Afroyim v. Rusk

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Afroyim v. Rusk
Supreme Court of the United States
Argued February 20, 1967
Decided May 29, 1967
Full case name: Beys Afroyim v. Dean Rusk, Secretary of State
Citations: 387 U.S. 253; 87 S. Ct. 1660; 18 L. Ed. 2d 757; 1967 U.S. LEXIS 2844
Prior history: Certiorari to the United States Court of Appeals for the Second Circuit
Holding
Citizenship may not be revoked without consent.
Court membership
Chief Justice: Earl Warren
Associate Justices: Hugo Black, William O. Douglas, Tom C. Clark, John Marshall Harlan II, William J. Brennan, Jr., Potter Stewart, Byron White, Abe Fortas
Case opinions
Majority by: Black
Joined by: Douglas, Warren, Brennan, Fortas
Dissent by: Harlan
Joined by: Clark, Stewart, White
Laws applied
Nationality Act of 1940; U.S. Const. amends. V, XIV

Afroyim v. Rusk, 387 U.S. 253 (1967)[1], was a United States Supreme Court decision that set an important legal precedent that a United States citizen cannot be deprived of American citizenship involuntarily.

Contents

[edit] Facts

Beys Afroyim (1893-1984) was a Jewish artist born as Ephraim Bernstein in Ryki, Poland. In 1912 he immigrated to the United States. In 1926 he became naturalized as a U.S. citizen. In 1950 he moved to Israel. He voted in an Israeli election in 1951. In 1960, Afroyim tried to renew his U.S. passport, but the State Department refused on the ground that he had lost his citizenship by voting in a foreign election. Afroyim sued Dean Rusk in his official capacity as Secretary of State and head of the State Department, which is responsible both for issuing passports and for dealing with loss of citizenship.

[edit] Issue

At various times before 1967, U.S. law had provided for multiple ways for U.S. citizens to lose their citizenship, possibly without their consent, for example:

  • Loss of citizenship could be used as a punishment (for example, for military desertion; see Trop v. Dulles)
  • Women might lose their citizenship if they married a non-U.S. citizen (on the assumption that they would acquire their husband's nationality)
  • U.S. citizens who became citizens of foreign countries might automatically lose their U.S. citizenship (see Bancroft Treaties)
  • Naturalized citizens who established a residence outside the United States might lose their citizenship (another consequence of the Bancroft Treaties)
  • U.S. citizens who voted in a foreign election might lose their U.S. citizenship (this is the law that affected Afroyim)

However, the Fourteenth Amendment to the United States Constitution says that: 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. Read literally, this would seem to imply that anyone born or naturalized in the United States is a U.S. citizen for life.

The Supreme Court had to decide whether it was constitutional to take away the citizenship of someone born or naturalized in the United States.

[edit] Majority opinion

The court ruled, in a 5-4 decision, that Afroyim's citizenship could not be taken away without his consent. The majority relied strongly on the history of the Fourteenth Amendment. The Amendment was written soon after the U.S. Civil War, in order to secure the rights of the freed slaves. At this time, African Americans had already been made U.S. citizens by the Civil Rights Act of 1866, and the original draft of the Amendment contained no definition of citizenship. However, some Senators were worried that a future Congress might reverse the Act, so they inserted the first clause of the Amendment in order to ensure that the blacks' citizenship was "permanent and secure". This guarantee would have been meaningless if Congress retained the power to strip citizens of their citizenship without their consent. The citizenship guarantees of the 14th Amendment were eventually held by the Supreme Court to apply to all Americans — not just the freed slaves and their posterity — in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898).

The majority also pointed to the Titles of Nobility Amendment, a proposed constitutional amendment from the early nineteenth century. It was passed by Congress in 1810 but never ratified by the states. This amendment would have removed the citizenship of any U.S. citizen who accepted a title of nobility from a foreign government. The majority reasoned that the fact that this was passed as a constitutional amendment, rather than a simple law, shows that, even before the passage of the Fourteenth Amendment, Congress did not believe that it had the power to strip U.S. citizenship from anyone.

In ruling in Afroyim's favor, the court explicitly overruled its own earlier reasoning in Perez v. Brownell, 356 U.S. 44 (1958), a case in which Congress's right to revoke U.S. citizenship for voting in a foreign election had been upheld.

[edit] Minority opinion

The minority argued, in their dissent, that Perez v. Brownell had been correctly decided and should not be repudiated; that the 14th Amendment had not in fact stripped Congress of the power to revoke a person's U.S. citizenship for good cause; and that Congress was well within its rights to decide that allowing U.S. citizens to vote in foreign elections ran contrary to the foreign policy interests of the nation.

[edit] Effect

The decision had the following effects:

  • No one who had become a U.S. citizen through birth in the United States or through naturalization could have citizenship taken away without consent. However, the question of how such consent might be indicated remained somewhat open. Until a later case — Vance v. Terrazas, 444 U.S. 252 (1980) — was decided by the Supreme Court, the U.S. government continued to hold to the view that intentionally performing an action which Congress had designated as expatriating (i.e., citizenship-losing) could be interpreted as clear evidence of consent to lose U.S. citizenship.
  • The statute calling for loss of U.S. citizenship for voting in a foreign election was eventually repealed by Congress, in 1978 (Public Law 95-432).
  • The concept of dual citizenship, which was previously strongly opposed by the U.S. government, has gradually become more accepted. State Department policy, which historically had been extremely dubious of dual citizenship, as of 2006 goes beyond the decision of Afroyim in allowing freedom to U.S. citizens to take advantage of multiple citizenships.

The decision did not change these other aspects of U.S. immigration law:

  • Someone who committed fraud in the naturalization process (for example, by lying about themselves to U.S. immigration services) could still have their naturalization voided on the grounds that they had never truly been naturalized as U.S. citizens in the first place.
  • Naturalization applicants could still be (and indeed, as of 2008, still are) required to make a statement under oath or affirmation, renouncing any prior allegiance to any foreign country or ruler, upon becoming a U.S. citizen. A naturalized citizen who behaved in a manner inconsistent with this oath (for example, by continuing to use the passport of their previous nationality) might—at least in theory—still be liable to loss of U.S. citizenship on the grounds that the oath had not been taken in good faith (and hence that the naturalization was fraudulent). However, U.S. State Department policy since 19902 has been not to pursue such cases.
  • U.S. citizens who became naturalized in a foreign country might lose their citizenship if the foreign country required them to renounce their U.S. citizenship (this renunciation could be seen as consent to loss of U.S. citizenship). However, U.S. State Department policy since 1990 has been not to pursue such cases. (This did not apply to Afroyim because, as a Jew under Israel's Law of Return, he could take advantage of Israeli citizenship without having to go through any ceremony or swear any oath. The question of Afroyim's presumed acquisition of Israeli citizenship, however, was never brought up in the U.S. courts as a potential reason for revoking his U.S. citizenship.)

In a 1980 case, Vance v. Terrazas, the Supreme Court ruled that intent to give up U.S. citizenship had to be proven by itself and could not simply be inferred from a person's having performed an action designated by Congress as expatriating. The determination of whether a U.S. citizen did indeed give consent to loss of citizenship, however, could be made upon a preponderance of evidence, rather than under the more stringent standard of "clear and convincing evidence". Changes of this nature were made to the citizenship law by Congress in 1986 (Public Law 99-653). However, U.S. State Department policy since 1990 has been to assume in almost all situations that an American who performs a potentially expatriating act did not in fact intend to give up U.S. citizenship, unless the person explicitly indicates such an intention to U.S. officials.

In 2005, a bill — H.R. 3938 — was introduced in the 109th Congress which, if enacted into law, would have made it a felony for a naturalized U.S. citizen to vote in an election in, or use a passport from, their former country. Supporters of H.R. 3938 may have believed labeling such activity a criminal offense, but without seeking to use it as a reason to revoke the offender's U.S. citizenship, would sidestep objections based on the Afroyim and Terrazas rulings. This bill was never brought to a vote and died when the 109th Congress adjourned on January 3, 2007.

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