 L.Ed. 1320 contrary 14. We do think a view was not an election re majority quirement persons intended Justice Black’s who bear dual opinion Afroyim, citizenship; Savorgnan that see-also v. United States, Amendment can-most [Fourteenth] reasonably defining (1950), holding be read as citizen- L.Ed. 287 that volun ship keeps tary foreign which a citizen unless he naturalization in a state voluntarily relinquishes expatriating it. Once ac- is a valid basis for an Amer quired, citizen, though this Fourteenth Amendment ican there was no citizenship shifted, was not to be can- desire or intention or awareness that celed, operate or diluted at the will of the Fed- act of naturalization would any Government, States, or eral divest For a discussion of governmental problems arising nationality, unit. U.S. at out of dual generally Seharf, Study 87 S.Ct. at 1665. of the Law Expatriation, See also Justice Warren’s dissent 38 St. Johns L.Rev. Perez v. Brownell: 271-75 purpose nexus to United States.17 We hold that subsection Congress may proceed by these children that that not (cid:127)301 is assure granting allegiance connection and then have some either mixed offering qualifying grant by creating its them to the is second state terminating citizens class or other benefits grant.18 teaching Afroyim hip.16 broad and Schneider that once is American contention is The Government’s recognized has been con ponder appeal; and we have not without ferred, Congress may not remove carefully. an is There ed the matter status; it the citizen to abandon children, danger born undeniable citizenship voluntarily. home, foreign abroad, in a and raised summary judg- Plaintiff’s motion for spoken, English may never be where granted: ment taught, defendant’s cross-mo- English schooled where tion is denied. foreign holidays celebrating family parent, will non-American LEVENTHAL, Judge (con- Circuit meaningful connection have curring) : heritage. its culture legitimate opinion I add I concern have written help citizen for the court a bear American few words that me those who place perspective. have some ship this case and receive its benefits early quired upon reaching eigh- be traced 301 can Section infancy dating legislation, teen to record back to early Republic. their As as 1790 consulate intention to become the provided citizen- residents transmission of and remain citizens of the for the ship by such statute re- The first and shall further descent. right quired allegiance “[T]he take the oath a limitation. was framed per- upon attaining not descend the United shall majority. been resi- their never fathers have whose sons United States.” dent “jus recognize sanguinis” 17. We Stat. March Act of provide a tenuous link to the national finally and was reenacted That citizenship state when is conferred vir- Revised Statutes. as 1993 of codified § citizenship only parent. tue of the one response to an 1854 was a 1855 Act The Yet we are not confronted with the criticizing article, formula- the earlier specter generations emigres of child citizenship providing for not tions who will return to this to claim paternity who of American children those citizenship. 301(a) Section itself Binney, 2 Amer. born abroad. were requires parent that a have lived Reg. 193; also 2 Kent Commen- Law prerequisite United States ten as a Congress eliminated In 1934 taries transmitting citizenship foreign- to a extending inequity the ben- obvious born child. only children those efit argument 18. After was heard in this case paternal United States. ties to Attorney Cong., promulgated (73rd 2d Cong.Rec. General De See 78 partment ruling setting pro Congress juncture forth the Sess.). At require- years presence cedure that would be followed in ex included Afroyim patriation (b) of the cases after v. Rusk. is now which ment May 24, gist of the memorandum is that each See. Act statute. case will on an individual basis be taken in was to ascertain whether the individual of subsection forerunner actually relinquish volved intended to March Act of citizenship, assuming puts provided: Stat. question lim- of intent at issue. Since outside born children That all ap procedure necessarily citi- new “does not who are its of ply to the loss of U. with the S. ac in accordance zens thereof quired hundred as a result of birth abroad to a provisions nineteen parent parents,” ninety-three we have' Revised Stat- legal significance occasion consider United utes of Department ruling, or soundness outside the reside continue appears Fed.Reg. (Jan shall, at 34 receive the order States protection uary 23, 1969). Government, re- be in this case before us not have We did pre as a conditions a statute that set grant of requisite for occasion did have Therefore we Congress could extent to what

consider kind impose what conditions impose. conditions, any, if it could My assumption own impose reasonable conditions recognized.1 citizenship is must met before be course ut is not the B to follow here. want wanted governed beneficiary ed birth, with (7) to a citizen at diplomatic advantages of United States citizen benefits corollary op perhaps ship, portunity claims to resist other countries.2 to consider we

Nor were residence abroad statute in which operative fact ter an as not established sig given minating citizenship, but was evidentiary fact nificance voluntary relinquishment aof indicative citizenship.3 Plaintiff, TOOTALIAN, John Health, COHEN, Secretary of Wilbur J. Welfare, Defendant. Education No. C 68-270. Court United States District Ohio, D. E. D. N. 20, Dec. 1968. Cleveland, Celebrezze, Ohio, J.

Gerald plaintiff. Borchard, Diplomatic 1. latitude 2. Protection would have wide "While precedent 200, drafting Abroad 462. its at a condition Citizens in grant would such conditions Compare comply 3. dissent re Chief Justice Warren’s with the fundamental have to equal protection Brownell, quirements v. states and due in Perez Compare French, in an process. results Unconstitu “certain conduct citizenship,” impairment Analysis, the Geo. status An 50 Conditions: tional and that L.J. 234 78 S.Ct. 1254 Atty., entire Stuplinski, is search the record to S. deter U. Bernard Secretary Pickering, mine if decision by

through Harry Asst. U. S. the the is E. supported substantial Atty., evidence. for defendant. Gardner, U.S.App.D.C. Mitchell 123 v. OPINION MEMORANDUM 358 F.2d 826 and Miracle Celebrezze, (6th ORDER AND v. 351 F.2d 361 Cir. 1965). so, the If Court must render LAMBROS, Judge: District judgment Secretary, if for the under 205 an action Court would have reached a different Security (42 (g) Act U.S. of. Social position had it heard the de ease novo. 405(g), the final review C.A. § (6th Gardner, Walters 397 F.2d 89 v. (hereinafter decision of the defendant 1968); King Celebrezze, 341 Cir. v. F.2d denying Secretary) cer referred as the (6th 1965). 108 It is the Cir. function plain security social benefits tain Court, Secretary, not the re plaintiff application The filed tiff. solve conflicts pass the evidence age 13,1966, for old insurance on October credibility on the of witnesses and application ini denied benefits. His Folsom, Ferenz 237 documents. v. F.2d tially again on on reconsideration (3 1956); Celebrezze, Cir. Miracle v. On December June supra; Kelley Celebrezze, F.Supp. v. Hearing hearing before a there was (D.C.1965). January 4, cases date of Social review of Court quishment], be aban it cannot declare that “United equivocal foreign permanently, temporarily acts doned, as service army, participation foreign voluntary showing in a election transfer conduct country.” forces, desertion from our es- armed allegiance to another compare presumption 583; tablish a conclusive of in- opinion concurring tention to ity. off throw American national- Black’s Justice [Citation Dulles, omitted.] Of course such Nishikawa may highly persuasive conduct evi- 2 L.Ed.2d S.Ct. particular purpose “Although dence in the noted, case of a where citizenship.” [determining to abandon provide evidence rules relin- been there when The notes Court Secretary time at which Examiner proof security the burden in social counsel, ap plaintiff, represented proceedings Henry the claimant. peared H. doctor E. testified. Garnder, (6th 1967); 381 F.2d Cir. v. Miskjian appeared for the as a witness Gardner, (6th Nelson 1967). F.2d 92 Cir. February 7, 1968, plaintiff. On Hearing rendered a decision Examiner plaintiff; on March adverse As sole issue Appeals Council Secretary’s Court is whether Hearing Examin Secretary affirmed position supported substantial evi plaintiff filed then The er’s decision. dence, summary a brief of the evidence judicial re an action this Court in the record in order. Secretary. of the decision view petition Naturalization for John Too- the Sec parties at issue and are now The talian, No. certificate issued summary judgment, retary moved for February 1938, showing claimant’s plaintiff opposes. now which the age years, at the time is the case The issue place would his birth date plaintiff under 42 U.S.C.A. § Application Security for Social num- Secretary 402(a). found plaintiff ber 24, dated November January 4, birth was plaintiff’s date of signed by giving him and that he claims whereas January 4, date of birth as 4,1902. January was born Application for retirement insurance claiming benefits District on October function of the Security

Case Details

Case Name: Bellei v. Rusk

Court Name: District Court, District of Columbia

Date Published: Feb 28, 1969

Citation: 296 F. Supp. 1247

Docket Number: Civ. A. 3002-67

Court Abbreviation: D.D.C.