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1924. In reaching this decision, however, the Court stressed that the person's actions subsequent to the taking of this ceremonial oath had not evidenced intent to expatriate, e.g., failure to vote in Canadian elections. Similarly, in Matheson v. U.S., 400 F. Supp. 1241 (S.D.N.Y., 1975), the Court held that a person's application for and acceptance of Mexican nationality, which included an oath of allegiance, did not alone establish intent to expatriate. The Court also stressed the person's actions subsequent to her oath of allegiance to Mexico as showing no intent to renounce U.S. nationality, such as her applications for U.S. passports, her payment of U.S. taxes and her representations to other governments that she was a U.S. national.
Using the same analysis, however, King v. Rogers, 463 F.2d 1188 (9th Cir., 1972), showed that actions, other than an explicit written renunciation of nationality, might result in expatriation. In that case, a native born U.S. national served in the Israeli armed forces in 1948 but did not return to the United States. In 1954, he applied for and acquired British nationality, taking an oath of allegiance to Queen Elizabeth II in the process. In 1958, he returned to Israel and became an Israeli national. In corresponding with his Selective Service Board in the United States, he listed his nationality as British and Israeli, having previously returned his draft (conscription) card to the Board in 1954. In 1959, he corresponded with the U.S. Vice Consul in Haifa affirming his status as a British subject and stating his willingness to renounce formally his U.S. nationality if that would "simplify” his status. The Court found that while his oath of allegiance to the Queen was alone insufficient to establish renunciation of U.S. nationality, it provided substantial evidence of intent which was further supported by the subsequent above-described indications of expatriative intent.
Dept. of State File No. P76 0149-2453.
In a note dated April 7, 1976, to the Royal Swedish Embassy in Washington, the Department of State undertook to clarify, in the light of the Supreme Court decision in Afroyim v. Rusk, 387 U.S. 253 (1967), the citizenship status at the time of her death of an American citizen who, prior to September 22, 1922, had married an alien. Inquiry had been made to the Department at the request of the Supreme Court of Sweden, which was attempting to determine whether the individual was a Swedish citizen at the time of her death. The Department's note stated, in part:
The Statement of Interpretation by the Attorney General of the United States of the Supreme Court decision in the case of Afroyim v. Rusk stated that an act which does not reasonably manifest an individual's transfer or abandonment of allegiance to the United States cannot be made a basis for expatriation. Under these
guidelines the voluntary performance of certain acts, made expatriating by statute, is considered highly persuasive evidence of an intention to relinquish citizenship and will normally result in loss of nationality. These acts are:
1. Naturalization in a foreign state
2. Taking a meaningful oath of allegiance to a foreign state 3. Service in the armed forces of a foreign state
4. Service in an important political post in a foreign government. The voluntary performance of other acts made expatriating by statute can result in loss of citizenship only if it is accompanied by an intention to abandon allegiance to the United States and transfer allegiance to a foreign state.
The record shows that the late Mrs. [Marguerite] Wenner-Gren did not perform an overt act in derogation of her status as a United States citizen but that she was considered to have automatically lost her citizenship status by reason of her marriage to an alien prior to September 22, 1922. However, in the light of the Afroyim v. Rusk decision as interpreted by the Attorney General, Mrs. Wenner-Gren must be considered never to have lost United States citizenship. Her status as a citizen of the United States existed as a matter of law from birth until her demise and this would have been so even had Mrs. Wenner-Gren not taken positive action to obtain a decision regarding her citizenship..
Dept. of State File No. P76 0052-1803. Afroyim v. Rusk held, in effect, that Congress has no power under the Constitution to divest a person of U.S. citizenship absent his voluntary renunciation thereof. From 1907 to 1922 the nationality status of American women who married aliens within that period was controlled by § 3 of the act of Mar. 2, 1907 (34 Stat. 1228), which provided "That any American woman who marries a foreigner shall take the nationality of her husband." The provision was repealed by § 7 of the act of Sept. 22, 1922 (42 Stat. 1022), which provided that such repeal should “not restore citizenship lost under such section or terminate citizenship resumed under such section." See also § 324(c) of the act of June 27, 1952 (66 Stat. 246; 8 U.S.C. 1435(c)).
In United States v. Matheson, 532 F.2d 809 (1976), cert. denied October 4, 1976, the U.S. Court of Appeals for the Second Circuit used the "subjective standard" test of Afroyim v. Rusk, 387 U.S. 253 (1967), to hold, on March 3, 1976, that the decedent in an estate tax case had been a citizen of the United States in the years in question, so that her estate was liable for the contested taxes. In affirming the order of the District Court for the Southern District of New York, granting summary judgment to the United States, the Court of Appeals held that Dorothy Gould Burns, granddaughter of the railroad magnate Jay Gould, had remained a U.S. citizen, despite having petitioned for and acquired a certificate of Mexican nationality in 1944. Her 1944 declaration stated, in part:
I expressly renounce all protection foreign to said laws and authorities [of Mexico] and any right which treaties or inter
national law grant to foreigners, expressly furthermore agreeing not to invoke with respect to the Government of the Republic [of Mexico] any right inherent in my nationality of origin.
The Court held the declaration to be "merely a subscription to a basic principle of international law governing dual nationality: that a national of one country (e.g., United States) may not look to it for protection while she is in another country (e.g., Mexico), of which she is also a national." The Court saw no evidence of intent to give up U.S. citizenship. It said:
Afroyim's requirement of a subjective intent reflects the growing trend in our constitutional jurisprudence toward the principle that conduct will be construed as a waiver or forfeiture of a constitutional right only if it is knowingly and intelligently intended as such. Surely the Fourteenth Amendment right of citizenship cannot be characterized as a trivial matter justifying departure from this rule. Accordingly, there must be proof of a specific intent to relinquish United States citizenship before an act of foreign naturalization or oath of loyalty to another sovereign can result in the expatriation of an American citizen . . .
Further, the Court ruled that decedent's estate was, in any event, estopped from denying her U.S. citizenship to avoid payment of Federal taxes, since for a period of more than 20 years after executing the declaration declarant and her attorney repeatedly represented to the U.S. Government under oath that she continued to be a citizen of the United States and had never taken an oath of affirmation or allegiance to a foreign state, and in reliance, the United States had made available to declarant a host of benefits. Additionally, she had been excused from paying French taxes on the basis of her claimed U.S. citizenship.
United States v. Benitez Rexach, 411 F. Supp. 1288 (1976), was an action by the United States to recover income taxes from defendant Lucienne D'Hotelle de Benitez Rexach, who was born in France in 1909, married Felix Benitez Rexach in 1928, lived in Puerto Rico beginning in 1938, and became a naturalized U.S. citizen in 1942. She resided in the Dominican Republic from 1944 to 1946 and then travelled to France where she resided until 1952. A U.S. passport was issued to her in 1947 by the American Embassy in Paris.
In 1952 she filed application for another passport renewal at the U.S. Consulate in Nice. This request was denied, and a Certificate of Loss of Nationality was issued and signed by the American Vice Consul in Nice in 1952. The Vice Consul determined that Lucienne, being a naturalized citizen, had violated section 404 of the Nationality Act of 1940, which provided in substance that a naturalized citizen
would forfeit his citizenship if he resided in his domicile of origin for three years. The Vice Consul's Certificate, stating that Lucienne had lost her citizenship as of November 9, 1949, was approved by the Department of State later in 1952. A notification of loss of nationality was filed in U.S. District Court for Puerto Rico in 1953, and Lucienne's passport was taken at Nice, cancelled, and never returned to her. Thereafter she travelled abroad on both Dominican and French passports.
On May 18, 1964, the case of Schneider v. Rusk, 377 U.S. 163 (1964), was decided by the Supreme Court. Therein the Court held that section 352(a) (1) of the Immigration and Nationality Act of 1952 (similar to section 404 of the Nationality Act of 1940) was unconstitutional since “living abroad, whether the citizen be naturalized or native born, in no way evidences a voluntary renunciation of nationality and allegiance.”
On January 12, 1965, the Department of State sent a letter to Lucienne's attorney informing her that her expatriation from November 9, 1949, was automatically voided due to Schneider v. Rusk, supra. Lucienne answered on January 29, 1965, stating that after her citizenship was revoked she had accepted the decision without protest and that thereafter she had never considered herself a citizen of the United States.
The U.S. District Court for the District of Puerto Rico held, on September 24, 1975, amended April 5, 1976, in the instant case, that Lucienne had not been a citizen of the United States after November 9, 1949, and thus was not subject to U.S. taxation on her half of her husband's income earned after that date outside of U.S. jurisdiction.
After reviewing the Supreme Court decisions relevant to the retroactivity of Schneider v. Rusk, supra, the Court concluded:
Measured against these standards we are of the opinion that the present circumstances do not merit the consequences that would follow from retroactive application of Schneider v. Rusk, supra, to Lucienne for purposes of determining her income tax liability. Most assuredly not only did she rely on the revocation of her citizenship as expressed to her by the United States Consul in Nice, as is demonstrated by her obtaining the passport of France thereafter, but in fact this very Court also relied on said action in making related findings in other Benitez Rexach cases previously cited herein. This reliance speaks for itself as regard any possible contention that Lucienne could have foreseen that the relevant section of the Nationality Act would be declared unconstitutional. Considering that it was, first of all, a presumably valid statute of Congress which placed Lucienne outside of the protection of the citizenship of the United States, and that secondly, it was the executive branch that proceeded to strip her of these important benefits, it would be tantamount to compounding these legal absurdities to have the judiciary carry the fiction that the Constitution is always as interpreted by the Supreme Court to the logical but insensible conclusion propounded by the Government in this action. The equities against retroactive application of
Schneider v. Rusk, supra, lay with Lucienne, and we so hold. In other aspects of the case the Court held that the defense of laches was not available to the taxpayer and that neither res judicata nor collateral estoppel barred recovery for the years 1944 through 1949.
Passports and Other Travel
Passports and Visas Immigrant Visas
Effective October 7, 1976, the Department of State amended Title 22, Code of Federal Regulations, § 42.91(a) (14) (ii) (d), relating to classes of immigrants ineligible to receive immigrant visas, so as to provide an exemption to the labor certification requirement of $212(a)(14) of the Immigration and Nationality Act(8U.S.C. 1182(a), (14)) for an alien coming to the United States to engage in business of a continuing nature rather than to enter the skilled or unskilled labor market. As amended, 22 CFR § 42.91(a) (14) (ii) (d) provides the exemption from labor certification for:
(d) An alien who establishes by documentary evidence, received by a consular officer after the effective date of this subparagraph, that he is seeking to enter the United States for the purpose of engaging in an enterprise in which he has invested, or is actively in the process of investing, capital totaling at least $40,000, in which enterprise he will be a principal manager, and that the enterprise will employ persons in the United States who are United States citizens or aliens lawfully admitted for permanent residence, exclusive of the alien, his spouse and children.
Fed. Reg., Vol. 41, No. 174, Sept. 7, 1976, p. 37574. See Ch. 3, § 3, post, p. 81, for amendment of labor certification exemption in 8 CFR § 212.8(b) (4).
The U.S. District Court for the District of Puerto Rico held, on January 15, 1976, in Hermina Sague v. United States, 416 F. Supp. 217 (1976), that a U.S. consul's denial of an immigrant visa was not
a subject to judicial review and that there was no constitutional right for a U.S. citizen to have his or her alien spouse enter and reside in the United States.
Marc Berger, a citizen and native of France, who had married Maria Hermina Sague, a U.S. citizen, applied to the U.S. consul in Paris for an immigrant visa as an immediate relative of a U.S. citizen. Berger's application was denied on the grounds that he was