Dual Citizenship FAQ http://www.richw.org/dualcit/

US court rulings
dual citizenship

Last revised: 2011-01-03 18:52:54-0800

3 January 2011


Due to increasing demands on my time and energy, I will no longer be actively maintaining the material on this site. Instead, I will be putting my efforts into improving the coverage of dual citizenship issues on Wikipedia.

I have already done considerable work on the Wikipedia articles about U.S. v. Wong Kim Ark, Afroyim v. Rusk, and Vance v. Terrazas. My longer-term goal is to raise the level and quality of coverage of this subject on Wikipedia to the point where I can convert my FAQ site into a portal pointing to Wikipedia articles and other source material.

Additionally, I will no longer be able to take the time to answer questions sent to me by e-mail. If you have a specific problem or question regarding dual citizenship, I would advise you to find a knowledgeable and experienced immigration lawyer (sorry, no, I don't have any specific person in mind to refer you to), or look for online discussion groups where you can ask your questions.

(Please note that the "discussion" or "talk" pages associated with Wikipedia articles are intended for use by editors working on the content of the articles. Please do not use Wikipedia talk pages as discussion forums to ask questions about citizenship or immigration issues.)

U.S. Supreme Court

U.S. Federal Appeals Courts

U.S. v. Wong Kim Ark, 169 U.S. 649 (1898)

Wong Kim Ark was born in San Francisco to Chinese parents around 1870 (the exact time is uncertain due to discrepancies among the various sources). In 1895, upon his return from a visit to China, he was refused entry by US customs officials, who asserted that despite his having been born in the US, he was a subject of the Chinese emperor and not a US citizen.

At this time, US law (the "Chinese Exclusion Acts") severely limited Chinese immigration and barred people of Chinese ancestry from becoming naturalized US citizens -- and it was argued, on this basis, that Wong was ineligible to be considered a US citizen, in spite of his having been born in the US.

The Supreme Court disagreed, ruling on a 6-2 vote that Wong Kim Ark was in fact a US citizen. The court cited the "citizenship clause" of the 14th Amendment, which states that all persons born (or naturalized) in the United States, and subject to the jurisdiction thereof, are citizens. Although the original motivation for this language in the 14th Amendment was to secure citizenship for the freed Negro slaves, the court held that the clause clearly applied to "all persons", regardless of their race or national origin.

The court rejected outright the idea that the Chinese could be singled out for special treatment in this respect. "To hold that the fourteenth amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries," the majority wrote, "would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States."

As for the question of being "subject to the jurisdiction" of the United States -- i.e., the relationship between a person and a government whereby one "owes obedience to the laws of that government, and may be punished for treason or other crimes" -- the Supreme Court observed that English common law (legal tradition inherited from Britain by the US) had long recognized only two jurisdictional exceptions to the principle of ius soli (citizenship by birth on a country's soil): namely, (a) foreign diplomats, and (b) enemy forces in hostile occupation of a portion of the country's territory. Since neither of the above exceptions applied to Wong Kim Ark's parents, the court held that he was unquestionably a US citizen by virtue of his having been born in the US.

The fact that, under the Chinese Exclusion Acts, Wong's parents could not become US citizens -- or even that Wong himself would not have been eligible for naturalization in the US on account of his race -- was simply irrelevant in light of the 14th Amendment's citizenship clause. The Constitution was superior to statutes such as the Chinese Exclusion Acts; these acts of Congress, according to the Supreme Court, "cannot control [the 14th Amendment's] meaning, or impair its effect, but must be construed and executed in subordination to its provisions."

It should be noted, however, that the Supreme Court did not question the validity of the Chinese Exclusion Acts as such.

[go to the full case on FindLaw]

[go to an article about Wong Kim Ark on Wikipedia]

Perkins v. Elg, 307 U.S. 325 (1939)

Marie Elizabeth Elg was born in the US to Swedish parents, who took her back with them to Sweden when she was a baby. Shortly after her 21st birthday, she obtained a US passport and returned to the US.

Some years later, the US government attempted to deport her on the grounds that when her parents had taken her to live in Sweden, she had become a Swedish citizen (under Swedish law), and as a result had lost her US citizenship. It was argued that an 1869 citizenship treaty between the US and Sweden, providing for the orderly transfer of citizenship by immigrants, called for loss of US citizenship following Swedish naturalization. This was one of the so-called "Bancroft Treaties" enacted between the US and numerous other countries between 1868 and 1937.

The Supreme Court ruled, unanimously, that the actions of Elg's parents in obtaining Swedish citizenship for their daughter could not prevent her from reclaiming US citizenship and returning to the US as an adult, provided she did so within a reasonable time after reaching adulthood.

The Elg case is not, strictly speaking, a dual citizenship case, since the court's assumption was that once Elg had reached adulthood, she had the right to choose US citizenship instead of (not in addition to) Swedish citizenship -- i.e., that this right had not been taken away from her by actions her parents had taken when she was a child.

Further, the law as it existed at the time did not, in fact, require Elg (who was born on US soil) to make an "election" of US citizenship (i.e., swear allegiance to the US and return to live there) upon reaching adulthood. The Supreme Court later ruled in Mandoli v. Acheson that a US-born dual US/Italian citizen could keep his US citizenship despite not having made any such declaration. The issue was not really central to the Elg case anyway, because Elg did get a US passport and move back to the US before her 22nd birthday.

Congress later amended the citizenship law so that a child whose parents gave up or lost their citizenship and moved abroad could keep his citizenship by moving back to the US prior to reaching age 25. However, this provision was eventually repealed altogether in 1978 (Public Law 95-432).

Frances Perkins was Secretary of Labor in the administration of Franklin D. Roosevelt. The reason Perkins is listed first in the citation of this case is that a lower court (the Court of Appeals for the D.C. Circuit) had ruled in Elg's favor, and the government was appealing that ruling. Whenever a case comes before the US Supreme Court, the first name listed is always the "petitioner" -- i.e., the party which lost in the lower court and appealed to the Supreme Court.

[go to the full case on FindLaw]

Kawakita v. U.S., 343 U.S. 717 (1952)

Tomoya Kawakita was a dual US/Japanese citizen (born in the US to Japanese parents). He was in Japan when World War II broke out, and because of the war was unable to return to the US. During the war, he actively supported the Japanese cause and abused US prisoners of war who had been forced to work under him. After the war, he returned to the US on a US passport, and shortly thereafter he was charged with (and convicted of) treason for his wartime activities.

Kawakita claimed that he had lost his US citizenship by registering in Japan as a Japanese national during the war, and as a result he could not be found guilty of treason against the US. Presumably, the reason Kawakita fought so tenaciously not to be considered a US citizen was that he saw this as the only way to escape a death sentence for his treason conviction.

However, the Supreme Court ruled that since Kawakita had dual nationality by birth, when he registered himself as Japanese, he was simply reaffirming an already existing fact and was not actually acquiring Japanese citizenship or renouncing his US citizenship.

The court acknowledged that a dual citizen, when in one of his countries of citizenship, is subject to that country's laws and cannot appeal to his other country of citizenship for assistance. However, even when the demands of both the US and the other country are in irreconcilable conflict -- such as in wartime -- a dual US/other citizen must still honor his obligations to the US even when in the other country.

Although Kawakita lost his appeal, his death sentence was eventually commuted by President Eisenhower. He was released from prison, stripped of his US citizenship, and deported to Japan.

The reason the respondent in this case (the second party named in the case's title) was the United States -- rather than a government official (such as the Secretary of Labor or the Secretary of State) -- is that the case started as a criminal prosecution rather than as a lawsuit.

[go to the full case on FindLaw]

Mandoli v. Acheson, 344 U.S. 133 (1952)

Joseph Mandoli was a dual US/Italian citizen by birth (born in the US to Italian parents). He left the US as an infant and moved to Italy with his parents. When he sought to return to the US in 1937, his claim to US citizenship was rejected because he had failed to return promptly to the US upon reaching the age of majority, and also because he had served briefly in the Italian army in 1931.

The Supreme Court ruled that the law, as it then stood, did not permit natural-born US citizens to be stripped of US citizenship for failing to return to the US upon reaching adulthood.

The court did not base its ruling in this case on any overarching constitutional arguments. Rather, it examined the legislative history of the portions of US citizenship law, and concluded that Congress had consciously chosen to make these provisions applicable only to naturalized US citizens (see Rogers v. Bellei below).

In particular, the court noted that although US law at that time required certain US citizens with childhood dual citizenship (such as those born abroad to American parents) to make a specific "election" of US citizenship (i.e., a declaration of allegiance followed by a return to the US) upon reaching adulthood, no such requirement applied to a person who had US citizenship on account of having been born in the US. Lower courts had apparently interpreted the Supreme Court's earlier decision in Perkins v. Elg as imposing such an "election" requirement quite broadly.

The court also decided that Mandoli's foreign military service did not warrant loss of his US citizenship because, under Mussolini's Fascist government, he really had had no choice but to join the Italian army.

Dean Acheson (Dean was his first name, not a title) was Secretary of State during Truman's second term as President.

[go to the full case on FindLaw]

Perez v. Brownell, 356 U.S. 44 (1958)

Clemente Perez, a native-born US citizen, moved to Mexico prior to World War II, and remained there for most of the war, in defiance of his legal obligation to register for US military service. While living in Mexico, he entered the US on two occasions, claiming to be a native-born Mexican citizen seeking temporary work as an alien. He was eventually stripped of his US citizenship for evading military service, and also because he had voted in a Mexican election.

The Supreme Court ruled, 5-4, that Congress had the power to revoke the citizenship of Americans who voted in foreign elections, in order to avoid embarrassment in the conduct of foreign relations.

The court rejected the notion that the 14th Amendment's "citizenship clause" restricted Congress's power to revoke citizenship. And it chose not to deal at all with the question of whether citizenship could be withdrawn for remaining outside the US to avoid military duty.

The holdings in the Perez case were repudiated by the Supreme Court nine years later, in Afroyim v. Rusk.

Herbert Brownell Jr. was Attorney General during Eisenhower's first term in office.

[go to the full case on FindLaw]

Trop v. Dulles, 356 U.S. 86 (1958)

Albert Trop, a native-born citizen, was convicted of desertion while a private in the US Army during World War II. He was sentenced to three years at hard labor and dishonorably discharged. Some years later, his application for a passport was rejected on the grounds that he had lost his citizenship due to his desertion.

The Supreme Court, by a 5-4 vote, struck down the relevant provision in the Immigration and Nationality Act. In three separate concurring opinions, various justices proposed that citizenship could not be taken away by Congress at all; or, even if it can sometimes be revoked, it was unacceptable to give such power to military authorities.

John Foster Dulles was Secretary of State during the Eisenhower administration.

[go to the full case on FindLaw]

Schneider v. Rusk, 377 U.S. 163 (1964)

Angelika Schneider was born in Germany. She came to the US with her parents and became a US citizen upon their naturalization. While a graduate student in Europe, she met a German man whom she later married, and she moved permanently to Germany to live with him.

The State Department claimed Schneider had lost her US citizenship in accordance with a section of the Immigration and Nationality Act which revoked the citizenship of any naturalized citizen who returned to his or her country of birth and remained there for at least three years. Schneider took the State Department to court ("Rusk" was Dean Rusk, Secretary of State in the Johnson administration) and won her case before the Supreme Court in a 5-3 decision.

The Supreme Court held that since no provision of the law stripped natural-born Americans of their citizenship as a result of extended or permanent residence abroad, it was unconstitutionally discriminatory to apply such a rule only to naturalized citizens. The court rejected arguments that naturalized citizens who resumed permanent residence in their countries of origin presented particular challenges to US foreign policy, and that the government had a right to strip such people of their US citizenship in order to safeguard the country's diplomatic objectives.

The statutory provision which was struck down in this ruling was repealed by Congress in 1978 (Public Law 95-432).

[go to the full case on FindLaw]

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).

[go to the full case on FindLaw]

[go to an article about Afroyim v. Rusk on Wikipedia]

Rogers v. Bellei, 401 U.S. 815 (1971)

Aldo Mario Bellei was born in Italy in 1939 to an Italian father and an American mother. At birth, he acquired both Italian and US citizenship.

In the 1960's, he was notified that he had lost his US citizenship under a provision of the Immigration and Nationality Act that said a foreign-born US citizen would lose his citizenship unless he moved to the US and lived there for at least five years prior to reaching his 28th birthday.

Bellei took the State Department to court, challenging the validity of the law. However, he lost in the Supreme Court by a 5-4 decision. The majority (including three justices who had dissented in Afroyim v. Rusk), upheld the validity of the residency rule and held that the 14th Amendment's citizenship clause, central to the court's ruling in Afroyim, did not apply to people acquiring US citizenship by virtue of being born outside the US to an American parent.

Four justices (including three who had been in the majority in Afroyim), dissented, claiming that the majority was effectively abandoning the ruling in the earlier case.

Bellei is not too significant nowadays, since the provision under which he lost his US citizenship was repealed in 1978 (Public Law 95-432).

William Rogers was Secretary of State during Nixon's first term as President.

[go to the full case on FindLaw]

Vance v. Terrazas, 444 U.S. 252 (1980)

Laurence Terrazas was a dual US/Mexican citizen by birth (born in the US to a Mexican father). While a university student in Mexico, he signed a document reaffirming his Mexican citizenship. This document contained a section (required by Mexican law) by which Terrazas explicitly renounced his US citizenship.

When the State Department ruled Terrazas was no longer a US citizen on account of this act, he tried to argue in the courts that he hadn't really meant to renounce his US citizenship, despite what was on the Mexican document he had signed. The Supreme Court disagreed (by a 5-4 majority) and held Terrazas to the strict wording of the Mexican document, which it concluded he had understood perfectly well at the time he had signed it.

The Terrazas decision established two major points. First, although intent to give up US citizenship could be ascertained either from an individual's specific statements or by inference from his actions and conduct, the "assent" principle of Afroyim v. Rusk required that intent to be proved separately from a potentially expatriating (citizenship-losing) action. Congress could not sidestep the issue of intent by declaring a certain action to be inherently incompatible with keeping US citizenship, and then decreeing that voluntary performance of such an action conclusively proved intent to give up citizenship.

Second, although intent to give up citizenship had to be proved, Congress was free to establish the standard of proof. Specifically, it was OK for such intent to be established via a "preponderance of evidence" standard (as in a lawsuit). It was not constitutionally necessary for a loss-of-citizenship case to be treated like a criminal trial, requiring intent to be proved by "clear and convincing" evidence.

Although the "standard of proof" part of the Supreme Court's decision was reached by a 5-4 majority, all nine justices (including two who had been in the minority on the Afroyim case) upheld the principles in Afroyim. Further, eight of the nine justices (in three separate opinions) agreed that Congress could not designate an action as automatically resulting in loss of citizenship: even if such an action were voluntarily performed, it would still be necessary to show that the individual did so with the intent of giving up citizenship.

"Vance" in this case was Cyrus Vance, who was Secretary of State under President Carter.

The Terrazas holding regarding intent was eventually incorporated into the text of the Immigration and Nationality Act by Congress in 1986 (Public Law 99-653).

Despite the latitude expressly granted to the government in this case with respect to the standard of proof required in loss-of-citizenship cases, the State Department has effectively adopted a "clear and convincing evidence" standard in its current policy on dual citizenship and loss of citizenship.

[go to the full case on FindLaw]

[go to an article about Vance v. Terrazas on Wikipedia]

Miller v. Albright, 523 U.S. 420 (1998)

Lorelyn Miller was born in the Philippines to an American father and a Philippine mother (who were not married). She later moved to the US and applied for a US passport, but was turned down on the grounds that she was not a US citizen. Her father signed an affidavit acknowledging his paternity, but this was rejected because he had not signed it prior to Miller's 21st birthday.

Section 309(a) of the Immigration and Nationality Act [8 USC § 1409(a)] says that a non-US-born child born out of wedlock to an American father and a foreign mother can qualify for US citizenship if the father's paternity is established prior to the child's 18th birthday. Prior to 1986, however, this section was operative until the child's 21st birthday, and Miller was able to claim the benefit of the earlier version of the law (though even this didn't help her).

By contrast, section 309(c) of the INA [8 USC § 1409(c)] requires no explicit acknowledgment of parenthood in the case of a non-US-born child born out of wedlock to an American mother and a foreign father. A child in this case obtains US citizenship as long as the mother had, at some time prior to the child's birth, been physically present in the US for a continuous period of at least one year. (Note that this requirement is less demanding than the physical presence rule which would apply if the child's parents were married. Go figure.)

Miller challenged INA § 309(a), claiming that it was unconstitutional to deny her US citizenship because her American parent was her father, rather than her mother. The Supreme Court disagreed and upheld the law on a 6-3 vote.

The nine justices wrote several separate opinions in this case.

Madeleine Albright was Secretary of State in the Clinton administration.

Any speculation that a slightly different set of facts might have led to a ruling more favorable to illegitimate would-be citizens was laid to rest by the Supreme Court's ruling in Nguyen v. INS (see below).

The Ninth Circuit Court of Appeals attempted to apply the Miller decision in a 1999 case, U.S. v. Ahumada Aguilar, but its ruling was subsequently vacated by the Supreme Court after its ruling in the Nguyen case.

[go to the full case on FindLaw]

Nguyen v. INS, 533 U.S. 53 (2001)

Tuan Anh Nguyen was the Vietnamese-born illegitimate son of an American father (Joseph Boulais) and a Vietnamese mother. Shortly before his 6th birthday, he was brought to the US and was raised by his father.

After two felony convictions, Nguyen was judged to be deportable, but he challenged this determination by claiming he had US citizenship via his father. The INS rejected Nguyen's claim to citizenship because the requirements of INA § 309(a) [8 USC § 1409(a)] had not been satisfied. (Boulais did have a DNA test and obtained a Texas state court ruling identifying him as Nguyen's father, but this did not happen until 1998, well after Nguyen's 18th birthday.)

A three-judge panel of the Fifth Circuit Court of Appeals (citing Miller v. Albright) dismissed Nguyen and Boulais' claim that INA § 309(a) was impermissibly discriminatory on the basis of gender. Note that this ruling was in direct contradiction to the Ninth Circuit ruling in the Ahumada case, but this is OK because different federal circuits are not obligated to follow each other's precedents.

The Nguyen case was accepted for review by the US Supreme Court, and oral arguments were heard by the court in early January 2001. In June 2001, the Supreme Court upheld the lower court ruling, denying Nguyen's claims to citizenship in a 5-4 decision. Justices Rehnquist, Kennedy, Stevens, Scalia, and Thomas held that the sex discrimination in INA § 309(a) satisfied the degree of scrutiny required by the equal protection clause of the 14th Amendment. (It would appear that Justice Kennedy changed his mind between his dissent in Miller and his joining with the majority in Nguyen.) Justices O'Connor, Souter, Ginsburg, and Breyer dissented.

[go to the full case on FindLaw]

Richards v. Secretary of State et al., 752 F.2d 1413 (9th Cir. 1985)

The following Court of Appeals case (one step below the Supreme Court) isn't nearly as relevant nowadays as it was in 1985, in light of the State Department's current (and much more permissive) policy on loss of US citizenship.

William Richards became a Canadian citizen in 1971. At the time he did this, the Canadian naturalization oath included a clause renouncing prior allegiances. Accordingly, a lower court concluded that Richards had lost his US citizenship.

Richards argued that he had acquired Canadian citizenship only because he needed said citizenship in order to get a job with the Boy Scouts of Canada. Although he conceded that he had made an explicit statement of renunciation of US citizenship as part of the Canadian naturalization procedure, he contended that this action on his part was not voluntary because he had been under "economic duress" at the time.

The Ninth Circuit Court of Appeals rejected Richards' economic duress argument, observing that he had worked in Canada for several years as a teacher without being a Canadian citizen, and that there was no evidence that he had been forced to leave his teaching job or that he had made any effort to find a job that would not have required him to obtain Canadian citizenship and renounce his US citizenship.

The lower court found (and the Ninth Circuit agreed) that Richards knew and understood the significance of the renunciatory language in the Canadian naturalization documents. Although Richards would have preferred to keep his US citizenship, such a wish was not sufficient to negate the presumption that he had chosen, in the end, to give up that citizenship. "We cannot accept a test", the Ninth Circuit stated in its opinion, "under which the right to expatriation can be exercised effectively only if exercised eagerly."

It should be noted, by the way, that Canada no longer requires new citizens to give up their other citizenships. The renunciatory language in the Canadian naturalization oath was ruled illegal by a Canadian court in 1973 on technical grounds and was subsequently removed -- and Canada has allowed dual citizenship without any restrictions at all since 1977. Hence, the Richards case is generally not relevant to Americans who became Canadian citizens after that time.

Further, the State Department's current (post-1990) policy on loss of US citizenship specifically says that taking a "routine oath of allegiance" to a foreign country will not normally be interpreted as showing an intent to give up US citizenship. Contrast the ruling in this case with a very different ruling in a 1991 case, discussed below.

Action and Deltamar v. Rich, 951 F.2d 504 (2nd Cir. 1991)

The following case seems somewhat more in line with the current State Department policy that loss of US citizenship occurs only when a person truly intends to give it up.

Marc Rich, defendant in a multi-million-dollar business lawsuit, contended that the Federal District Court which had heard his case lacked jurisdiction because he (Rich) had given up his US citizenship in 1982 when he became a naturalized citizen of Spain. The Spanish naturalization oath he took included an explicit renunciation of US citizenship.

The Second Circuit Court of Appeals observed, however, that "[D]espite his naturalization as a Spanish citizen, Rich continued to behave in a manner consistent with American citizenship. . . . Rich continued to use his American passport despite renunciation of American citizenship. . . ."

Although Rich asserted that his Spanish naturalization conclusively established his intent to relinquish US citizenship, the court said 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. . . . Despite mouthing words of renunciation before a Spanish official", the court continued, Rich "brought a Swiss action as an American national, travelled on his American passport, and publicized himself in a commercial register as a United States citizen."

Accordingly, the Second Circuit ruled that despite Rich's actions, he had retained his US citizenship because he had never truly intended to relinquish it.

U.S. v. Ahumada Aguilar,
189 F.3d 1121 (9th Cir. 1999);
vacated and remanded, 533 U.S. 913;
on remand, 295 F.3d 943 (2002)

Ricardo Ahumada Aguilar was the Mexican-born illegitimate son of a Mexican mother and an American father (who left the mother shortly before Ahumada's birth and who had no subsequent contact with mother or son). The mother eventually married a US citizen and immigrated to the US with her son. She made repeated unsuccessful attempts to locate the father of her child, eventually discovering that he had died.

Ahumada was convicted in the US of cocaine possession and was deported. He was subsequently convicted on charges arising from two subsequent illegal entries to the US.

Ahumada argued that he was not guilty of illegal entry because he was in fact a US citizen. The trial court rejected this argument because there was no evidence that Ahumada's biological father had ever satisfied the requirements of INA § 309(a) [8 USC § 1409(a)], in that his father had never agreed to provide financial support, and his paternity had never been formally acknowledged.

A three-judge panel of the Ninth Circuit Court of Appeals reversed the trial court's ruling and vacated Ahumada's conviction. The appeals court ruled that the more stringent citizenship requirement for an illegitimate child of an American father -- as opposed to an illegitimate child of an American mother -- constituted unacceptable discrimination on the basis of gender. In effect, the appeals court ruled that Ahumada was a US citizen after all -- which meant that both his deportation and subsequent charges of entering the US illegally were null and void.

The appeals court relied on the sharply divided Supreme Court decision in Miller v. Albright -- concluding that Ahumada had standing to challenge the gender discrimination of INA § 309(a) because his American father (unlike Miller's) was dead and thus could not mount a challenge himself.

Subsequent to this decision, the Supreme Court upheld INA § 309(a) in Nguyen v. INS; and in 2001, the Supreme Court vacated the Ninth Circuit's decision in Ahumada and sent the case back for further consideration.

On 1 July 2002, however, the appeals court again vacated Ahumada's conviction for illegal entry to the US. The citizenship question had, of course, been settled by the Supreme Court, but the Ninth Circuit found (via a entirely different line of reasoning) that serious flaws in the government's handling of Ahumada's original deportation could reasonably have led him to believe that he could in fact legally attempt to return to the US. Whether this latest decision in the Ahumada case will survive further appeal (to the full Ninth Circuit, or to the Supreme Court) remains to be seen.

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