Beys Afroyim v. Dean Rusk, as Secretary of State
361 F.2d 102
2d Cir.
1966
Check Treatment

*2 July 30, plaintiff WATERMAN, “2. On 1951 voted Before KAUFMAN and Knesset, ANDERSON, Judges. in the elections for the second Circuit the of the of Israel. Parliament State WATERMAN, Judge. Circuit second “3. The election for the political Knesset was a election a declaratory commenced a Plaintiff foreign contemplation state the within judgment action the United States Nationality 401(e) of the Section for District District Court the Southern Act of 1940. challenging York constitu- New the tionality 1481(a) (5). of 8 He U.S.C. § voluntarily “4. Plaintiff voted alleged the section is both unconsti- the said election. applied tutional on its and as face to him “5. neither Plaintiff contends that guar- process in that it the due violates any at the time of election nor at the antee of the Fifth Amendment and vio- any intention other time did he have 1, 1 lates Section Clause of the Four- Amer- or desire to lose or abandon his teenth Amendment. citizenship. con- Plaintiff also ican summary judg- After for all cross-motions tends that he considered himself at by parties, ment had both alle- been filed times an American citizen with opinion, giance court in a re- below reasoned to the United States. Defend- (S.D.N.Y. ported F.Supp. stipulate respect at 250 686 ant will not with 1966), granted by allegations. motion filed the truthfulness of these Secretary defendant and dis- these State Defendant also maintains allegations plaintiff’s complaint spe- missed on the a are irrelevant since ground genuine that there was no issue cific intent or desire to lose or abandon any requisite as to material fact American is not 401(e) judgment expatriation was entitled to as under Section Nationality a matter of law. Act of 1940. Plaintiff, 14, who had been a naturalized “6. On 1960 November States, Israel, Haifa, citizen the United had suffered American Vice Consul at the loss of on November issued of Loss of a Certificate Nation- Nationality 1. Section 401 of Act of 1940, 1137, (e) Voting political 54 Stat. amended election in September 746; foreign 27, 1944, participating Act Stat. or in an 58 state (1946 ed.) provides: plebiscite 8 U.S.C. 801 election or to determine the § losing sovereignty foreign territory. § 801. General means United over Nationality nationality. Act States This person preserved A is a national of the in the who 1940 was 477, States, 1952, United naturalization, whether birth or and Naturalization Act of Ch. nationality III, 3, 349(a) (5), his shall lose Title ch. by: (5). 267; § 66 Stat. 8 U.S.C. 104 144, 162-163, ground Court, 83 ality plaintiff on concurring July 30, 554, expatriated S.Ct. the reservations himself he Justices, 186, 187, pp. 401(e) pp. Na- S.Ct. 1951 under Section dissenting in a

tionality and the statement for the Act of p. Justices, pp. 202, political state. in a election approved action The Vice Consul’s by Also, re- we are asked to consider the *3 Depart- Passport of the Office the v. sult the Rusk, reached in Court Schneider January 4, 1961. on ment of State 1187, 163, 12 84 377 U.S. S.Ct. January 27, appealed 1965 on Plaintiff (1964) indicative L.Ed.2d 218 as also Department’s of Board to the State authority. weakening of a However, of Perez the Nationality, and on Loss of Review the 166-167, 84 S.Ct. 377 U.S. 3, May affirmed the on 1965 the Board by opinion, a of written 1187 the Court’s Vice Consul’s determination.” expla- dissenter, Perez careful there a ground upon specific of which nation the upon In appeal appellant his brief distinguished Perez. Schneider from First, was claims the statute violates the Sixth, Eighth and as Amendments well urged disregard Perez We are even to Fourteenth; as the Fifth and First the holding of in contem- because the a case Congress sought by has the Act poraneously decided, Trop Dulles, 356 v. impose upon to a drastic sanction citi- 86, 590, 630 2 L.Ed.2d U.S. 78 S.Ct. express zen’s opinion freedom to his (1958). there, Trop, the In on the facts political, issues, social or economic and 401(g), 8 now Court held that U.S.C. § Eighth the Sixth and because the statute 1481(a) (8), again 8 a different U.S.C. § appears punitive ring to have a it and to provision 1481(a) (5), 8 from U.S.C. § safeguards guaranteed by the the Sixth Trop was an en- as to unconstitutional charged to one with crime are not made holding actment while at the same time may suffer, available to one who as did 401(e) 8 The U.S.C. constitutional. § appellant, punish- a claimed “unusual argument thrust of this is that the Court by Eighth. ment” barred the appear in Perez did to consider might punishment a denaturalization be We of are course bound the author- though mind in ity the in Court Brownell, 44, of Perez v. 356 U.S. 78 Trop, day. the 568, decided same (1958) S.Ct. 2 L.Ed.2d 603 wherein a native-born American citizen who voted Supreme Subsequent the Court to all of political election, in a Mexican and who supra, we cited us and set forth cases to sought thereby, had lost his recognized year, have, within the Supreme to have U. the S. Court hold that Immigration & Naturalization Tanaka v. predecessor statutory provision the challenged here (2 1965), Service, the F.2d 438 Cir. 346 beyond power was of Con- the binding authority saidWe of Perez. gress to enact—and wherein the constitu- there: tionality legislation upheld. of the open question the “It is not voluntary ain act of Appellant subsequent contends that de- expatriation 1950 election in results cisions of Court so have devitalized Nationality 401(e) Act under § holding longer Perez that its is no constitutionality 1940, binding precedent. Our attention is di- expressly having provision af- been rected as evidence this claimed devital- Brownell, 356 U.S. firmed Perez v. Kennedy ization to the case of v. Men- (1958). 568, 603 44, 78 L.Ed.2d S.Ct. 2 doza-Martinez, 144, 372 83 S.Ct. expa- However, no conduct results 554, (1963), held, 9 L.Ed.2d 644 voluntary. Nishi- unless it is Dulles, triation involved, as to 8 citizens U.S.C. § 129 [78 356 U.S. S.Ct. kawa v. 1481(a) (10), a different sup- (Emphasis 612, 2 659].” L.Ed.2d 8 U.S.C. from the before one § plied.) 346 F.2d here, However, us unconstitutional. case, Admittedly, stipulated as in this result reached in Perez was not affected by Mendoza-Martinez, appellant’s participation opinion in the Israeli

see the voluntary. Moreover, Mendoza-Martinez, no v. 372 U.S. election was Rusk, appellant (1963) appeal and v. claim is made on Schneider (1964). acquired I and can has Israeli 377 U.S. S.Ct. 1187 Supreme am claimed to have dual nation- still the view that therefore be ality. majority opinion Perez, Court’s a bare ruling, narrowly of one should be con judgment affirm on the We below strictly confined to its facts strued Brownell, authority supra, Perez until interpretation Court its is asked review & Naturali- Tanaka v. 401(e) Service, supra. zation Nationality 1940,* an Act of event which exposition by The the court below light I believe is inevitable in posture present issues that perplexing series of denationalization in Perez was were decided the Court opinions Supreme rendered penetrating, exhaustive and most adopt and we Kurland, in its 1963 term. The See Su opin- for our own the rationale *4 preme Court 1963 Term—Forward: following language opinion in ion the Origin Equal Equal in in Title to F.Supp. below 250 at 690: Legislative Branches Executive say Perez, it read as “Suffice to Government, 78 Harv.L.Rev. whole, holds that the Constitution (1964). And, of little 169-175 it is not deny Congress power does not Brennan, member interest that Justice prevent American citizens from en- majority of the five-to-four Perez subse gaging processes political in quently expressed his own “doubts of regardless foreign state, decision in a Perez, joined.” correctness I which government our is interest- whether Kennedy supra, Mendoza-Martinez, way specific ed one or another in the U.S. at at 577. of the election or interested outcome only maintaining Furthermore, the ratio decidendi of appearance in an persuasive applied Perez not is when circumspect neutrality. con- Perez why I the instant facts. see no reason Congressional power firmed a to de- performed an individual the act of who termine that the formulation sensi- voting foreign election, in a full after political vitally impor- tive decisions disclosure of his American ties should be indirectly tant to a state —and consequences visited with such severe affecting community the international deportation loss and the large properly be conducted —should inevitably follow, which will without participation without the of American showing voting imped- that his somehow citizens.” ed or interfered with the conduct of this Affirmed. country’s foreign affairs. inter- Such ference was the “rational nexus” which KAUFMAN, Judge (concur- Circuit Mr. Justice Frankfurter found so essen- ring) : wholly missing tial in Perez and here. I feel constrained re- to concur—albeit luctantly. Afroyim Immigration I In lean to the view that if Tanaka v. & (2d expressly stipulated Service, Naturalization the facts of his 346 F.2d 438 1965) bring (dissenting opinion), squarely Cir. I case so as to it within ex- grave might pressed Perez, doubt as the ambit of the result here to whether the illustrate, Supreme opinion Court’s in have been different. To Perez v. Brownell, record, administrative discloses that un- 78 S.Ct. 568 (1958) vitality. And, ques- Perez I like who did not reveal his Ameri- retained tioned can authori- there whether Perez not to be to the Mexican Afroyim pre- there, limited its in to subsequent facts the face of the ties when he voted holdings Kennedy in docu- Court’s sented his identification booklet—a * (5) This has been carried forward as and Nat- uralization Act of 1952. him as an Ameri- which described

ment can Israeli election citizen—to Thus, authorities, officials. Israeli Afroyim’s

knowing cit- American

izenship, ig- openly would seem to have might any objection country

nored

have had to a non-Israeli in its

elections. fair to from this It is infer any

that country’s risk of embarrassment to

relationship rea- with Israel Afroyim

son of the involvement

Israel’s internal re- affairs was thus

moved. light

However, stipulation majority this case and two

panels of believes that Perez moribund,

has not I become concur re-

luctantly, already indicated, I as have opin- majority

the result reached

ion. *5 Rigores SARDINO,

Juan Plaintiff- Appellant,

The FEDERAL RESERVE OF BANK NEW YORK Treasury States, of the United Defend ants-Appellees.

No. Docket 29560.

United Appeals States Court of

Second Circuit.

Argued Dec. 1965. April 22,

Decided