2004 © David Weissbrodt and Laura Danielson

12-1 Concepts of Citizenship

12-1.1 Citizenship and Alienage

Citizenship connotes membership in a political society to which a duty of permanent allegiance is implied. The United States Supreme Court in United States v. Cruikshank (1875), stated:

Citizens are the members of the political community to which they belong. They are the people who compose the community, and who, in their associated capacity, have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual as well as collective rights.

Alienage has the opposite meaning and signifies a condition of not belonging to the nation. The allegiance required of non-citizens is temporary and consists of willingness to comply with the nation's laws while residing in its territory.

The status of citizens in the United States carries with it all the rights and privileges embodied in the Constitution. Although non-citizens also enjoy certain constitutional protections, some provisions protect only "citizens," such as the Privileges and Immunities Clause of Article IV and the Fourteenth Amendment. Moreover, only citizens have the right to vote and to hold office. See 13-4.1, infra. While there are numerous grounds for removal of non-citizens, a citizen can only lose his or her right to live in the United States through voluntary expatriation or revocation of naturalization.

With the additional rights of citizenship come added responsibilities, such as the obligation to perform military service, required of able-bodied adults. 50 U.S.C.A. 453, 454. Non-citizens have served in the armed forces (which is one means by which a person may expedite the acquisition of citizenship), but they have traditionally been exempt from military conscription -- at least until they become permanent residents. Citizenship also imposes the obligation to accept jury duty when called. 28 U.S.C.A. 1861. In contrast, non-citizens are disqualified from serving on a jury, and a non-citizen's presence on the jury in a felony trial has served as grounds to vacate a conviction.

The degree of connections one must have with the nation to be a citizen varies with the manner by which citizenship is acquired. Almost all persons born in the United States, for example, acquire citizenship automatically and cannot lose it involuntarily, even if they leave the United States immediately after birth and never return. Non-citizens seeking citizenship by naturalization, however, generally must reside in the United States for five years after having been granted permanent residence and demonstrate their good moral character, attachment to the United States, and English literacy, as well as their understanding of United States history and principles of government. INA 316(a).

When the United States acquired outlying territorial possessions at the beginning of the twentieth century, native populations were not considered citizens, though their allegiance to the United States was expected. The Supreme Court held in the "Insular Cases" that these territories were not "incorporated" into the United States, and hence, local populations were to be accorded a reduced level of constitutional protection. See Balzac v. Pörto Rico (1922). The degree of constitutional protection afforded to residents of U.S. Territories, as well as their citizenship status, is controlled by Congress. See Torres v. Puerto Rico (1978).

This chapter examines the two major methods by which citizenship may be acquired -- birth and naturalization. It describes the substantive requirements of naturalization and the procedures involved in seeking citizenship under the naturalization laws. The final section focuses on loss of nationality through either denaturalization or expatriation. As a preliminary matter, however, the discussion first considers the two rules for determining citizenship -- the principles of jus soli and jus sanguinis.

12-1.2 The Principles of Jus Soli and Jus Sanguinis

Citizenship at birth in the United States is conferred automatically -- the person's volition plays no part. Such automatic acquisition of citizenship assures that each person will have a nationality in the United States. In light of experience such a result appears reasonable, as people have traditionally remained loyal and committed to the citizenship they acquire at birth. There exists no universal nationality rule, however. While some nations adhere to the principle of jus soli -- citizenship by the place of one's birth, others embrace the principle of jus sanguinis -- citizenship by descent, or literally, blood relationship. Moreover, a number of nations, including the United States and the United Kingdom, have adopted a combination of the two principles.

The principle of jus soli was a tenet of the common law of England. Although it has its roots in feudalism, it still serves well as a basic rule of citizenship in many parts of the world. Jus sanguinis was the rule of civil law countries in Europe which determined an individual's citizenship at birth by the citizenship of his or her parents. The concept of nationality based upon blood took hold in Europe during the French Revolution, which had created a spirit of patriotism and fraternity for the French as a distinct people, and this sort of nationalistic fervor eventually spread to other peoples of Europe.

Jus soli continued to establish the citizenship of people born in England even after feudalism no longer existed. The rule's primary advantage as the criterion for citizenship lay in the certainty it provided each person's political status. In the United Kingdom the principle of jus soli remains the basis of nationality law. Nonetheless, the development of the British Empire, resulting foreign trade, and travel led to statutory provisions which followed the approach of jus sanguinis -- granting citizenship to children born abroad of British parents.

Similarly, in the United States the principle of jus soli generally was accepted as part and parcel of the common law inherited from England. See United States v. Wong Kim Ark (Sup.Ct.1898). Hence, citizenship was conferred ordinarily upon the native born, although large groups of native born persons -- American Indians, people of African descent, and Asians -- did not enjoy citizenship status for many years after the formation of the republic. See Elk v. Wilkins (Sup.Ct.1884).

The principle of jus soli was codified in the Fourteenth Amendment of 1868. The principle of jus sanguinis in United States nationality law was first established by the Act of 1790, which provided that children born abroad of United States citizens who had resided in the United States "shall be considered as natural-born citizens." 1 Stat. 103. Every subsequent statute has precluded acquisition of United States citizenship by a child born abroad unless the citizen parent or parents have resided in the United States. See INA 301.

12-1.3 Dual Nationality

Because different countries have different rules for conferring citizenship, an individual can be a citizen of more than one nation. Individuals born of non-citizen parents in the United States ordinarily obtain U.S. citizenship at birth yet they also may be vested with the citizenship of their parents by the jus sanguinis laws of the foreign state. See, e.g., Mandoli v. Acheson (Sup.Ct.1952). Likewise, children born abroad to U.S. citizen parents may acquire dual citizenship at birth.

Dual nationality can also arise through naturalization. U.S. citizens who obtain naturalization in another country will retain U.S. citizenship unless they formally relinquish it. INA 349(a)(1). See 12-3.3(d), infra. Similarly, since some countries do not consider the oath of allegiance required for naturalization in the United States to be an expatriating act, individuals may acquire U.S. citizenship without losing their prior citizenship. See 12-2.2(b)(6), infra.

Dual nationality is not without problems. Citizenship normally implies allegiance to only one country, so dual citizens may face conflicts of loyalty. They may also be subject to multiple or inconsistent obligations, such as owing military service or taxes to more than one country. Diplomatic conflicts can arise if a dual citizen claims the protection of one country of citizenship when he or she faces legal difficulties in the other country. Foreign governments might be able to affect U.S. policies - at least inadvertantly - through the votes of their dual nationals. Hence, the U.S. government, although recognizing that it exists, officially discourages dual nationality.

The problems caused by dual nationality may become particularly serious in times of war, as the case of Kawakita v. United States (Sup.Ct.1952) demonstrated. Tomoya Kawakita was born in the United States of Japanese parents and obtained dual citizenship by virtue of the nationality laws of each country. He lived in the United States until 1939, when at age seventeen he went to Japan and undertook studies at the Meiji University. After December 7, 1941, the United States and Japan were engaged in war but Kawakita remained in Japan to continue his studies. In March 1943, he registered in the Koseki, a family census register, after being told by the Japanese police that he must make a choice of citizenship. He never served in the armed forces of Japan. Rather, he obtained employment as an interpreter with the Oeyama Nickel Industry Co., Ltd., where he worked until Japan's surrender. He was hired to interpret communications between the Japanese and the prisoners of war who were assigned to work at the mine and in the factory of the company. During his employment he allegedly committed acts of brutality against United States prisoners.

In December 1945, Kawakita went to the United States consulate at Yokohama and applied for registration as a U.S. citizen, stating under oath that he was a citizen of the United States and had not done any acts amounting to expatriation. He obtained a passport and returned to the United States in 1946. Shortly thereafter he was recognized by one of the former prisoners of war; Kawakita was arrested, charged, and tried for treason.

At his trial Kawakita argued that he had terminated his United States citizenship in 1943 before the alleged acts of brutality, and thus could not be guilty of treason. The trial court submitted the issue as to whether he had expatriated himself to the jury, and charged that upon finding Kawakita had lost his citizenship prior to the time specified in the indictment, they must acquit him, since his duty of allegiance would have ceased with the termination of his United States citizenship. The jury found that Kawakita had not expatriated himself under any of the methods prescribed by Congress, and he was found guilty of treason and sentenced to death. The Court of Appeals for the Ninth Circuit affirmed in 1951.

On writ of certiorari the United States Supreme Court (by a 4-3 majority) affirmed the conviction and death sentence, upholding the jury's findings of fact. The Court further stated: "He cannot turn (his United States citizenship) into a fair-weather citizenship, retaining it for possible contingent benefits but meanwhile playing the part of the traitor. An American citizen owes allegiance to the United States wherever he may reside." President Eisenhower later commuted Kawakita's death sentence to life imprisonment. In 1963 he obtained his release and returned to Japan.

Despite the potential problems of dual nationality, a growing number of countries recognize this status. In the 1990s, several Latin American countries, most notably Mexico, opted to permit dual nationality. Many European countries, including France, Ireland, Italy, and the United Kingdom, also recognize dual nationality.

The increasing acceptance of dual nationality reflects changes in the nature of immigration. Until the late twentieth century, difficulties in travel and communication forced most immigrants to make a total break from their country of origin. Today, however, immigration need not result in complete or permanent separation from one's home country. Immigrants may retain property and provide financial support to family in their homelands or remain involved with politics there. Some immigrants intend to resume residence in their country of origin in the future. Some fear the loss of property or inheritance rights that are only available to citizens of their home countries. Consequently, many immigrants may be reluctant to relinquish citizenship in their home countries even though they have acquired the benefits of U.S. citizenship. While the U.S. requires non-citizens to renounce their previous nationality in obtaining naturalization (INA 337), the effect of this renunciation, and thus the availability of dual citizenship, depends upon the laws of the naturalized citizen's country of origin.


12-2.1 Citizenship at Birth

a. Birth Within the United States

There are four ways to obtain citizenship: by birth in the United States or its territories, by birth outside the U.S. to a U.S. parent, by naturalization, or by naturalization of a parent while a child is under 18 years old.

All persons born in the United States and subject to its jurisdiction automatically acquire citizenship. INA 301(a). This principle of common law was codified by the Fourteenth Amendment to the Constitution, adopted in 1868:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

The Citizenship Clause was intended to go further than the common law and included all African-Americans born in the United States. Before the amendment, African-Americans -- whether slaves or free -- had been denied the status of U.S. citizen. The Supreme Court in Scott v. Sanford (1857) had declared that Dred Scott was not a "citizen" but a "Negro" of African descent, whose ancestors were slaves. He was thus barred from filing suit in U.S. District Court to obtain recognition of the freedom he had gained by entering and residing in free territory. The resulting Civil War led to the abolition of slavery. Because of the Dred Scott decision, however, proponents of the Fourteenth Amendment argued that while the Emancipation Proclamation had freed African-Americans, they could not become citizens without a constitutional amendment. The Fourteenth Amendment was thus adopted.

The Fourteenth Amendment also eliminated any doubt that persons born in the United States of non-citizen parents were citizens. Such a proposition was confirmed by the Court in United States v. Wong Kim Ark (1898). Wong Kim Ark was born in San Francisco in 1873. His parents were native-born Chinese merchants who lived in this country as resident aliens. They left the United States in 1890 and returned to China permanently. Wong Kim Ark made a temporary visit to his parents in 1894, but upon return the following year to the United States, was not permitted to land at San Francisco. The government claimed Wong Kim Ark was not a U.S. citizen but a Chinese laborer, and was barred entrance under the Chinese Exclusion Act (22 Stat. 58). He challenged his exclusion in federal court, claiming citizenship under the Fourteenth Amendment. Justice Gray, in delivering the opinion of the United States Supreme Court, rejected the government's contention that the rule of jus sanguinis -- citizenship by blood relationship -- determined nationality in the United States. To the contrary, both the Fourteenth Amendment and the Civil Rights Act of 1866 (14 Stat. 27) had explicitly reaffirmed "the fundamental principle of citizenship by birth within the dominion." Wong Kim Ark. Hence, children born in this country were citizens without regard to the nationality of their parents. Wong Kim Ark won readmission to the United States.

The words "subject to the jurisdiction thereof" provide for exceptions to the general rule of jus soli or citizenship by birth within the dominion. For example, children born in the United States to parents in the diplomatic service of the French government are subject to the jurisdiction of the French Republic, not that of the United States. The physical fact of birth in this country does not alone confer citizenship. In re Thenault (D.D.C.1942).

A second, now defunct, exception concerning Native Americans is illustrated by the case of Elk v. Wilkins (Sup.Ct.1884). John Elk was born a member of a Native American tribe. He severed his tribal relations and moved to Omaha, Nebraska. He asked to be registered and permitted to vote in local elections, but registrar Wilkins refused him, claiming Elk -- as a Native American -- was not a citizen of the United States and thus not qualified to vote. Elk claimed citizenship under the Fourteenth Amendment in his suit against the registrar. The Supreme Court held that the Fourteenth Amendment failed to confer citizenship upon Elk, who was born subject to the jurisdiction of his tribe rather than that of the United States. His subsequent renunciation of his tribal allegiance was irrelevant. He could only become a U.S. citizen by being "naturalized in the United States."

The Citizenship Act of 1924, however, established the citizenship status of Native Americans in the United States born after its enactment. 43 Stat. 253. The Nationality Act of 1940 reconfirmed the citizenship of all Native Americans born in the U.S. 54 Stat. 1137. INA 289 also recognizes the right of many "American Indians born in Canada" to cross the border of the United States. INA 301(b) provides:

The following shall be nationals and citizens of the United States at birth:

(b) A person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: provided, that the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property.

By its proviso expressly excepting tribal property rights, Congress emphasized its intention to impose all other obligations of citizenship, or so found the Second Circuit in Ex parte Green (2d Cir.1941). Accordingly, appellant Green, a member of the Onondaga Tribe, was a citizen within the meaning of 3(a) of the Selective Service Act of 1940, and subject to military service.

Two additional exceptions to the general rule of jus soli merit mention. Children born on foreign public ships while such vessels sit in the territorial waters of the United States are not subject to U.S. jurisdiction and thus do not receive U.S. citizenship. United States v. Wong Kim Ark (Sup.Ct.1898). Persons born in private vessels within the territorial sovereignty of the United States, however, would acquire United States citizenship. Further, children born to non-citizen enemies in hostile occupation of United States territory would not be subject to United States jurisdiction and would not gain citizenship upon their birth.

b. Birth in the Territories of the United States

Near the end of the nineteenth century the United States began to acquire territories and possessions beyond its mainland. The issue of how and whether to grant United States citizenship to the peoples of these territories generated much debate. Congress has passed several statutes granting nationality to the residents of some but not all territories and possessions of the United States.

(1) Hawaii -- The Hawaiian Islands became part of the United States on July 7, 1898, and persons born in Hawaii after that date are United States citizens. 30 Stat. 750. A person who was a citizen of the Republic of Hawaii on August 12, 1898, obtained United States citizenship as of April 30, 1900, the date Congress enacted a statute incorporating Hawaii into the Union as a territory. 31 Stat. 141. Hawaii became a state on August 21, 1959. 73 Stat. 4.

(2) Alaska - Russia owned Alaska until 1867 when it sold the territory to the United States. 15 Stat. 539. All persons born in Alaska after March 30, 1867, except non-citizen Native Americans acquired United States citizenship. A Native American living or born in Alaska as of June 2, 1924, is a citizen of the United States. 43 Stat. 253. Alaska gained statehood on January 3, 1959. 72 Stat. 339.

(3) Puerto Rico -- In 1899, the island of Puerto Rico was ceded to the United States by Spain in the treaty concluding the Spanish-American War. 30 Stat. 1154. Persons born in Puerto Rico from the date of cession to January 13, 1941, did not acquire citizenship at birth. With the Nationality Act of 1940, persons born there after January 13, 1941, and subject to the jurisdiction of the United States became U.S. citizens. 54 Stat. 1137. Persons born between April 11, 1899, and January 12, 1941, gained U.S. citizenship as of January 13, 1941, if they were residing in territory over which the United States exercised sovereignty.

(4) Canal Zone and Panama -- The United States acquired the Canal Zone by treaty with Panama in 1904, to lease it in perpetuity. 33 Stat. 1234. By legislation first enacted in 1937 (50 Stat. 558), children born in the Canal Zone after February 25, 1904, became U.S. citizens if either the father or mother was a U.S. citizen. INA 303(a). A child born in the Republic of Panama also received U.S. citizenship if either parent was a citizen employed by the United States, by the Panama Railroad Company, or by its successor in title. INA 303(b).

In 1979, Congress ratified a treaty to return sovereignty over the Canal Zone to Panama. 93 Stat. 452. Citizenship acquired under the statute prior to the transfer is unaffected; but since the Canal Zone no longer constitutes U.S. territory, children born to United States citizens in the region are subject to the general rules applicable to children born outside the United States.

(5) Virgin Islands -- The United States purchased the Virgin Islands from Denmark pursuant to an Act of January 25, 1917. 39 Stat. 1706. The Act of 1952 (66 Stat. 237) grants citizenship to all persons born in the Virgin Islands after January 17, 1917, and to any former Danish citizens who (1) did not declare an intent to preserve their Danish citizenship as provided under the treaty of purchase or (2) had subsequently renounced the declaration. INA 306(a)(1). Several other categories of Virgin Island residents also became U.S. citizens after 1917.

(6) Guam -- The island of Guam was acquired from Spain in settlement of the Spanish-American War. Persons living in Guam on April 11, 1899, and their children born on or after that date were declared citizens of the United States as of August 1, 1950, if on this date they were residing in Guam or in other territory over which the United States exercises sovereignty and had taken no steps to retain or acquire a different nationality. All persons born in Guam on or after April 11, 1899, are citizens of the United States as of the date of their birth, provided that if they were born before August 1, 1950, they had taken no steps to retain or acquire a different nationality. INA 307.

(7) American Samoa and Swains Island - Persons born in the "outlying possessions" of the United States are nationals, but not citizens, of the United States at birth. INA 308. As such, they owe allegiance to the United States, but receive none of the privileges of citizenship. Currently the only outlying possessions of the United States are American Samoa and Swains Island in the South Pacific. INA 101(a)(29).

(8) The Philippines -- The United States acquired the Philippines as a result of the Spanish-American War. Filipinos never collectively obtained the status of U.S. citizens, instead being designated "non-citizen nationals." INA 308. In 1946, the Philippines obtained independence (61 Stat. 1174); Filipinos thus acquired a new nationality and the status of non-citizens in regard to the United States.

c. Birth Outside the United States

Individuals born abroad of United States citizen parents can acquire United States citizenship. This acquired form of citizenship is controlled by statute, rather than by the Constitution or the Fourteenth Amendment. Each statute dating from the original 1790 Act has required the citizen parent or parents to have lived in the United States prior to the child's birth. 1 Stat. 103. This limitation prevents citizenship by descent for individuals whose parents have never lived in the U.S. and thus have relatively little contact with the country and, accordingly, prevents the creation of a large external community of U.S. citizens with little knowledge or experience of the United States. The statutes conferring citizenship by jus sanguinis (blood relationship) underwent substantive changes in 1934, 1940, and 1952. Hence, whether an individual obtained U.S. citizenship at birth depends upon the statute in force at the time that person was born. See 66 Interp.Rel. 444 (1989) (containing a reprinted chart illustrating the rules that apply to legitimate and illegitimate children born at various time periods).


The first Congress exercised its constitutionally granted power to "establish an Uniform Rule of Naturalization" by enacting the Act of March 26, 1790, which provided: "And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States." 1 Stat. 103. This provision, with minor phrasing changes and with the same emphasis on paternal residence, was retained by three subsequently enacted naturalization statutes. 1 Stat. 415, 2 Stat. 155, 10 Stat. 604. In 1994, Congress granted citizenship retroactively to children born before 1934 whose citizen mothers resided in the United States before the child's birth. INA 308(h).


The Act of May 24, 1934, extended acquired citizenship to persons whose mothers were citizens and past residents of the United States. 48 Stat. 797. In addition, the Act imposed new requirements for retention of citizenship. The Act required that a child reside in the United States for the five years immediately preceding his or her eighteenth birthday and take an oath of citizenship within six months of attaining the age of twenty-one. 48 Stat. 797. The Nationality Act of 1940 retroactively changed the residence requirement to five years between the ages of thirteen and twenty-one and abolished the oath. 54 Stat. 1139


The Nationality Act of 1940 conferred citizenship at birth to children of parents who were both United States citizens, or of which one was a citizen and the other a national, as long as a citizen parent had previously resided in the United States or its outlying possessions. 54 Stat. 1138. If only one parent was a citizen and the other a non-citizen, the citizen parent was required to have resided previously in the United States or its outlying possessions for ten years, at least five of which were after attaining the age of sixteen. A 1946 amendment changed the residence requirement to five years after the age of twelve for persons who served honorably in the armed forces during World War II. 60 Stat. 721. Moreover, a child could lose citizenship by failure to take up residence in the United States or its outlying possessions for a period or periods totaling five years between the ages of thirteen and twenty-one. This residency requirement did not apply to a child born abroad whose U.S. citizen parent was, at the time of the child's birth, residing abroad solely or principally in the employment of the United States government, certain U.S. organizations having their principal place of business in the United States, or an international agency in which the United States participates. Persons born between January 13, 1941, and December 23, 1952, are covered by the provisions of the 1940 Act.


Under the Immigration and Nationality Act of 1952 (66 Stat. 163), where both parents of a foreign-born child are United States citizens, the child inherits citizenship in the same manner as provided by the 1940 Act. If one parent is a citizen and the other a U.S. "national" (see, e.g., 12-2.1.b(7)), the citizen parent must have been physically present in the United States or its outlying possessions for one year prior to the child's birth. INA 301(d). If one parent is a citizen and the other a non-citizen, the 1952 statute provided that the citizen parent must have been physically present in the United States or its outlying possessions for a period of ten years, at least five of which were after attaining the age of fourteen. INA 301(g). In 1986 this physical presence requirement was reduced to five years, at least two of which were after attaining the age of fourteen. The physical presence requirement is satisfied by presence in the United States for any reason; unlike the 1940 Act, the INA does not require the citizen parent to have had his or her primary dwelling in the United States.


(i) Exemption for Foreign Service. In 1966, Congress passed an amendment to section 301(g) of the 1952 Act (80 Stat. 1322) attaching a proviso which allowed periods of overseas service in the armed forces, in the employment of the United States government, or in the employment of an international organization of which the United States is a member, as counting towards satisfaction of the ten year physical presence requirement. INA 301(g). Congress retained this provision when it reduced the physical residence requirement to five years in 1986. In addition, any period during which the citizen parent was physically present abroad as an unmarried dependent of a person in such service counts towards satisfying the requirement.

The amendment was designed specifically to alleviate the hardship of the children of parents in foreign civilian service who, if they were to marry a foreign national, were precluded by law from transmitting their United States citizenship to their foreign-born children because they lacked the requisite years of physical presence in the United States. As the State Department wrote in its letter to then Vice-President Humphrey requesting the legislation:

It is not uncommon for the children of a foreign service officer to spend most of their youthful years abroad accompanying the parents from one assignment to another. The proposed amendment, in effect, would treat the time spent abroad in such cases as constructive physical presence in the United States for the purpose of transmitting U.S. citizenship.

(ii) Elimination of Retention Requirement for Children Born Abroad. Until 1972, INA 301(b) required that the citizen child born abroad of parents, one of whom was a citizen and the other a non-citizen, had to reside in the United States for five consecutive years after attaining the age of fourteen but before reaching age twenty-eight. Congress decided in 1972 that the intent of the law could be met by a lesser period of residence, "thereby alleviating the hardship that is often caused by the separation of children or young adults from their families and the attendant financial burden imposed by such separation." Therefore, Congress reduced the residence requirement to two years of physical presence in the United States for a continuous period between the ages of fourteen and twenty-eight, further providing that absence of less than sixty days in the aggregate would not break the continuity of such physical presence. Further, the legislation provided that these residence requirements would not apply in the case of a child whose non-citizen parent was naturalized while the child was under age eighteen.

Despite the liberalized residence requirement of the 1972 amendment, 693 citizens lost their citizenship between 1972 and 1977 for failure to comply. This unhappy result prompted Congress in 1978 to eliminate altogether the residence requirement for children born of one citizen parent and one non-citizen parent. In its report accompanying the bill, the House Judiciary Committee stated, "The Committee believes that section 301(b) of the Immigration and Nationality Act currently creates an inconsistency in our citizenship laws, in that this is the only class of United States citizens who are subject to any residence requirement in order to retain their citizenship."

The Judiciary Committee felt that repeal of section 301(b) would best redress the inequity. While some members of Congress expressed concern that repeal of section 301(b) would create the possibility of "generations of citizens residing with little or no connection with the United States," such fears were groundless. Until 1986, section 301(g) continued to provide that in order for United States citizens to transmit citizenship to children born abroad of a citizen parent and a non-citizen parent, the citizen parent must have resided in the United States for ten years at least five of which were after attaining the age of fourteen. In 1986, this residency requirement was reduced to five years, at least two of which were after attaining the age of fourteen.


INA 309 governs the acquisition of citizenship by children born out of wedlock outside the United States. A child born out of wedlock abroad acquires citizenship at birth if his or her mother is a U.S. citizen who resided in the United States for one year prior to the child's birth. INA 309(c). Such a child can, however, only acquire citizenship through a U.S. citizen father if the father agrees to provide financial support for the child until the child's eighteenth birthday and acknowledges paternity by one of three specified methods before the child attains the age of eighteen. INA 309(a).

Children born out of wedlock to U.S. citizen fathers prior to January 13, 1941, acquired citizenship if legitimated under the laws of the father's place of residence at any age. Children born out of wedlock between January 13, 1941 and December 23, 1952 could acquire citizenship through their U.S. citizen fathers only if they were legitimated before the age of twenty-one and the father met the physical presence requirements then in force (see 12-2.1(c), supra). INA 301(b). Children born out of wedlock to citizen mothers before 1952 acquired citizenship at birth provided only that the mother previously resided for any length of time in the United States. INA 301(h); 54 Stat. 1140.

Nguyen v. I.N.S. (Sup. Ct. 2001) challenged the constitutionality of imposing additional requirements on fathers who wish to transmit their citizenship to their children born out of wedlock. Tuan Anh Nguyen was born in Vietnam but was raised by his U.S. citizen father in the United States. The INS initiated deportation proceedings against him after he pleaded guilty to sexual assault at the age of 22. While an appeal was pending, Nguyen's father obtained a court order establishing his paternity. Nonetheless, the Board of Immigration Appeals found that Nguyen was not a citizen because his father had failed to establish paternity before Nguyen attained the age of eighteen. In affirming the decision, the Supreme Court found that the Act does not violate equal protection because its requirements are substantially related to the important government interest of assuring that there is a genuine connection between the father, the child, and the United States.

12-2.2 Citizenship by Naturalization

a. Historical Development

Naturalization is the principal process by which persons not acquiring citizenship at birth may obtain citizen status. The power to confer citizenship in this manner derives from Article I, section 8 of the Constitution which authorized Congress "to establish a uniform Rule of Naturalization." Since the initial naturalization statute of 1790 (1 Stat. 103), Congress has exclusively exercised the power to establish the conditions upon which non-citizens might be naturalized. See Collet v. Collet (1792).

In the original statute of 1790 Congress prescribed that a "free white alien" who had resided in the United States for two years might be naturalized in a court proceeding, provided he or she was of good moral character and took an oath to support the Constitution. 1 Stat. 103. The Act of 1795 lengthened the residency requirement to five years and enacted additional conditions that the applicant for naturalization declare formal intent to seek citizenship three years before actual admission; that the applicant renounce any former allegiance and swear allegiance to the United States; that the applicant satisfy the court that he or she "has behaved as a man [sic] of good moral character, attached to the principles of the Constitution of the United States, and [is] well disposed to the good order and happiness of the same." 1 Stat. 414.

An unfortunate period (1798-1802) of hysteria against foreigners produced the Alien and Sedition Acts and much more restrictive naturalization requirements (residence requirement increased to fourteen years, declaration of intent period increased to five years). 1 Stat. 566. The hysteria soon dissipated, however, and Congress enacted the more lenient provisions of the 1795 Act in the Act of April 14, 1802. 2 Stat. 153. The substantive provisions of 1795 closely resemble the general requirements of the present law, notwithstanding several refinements discussed infra.

Congress established substantive requirements for naturalization in the first years of the republic, but failed to provide uniform procedures and administration until passage of the Naturalization Act of 1906. 34 Stat. 596. The statute vested responsibility for administrative supervision of naturalization in the Bureau of Immigration and Naturalization within the U.S. Department of Commerce and Labor; it prescribed uniform naturalization forms; required that each petitioner for naturalization obtain an official certificate of lawful admission and attach it to the petition for naturalization; required uniform naturalization fees; established time limitations for the courts to hear and grant petitions (minimum of 90 days after filing, no hearings permitted within 30 days of a general election); and finally, required that each petition be supported by two citizen witnesses who would testify to the petitioner's qualifications for citizenship.

Subsequent procedural revisions included permitting heretofore excluded "alien enemies" to petition for naturalization and the establishment of court-appointed naturalization examiners who would hear the evidence in naturalization cases and recommend dispositions to the federal courts. 44 Stat. 709. Congress added several substantive revisions in the Nationality Act of 1940. 54 Stat. 1137. Most significantly, the act eased racial restrictions on naturalization. Persons from races indigenous to the Western Hemisphere became eligible for naturalization. Up until that time only white persons and persons of African nativity or descent had been eligible. 1 Stat. 414; 16 Stat. 254. In 1943 Congress added Chinese immigrants as a fourth class of eligible persons, (57 Stat. 600) while at the same time repealing the Chinese Exclusion Act (22 Stat. 58) which had specifically prohibited naturalization of Chinese persons.

The Immigration and Nationality Act of 1952 provided comprehensive codification of the law governing citizenship. 66 Stat. 163. Among the most significant changes enacted by the 1952 law was elimination of all racial and gender qualifications for naturalization. The statute finally ended the blatantly racist formulations of previous naturalization provisions. INA 311. The statute did, however, preclude naturalization (1) of persons belonging to certain subversive groups (INA 313); (2) of persons who had sought relief from United States military service on the ground of their alienage (INA 315) or who had deserted from the armed forces during wartime (INA 314); and (3) of non-citizens against whom a deportation proceeding or order was outstanding. INA 318. Congress also enacted provisions to facilitate naturalization of non-citizens who had actively served in the armed forces during World War I, World War II, the Korean hostilities, the Vietnam Conflict, or later conflicts. INA 329.

The 1990 Act and the 1991 Act made the INS the sole decisionmaker in naturalization cases. The Homeland Security Act, in 2002, transferred this responsibility to the Bureau of Citizenship and Immigration Services, without changing the substantive requirements for naturalization. While the federal courts no longer adjudicate naturalization applications, they continue to administer the oath of allegiance for many naturalized citizens.

The number of people seeking naturalization has increased dramatically in recent years, for a variety of reasons. Many permanent residents have been encouraged to apply for citizenship because of concern that they would be denied education, health benefits, and participation in other governmental programs or would be subject to removal from the U.S. for committing relatively minor criminal offenses known as "aggravated felonies." See chapter 1, supra. During the 1970s and 1980s, the average number of naturalizations per year was just under 200,000. In the 1990s, applications for naturalizations increased dramatically and in 1996 over one million people obtained U.S. citizenship. Although the number of people applying for citizenship declined from a peak of 1.4 million in 1997 to 765,000 in 1999, the most recent year for which data are available, the number of naturalizations is expected to remain high while the BCIS continues processing older applications.

b. Requirements of Naturalization


Section 316(a) of the Immigration and Nationality Act requires that, except as otherwise provided, no person shall become a U.S. citizen by being naturalized unless (1) the person has resided continuously in the United States for five years as a lawfully admitted permanent resident, (2) during the five years immediately prior to filing the petition for naturalization he or she has been physically present in the United States for at least half of the time, and (3) the person has resided within the district in which he or she filed the petition for at least three months. Applicants must reside continuously within the United States from the date of the petition up to the time of admission to citizenship (INA 316), although short visits outside the U.S. are acceptable. The purpose of the residency requirements is to create a reasonable period of "probation" that will enable candidates to discard their foreign attachments, to learn the principles of the U.S. system of government, and to develop an identification with the national community.

To comply with the statute a legal residence is necessary; a valid statutory residence prior to naturalization cannot be founded on an illegal entry into the country. Congress has defined "residence" under the 1952 Act to mean "the place of general abode ... [a person's] principal, actual dwelling place in fact, without regard to intent." INA 101(a)(33). The question of residence thus turns on a determination of where an applicant has held the status of lawful permanent resident.

An applicant for citizenship need not show that he or she stayed at the claimed residence each day of the five year statutory period. Temporary absences from the place of abode -- even from the United States -- do not alone break the continuity of an applicant's residence. Absence from the United States for less than six months during the statutory period does not affect continuous residence, while an absence of more than six months but less than one year presumptively breaks the continuity. INA 316(b). The applicant can overcome the presumption by "establish[ing]... that he did not in fact abandon his residence in the United States during such period." An absence from the United States for one year or more will as a matter of law break the continuity of residence; the applicant will be required to complete a new period of residence after returning to the United States.

As an exception to the physical residency requirement, persons who expect to be away from the United States for a year or more in service of the United States government, a recognized U.S. research institution, a U.S. corporation engaged in foreign trade and commerce, a public international organization of which the United States is a member by treaty or statute, or a religious organization, may apply for permission to be absent without breaking their residence for purposes of naturalization. Before seeking such exception with Form N-470, applicants must continuously reside in the United States -- following lawful admission -- for one year or more. INA 316(b), 317. Applicants must establish that their absence from the United States for such period is in service of the government, for the purpose of conducting scientific research, for the purpose of developing trade or commerce necessary to protect property rights in a foreign country, in the employ of a public international organization, or for the purpose of performing qualifying religious functions. INA 316(b)(1), 317. A 1981 amendment provides that dependent unmarried sons and daughters of a person who qualifies for benefits under this provision are also entitled to such benefits during the period for which they were residing abroad as dependent members of the person's household. INA 316(b).

In most cases, however, the exception to the one-year limitation on absences from the U.S. does not exempt qualifying individuals from the requirement of being physically present in the United States for half of the five-year period. Persons employed abroad by the U.S. government (INA 316(c)) or a qualifying religious organization (INA 317) are considered both resident and physically present in the U.S. for the purpose of naturalization. Likewise, service aboard a vessel owned and operated by the United States government or a vessel whose "home port" is in the United States is deemed residence and physical presence in the U.S. INA 330. In all other cases, applicants for naturalization must satisfy the physical presence requirements. INA 316(c).

Where a non-citizen's absence from the United States is involuntary, courts have excused the absence for the purpose of residence and physical presence requirements. In the case of In re Yarina (N.D.Ohio 1947), a Czech immigrant who had spent his entire childhood in the United States, was employed by a U.S. company at Wake Island, a United States territory in the South Pacific. In December 1941, the Japanese captured the island and took petitioner Yarina and many others prisoner. He remained a captive in a Japanese prisoner of war camp until September 1945. He filed his petition for naturalization in the year following his liberation and return to the United States. The court held that the provision depriving a non-citizen of the right to naturalization in case of absence from the United States for a year or more during the statutory period preceding the application contemplated a voluntary departure from this country. Since the forces of the enemy transported Yarina from Wake Island to the prison camp, petitioner "never left his residence in the United States within the purview of the statute." He was thus granted naturalization.

Nonetheless, if a petitioner departs the United States voluntarily but is prevented from returning by events beyond his or her control, the absence is unexcused. Mary Holzer, an Israeli national, was a lawfully admitted permanent resident alien who left the United States to visit Israel in October 1952. She cited financial reasons for her inability to return to the United States within the one-year period. The court found that her extended absence barred the petition for naturalization, stating "the rule applies even where the absence from the United States beyond the statutory period was involuntary." Petition of Holzer (S.D.N.Y.1956). The court applied the same reasoning in the case of In Re Petition For Naturalization of Vafaei-Makhsoos (Minnesota D.C.1984). Petitioner, a lawful permanent resident in the United States, while visiting Iran during the hostage crisis of 1979-81, was prevented by the U.S. government's travel restrictions from returning to the U.S. for more than a year. Because he left the country voluntarily, the petitioner's absence did not provide an exception to the one-year-absence rule which broke the continuity of residence for the purposes of naturalization.

(2) AGE

To apply for naturalization an applicant generally must have attained the age of eighteen years. INA 334(b)(1). The Child Citizenship Act of 2000 (114 Stat. 1631) provides that children under age eighteen acquire citizenship automatically if they reside in the United States as lawful permanent residents in the custody of a parent who is a citizen by birth or naturalization. INA 320. Consequently, most children acquire citizenship when their parents are naturalized and no application or proceeding is required. In some circumstances, U.S. citizens may also apply for naturalization on behalf of their children residing outside the United States. INA 322. See 12-2.2(c)(3), infra.


Unless unable to do so because of a physical or developmental disability or mental impairment, applicants for naturalization must be able to speak and understand simple English, as well as read and write it. INA 312(a)(1), (b)(1). Persons who are over fifty years of age and have lived in the United States as lawful permanent residents for at least twenty years as of the date they file their application are exempt from this requirement, as are persons over the age of fifty-five who have lived in the United States as lawful permanent residents for at least fifteen years. INA 312(b)(2). The Hmong Veterans' Naturalization Act of 2000 provides a limited exemption for members of Laotian guerilla forces who supported the United States during the Vietnam War, their spouses, and their widows or widowers. See 12-2.2(c)(5), infra.

Section 312 further requires "a knowledge and understanding of the fundamentals of the history, and of the principles and form of government, of the United States." INA 312(a)(2). Persons with a qualifying disability are exempt from this requirement (INA 312(b)(1)). Applicants who are exempt from the literacy requirement because of their age must still satisfy the civics requirement. The BCIS must, however, give special consideration to persons over sixty-five years of age who have lived in the United States for at least twenty years (INA 312(b)(2)-(3)) and to persons covered by the Hmong Veterans Naturalization Act (see 12-2.2(c)(5), infra). An interpreter or sign language may be used during the examination if the applicant is exempt from the literacy requirement or if needed to test technical or complex subjects. 8 C.F.R. 312.2(c)(2). Since questions are selected at random by computer, however, applicants may not have the opportunity for translation of complex questions. The regulations also provide for second and third opportunities to pass the examinations. 8 C.F.R. 312.3.

The power of Congress to establish literacy requirements has withstood constitutional challenge. In Trujillo-Hernandez v. Farrell (5th Cir.1974), petitioner brought a class action, attacking the statute on equal protection grounds. The Court of Appeals for the Fifth Circuit held that a direct attack on Congress' exercise of its naturalization power was foreclosed and nonjusticiable, as such power was part of the foreign relations responsibilities committed to Congress.


Applicants for naturalization must show that, during the five-year period before filing and up until the final hearing of the naturalization petition, they have been and still are of good moral character . . . ." INA 316(a). Although only five years of good moral character is required by statute, the BCIS has discretion to consider applicants' earlier behavior in its determination. 8 C.F.R. 316.10. Applicants who qualify for reduced residence requirements must establish good moral character for the required period of residence or for a reasonable time. The burden of establishing good moral character falls upon the petitioner, as an applicant must prove his or her eligibility for citizenship in every respect. Berenyi v. INS (Sup.Ct.1967).

Courts have struggled with the issue of what constitutes good moral character. Judge Learned Hand stated that it is a "test, incapable of exact definition; the best we can do is to improvise the response that the 'ordinary' man or woman would make, if the question were put whether the conduct was consistent with a 'good moral character'." Posusta v. United States (2d Cir.1961). Prior to 1952, no attempt had been made to define good moral character by statute. Then, in the 1952 Act, Congress chose to define by enumerated exclusions what would preclude a finding of good moral character. 66 Stat. 166. Under the current version of the INA, a person will not be considered of good moral character if he or she was at any time during the five year period:

(1) a habitual drunkard;

(2) a person convicted of or admitting to a crime of moral turpitude; a person involved with prostitution, smuggling of a person, or drug trafficking, except for a single conviction involving possession of no more than 30 grams of marijuana; a polygamist; or a non-citizen who was previously removed;

(3) one whose income is principally from illegal gambling activities;

(4) a person who had been convicted of two or more gambling offenses committed during this period;

(5) one who has given false testimony for the purpose of obtaining any benefits under the Act; or

(6) a person who had been convicted and jailed for 180 days or more, regardless of whether the offense was committed within this period.

Furthermore, a conviction at any time for an aggravated felony precludes a finding that a person has good moral character. INA 101(f).

Applicants may also be found to lack good moral character for reasons other than those listed in the INA. Immigration regulations list additional acts that will preclude a finding of good moral character, absent extenuating circumstances. These acts include failure to support dependents and committing unlawful acts other than those listed in section 101 that adversely reflect upon the person's character. 8 C.F.R. 316.10(b)(3). The fact that an applicant has been on probation, parole, or suspended sentence during the statutory period does not preclude a finding of good moral character, but the application will not be approved until the probation, parole, or suspended sentence has been completed. 8 C.F.R. 316.10(c)(1).

(i) Adultery. Until 1981, the list of acts that bar a finding of good moral character included adultery. This provision of the INA created great controversy as immigration authorities struggled to define what constitutes adultery and what extenuating circumstances might excuse it. While the law remained in effect, the INS took the position that anyone who had committed adultery would be ineligble for immigration benefits. See In re Pitzoff (BIA 1962). The federal courts, however, did not always take such a strict view. In Moon Ho Kim v. INS (D.C.Cir.1975), the U.S. Court of Appeals for the District of Columbia Circuit held that the definition of "adultery," as the term is used in the act, is "extramarital intercourse which tends to destroy an existing, viable marriage, and which would represent a threat to public morality." In addition, the existence of extenuating circumstances were generally deemed relevant in determining whether a non-citizen had established good moral character despite the commission of adultery. Hence, in Wadman v. Immigration & Naturalization Service (9th Cir.1964), petitioner's isolated acts of sexual intercourse with another, after his wife had willfully and permanently abandoned him, did not preclude him from establishing good moral character.

Congress ultimately repealed the adultery provision in 1981. 95 Stat. 1611. It stated its rationale for repeal in the report accompanying the legislation:

With respect to adultery, the Committee believes that the Immigration Service should not be required to inquire into the sex lives of applicants for naturalization. Such questions clearly represent an invasion of privacy. Furthermore, in testimony before the 96th Congress witnesses concurred in the view that the adultery bar was merely "window dressing" in the law; INS estimated that "7 out of 10 persons today who would admit to that conduct would fall within one or more of the judicial interpretations which excuse that conduct for purposes of naturalization."

Despite the repeal of the adultery provision, the BCIS may still find that a person who has committed adultery lacks good moral character under its discretionary power. Immigration regulations continue to list adultery "that tends to destroy an existing marriage" as an act that precludes good moral character (8 C.F.R. 316.10), but it is unclear whether this regulation is actively enforced.

(ii) Criminal Activity. In its original form, INA 101 barred a finding of good moral character if a person had been convicted at any time of the crime of murder. 66 Stat. 166. In 1990, this provision was changed to any aggravated felony. INA 101(f)(8). Since 1990, Congress has extended the definition of "aggravated felony" several times, most notably in 1996, in the Antiterrorism and Effective Death Penalty and Illegal Immigration Reform and Immigrant Responsibility Acts. See AEDPA 441(e) and IIRIRA 321. In its current form, the INA definition of "aggravated felony" includes murder, rape, sexual abuse of a minor, drug trafficking, offenses related to prostitution and child pornography, and theft offenses or crimes of violence carrying a sentence of at least one year. INA 101(a)(43).

In determining whether a particular crime is an aggravated felony, federal law, not state law, controls. See, Matter of Small (BIA 2002). Consequently, convictions for relatively minor offenses may bar naturalization and can even render a person removable. In Matter of Small, the BIA held that sexual abuse of a minor, although categorized as a misdemeanor under the applicable state law, was an aggravated felony within the meaning of the INA definition. Similarly, in United States v. Pacheco (2nd Cir. 2000), the Court of Appeals found that a misdemeanor theft charge for which the defendant received a one-year suspended sentence constituted an aggravated felony. Pacheco, who had lived in the U.S. as a lawful permanent resident for twenty years, was deported following his convictions for stealing a ten-dollar video game and for assaulting his wife. The court noted that, under INA 101(a)(48), the suspension of a sentence does not change the classification of the underlying crime as an aggravated felony.

The inclusion of drug trafficking crimes within the definition of aggravated felony has been the source of some controversy in recent years. The INA follows the definition of "drug trafficking" in 18 U.S.C. 924(c), which includes possession, as well as the sale and distribution of controlled substances. See 18 U.S.C. 924(c); 21 U.S.C. 801 et. seq.. In Matter of K- V- D- (BIA 1999), the BIA held that state law drug convictions would be considered aggravated felonies if the crimes were analogous to those punishable as felonies under federal law. The Board overruled this decision in Matter of Yanez-Garcia (BIA 2002) and decided instead to defer to the federal circuit courts of appeals as to whether a particular state crime constitutes a felony drug trafficking offense.

The BIA also recently reconsidered its treatment of DUI offenses. In Matter of Puente (BIA 1999), the Board held that driving under the influence was a crime of violence, and thus would be considered an aggravated felony when punishable by a sentence of one year or more. After four of the circuit courts disagreed, the BIA reconsidered this decision and, in Matter of Ramos (BIA 2002), decided that DUI convictions cannot be considered aggravated felonies.

Since seemingly minor convictions can be a bar to naturalization and even expose an individual to the threat of removal, a non-citizen who has been convicted of one of these crimes should consider carefully whether to seek naturalization. Often these crimes only come to the attention of immigration authorities because of the non-citizen takes some action, such as applying for citizenship.

Even crimes that do not rise to the level of an "aggravated felony" can serve as a bar to naturalization. See, INA 101(f)(3-7). An applicant who admits to committing a "crime of moral turpitude" or a controlled substance violation will be found not to possess good moral character even if never charged, indicted, arrested or convicted of the crime. 8 C.F.R. 316.10(b)(2)(iv). See 8-1.2(b), supra, for a discussion of what constitutes a "crime of moral turpitude."

INA 316(e) provides that, in determining whether the person applying for naturalization is of good moral character, "the [BCIS] shall not be limited to the applicant's conduct during the five years preceding the filing of the application, but may take into consideration ... the applicant's conduct and acts at any time prior to that period." The U.S. Court of Appeals for the Second Circuit in Tieri v. INS (2d Cir.1972) held that in evaluating petitioner's application for naturalization in 1966, the district court properly considered evidence of the petitioner's six arrests between 1922 and 1959, two of which resulted in convictions of robbery and bookmaking. The Second Circuit concluded that "petitioner persistently attempted to obscure any past conduct which he feared might prove suspicious or embarrassing to his cause, and that, accordingly, the district court was not mistaken in discerning a pattern of deception in the whole mosaic of petitioner's testimony." Convictions outside the statutory period should not be a bar to naturalization, however, if the applicant can prove that he or she has been rehabilitated. In Gatcliffe v. Reno (D.V.I. 1998), the court found that the INS had improperly denied naturalization to a man who had committed two offenses more than seven years before applying for citizenship. The plaintiff produced numerous character witnesses to establish that he had rehabilitated himself and was a person of good moral character throughout the statutory period.

(iii) False Testimony. The Third Circuit Court of Appeals held that INA 101(f)(6), regarding the giving of false testimony for the purpose of obtaining benefits under the act, is mandatory in its terms and not subject to a distinction between material and immaterial matters. In re Haniatakis (3d Cir.1967). Haniatakis falsely stated on her naturalization application that she was unmarried for fear that her naturalization would be delayed for 5 more years if the INS knew of her marriage to another non-citizen. The petitioner also misrepresented her prior places of residence.

The INS declared that her marriage to another non-citizen would not have affected her application. The district court concluded that the false testimony did not affirmatively demonstrate the absence of good moral character because the misrepresentations were immaterial and the facts concealed would not have been a barrier to her naturalization. In reversing the judgment of the district court, the Third Circuit reasoned that naturalization is denied whenever false testimony is given for a practical reason, and that one who gives false testimony to deceive the government is unworthy of citizenship. A false answer which appears immaterial may nonetheless cut off a line of inquiry which might have revealed facts material to the applicant's eligibility for citizenship. The court distinguished Chaunt v. United States (Sup.Ct.1960), in which the Supreme Court refused to denaturalize a citizen who had twenty years before failed to reveal on his naturalization application that he had previously been arrested. The provision of the act involved in Chaunt, INA 340(a), specifically required that the fact concealed be "material." The government in Chaunt was attempting to deny the privileges of citizenship to one who had already been granted them.

False testimony may not preclude a finding of good moral character, however, if the applicant did not make the false statement with the subjective intent of obtaining naturalization benefits. In Chan v. I.N.S. (E.D.N.Y. 2001), the court granted Chan's application for naturalization despite the fact that he denied a previous arrest and gave conflicting statements regarding his marital status. The court found that the misrepresentations were a result of the applicant's limited English skills and misunderstanding of the U.S. legal system.


Applicants must show that they are "attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States." INA 316(a). The purpose behind this requirement is the admission to citizenship of only those persons who are in general accord with the basic principles of the community. Petition of Sittler (S.D.N.Y.1961). Courts have defined attachment to the Constitution as a belief in representative democracy, a commitment to the ideals embodied in the Bill of Rights, and a willingness to accept the basic social premise that political change only be effected in an orderly manner. Similarly, a favorable disposition to the good order and happiness of the United States has been characterized as a belief in the political processes of the United States, a general satisfaction with life in the United States, and a hope for future progress and prosperity. Nevertheless, attachment to Constitutional principles and a favorable disposition to the good order of the United States are not considered incompatible with a desire to change the U.S. form of government within the limits of the Constitution.

Whether applicants for citizenship are attached to the principles of the Constitution depends on their state of mind, which must be determined on the basis of their conduct and expressions over a period of time. The BCIS cannot safely base its judgment on isolated statements of the applicant. Hence, the federal court in In re Kullman (W.D.Mo.1949) found that petitioner's isolated statement made before the United States' involvement in World War II expressing sympathy for the German people and praise for Adolf Hitler would not deny him citizenship, in light of his thirty-seven years of law-abiding residence in the United States and his aid to U.S. armed forces during World War I.

Although the general requirement of attachment to the Constitution allows discretion in evaluating a case on its own facts, several statutes enacted in 1952 specifically and automatically preclude naturalization of certain persons. Individuals belonging to the Communist Party or other totalitarian groups (INA 101(a)(37)), and persons who advocate the overthrow of the United States government by force or violence or other unconstitutional means may not obtain naturalization. INA 313(a)(4). Applicants are not disqualified, however, if they can show that membership in the proscribed organization is or was involuntary. INA 313(d). Moreover, if the applicants can establish that such membership or affiliation terminated before they attained sixteen years of age, or such membership or affiliation was by operation of law or for purposes of obtaining employment, food, or other essentials, they may still qualify for naturalization. In Grzymala-Siedlecki v. United States (5th Cir.1961), therefore, petitioner's enrollment in the Polish Naval Academy, which automatically conferred Communist Party membership, did not disqualify him from naturalization where the college education was necessary to the applicant's earning a livelihood in Poland.

A few courts have added another exception to the disqualification for Communist membership. Such membership or affiliation does not disqualify an applicant unless it was a "meaningful association." The Supreme Court has held, in the context of removal proceedings, that a "meaningful association" signifies at minimum "[an] awareness of the Party's political aspect." Rowoldt v. Perfetto (Sup.Ct.1957). The federal district court of Puerto Rico applied the same analysis in In re Pruna (D.Puerto Rico 1968) holding that where petitioner's membership in an organization supporting Fidel Castro's revolution in Cuba in 1958 resulted from a belief that the organization's objective was to restore to the Cuban people a representative democracy, and where he was unaware that the organization was connected with the Communist Party, his participation did not constitute a "meaningful association" with a subversive group. His membership thus did not preclude him from naturalization.

Applicants may escape the preclusion statute if more than ten years have passed since they were members of the subversive organization. INA 313(c). A 1999 amendment grants a further exemption to past members of the Communist Party who have made a contribution to the national security of the United States. INA 314(e). This section does not require the applicant to have been free from Communist Party involvement for any particular length of time.

Section 314 of the INA permanently precludes the naturalization of anyone who, during the time that the U.S. "has been or shall be at war," deserts the U.S. armed forces or leaves the country with the intent of avoiding the military draft, and is convicted of that offense by a court-martial or a court of competent jurisdiction. INA 314. The provision also specifically prohibits such people from ever holding an official position of the United States. Uncertainty remains whether the term "at war" includes hostilities lacking a formal declaration of war -- such as the Korean, Vietnam, and Persian Gulf conflicts. The Immigration Service has stated that the Korean conflict constituted a "time of war" within the meaning of the 1940 version of this provision. To the date of this writing, no reported judicial determinations exist.

INA 315(a) provides that non-citizens who seek or obtain exemption from service in the U.S. armed forces on the ground that they are not citizens become permanently ineligible for citizenship, unless they had served in the military of a country that has a treaty with the U.S. INA 315(a). Selective Service records are conclusive on the issue of whether a non-citizen secured the exemption because of alienage. INA 315(b). Simple failure to register for the Selective Service is not a bar to naturalization, but a knowing and willful failure to register may be a ground for finding that the applicant lacks good moral character. Hence, men between the ages of eighteen and twenty-six should register before seeking naturalization.


Related to the requirement that applicants be attached to the Constitution of the United States, they also must take an oath of renunciation of allegiance to applicant's the previous country of citizenship and allegiance to the United States in open court. Section 337(a) of the INA requires that the applicants pledge (1) to support and bear true faith and allegiance to the Constitution of the United States; (2) to renounce all allegiance to any foreign state or sovereign; (3) to support and defend the Constitution and laws of the United States against all enemies, foreign and domestic; and (4) to bear arms on behalf of the United States when required by law, or to perform noncombatant service in the armed forces, or to perform civilian work of national importance when required by law. INA 337. The BCIS may, however, waive the oath requirement for children or for applicants who are unable to understand the oath because of a physical or developmental disability or mental impairment. INA 337(a).

If applicants can show by clear and convincing evidence that they are opposed to the bearing of arms, they may revise the pledge to perform only noncombatant services in the armed forces. Similarly, applicants who can show by the same standard of proof that they oppose any type of service in the armed forces by reason of "religious training and belief" may pledge merely to perform important civilian work. INA 337(a).

The present statute was designed to codify judicial decisions relieving conscientious objectors of naturalization requirements to bear arms. The moral stand taken by conscientious objectors frequently resulted in the denial of their naturalization petitions between the world wars -- a result the Supreme Court affirmed in United States v. Schwimmer (Sup.Ct.1929) and United States v. MacIntosh (Sup.Ct.1931). In the 1946 case of Girouard v. United States (Sup.Ct.1946), however, the Court overruled these prior cases and held that religious objection to bearing arms was not of itself incompatible with allegiance to the United States. Congress adopted the Supreme Court's holding by enacting the statute currently in effect.

Congress followed United States v. Seeger (Sup.Ct.1965), a later Supreme Court decision on conscientious objection to military service, in defining the phrase "religious training and belief" as "an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code...." INA 337(a). The Supreme Court has construed this language in Seeger to apply to persons who, while not believing in a personalized God, possess a sincere and meaningful belief which occupies in the life of the believer a place "parallel" to that filled by the God of persons who clearly qualify for the exemption. Hence, the applicant need not found a claim of conscientious objector status upon the precepts of an organized religion or a belief in a Supreme Being. In re Weitzman (8th Cir.1970).

In Petition for Naturalization of Kassas (Tennessee M.D.1992), the petitioner, who was a native of Syria, expressed reservations based on his Islamic faith, about bearing arms on behalf of the U.S. against persons of the Islamic faith or a predominantly Islamic country. The court held that the petitioner is not eligible for an exemption from swearing to bear arms on behalf of the U.S. because he is opposed only to some but not all war.

Although applicants for naturalization are required to renounce allegiance to any foreign state, some countries do not recognize the oath as an effective renunciation of citizenship. Hence, a naturalized citizen may retain dual nationality in his or her country of origin. Immigration regulations require, however, that the applicant take the oath without any mental reservations. 8 C.F.R. 337.1. At least one court has held that taking the oath without a genuine intent to renounce one's former citizenship constitutes fraud. U.S. v. Wurzenberger (D.C.Conn. 1944).

c. Relaxed Requirements for Particular Persons

Although the naturalization requirements discussed in the preceding subsections apply to most applicants for citizenship, Congress has chosen for various policy reasons to relax the requirements with respect to particular persons. The most significant special classes are: persons serving in the armed forces, spouses of United States citizens, and minor children of U.S. citizens. The table on the following page summarizes some of the special rules applicable in naturalization of particular categories of persons.


A lawful permanent resident who has served honorably in the armed forces of the United States for periods totaling three years may apply for naturalization without meeting the standard residence and physical presence requirements, provided such application is filed while the applicant is still in the service or within six months of discharge. INA 328(a). If the applicant's service was continuous, a certificate of honorable service establishes compliance with the requirements of good moral character. INA 328(e). Where the service was not continuous, the applicant must establish good moral character by the standards applicable to other naturalization applicants. INA 328(c).

The statute further provides that a non-citizen whose service in the armed forces terminated more than six months prior to filing of the application is not exempted from the standard residence and physical presence requirements. INA 328(d). Nonetheless, the period of time served in the military, if within five years immediately preceding the date of filing, shall constitute residence and physical presence for the purpose of meeting the standard requirements.

Another statute provides even broader exemptions for non-citizens who have actively and honorably served in the armed forces for at least one day during periods of hostilities -- from World War I to the war in Afghanistan or during any periods which the President designates involving armed conflict with a hostile foreign force. INA 329. Such persons may be naturalized without having been lawfully admitted to the United States if they enlisted or re-enlisted in the United States or specified territories. INA 329(a). Applicants who were not within these territories when they enlisted must subsequently obtain lawful admission to qualify under the provision.




STATE RESIDENCE Sec. 101(a)(33)












(Sec. 312)




(Sec. 312)






3 Months in state or INS District where filed


5 Years

30/60 Aggregate

5 yrs. +

YES, unless

exempt **


YES, unless




3 Months in state or INS District where filed


3 Years

18/36 Aggregate

3 yrs. +

YES, unless



YES, unless


Married to same USC*** for 3 yrs. and living in marital union







YES, unless



YES, unless


Married to USC*** (N.P.****) & living in marital union & USC spouse to be employed abroad 1 yr. with US gov=t or corp., etc.

appl. will join










Biological or adopted child of U.S. citizen, under 18 years old, in custody of citizen parent









Yes, unless waived by Attorney General

Biological or adopted child under 18 yrs. old residing outside the U.S.






5 yrs (good character presumed during honorable service)

YES, unless



YES, unless


3 years honorable active military less than 6 mo. since discharged



YES - But not if enlisted or inducted in US



1 year

YES, unless



YES, unless


1 day honorable active service during certain periods of hostilities

(WWI, WWII, Korea, Vietnam, Granada, Gulf War)

* LPR = Lawful permanent resident

** Test Exemptions: 15/55, 20/50, mental or physical disability, or 15/65 and disability

*** USC = United States Citizen

****N.P. = No particular time period

An applicant seeking naturalization through active duty service in the armed forces is exempt from the standard age requirement, the generally prescribed residence and physical presence requirements, and the provision precluding the naturalization of persons subject to an outstanding deportation order. INA 329(b). Although no period of residence is required, a person who served on active duty must demonstrate good moral character for one year prior to his or her application for naturalization. 8 C.F.R. 329.2(d). Citizenship granted under this provision may be revoked if the individual subsequently receives a dishonorable discharge. INA 329 (c).

Non-citizens who die while on active duty for the U.S. armed forces during periods of hostilities can receive posthumous citizenship under INA 329A. The person's survivors must apply for this honor within two years of his or her death. INA  329A(c). Citizenship obtained in this manner does not confer any benefits on the citizen's surviving spouse or children. INA  329A(d).


Section 319 of the Immigration and Nationality Act relaxes the naturalization requirements for spouses of United States citizens. This section also applies to persons who obtain lawful permanent resident status under the special provisions for spouses and children battered by U.S. citizens. See 5-5.1(c), supra. The applicant spouse must have resided continuously in the United States for three years -- instead of five -- immediately before filing the petition for naturalization. INA 319(a). The residence must follow lawful admission, and the applicant must live "in marital union" with the citizen spouse throughout this period, unless he or she is a victim of domestic violence. Short periods of separation where the couple does not intend permanent dissolution of the marriage do not violate the marital union requirement. For example, in Petition of Omar (S.D.N.Y.1957) the court ordered a separation of petitioner from his citizen spouse for two weeks as a "cooling off" period, following the petitioner's arrest (at his wife's request) for allegedly striking her. The judicially enforced separation did not preclude compliance with the statute. Further, at least one court has held that this requirement is satisfied where a couple separates before the non-citizen spouse is naturalized, so long as the couple were living in marital union when the non-citizen applied for naturalization and are still legally married when naturalization is granted. Ali v. Smith (W.D.Wash. 1999).

Although a short separation, such as the two weeks involved in Omar, will not operate to destroy the marital union for purposes of the statute, an extended estrangement produces a different result. The rationale behind section 319(a), said the federal court in Petition of Kostas (D.Del.1958), was "the congressional expectation that a non-citizen spouse who lived in close association with a citizen spouse for three years would more speedily absorb the basic concepts of citizenship than one not so situated." In Kostas the facts showed an "uneasy union marked by frequent separations of substantial duration," to the extent that it appeared the couple spent more time apart than together during the three-year statutory period. On that record the court determined that petitioner fell far short of the "marital union" requirement.

The statute does not relieve the spouse applicant of the burden of establishing good moral character and attachment to the principles of the Constitution.

If the citizen spouse is an employee of the United States government, a U.S. firm engaged in foreign commerce, a recognized U.S. institution of research, a public international organization in which the United States participates by treaty or statute, or the citizen performs qualified religious functions abroad, and is regularly stationed abroad in such activity, the applying spouse may be naturalized without any prior residence in the United States. The applying spouse, however, must declare to the BCIS in good faith an intention to take up residence in the United States immediately upon the termination of such employment abroad of the citizen spouse. INA 319(b). The applicant also must comply with all other requirements for naturalization.

Further, when a U.S. citizen dies while serving honorably in the armed forces, his or her non-citizen spouse may be naturalized without any prior residence or physical presence in the United States. INA 319(d).


The Child Citizenship Act of 2000 modified the procedures for naturalizing the children of U.S. citizens. The Act was intended to make it easier for parents to naturalize children adopted from overseas and to ensure that children of U.S. citizens are not deprived of citizenship because their parents failed to take the necessary steps to naturalize them. Under the provisions of the Act, a child born outside the United States automatically acquires U.S. citizenship if, while under the age of eighteen, he or she resides in the United States as a lawful permanent resident in the custody of a parent who is a U.S. citizen. INA 320(a). No application is required. Consequently, children born outside the United States to non-citizens will acquire citizenship by operation of law when their parents are naturalized. Children born to or adopted by a U.S. citizen overseas acquires citizenship as soon as they are admitted to the United States as a lawful permanent resident in the custody of their citizen parents.

U.S. citizens may also apply for naturalization of their biological or adopted children residing outside the United States. INA 322(a). Parents must file Form N-600 for biological children or Form N-643 for an adopted children. 8 C.F.R. 322.2. Prior to filing the application, U.S. citizen parents must have been physically present in the United States for five years, at least two of which were after attaining the age of fourteen. If a U.S. citizen parent has not lived in the United States for five years, the physical presence requirement can be satisfied by one of the children's grandparents, if they are U.S. citizens. The child must lawfully enter the United States and appear before an immigration officer for an interview. INA 322(a)(4). If the application is approved, the child must take the oath of allegiance, unless it is waived pursuant to INA 337 because the child cannot understand its meaning. INA 322(b).

The foregoing provisions apply only to children under the age of eighteen on February 27, 2001, the effective date of the Child Citizenship Act. Prior to that date, children residing in the United States as lawful permanent residents acquired citizenship automatically only if their non-citizen parents were naturalized while the children were under age eighteen. INA 321 (repealed 2001). Under the former version of INA 322, U.S. citizens could also apply for naturalization on behalf of their natural or adopted children. Children who did not acquire citizenship by one of these means may still apply for citizenship on their own behalf after attaining the age of eighteen.


The availability of naturalization for persons with disabilities became a pressing issue in the 1990's after the Personal Responsibility and Work Opportunity Reconciliation Act ended Social Security Disability (SSI) payments to non-citizens. Congress has since reinstated SSI benefits for lawful permanent residents who were receiving them prior to 1996 (INA 402(a)(2)(E)). Several provisions remain in place to address the special needs of disabled applicants for naturalization.

Since 1994, applicants with physical or developmental disabilities or mental impairments have been exempt from the literacy and civics requirements for citizenship. See 12-2.2(b)(3), supra. To qualify for this exemption, the applicant must have a medically determinable disability that has lasted or is expected to last for at least 12 months. 8 C.F.R. 312.2(b). This exemption does not apply to anyone whose impairment is directly attributable to the illegal use of drugs. To qualify for the exemption, the applicant must submit a Medical Certification (Form N-648), completed by a licensed doctor, which explains how the applicant's disability renders him or her unable to comply with the requirements. Other accommodations available to disabled applicants include off-site testing, interviews, and oath ceremonies.

Despite the exemption from the literacy and civics requirements, until 2000, disabled applicants were still required to take the oath of allegiance. In Galvez-Letona v. Kirkpatrick (D.Utah 1999), a district court held that this requirement must be waived for an applicant who was unable to understand the oath because of a developmental disability. The applicant was a twenty-six-year-old man with severe Downs Syndrome who had a mental age of eighteen months. He met all of the requirements for citizenship except that he was unable to demonstrate understanding of the oath of allegiance or a willingness to take the oath. The court found that failure to waive the oath in this circumstance violated the Rehabilitation Act, which prohibits federal agencies from discriminating on the basis of a disability. The following year, Congress amended INA 337(a) to provide a waiver of the oath requirement for anyone who is unable to understand it or communicate his or her understanding because of a physical or developmental disability.


The Hmong Veterans' Naturalization Act of 2000 temporarily exempts Hmong veterans, their spouses, and their widows or widowers from the literacy requirements of INA 312. 114 Stat. 316. The Act also requires the BCIS to give qualified Hmong applicants special consideration with regard to the civics requirements of INA 312. Congress enacted this exemption in recognition of the critical support Hmong guerilla forces provided to the United States during the Vietnam War. The literacy and civics requirements have been a barrier to naturalization for many Hmong refugees who had limited access to education in their homeland. The exemption applies to any person admitted as a refugee from Laos who served in a guerilla force that supported the United States during the Vietnam War, as well as anyone who was the spouse of a qualified veteran on the day when the veteran applied for refugee status, or the surviving spouse of a Hmong veteran who died in Southeast Asia. 114 Stat. 316, 1810. Applicants must provide proof of their service in a qualifying guerilla unit. The Hmong Veterans Act originally made this exemption available for a period of eighteen months; Congress later extended the exemption to three years. 115 Stat 765. Hence, Hmong veterans and their spouses must apply by May 2003 and widows and widowers must have applied by November 2003. The exemption is further limited to the first 45,000 applicants.

d. Naturalization Procedures


Exclusive authority to naturalize is conferred upon the Secretary for Homeland Security. INA 310(a). Prior to the 1990 Act, the federal court decided whether a petitioner had complied with statutory conditions for citizenship. An INS designated examiner recommended whether naturalization should be granted, but the court could decide regardless of the INS recommendation. The 1990 Act shifted both the decision on naturalization and the principal responsibility for administration of the oath of allegiance to the INS. The Homeland Security Act subsequently transferred this responsibility to the BCIS. The 1990 Act authorized the federal district court to review de novo denials of

naturalization and to adjudicate naturalization applications if the immigration agency fails to issue a decision within 120 days after a hearing. INA 210(d), 336(b). The 1991 Technical Amendments returned principal responsibility for administration of oaths to the federal district courts. Title I of the Technical Amendments Act gives the courts 45 days to administer the oath of naturalization, after which an applicant can choose to have the oath administered by the BCIS. This compromise gives the courts an important role in naturalization, without creating backlogs due to crowded court dockets. INA 310 et seq. State courts of record are also authorized, but not required, to aid in the administration of oaths of allegiance.


Applicants for naturalization first must file an application to enable the Bureau of Citizenship and Immigration Services to conduct an investigation of the applicant's qualifications. INA 334(a). This application may be submitted up to three months before the applicant becomes eligible for citizenship. 8 C.F.R. 334.2 The application (Form N-400) consists of several pages wherein the applicant must provide background information regarding family history, periods of residence in the United States, criminal record, affiliations, and other factors that may affect eligibility for citizenship. All applicants must submit two color photographs and a copy of their Permanent Resident Card with their application. Some applicants may be required to submit additional documents, depending on their particular circumstances. All applicants must also be fingerprinted at an authorized fingerprinting center.

After receiving the application, the BCIS checks criminal records and performs a background check on the addresses where the applicant has lived and worked for the preceding five years. 8 C.F.R. 335.1. In Price v. INS (Sup.Ct.1992), the Court approved the immigration service's broad authority to make inquiries as long as they are related in some way to the naturalization requirements. U.K. citizen Price was denied naturalization because he refused to list on his application all the organizations with which he had ever been affiliated. The Court found that the identity of the organizations with which a petitioner is associated might be relevant to one or more requirements of citizenship.

The applicant may not withdraw his or her application without the consent of the BCIS. INA 335(e). The BCIS may, however, deny the application if the applicant fails to prosecute it. An individual should exercise caution in filing an application if he or she thinks that it could reveal grounds for the applicant's removal. In this situation it would probably be better not to apply for naturalization and thus avoid bringing the case to the attention of the immigration authorities.

An applicant may also file a formal declaration of intention to naturalize, but such a declaration is no longer mandatory. INA 334(g).


Before being naturalized, applicants must appear before a naturalization examiner. INA 335(b). The examiner may also subpoena witnesses who can testify as to the applicants' qualifications for citizenship. If an applicant fails to appear at the examination and does not provide a reason for this failure within thirty days, the application may be administratively closed. 8 C.F.R. 335.6. Each applicant and witness is interrogated separately; the applicant's attorney or representative may be present during the questioning if he or she has filed a notice of appearance. The proceeding may be videotaped or tape recorded; the hearing is not formal and rules of evidence do not apply. The record of the examination is admissible in any subsequent hearing under INA 336(a).

Applicants should answer all questions asked during the interview absolutely honestly, even if they are afraid that the answers might be detrimental to their case. Applicants who give false testimony risk having their application for citizenship denied or having their naturalization revoked, even if the concealed information would not in itself have been a bar to naturalization. See 12-2.2(b)(4), supra, 12-3.2(c)(1), infra.

After the examination, the examiner must make a determination within 120 days. INA 336(b) If the examiner determines that the application lacks any necessary qualifications, he or she advises the applicant of that determination. An applicant is not bound, however, by the examiner's findings, and may as a matter of right file a request for a hearing before an immigration officer and then may seek de novo review by the federal district court. INA 310(c), 336.


If the application is initially denied, a new hearing takes place before another immigration officer. INA 336(a). The applicant's attorney may take an active part in this hearing, present evidence, subpoena witnesses, make objections, and conduct cross-examination of the government's witnesses. The hearing is scheduled within 180 days after a request is filed; it is tape-recorded or videotaped for purposes of judicial review. Upon consideration of the testimony and review of all documents properly submitted in support or opposition, the immigration officer decides whether the application for naturalization should be granted or denied. If the immigration officer fails to decide the matter within 120 days after the examination, the federal district court may determine the naturalization or remand the matter to the INS with instructions. INA 336(b).


If the examiner approves the naturalization, the applicant will be granted citizenship at a hearing in open court after taking the oath of allegiance to the United States. INA 337. If the applicant fails to appear for more than one oath ceremony, he or she will be deemed to have abandoned the application for naturalization. 8 C.F.R. 337.10. The BCIS must, however, provide for expedited administration of the oath if the applicant's age, disability, or other special circumstances preclude appearance at a public ceremony. INA 337(c). As provided under the technical amendments to the 1990 Act, if the court cannot administer the oath within 45 days, the applicant may choose to have the oath administered by the BCIS.

If the BCIS denies the application, the applicant can seek judicial review in federal district court. Upon request by the applicant, the court can consider all issues de novo. If the BCIS does not act upon the application within 120 days, the applicant can request a hearing in federal district court. These procedures have been designed and modified to expedite the naturalization process, which, given the benefits that naturalization confers, is significant to the applicant.


Upon granting citizenship to an individual, the BCIS issues a certificate of naturalization. INA 338. The certificate itself does not convey citizenship, but simply serves as evidence that the BCIS has granted citizenship. The statute prescribes the information that the naturalization certificate will contain, including the number of the petition and the certificate; date of naturalization; the name, signature, place of residence, signed photograph, and personal description of the naturalized person (including age, sex, marital status, and country of former nationality); and a statement that the BCIS has found the application in full compliance with the requirements of the naturalization laws and has ordered that the applicant be admitted to citizenship. INA 338.

Minor clerical errors do not affect the evidentiary value of the certificate nor do informalities in the certificate -- such as the misspelling of names or the misnaming of the applicant. Brassert v. Biddle (2d Cir.1945).

The date on the certificate of naturalization is determined by the date of the oath. If the oath is waived, the date is the day on which the application is granted. If the court administers the oath, it may also grant a name change.

A naturalization order is subject to direct attack in independent denaturalization proceedings as prescribed by Congress. INA 340(a). Revocation of naturalization is discussed below.


12-3.1 Introduction

There are two ways by which a citizen may lose citizenship: denaturalization and expatriation. Denaturalization involves the judicial revocation of the naturalization order based on a finding that the naturalization was illegally or fraudulently procured. INA 340(a). Obviously, denaturalization applies only to naturalized citizens. Expatriation, however, applies to both naturalized and all other citizens, and does not assume a defect in the original acquisition of citizenship. Rather, expatriation results from certain actions enumerated in the statute (INA 349) by which citizens voluntarily relinquished their citizenship.

12-3.2 Denaturalization

a. Congress' Power to Denaturalize

The authority of Congress to provide for cancellation of wrongfully procured naturalization certificates is derived from the constitutional power of Congress to establish a uniform rule of naturalization under Article I, section 8, and the "Necessary and Proper" clause.

The Supreme Court in Costello v. United States (Sup.Ct.1961) sustained the constitutionality of the 1952 version of the denaturalization statute with respect to Congress' powers to cancel certificates procured "by concealment of a material fact or by willful misrepresentation." But while the power of Congress to prescribe grounds for revoking naturalization has been repeatedly upheld, the Supreme Court has stricken those provisions it deemed arbitrary or discriminatory. Hence, in Schneider v. Rusk (Sup.Ct.1964) the Court invalidated the provision prescribing loss of nationality by a naturalized citizen who resided in a foreign state for three years or more. Native-born citizens faced no such punishment. Justice Douglas wrote:

This statute proceeds on the impermissible assumption that naturalized citizens as a class are less reliable and bear less allegiance to this country than do the native born. This is an assumption that is impossible for us to make. Moreover, while the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is "so unjustifiable as to be violative of due process"....

The court thus held that the provision discriminated against naturalized citizens in violation of Due Process, creating a "second-class citizenship" without a rational justification.

b. Denaturalization Procedures


The revocation statute empowers United States district attorneys, upon an affidavit showing good cause, to institute proceedings in equity to cancel the naturalization certificate. INA 340(a). The original naturalization order has no res judicata effect against this independent attack by the United States, Johannessen v. United States (Sup.Ct.1912), in contrast to the immunity it enjoys from collateral attack. Tutun v. United States (Sup.Ct.1926).


The revocation statute also reserves to immigration authorities the power to reopen or vacate naturalization orders. INA 340(h). In accordance with this provision, the INS in 1996 instituted a procedure known as "administrative denaturalization." This procedure, which the Service was later enjoined from using, enabled INS district directors to revoke a person's citizenship if they had "clear, convincing, and unequivocal evidence" that the INS granted the person's application by mistake or the person concealed or misrepresented a material fact. 8 C.F.R. 340.1(a). Immigration regulations required the district director to serve the naturalized citizen with notice of intent to reopen the naturalization proceedings. If the citizen did not request a hearing within sixty days, his or her citizenship was revoked. 8 C.F.R. 340.1(b). An individual whose citizenship was revoked could appeal to the INS Office of Examinations, Administrative Appeals Unit and could seek judicial review of an adverse decision from that agency. 8 C.F.R. 340.1(e).

A group of naturalized citizens who were served with notices of intent to revoke their naturalization challenged this regulation in Gorbach v. Reno (9th Cir. 2000). The Ninth Circuit, sitting en banc, held that the Attorney General lacked the authority to revoke citizenship administratively. The court subsequently issued a permanent injunction preventing the INS from enforcing the administrative denaturalization procedure.

c. Grounds for Denaturalization


Naturalization may be revoked if the certificate of naturalization was "procured by concealment of a material fact or by willful misrepresentation" or was "illegally procured." INA 340(a). Fraud and illegal procurement as grounds for denaturalization date back to the original 1906 statute. 34 Stat. 596. The introduction of the phrase "concealment of a material fact by willful misrepresentation" was intended to assure that both "extrinsic fraud" (outside of the proceedings -- like concealment of witnesses) and "intrinsic fraud" (perjured testimony) would serve as grounds for denaturalization. Costello v. United States (Sup.Ct.1961).

Clearly, facts suppressed or concealed in a naturalization proceeding are "material" if disclosure of those facts alone would justify denial of citizenship. But the scope of materiality also includes concealed facts which, if disclosed, would have led to the investigation and discovery of other facts bearing on the applicant's eligibility for naturalization. In Chaunt v. United States (1960), the Supreme Court considered the materiality of Chaunt's failure to disclose three prior arrests for petty offenses in his naturalization application. The government argued that the arrests were material because, if disclosed, the Immigration Service would have investigated and might have discovered that Chaunt was (as one witness testified) an active member of the Communist Party. The Court established a two-part test for materiality, by which it concluded on the facts before it that "the government failed to show by 'clear, unequivocal, and convincing' evidence either (1) that facts were suppressed which, if known, would have warranted denial of citizenship, or (2) that their disclosure might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship." (emphasis added).

Confusion has ensued as to the second part of the Chaunt test -- that "disclosure might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship." The Ninth Circuit in United States v. Rossi (9th Cir.1962) held that a concealed or suppressed fact is material only "if disclosure of the true facts would have justified a refusal to issue a visa." The Sixth Circuit, however, took a different view in Kassab v. Immigration and Naturalization Service (6th Cir.1966), holding it sufficient if the suppressed fact, if revealed, "might have led to further action and the discovery of facts which would have justified the refusal of the visa" (emphasis in original).

The Southern District Court of Florida in United States v. Fedorenko (S.D.Fla.1978) ruled that the government must prove the existence of the facts which would have warranted denial of naturalization, although it need only show that an investigation leading to discovery of these facts possibly would have taken place. The court found the government had failed to establish that the defendant had voluntarily served as a guard and committed atrocities at a German death camp while a prisoner of war during World War II, which the government contended it might have discovered through investigation, had the defendant disclosed on his visa application that he had resided at the particular concentration camp. The Fifth Circuit reversed, stating that the government need only prove "that disclosure of the true facts would have [prompted] an inquiry that might have uncovered other factors warranting denial of citizenship." The government would not be burdened with the overwhelming task of conducting an investigation into the past, discovering ultimate facts warranting disqualification, and proving those facts in court by clear and convincing evidence.

The Supreme Court affirmed the Fifth Circuit, but on other grounds, not addressing the materiality question. The U.S. Court of Appeals for the Tenth Circuit, however, in United States v. Sheshtawy (10th Cir.1983), adopted Justice Blackmun's views expressed in his concurring opinion to the Fedorenko case. The court concluded that the Chaunt test "requires that the government demonstrate the existence of actual disqualifying facts -- facts that themselves would have warranted denial of petitioner's citizenship." Since the government had not claimed to have established facts that would have warranted denial of citizenship, it had not met the rigorous Chaunt test, and revocation of naturalization under INA 340(a) was not justified.

In Kungys v. United States (Sup.Ct.1988), the Supreme Court attempted to clarify the Chaunt holding. The Court held that the test of whether concealments or misrepresentations are "material" under INA 340(a) is whether they can be shown by clear, unequivocal, and convincing evidence to have been predictably capable of affecting the naturalization decision, i.e., to have "had a natural tendency to influence the decisions of the INS." Of the seven other participating justices, four joined this part of Justice Scalia's opinion.

Kungys was admitted to the United States for permanent residence in 1948 and became a naturalized citizen in 1954. In 1982 the United States commenced denaturalization proceedings. The government alleged that Kungys had participated in executing over 2,000 Lithuanians, most of them Jewish, in Kedainiai, Lithuania, between July and August 1941. The government also demonstrated that, in his visa application and in his naturalization petition, Kungys misrepresented his date and place of birth, as well as his occupation and residence during World War II.

In determining whether Kungys' misrepresentations met the Court's new standard of materiality, the Court held that 340(a) is limited to falsehoods or deceptions in the naturalization proceedings and not misrepresentations made in the visa process, because it is the former falsehoods which "procure" the naturalization. The Court concluded that Kungys' misrepresentations of the date and place of his birth in his naturalization petition were not material. There was no suggestion that the facts were themselves relevant to Kungys' qualifications for citizenship. Likewise, there was no showing that the true date and place of birth would have disclosed other facts relevant to his qualifications and would have resulted either in outright denial or an investigation resulting in denial of the naturalization application. Hence, the government failed to establish clearly, unequivocally, and convincingly that Kungys' misrepresentations had a natural tendency to influence the decision of the INS. Only two justices joined Justice Scalia in this part of the opinion.

As an alternative basis for upholding denaturalization, the government argued that Kungys' naturalization had been "illegally procured" because, at the time of his naturalization, he lacked the good moral character required under INA 316(a). (Illegal procurement of naturalization is discussed further in the following section of this chapter.) In the government's view, Kungys' misrepresentations, whether material or not, constituted false testimony given for the purpose of obtaining benefits in both the visa and naturalization proceedings, which indicates a lack of good moral character under INA 101(f)(6).

The Court decided in favor of the government on this issue, holding that 101(f)(6) does not contain a materiality requirement for false testimony for the purposes of determining whether naturalization was "illegally procured" because of a lack of good moral character. In the Court's view, lack of good moral character is present to some degree whenever there is subjective intent to deceive, no matter how immaterial the deception. The Court pointed out, however, that "testimony" is limited to oral statements made under oath and that the false testimony provisions do not apply to "concealments." Section 101(f)(6) applies to only those misrepresentations made with the subjective intent of obtaining immigration benefits, and this intent must be proven by clear, unequivocal, and convincing evidence. The Court concluded that it would be "relatively rare that the Government will be able to prove that a misrepresentation that does not have the natural tendency to influence the decision regarding immigration or naturalization benefits was nonetheless made with subjective intent of obtaining those benefits." A majority of the justices joined this part of the opinion.

Although a majority of the justices agreed that 101(f)(6) contains no materiality requirement, only three of the justices concurred in Justice Scalia's opinion holding that denaturalization could not be affirmed under that provision. The question whether Kungys' misrepresentations constituted false testimony for the purpose of obtaining immigration or naturalization benefits cannot be answered without first resolving two issues: (1) whether Kungys' misrepresentations constituted "testimony" and (2) whether in making the misrepresentations, Kungys possessed the subjective intent to obtain immigration or naturalization benefits. The latter question is one of fact to be resolved by the trier of fact. Since the case had to be remanded in any event, the Court chose not to resolve the former question of law.

Five separate opinions were filed in the Kungys case and there was no clear majority holding on many of the issues presented in the majority opinion. Hence, Kungys did little to dispel the uncertainty about the Chaunt standard of materiality. The Court revisited the issue of materiality in 1995, in United States v. Gaudin (Sup. Ct. 1995), where it held that materiality in a criminal prosecution is a mixed question of law and fact to be submitted to the jury. The Court distinguished its Kungys holding, however, on the basis that since there is no right to a jury in denaturalization proceedings, the court may decide whether a false statement is material.

On remand, Kungys entered a consent judgment with the Department of Justice in which the government revoked his citizenship but agreed not to deport him. 65 Interp. Rel. 1287. Consequently, Kungys was able to remain in the United States as a lawful permanent resident.

In addition to being material, a misrepresentation must be intentional. Hence, where the defendant in Maisenberg v. United States (Sup.Ct.1958) had answered "no" to a question on her preliminary application for naturalization asking whether she belonged to or was associated with any organization which teaches or advocates anarchy or overthrow of the existing government, she did not conceal a material fact or commit willful misrepresentation. Although she was at the time a member of the Communist Party, the question was ambiguous and she could reasonably have interpreted it as relating solely to anarchy, and not as calling for disclosure of membership in nonanarchistic organizations advocating violent overthrow of the government. Moreover, applicants do not "conceal" a material fact, within the meaning of the statute, if they merely fails to volunteer facts which might have a bearing on eligibility. In Cufari v. United States (1st Cir.1954) the First Circuit held that a naturalized citizen could not be denaturalized for failing to disclose his criminal record at the time of naturalization, unless the government could prove that he had been asked during the proceedings whether he had a criminal record and that he had answered in the negative.

Specific concealments and misrepresentations which courts have found sufficient to warrant denaturalization include: deliberate suppression of criminal records where there is a duty to disclose (United States v. Oddo (2d Cir.1963)) -- unlike the situation in Cufari, supra; knowingly making false statements concerning marital or family status (United States v. D'Agostino (2d Cir.1964)); and deliberate misstatement concerning an applicant's fulfillment of the residence requirements. Rosenberg v. United States (3d Cir.1932).


Illegal procurement provides an independent ground for revoking naturalization. The term has been held to convey something wider in scope than fraud and is not restricted to intentional deception. It has encompassed naturalizations procured when prescribed requirements -- for example, attachment to the principles of the Constitution or lack of good moral character -- had no existence in fact. United States v. Ginsberg (Sup.Ct.1917). In Kungys v. United States (Sup.Ct.1988), the Supreme Court held that false testimony given for the purpose of obtaining benefits in a naturalization proceeding indicates a lack of good moral character under INA 101(f)(6) and may render the naturalization "illegally procured," even though the misrepresentations may not have been material. This case is discussed in more detail in the immediately preceding section. The term also connotes affirmative misconduct by the applicant to induce the court or governmental agents to act in a manner not authorized by law; it encompasses the granting of certificates upon an error of law, for example, as to jurisdiction or procedural irregularities such as denying the government the opportunity to question the applicant in open court or to introduce evidence.

To justify denaturalization, however, the error must be substantial. Hence, clerical mistakes in connection with the issuance of a naturalization certificate will not constitute grounds for revocation and errors of judgment in granting citizenship against the preponderance of the evidence are better corrected on appeal in the original naturalization proceeding than in an action to revoke naturalization.

Illegal procurement of naturalization is also subject to criminal penalties under 18 U.S.C. 1425. When a person is convicted under this statute, his or her naturalization is automatically revoked. INA 341.


Prior to 1994, section 340 provided that if a naturalized citizen takes up permanent residence in a foreign country within one year after naturalization, it would be considered prima facie evidence of a lack of intention to establish permanent residence in the United States at the time of the application for citizenship. INA 340(d) (repealed 1994). The Technical Corrections Act of 1994 repealed this provision as to anyone who obtained citizenship on or after October 25, 1994. 108 Stat. 4305.


The denaturalization statute provides two additional grounds for revoking naturalization: (1) Refusal on the part of the naturalized citizen, within ten years following naturalization, to testify as a witness before a congressional committee concerning his or her subversive activities, will be a ground for revocation of naturalization, if such refusal resulted in a conviction for contempt. INA 340(a). The refusal to testify establishes as a matter of law that naturalization was procured by concealment of a material fact or by willful misrepresentation and the naturalized citizen is not granted an opportunity within this provision to present countervailing evidence. (2) If within five years of naturalization a naturalized citizen becomes a member of any of the proscribed subversive organizations, of which membership would have precluded naturalization in the first place, it shall constitute prima facie evidence that such person was not attached to the principles of the Constitution at the time of naturalization. INA 340(c). In the absence of countervailing evidence it will be sufficient to revoke the person's citizenship as having been obtained by concealment of a material fact or by willful misrepresentation. Neither ground has been invoked in any naturalization proceeding to date and the constitutionality of these provisions may be in doubt because of the discrimination they impose on naturalized citizens. Cf. Schneider v. Rusk (Sup.Ct.1964).

d. Effect on Spouses or Children.

A person who claims citizenship based on the naturalization of a parent or spouse will lose his or her citizenship if the parent or spouse's citizenship is revoked due to concealment of a material fact. INA 340(d). If the parent's or spouse's naturalization is revoked for any other reason, those claiming derivative citizenship will not lose their citizenship unless they reside outside the United States at the time of revocation.

12-3.3 Expatriation

a. Introduction

Expatriation provides the second means for loss of nationality, to which both naturalized and all other citizens are subject. INA 349(a). The term is defined as the voluntary act of abandoning one's country and becoming the citizen or subject of another. Under current Supreme Court jurisprudence, the specific intent of the alleged expatriate to renounce citizenship must accompany the expatriating act, in order to constitute relinquishment of citizenship. In 1986, Congress amended INA 349(a) to conform to the rulings of the Supreme Court, by providing that individuals will lose their U.S. citizenship only by "voluntarily performing any of the following acts with the intention of relinquishing United States nationality."

b. Development of the Law of Expatriation

The Constitution makes no mention of expatriation. Courts were reluctant in the early days of the United States to acknowledge expatriation of a citizen without express consent of the government. The right of a citizen to voluntary expatriation notwithstanding lack of the sovereign's consent was first recognized by Congress in 1868. 15 Stat. 223. The 1868 Act proclaimed 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." Although intended to protect naturalized United States citizens from claims of allegiance by their former sovereigns, the Attorney General construed the statute to permit U.S. citizens to abandon their citizenship. 14 Ops. Att'y Gen. 295. Also in 1868 the United States initiated a series of treaties -- named the Bancroft Treaties for George Bancroft, a United States diplomat who negotiated the first of these treaties with the North German Confederation (15 Stat. 615) -- which provided that each country would regard as citizens of the other, those of its own subjects who became naturalized by the other.

Although the right of expatriation was thus established, Congress did not first define the manner by which a citizen may lose citizenship until the Expatriation Act of 1907. 34 Stat. 1228. The statute defined three means of expatriation: U.S. citizens were deemed expatriated if they naturalized in any foreign state in conformity with its laws or took the oath of allegiance to any foreign state, female citizens who married non-citizens assumed the nationality of their husbands, and naturalized citizens returning to their country of origin and living there for two years were also presumed to have effected expatriation. 34 Stat. 1228. Marriage to a foreigner ceased to be an expatriating act in 1922. 42 Stat. 1022. Expatriating naturalized citizens who return to their country of origin was held to be unconstitutional in 1964. Schneider v. Rusk (Sup. Ct. 1964).

The Nationality Act of 1940 expanded the grounds for expatriation to include service in the military or government of a foreign state, voting in a political election in a foreign state, formal renunciation of United States citizenship, court martial conviction and discharge from the armed services for desertion in wartime, conviction for treason against the United States, and failure for nationals born abroad to take up permanent residence in the United States before attaining 16 years of age. 54 Stat. 1137. In addition, the act modified the provisions for expatriation naturalized citizens. They could now be expatriated for three years continuous residence in the state of their birth or for five years continuous residence in any other foreign state. Many of these provisions reflected the trying economic times and the security consciousness resulting from the onset of World War II. The Immigration and Nationality Act of 1952 essentially re-enacted the expatriation provisions of the 1940 statute, with some minor additions. INA 349 (examined in section 12-3.3(d), infra).

c. The Power of Congress to Prescribe Grounds for Expatriation

The 1907 statute prescribed specific methods of expatriation. 34 Stat. 1228. Certain provisions appeared to mandate loss of nationality without regard to intent, most notably, marriage of a female citizen to a non-citizen. In MacKenzie v. Hare (Sup.Ct.1915), the petitioner challenged this provision, which withdrew her citizenship upon her marriage to a British national. She argued that expatriation required not merely the act of marrying a foreign national, but a subjective intent to "permanently reside elsewhere [and] to throw off the former allegiance, and become a citizen or subject of a foreign power." The Court determined that Mrs. MacKenzie had voluntarily relinquished her citizenship because her marriage was voluntary, and she had notice of the consequences.

The Court further held that Congress had authority to prescribe grounds for expatriation, based on powers "implied, necessary or incidental" to its expressed power over nationality and foreign relations. The Court viewed the law in controversy as a reasonable exercise of government power for the prevention of potential international controversies arising out of dual nationality.

Subsequent cases over the next forty years reinforced an "objective intent" standard for determining relinquishment of citizenship. In Savorgnan v. United States (Sup.Ct.1950), the petitioner was a native-born U.S. citizen who was engaged to an Italian government official. To obtain royal approval of her marriage, she was informed she would have to become naturalized as an Italian citizen, recite an oath of allegiance to Italy, and sign a document renouncing her United States citizenship. She believed her signing was only a technical requirement, and she asserted that she never intended to renounce her United States citizenship. The Court held that under the statute one who obtained citizenship in a foreign country loses United States citizenship, regardless of subjective intent:

[T]he acts upon which the statutes expressly condition the consent of our Government to the expatriation of its citizens are stated objectively. There is no suggestion in the statutory language that the effect of the specified overt acts, when voluntarily done, is conditioned upon the undisclosed intent of the person doing them.

The Supreme Court's attitude, heretofore one of deference to Congress regarding laws of expatriation, began to change in 1958. In Perez v. Brownell (Sup.Ct.1958), the Court upheld the constitutionality of the provision prescribing loss of nationality for voting in a foreign political election. 54 Stat. 1137. Justice Frankfurter, speaking for the majority, ruled that a "rational nexus" existed between the congressional power to regulate foreign affairs and the withdrawal of citizenship for voting in a foreign election. The power of Congress to terminate citizenship did not depend on consent of the citizen but the voluntary performance of the expatriating act. The holding thus reaffirmed the power of Congress to prescribe acts which would constitute loss of nationality, but the Court was closely divided, five justices to four. Chief Justice Warren wrote a vigorous dissent, maintaining that Congress did not have the power to take away the "most basic right" of citizenship. Congress could only acquiesce in the wishes of citizen to abandon their nationality.

On the same day, March 31, 1958, the Court for the first time held an expatriation provision unconstitutional; Chief Justice Warren wrote the plurality opinion in another five to four decision, Trop v. Dulles (Sup.Ct.1958). The suit challenged section 401(g) of the Nationality Act of 1940, which provided for expatriation upon conviction by court martial and dishonorable discharge for desertion in time of war. 54 Stat. 1137. Private Trop, serving abroad in the United States army, escaped from a stockade where he had been confined for disciplinary reasons. He turned himself in several hours later, but for his offense he was court martialed and convicted of desertion, sentenced to three years of hard labor, and dishonorably discharged. Chief Justice Warren concluded that section 401(g) was a penal statute, violative of the Eighth Amendment's prohibition against cruel and unusual punishment, as it stripped the individual of any nationality, leaving him stateless. (In 1978 Congress repealed the statute. 92 Stat. 1046.)

A second expatriation provision was invalidated in Kennedy v. Mendoza-Martinez (Sup.Ct.1963). The challenged statute provided loss of citizenship for those persons who had left the United States in time of war to evade military service. 58 Stat. 746. In 1942, Mendoza-Martinez (a native born U.S. citizen with dual Mexican nationality) went to Mexico, as he admitted, solely for the purpose of evading service in the U.S. armed forces. He further conceded that he remained there for that purpose until November 1946, when he voluntarily returned to the United States. In 1947, he pleaded guilty to and was convicted of, evasion of his service obligation, and sentenced to imprisonment of a year and one day. He served his sentence and upon his release lived undisturbed until 1953 when, after a lapse of five years, he was arrested and subjected to deportation proceedings. The government asserted that Mendoza-Martinez was deportable as he had expatriated himself by committing the act specified in the provision. Justice Goldberg wrote for the majority, holding that the statute's automatic deprivation of nationality for the offense of evading military service was an unconstitutional punishment, in violation of rights to Due Process and trial by jury.

In 1964, the Court again limited the power of Congress to expatriate in Schneider v. Rusk (Sup.Ct.1964). It decided that the statute expatriating naturalized citizens for three years continuous residence in the state of their former nationality was an invalid discrimination against naturalized citizens.

In Trop, Mendoza-Martinez, and Schneider, the Court utilized an ad hoc approach for restricting congressional power to expatriate, by invalidating several provisions as violative of specific constitutional rights. The issue of the requisite intent for finding a voluntary relinquishment of citizenship had not been addressed since Perez v. Brownell, supra. In Afroyim v. Rusk (Sup.Ct.1967), the Supreme Court overruled its 1958 decision in Perez, holding that Congress had no general power, express or implied, to expatriate without the citizen's assent. Afroyim was a naturalized U.S. citizen who went to Israel and while in that country voted in an Israeli election. The State Department subsequently refused to renew his passport, asserting Afroyim's loss of citizenship under section 401(e) of the Nationality Act of 1940. 54 Stat. 1137. Afroyim contended that neither the Fourteenth Amendment nor any other provision of the Constitution allowed Congress to extinguish his citizenship without his voluntary renunciation. Writing for the majority, Justice Black agreed, and held that the Fourteenth Amendment "can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States or any other governmental unit."

The expansive language of Justice Black's majority opinion caused speculation as to its meaning. Some reasoned that Afroyim had invalidated all expatriation statutes, leaving the decision as to one's nationality at all times with the individual. With the right of citizenship judicially defined as absolute, it was not necessary for the allegedly expatriated individual to do more than assert a claim to citizenship in order to recover it. Others believed that Afroyim had reinstated a subjective intent test, which required for expatriation a finding that not only did the citizen commit the expatriating act, but he or she did so with the specific intent of relinquishing citizenship.

The Court's next opportunity to consider the scope and vitality of the Afroyim holding occurred in Rogers v. Bellei (Sup.Ct.1971). Bellei acquired citizenship by birth outside the United States to a U.S. citizen mother and Italian father. He lived abroad, although he visited the United States several times on a United States passport. He was warned shortly before his twenty-third birthday that the statute conferring his citizenship required him to remain in the United States for five years in order to preserve his citizenship. Bellei left the United States one year later and was notified that he had lost his citizenship. He sought to enjoin the statute, claiming it was violative of Due Process, and constituted cruel and unusual punishment. The district court ruled the statute unconstitutional, citing Afroyim and Schneider. The Supreme Court reversed in another five-to-four decision, holding that Bellei's citizenship acquired upon birth abroad was not constitutionally conferred, nor was it protected under the Fourteenth Amendment, which referred in its first sentence to "persons born or naturalized in the United States." (emphasis added). As a mere creation of statute his citizenship was subject to congressional restrictions, and it was perfectly reasonable for Congress to impose a "condition subsequent" to the grant of citizenship. In dissent, Justice Black saw no distinction between the various forms of citizenship which justified the second class treatment afforded citizens born abroad. "I cannot accept the Court's conclusion that the Fourteenth Amendment protects the citizenship of some Americans and not others." (Congress has since repealed the statute at issue in Bellei. 92 Stat. 1046.)

The Supreme Court's 1980 pronouncement on the issue of congressional power to expatriate, Vance v. Terrazas (Sup.Ct.1980), went in two directions. Terrazas was born in the United States of Mexican parents, thus acquiring dual nationality. He obtained a certificate of Mexican nationality while in Mexico in 1970, which included renunciation of all other nationalities. He claimed it was not his intent to relinquish U.S. citizenship. On the one hand, the Court unanimously reaffirmed the basic holding of Afroyim -- that expatriation required a showing of specific intent to relinquish citizenship voluntarily, in addition to proof that the expatriating act itself was committed voluntarily. The specific intent could be expressed in words or fairly inferred from proven conduct. On the other hand, the Court upheld a statute providing that the government must prove merely by "a preponderance of the evidence" that citizenship was voluntarily relinquished. The Court of Appeals had declared the statute unconstitutional, believing a "clear and convincing" standard of proof was required. In reversing, Justice White stated "[We do not] agree with the Court of Appeals that, because under Afroyim Congress is constitutionally devoid of power to impose expatriation on a citizen, it is also without power to prescribe the evidentiary standard to govern expatriation proceedings." The "preponderance of the evidence" standard was held to apply, for both the government's burden of proving voluntary relinquishment, and for the citizen's burden of rebutting the presumption that the expatriating act, which the government proved to have been committed, was voluntary.

The case of Rabbi Meir Kahane illustrates the difference between an intent-based and an allegiance-based approach to expatriation. Kahane was a U.S. citizen at birth. He moved to Israel where he became active in politics and was elected to the Israeli Parliament. Kahane, aware of the fact that accepting an office under a foreign government was an expatriating act listed in INA 349 (a)(4), communicated on several occasions with the State Department that he did not intend to give up his U.S. citizenship. The State Department nonetheless claimed that Kahane committed the expatriating act by shifting his allegiance to Israel. The court rejected this argument because an actor who contemporaneously with the expatriating act declares his intent to stay a U.S. citizen automatically preserves his citizenship. Kahane v. Shultz (E.D.N.Y.1987).

One year later, the Israeli Parliament passed a law providing that its members could only be Israeli citizens. Kahane executed a formal oath of renunciation of his U.S. citizenship to remain eligible for a seat in the Parliament. After Kahane's party was barred, on different grounds, from running in the elections, Kahane tried to revoke his renunciation of U.S. citizenship claiming that the Israeli law compelled his act. The court ruled against Kahane, who remained expatriated, although he was permitted to visit the United States and was eventually assassinated in New York City. Kahane v. Secretary of State (D.D.C.1988).

d. Methods of Expatriation


Subject to the constitutional and statutory requirement of voluntariness, INA 349 provides that citizens may lose their nationality by obtaining naturalization in a foreign state, either upon personal application or that of a parent or duly authorized agent, after having obtained the age of eighteen years.


Citizens who take an oath or other formal declaration of allegiance to a foreign state after attaining the age of eighteen are expatriated under the current statute. INA 349(a)(2). Under Vance v. Terrazas (Sup.Ct.1980) the courts will inquire if the person taking the oath actually intended to abandon United States citizenship. If the oath is taken in circumstances indicating lack of voluntariness, such as military conscription, the requisite intent to transfer allegiance may not be found. Riccio v. Dulles (D.D.C.1953).


Citizens who enter the armed forces of a foreign country are expatriated if such armed forces are engaged in hostilities against the United States or if the citizens serve as commissioned or noncommissioned officers. INA 349(a)(3). Again, the requirement that the expatriating act be done with the intention of relinquishing United States nationality applies to service in foreign armed forces. INA 349(a).


Employment in the government of a foreign state coupled with (as a condition of employment) acquisition of nationality in or declaration of allegiance to the foreign state will serve as grounds for expatriation. INA 349(a)(4). This broad language has, however, been restricted by the courts. For example, in Kenji Kamada v. Dulles (N.D.Cal.1956) petitioner had taught public school in Japan during and after World War II, for which the United States government claimed she was expatriated. A federal district court disagreed, focusing not only on the voluntariness question but upon the nature of the government service. Teaching school, reasoned the district judge, was not the type of foreign government employment envisioned by the act; rather, the law was intended to encompass service to a foreign government the performance of which required absolute allegiance to the foreign government. Teaching, as such, did not come within this category.


Making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign country will lead to expatriation, if performed in a manner prescribed by the Secretary of State. INA 349(a)(5). Informal renunciations of citizenship are ineffective, however, as are other methods not meeting the State Department regulations. Vance v. Terrazas (Sup.Ct.1980).

Davis v. District Director (D.D.C.1979) is, perhaps, the most dramatic case in which a citizen's renunciation was held to be effective. In 1948 Davis, a native-born citizen, voluntarily signed an oath of renunciation before the U.S. Consul in Paris, on the form provided by the Consul. Davis indicated at the time that he wanted to become "a citizen of the world." He set up a "World Service Authority" and issued himself a passport. The Immigration Service refused to permit Davis to enter the U.S. in 1977 on the ground that he was not a U.S. citizen and lacked a visa to enter as a non-citizen. Even though Davis failed to obtain another citizenship when he renounced his U.S. citizenship, the federal district court sustained the Immigration Service's decision to exclude Davis from this country.

If renunciation occurs in the United States, it must be in writing and during time of war to take effect. INA 349(a)(6). The Attorney General is empowered to promulgate procedures for accepting such a renunciation. The current statute has not been invoked, although a prior version was used to expatriate several citizens of Japanese descent during World War II.


A citizen will lose his or her nationality, if convicted of committing any act of treason against the United States, of attempting to overthrow the government of the United States, or of conspiring to incite insurrection against the government. INA 349(a)(7). The constitutionality of this provision has not been tested in the courts.



Several expatriation provisions have been repealed as a result of Supreme Court decisions declaring them unconstitutional. Specifically, they are: (1) residence abroad by a naturalized citizen in excess of three years (in the country of former nationality) or five years (in another foreign state), declared unconstitutional by Schneider v. Rusk (Sup.Ct.1964); (2) voting in a foreign political election, declared invalid by Afroyim v. Rusk (Sup.Ct.1967); (3) desertion from the United States armed forces in time of war, struck down in Trop v. Dulles (Sup.Ct.1958); and (4) departing from the United States to avoid military service, declared unconstitutional by Kennedy v. Mendoza-Martinez (Sup.Ct.1963).

Regarding the burden of proof, the statute places the initial burden on the proponent of expatriation, requiring proof by a "preponderance of the evidence" that the expatriating act occurred. INA 349(c). The act shall be presumed to have been done voluntarily, but such presumption may be rebutted upon a showing by a preponderance of the evidence that the act was not committed voluntarily. The Supreme Court upheld the constitutionality of this provision in Vance v. Terrazas (Sup.Ct.1980).

A second general restriction applicable to most expatriating acts is the requirement that the citizen (at the time of the act) must have attained the age of legal maturity. The statute sets the age of maturity at eighteen years for performance of several expatriating acts -- obtaining foreign naturalization, oath of foreign allegiance, military service in a foreign state, renunciation of nationality, and employment in a foreign government. INA 351(b).

In 1990, the State Department issued new and more lenient evidentiary standards applicable to expatriation cases. The new evidentiary standards are based upon the presumption that United States citizens intend to retain U.S. citizenship when they (1) obtain naturalization in a foreign state; (2) subscribe to routine declarations of allegiance to a foreign state; or (3) accept non-policy level employment with a foreign government. Based on this presumption, U.S. citizens who naturalize in a foreign state, take a routine oath of allegiance, or accept foreign government employment, are not required to state their intent to retain U.S. citizenship. The intent to retain United States citizenship is not presumed when individuals: (1) renounce U.S. citizenship before a consular officer; (2) take a policy level of employment in a foreign government; (3) are convicted of treason, or (4) perform a potentially expatriating act under the statute accompanied by conduct which is inconsistent with retention of United States citizenship to such an extent that it compels a conclusion that they intended to relinquish U.S. citizenship. These new standards are subject to change and reflect only evidential presumptions. Citizens who do a potentially expatriating act may still be well advised to record their intent to remain U.S. citizens, if that is the case.


Some very wealthy individuals leave the United States and renounce their U.S. citizenship to avoid paying U.S. income taxes. In 1996, Congress passed two laws intended to curtail the use of expatriation as a tax sheltering device. While these laws do not change the procedural requirements for expatriation, they do alter the potential consequences of renouncing citizenship for some individuals. The first law, contained in the Health Insurance Portability and Accountability Act of 1996, provides that individuals who renounce citizenship to avoid taxes remain taxable for ten years after their expatriation. 110 Stat. 2093. The same Act creates a presumption that if a person whose annual income tax is over $100,000 renounces citizenship, he or she does so to avoid paying taxes. The Illegal Immigration Reform and Immigrant Responsibility Act further provided that former citizens who renounced U.S. citizenship to avoid taxation are not admissible to the U. S. INA 212(a)(10)(E). Consequently, some wealthy expatriates could inadvertently lose their right to enter the U.S. by renouncing their citizenship.