Afroyim v. Rusk, 387 U.S.

253 (1967)

Beys Afroyim (born Ephraim Bernstein in Poland in 1893) immigrated to the US in 1912
and became a naturalized US citizen in 1926. In 1950, Afroyim moved to Israel. He tried
to renew his US passport in 1960, but the State Department refused on the grounds that
he had lost his citizenship by voting in an Israeli election in 1951. Afroyim sued the State
Department, and the Supreme Court ruled (5-4) that he was still a US citizen.

The basic point of the Supreme Court's ruling in Afroyim v. Rusk was that the "citizenship
clause" of the 14th Amendment to the US Constitution -- while originally intended
mainly to guarantee citizenship to freed Negro slaves and their descendants, and
subsequently interpreted in Wong Kim Ark as conferring citizenship at birth to virtually
everyone born in the US -- had effectively elevated citizenship to the status of a
constitutionally protected right. Hence, Congress had no right to pass a law which had
the effect of depriving an American of his citizenship without his assent.

Thus, the court ruled, a section of the Immigration and Nationality Act mandating
automatic loss of citizenship for voting in a foreign election was invalid. Other, similar
provisions providing for loss of citizenship for serving in a foreign army, or even
swearing allegiance to a foreign country, were similarly invalid unless the action was
accompanied by an intent to give up US citizenship.

The Supreme Court noted that the Civil Rights Act of 1866 had already tried to confer
citizenship on all persons born or naturalized in the US. However, proponents of the 14th
Amendment had expressed fears that this provision could be repealed by a later Congress,
and so they insisted that the new amendment should contain its own definition of
citizenship that Congress could not change later on.

Further, the court pointed to a proposed (but never ratified) constitutional amendment,
early in the 19th century, which would have revoked the US citizenship of anyone who
accepted a foreign title or gift, as evidence that Congress was not believed at that time to
have the power to do such a thing via ordinary legislation. (Incidentally, this is the same
proposed amendment which some foes of the federal income tax allege was in fact duly
ratified, then suppressed by lawyers who supposedly feared their "foreign" title of
"Esquire" would result in the loss of their US citizenship and their positions of power in
the government.)

By ruling as it did in the Afroyim case, the Supreme Court explicitly threw out the
principles held nine years earlier in Perez v. Brownell.

The Supreme Court's Afroyim ruling did not definitively throw out all prohibitions
against dual citizenship in the US. Although the court clearly stated that loss of
citizenship required the individual's assent, some uncertainty remained as to whether an
actual swearing of allegiance to a foreign country would, by itself, constitute such assent.
(The question of how, or even whether, Afroyim had become a citizen of Israel, or sworn
allegiance to Israel, did not come up in his case.)
Also, the court did not address the issue of what standard of proof would be required in
citizenship cases -- i.e., whether intent to give up citizenship had to be proved clearly and
convincingly (as in a criminal trial), or by a preponderance of evidence (as in a lawsuit).
This question would not be resolved until Vance v. Terrazas (see below).

It should additionally be noted that the Afroyim case did not deal with Congress's right to
require new citizens to renounce their prior allegiances as a prerequisite for
naturalization.

The statutory provision calling for loss of US citizenship for voting in a foreign election,
struck down by the court in this case, was repealed by Congress in 1978 (Public Law 95-
432).

From Wikipedia*********************************

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.

Beys Afroyim (1893-1984) was a Jewish painter 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; being Jewish, Afroyim was automatically
granted Israeli citizenship under the Law of Return.[1] 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 American 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.

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 previously had been 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