Expatriation by Marriage & INS Policy


\ slb \ SERVICE LAW BOOKS MENU \ INTERPRETATIONS \ Interpretation 324.1 Loss of citizenship
Interpretation 324.1 Loss of citizenship by marriage .

(a)     Before Afroyim v. Rusk.
(b)     Effect of Afroyim v. Rusk.

(a) Before Afroyim v. Rusk . (1) Prior to March 2, 1907 . Current section 324 provides for the repatriation or naturalization of women who underwent expatriation because they married aliens or married citizens who subsequently expatriated themselves by naturalization in a foreign state during the existence of the marital status.

Prior to March 2, 1907, the statutes did not provide for expatriation under the above circumstances, but judicial opinion differed in respect to the question. 1/ Some courts took the position that, under common-law principles, expatriation resulted form marriage to an alien, irrespective of other factors, 2/ whereas other authority adopted the viewpoint that citizenship was not terminated in such manner unless the citizen wife resided abroad with the alien husband. 3/ A few courts, influenced by the doctrine of “perpetual allegiance,” 4/ held that expatriation did not occur even though such foreign residence had been established. 5/

The Service has consistently held that marriage to an alien before March 2, 1907, did not result in expatriation unless, prior to September 22, 1922, the wife emigrated to the country of the husband’s nationality, acquired citizenship thereof under its laws by virtue of the marriage, and such country was signatory to a treaty 6/ with the United States under which each country agreed to recognize its own nationals as citizens of the other upon naturalization therein pursuant to the laws thereof. 7/

Consonant with the above view, it was held that a citizen woman who married an alien in 1898, but did not emigrate from the United States to the foreign country of which her husband was a national until 1906, could not have sustained citizenship loss until the latter date. 7a/

The validity of the above view has been undermined by the Opinion of the Attorney General in a case 7b/ arising under the Trading with the Enemy Act, 7c/ in which an American citizen woman married a Germany national in Puerto Rico in 1899. They established residence in Germany in 1921. Under German law the citizenship of her husband was conferred upon her, and under the treaty between Germany and the United States, the United States agreed to recognize the foreign “naturalization.” After consideration of the conflicting court decisions, the Attorney General stated that in enacting section 3 of the Act of March 2, 1907, 7d/ Congress intended that the subject be regulated by statute, and that the marriage of an American woman to an alien, coupled with removal to the country of her husband’s nationality, was not clearly indicative of an intent to renounce United States citizenship and, therefore, not expatriatory. 7e/ ( Added )

(2) March 2, 1907, through September 21, 1922 . Except during World War I, 8/ any marriage of a citizen or noncitizen national 9/ woman to an alien which occurred during the period from March 2, 1907, to September 21, 1922, both dates inclusive, effected loss of nationality, 10/ regardless of the parties’ residence, 11/ the minority of the citizen women, 12/ the manner in which she had acquired citizenship, 13/ and even if the laws of the husband’s country did not confer his nationality upon her as a result of the marriage.
(3) Expatriation by marriage to an alien between March 2, 1907, and September 22, 1922 . (i) Rule and evidentiary requirements generally . The United States Supreme Court in MacKenzie v. Hare, 25a/ held that a native-born citizen woman who married an alien within the captioned period, in this instance on August 14, 1909, lost her citizenship by such marriage under section 3 of the Act of March 2, 1907. While the court apparently accepted the fact that Mrs. MacKenzie desired to retain her citizenship, 25b/ and therefore, presumably, her native allegiance, it rejected argument on her behalf which contended in part that expatriation could not occur without acts indicating an intention to transfer allegiance to a foreign state. 25c/ Although this decision has never been expressly overruled by the Supreme Court, it is regarded as having been modified by the court’s later ruling in Afroyim v. Rusk. 25d/

The Attorney General’s Statement of Interpretation construing the effect of Afroyim upon citizenship loss 25e/ declared that, under any reading of the decision, an act which does not reasonably manifest an individual’s abandonment of allegiance to the United States, or a transfer of allegiance from the United States to a foreign state (otherwise defined as an act which is not in derogation of allegiance to the United States), cannot be made a basis for expatriation. 25f/ However, the rules formulated for applying the Attorney General’s Statement of Interpretation 25g/ do not preclude expatriation by marriage to an alien, as contemplated by section 3 of the Act of March 2, 1907. Nonetheless, since under these rules such marriage is not regarded as an act in derogation of allegiance to the United States, citizenship loss based thereon can no longer be deemed to have occurred, unless, as required by the Attorney General’s reading of Afroyim and the aforesaid rules there is other affirmative persuasive evidence establishing that, in marrying the alien, the citizen woman als o intended the aforementioned transfer or abandonment of allegiance or a relinquishment of United States citizenship. 25h/ Moreover, under these conditions, the Service has the initial burden of proving both the marriage and the requisite intention. 25i/

The viewpoint expressed above,(?) namely, that expatriation by marriage [pursuant to section 3 of the Act of March 2, 1907,] remains a constitutional* basis for citizenship loss (despite the decision in Afroyim), shall continue to represent the Service position (?), notwithstanding a per curiam decision 25j/ by the United States Court of Appeals for the First Circuit, which withdrew its earlier decision in Rocha v. Immigration and Naturalization Service, 25k/ and in effect found section 3 of the 1907 enactment to be unconstitutional by reason of Afroyim. 25m/ ( Added )

How could a statement be more baffling?  First it’s stated that expatriation by marriage remains a basis for loss of citizenship as expressed above -when that is not expressed above (!) and that is the Service’s position notwithstanding the rulings of the courts!?  That’s it?  No explanation?  No clarification?  Is their logic upside down or is their language horribly faulty?  Do the words actually mean what they appears to say?  Who knows.  It appears they are adhering to the letter of the law of 1907, which if true, then in 1961 Obama Jr. would not have been born as an American citizen, and that may be true even if the mother did not lose her citizenship, since it doesn’t follow that her citizenship would have necessarily been ascribed to her son.

*constitutional?  Poppycock!  There’s no such thing in the constitution.

Interpretation 324.2 Reacquisition of citizenship lost by marriage.
(7) Restoration of citizenship is prospective . Restoration to citizenship under any one of the three statutes is not regarded as having erased the period of alienage that immediately preceded it.

The words “shall be deemed to be a citizen of the United States to the same extent as though her marriage to said alien had taken place on or after September 22, 1922”, as they appeared in the 1936 and 1940 statutes, are prospective and restore the status of native-born or natural-born citizen (whichever existed prior to the loss) as of the date citizenship was reacquired.

(b) Naturalization . At one time or another since September 22, 1922, women who expatriated themselves under the circumstances set forth in INTERP 324.1 have been able to regain citizenship by means of a simplified form of naturalization,
[paragraph 6] The effect of naturalization under the above statutes was not to erase the previous period of alienage, but to restore the person to the status if naturalized, native, or natural-born citizen, as determined by her status prior to loss.

Letter to Donofrio

I awoke this morning with the realization that I could google “derivative citizenship” (duuh!) and possibly find an answer to the question of Obama’s mother being expatriated by marriage to an alien.  If you haven’t yet bothered to look into it, below is the relevant info I’ve found so far.  It appears to not be finally settled by SCOTUS but the Attorney’s General opinion seems to be controlling.  That opinion is that expatriation doesn’t take place without some actual willful act of the woman to abandon her U.S. citizenship.  That then deals with Obama’s mother, but what about her child and his citizenship?  Is there a U.S. statute that declares that such a child does, or does not, acquire U.S. citizenship via a mother married to an alien?  While today it can be argued that he acquired citizenship via his mother based on the 14 Amendment since she was subject to U.S. jurisdiction, but that would not have necessarily been true when it was passed if at that time she would have been considered to be under British jurisdiction through her husband due to expatriation by marriage.
So even if a court would rule that he was born a citizen in 1961, if doesn’t follow that that would have been the law in 1868.  And certainly no citizen that would not have even been a citizen in 1868 could be claimed to be a natural citizen today.

I also found something surprising to me.  I had presumed that the idiom “natural born citizen” appeared nowhere in U.S. Law other than A2S1C5, but I found it in administrative law and it is contrasted with native and naturalized citizenship.  I’ve never seen any mention of this fact before and wonder how many are aware of it in the ineligibility camp.
It seems there’s a conflict of authority but it appears that the Service still follows the 1907 Act and views marriage to an alien as an expatriating act, regardless of the opinion of the Attorney General back when, and his interpretation of the scotus decision in Afroyim.  It reminds me of Wong Kim Ark when the Service disagreed with the view eventually decreed by the court three decades after the 14th A. was passed, and sought to prevent him from being considered to be a native-born citizen.  Perhaps they got confused by his race and the Chinese Exclusion Act which didn’t really apply to domestic born persons.

The reason I was perusing “Expatriation by Marriage” was to find out if U.S. law allowed derivative citizenship for Obama at birth with his mother being married to an alien.  I learned that the Attorney General who construed a Supreme Court decision regarding loss of citizenship (expatriation) when American women marry foreign men had ruled that they didn’t lose their citizenship without a willful act, which marriage isn’t, even though the scotus has never ruled on his opinion. The 1907 Act could still be controlling.

So it isn’t truly “settled” law that Obama was even a U.S. citizen at birth though the view of scotus would probably uphold the A.G.s finding.
But that still leaves the question about Obama and the source of his citizenship. I’ve never heard anyone opine on whether or not a child born of a foreign male decades ago would have had only his father’s citizenship or not.  It seems that every other conceivable bush has been beaten about except this one.  Were children born of alien fathers deemed to have inherited their American mother’s citizenship or only the father’s?  We need answers people!  Was he even a citizen at birth?  What question is more important than that?  My final essay on his eligibility needs an answer before it can be finalized. It’s working title is: A Britain by Birth; An American by Naturalization Please help. AN

Appendix A
*Attorney General’s Statement of Interpretation Concerning Expatriation of United States Citizens

January 18, 1969
In Afroyim v. Rusk , 387 U.S. 253 (1967), the Supreme Court held unconstitutional section 401(e) of the National Act of 1940, which provided that a citizen of the United States shall lose his citizenship by voting in a foreign political election. 1/

The sweeping language of the Afroyim opinion raises questions as to its effect on the validity of expatriation as to its effect on the validity of expatriation provisions, other than those relating to voting, in the Immigration and Nationality Act (“the Act”) or in former law preserved by section 405(c) of the Act, 8 U.S.C. 1101, note. 2/ These questions are of importance to the Department of State in the administration of the passport laws and to the Immigration and Naturalization Service of the Department of Justice in the administration of the immigration laws.

Of course, the ultimate determination of the effect of Afroyim is a matter for the courts. The Act empowers the Attorney General, however, to determine Afroyim’s effect on the Act for administrative purposes. 3/ This Statement of Interpretation will serve to guide both the Department of State and the Immigration and Naturalization Service in the performance of their functions insofar as they involve questions of loss of citizenship.

1. Section 401(e) of the 1940 Act had been ruled constitutional in the Court’s earlier decision in Perez v. Brownell , 356 U.S. 44 (1958). The majority opinion in Perez rejected the argument that “the power of Congress to terminate citizenship depends upon the citizen’s assent.” 356 U.S. at 61. Afroyim expressly overruled Perez and held, in agreement that the Government is without power to deprive a citizen of his citizenship for voting in a foreign election. 387 U.S. at 267. The rule laid down in Afroyim is that a United States citizen has a constitutional right to remain a citizen “unless he voluntarily relinquishes that citizenship.” 387 U.S. at 268.

Afroyim did not expressly address itself to the question of defining what declarations or other conduct can properly be regarded as a “voluntary relinquishment” of citizenship. As a consequence, it did not provide guidelines of sufficient detail to permit me to pass definitively upon the validity of other expatriating provisions of the Act. It did, however, stress the constitutional mandate that no citizen born or naturalized in the United States can be deprived of his citizenship unless he has “voluntary relinquished” it.

On the question of what constitutes “voluntary relinquishment”, we must look to earlier cases in the Supreme Court. Some guidance may be found in earlier opinions of the Justices who joined in the Court’s opinion in Afroyim . Particularly relevant are the Chief Justice’s dissent in Perez , which was cited in Afroyim with approval, and the concurring opinion of Justice Black (who wrote the opinion of the Court in Afroyim ) in Nishikawa v. Dulles , 356 U.S. 129, 138 (1958), decided the same day as Perez .

In Perez , the Chief Justice stated (356 U.S. at 68-69; footnotes omitted):

It has long been recognized that citizenship may not only be voluntarily renounced through exercise of the right of expatriation but also by other actions in derogation of undivided allegiance to this country. While the essential qualities of the citizen-state relationship under our Constitution precludes the exercise of governmental power to divest United States citizenship, the establishment of that relationship did not impair the principle that conduct of a citizen showing a voluntary transfer of allegiance is an abandonment of citizenship. Nearly all sovereignties recognize that acquisition of foreign nationality ordinarily shows a renunciation of citizenship. Nor is this the only act by which the citizen may show a voluntary abandonment of his citizenship. Any action by which he manifests allegiance to a foreign state may be so inconsistent with the retention of citizenship as to result in loss of that status. In recognizing the consequences of such action, the Government is not taking away United States citizenship to implement its general regulatory powers, for, as previously indicated, in my judgment citizenship is immune from the divestment under these powers. Rather, the Government is simply giving formal recognition to the inevitable consequences of the citizen’s own voluntary surrender of his citizenship.

I’d like to state that I’ve over-simplified the history of expatriation by marriage.  It was in fact, I’ve learned a total mess.  Laws would say one thing.  The Executive branch would have a policy of its own, individual judges were the ones granting or denying citizenship and they could ignore the rules and that was that unless their ruling was overturned when the Feds appealed their decision to a higher court.  So, bottom line is that there was no bottom line, it was all over the map.  Confusion, people!  A government of men and not one of laws.  That’s the result of something as unnatural as expatriation.  There are no rules in nature that apply.  So its up to the choices of men.  They chose this way and that way.  but it appears that mostly the Executive branch held with expatriation by marriage regardless of the Law or the Courts, though that seems hard to believe, but it may have been possible if there was never any section of Nationality law that dealt clearly with the issue.  Then it would have been purely up to the State Department and the Immigration & Naturalization Service.  I suspect at this point that that was the situation in 1961 when Obama was born.  AN



Expatriation by foreign naturalization
349.3      Expatriation by foreign oath
349.4      Expatriation by foreign military service
349.5      Expatriation by foreign governmental employment
349.6      Expatriation by voting in a foreign political election or plebiscite
349.7      Expatriation by formal renunciation of United States citizenship
349.8      Expatriation by military desertion
349.9      Expatriation based upon treason and subversive activity
349.10      Expatriation resulting from action to evade military service
App. A      Attorney General’s statement of interpretation concerning expatriation of United States citizens of January 18, 1969
App. B      State Department Airgram of May 16, 1969, Afroyim decision
App. C      State Department Airgram of November 13, 1969, Afroyim decision
App. D      State Department Airgram of August 27, 1980, Terrazas decision
350.1      Expatriation in the absence of elective action by persons acquiring dual nationality at birth prior to repeal of section 350
350.2      Repeal of section 352 by Act of October 10, 1978
351.1      Restrictions upon expatriation
352.1      Expatriation resulting from foreign residence.
352.2      Repeal of section 352 by Act of October 10, 1978
353.1      Past exemptions relating to expatriation based upon foreign residence (generally)
353.2      Repeal of section 353 by Act of October 10, 1978
354.1      Past exemptions relating to expatriation based upon foreign residence (statutory development)
354.2      Repeal of section 354 by Act of October 10, 1978
355.1      Loss of nationality through parent’s expatriation in the absence of elective action by dual national offspring prior to the Act of October 10, 1978
355.2      Loss of nationality after the Act of October 10, 1978
356.1      Expatriation as an inherent right of the individual

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