| Afroyim v. Rusk | ||||||
|---|---|---|---|---|---|---|
Supreme Court of the United States |
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| Argued February 20, 1967 Decided May 29, 1967 |
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| Full case name | Beys Afroyim v. Dean Rusk, Secretary of State | |||||
| Citations | 387 U.S. 253 (more) 87 S. Ct. 1660; 18 L. Ed. 2d 757; 1967 U.S. LEXIS 2844 |
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| Prior history | Certiorari to the United States Court of Appeals for the Second Circuit | |||||
| Holding | ||||||
| Citizenship may not be revoked without consent; and in particular, citizenship may not be revoked as a consequence of voting in a foreign election. | ||||||
| Court membership | ||||||
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| Case opinions | ||||||
| Majority | Black, joined by Douglas, Warren, Brennan, Fortas | |||||
| Dissent | 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), was a United States Supreme Court decision that set an important legal precedent that a person born or naturalized in the United States cannot be deprived of his or her citizenship involuntarily.[1] The U.S. government had attempted to revoke the citizenship of a man who had voted in a foreign election after becoming a naturalized U.S. citizen,[2] but the Supreme Court ruled that his right to keep his citizenship was guaranteed by the Fourteenth Amendment to the Constitution.[3] In so doing, the Supreme Court overruled one of its own precedents, Perez v. Brownell (1958), in which the Court had upheld loss of citizenship under similar circumstances.[4]
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Beys Afroyim (1893-1984) was a painter born as Ephraim Bernstein in Ryki, Poland.[5] In 1912 he immigrated to the United States, and in 1926 he was naturalized as a U.S. citizen.[6] He later moved to Israel, and as a Jew, Afroyim was automatically granted Israeli citizenship under the Law of Return.[7] In 1960, following the breakdown of his marriage to Austrian painter Soshana Afroyim, Afroyim decided to return to the United States,[8] but the State Department refused to renew his U.S. passport, ruling that under section 401(e) of the Nationality Act of 1940 — which mandated revocation of U.S. citizenship for voting "in a political election in a foreign state" — Afroyim had lost his citizenship by voting in an Israeli election in 1951.[2]
The "citizenship clause" of 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. Afroyim argued that since "neither the Fourteenth Amendment nor any other provision of the Constitution expressly grants Congress the power to take away that citizenship once it has been acquired . . . the only way he could lose his citizenship was by his own voluntary renunciation of it."[6] Lower courts, however, rejected Afroyim's claims, based on an earlier Supreme Court decision — Perez v. Brownell, 356 U.S. 44 (1958), a case which upheld Congress's right to revoke U.S. citizenship for voting in a foreign election "under its implied power to regulate foreign affairs."[9] Afroyim asked the Supreme Court to overrule the precedent established in Perez v. Brownell, rule the foreign voting provision of the Nationality Act to be unconstitutional, and rule that he was still a United States citizen.
The court ruled, in a 5-4 decision, that "Congress has no power under the Constitution to divest a person of his United States citizenship absent his voluntary renunciation thereof."[3] Specifically discarding the precedent set in the 1958 Perez v. Brownell case, the Supreme Court rejected the claim that Congress had such power and said that "no such power can be sustained as an implied attribute of sovereignty". Instead, the majority held that the Fourteenth Amendment to the Constitution defined "a citizenship which a citizen keeps unless he voluntarily relinquishes it" and which, once acquired, "was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other governmental unit.[10]
The court's majority also found support in the history of the Titles of Nobility Amendment, a proposed constitutional amendment from the early nineteenth century which was passed by Congress in 1810 but never ratified by the states. This amendment, if ratified, would have removed the citizenship of any U.S. citizen who accepted a title of nobility from a foreign government. The fact that this proposal was framed as a constitutional amendment, rather than a simple law, was seen by the court as showing 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.[11]
The minority argued, in their dissent, that Perez v. Brownell had been correctly decided and should not be repudiated;[12] that the 14th Amendment had not in fact stripped Congress of the power to revoke a person's U.S. citizenship for good cause;[13] and that Congress was 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 and ought to result in loss of citizenship.[14]
The Supreme Court's ruling in Afroyim v. Rusk stated that no one who had acquired U.S. citizenship through birth or naturalization in the United States could lose that citizenship without his or her consent.[15][16] 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" could be interpreted as clear evidence of the type of consent to relinquish U.S. citizenship mandated by the Afroyim decision.[17]
The statute calling for loss of U.S. citizenship for voting in a foreign election, which the Supreme Court invalidated in this decision, was eventually repealed by Congress in 1978.[18]
Afroyim v. Rusk did not affect people who acquired U.S. citizenship via jus sanguinis, through birth outside the United States to an American parent or parents. Such individuals could still risk loss of citizenship in various ways, since their citizenship was the result of federal statutes rather than the Fourteenth Amendment.[19]
Even after Afroyim v. Rusk, people found to have 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.[20]
In 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 had indeed given consent to loss of citizenship, however, could be made upon a preponderance of evidence.[15] 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.[21]
The concept of dual citizenship, which previously had been strongly opposed by the U.S. government, has become more accepted since Afroyim v. Rusk. State Department policy since 1990 has gone beyond the requirements of the Afroyim decision in allowing freedom to U.S. citizens to take advantage of multiple citizenships.[22] Opposition to dual citizenship has continued in some circles,[23][24] and in 2005, an immigration-related bill — H.R. 3938, the "Enforcement First Immigration Reform Act of 2005" — was introduced in the 109th Congress which, had it been enacted into law, would (among other things) have repudiated current State Department policy toward the use of foreign citizenship after U.S. naturalization[25] by making it a felony for a naturalized U.S. citizen to vote in an election in, or use a passport from, his former country.[26] H.R. 3938 would also have reversed the State Department's 1990 liberalization of its policy toward dual citizenship.[27] This bill was never brought to a vote and died when the 109th Congress adjourned on January 3, 2007.[28]