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Interpretation 324.1 Loss of citizenship by marriage
Before Afroyim v. Rusk.
Effect of Afroyim v. Rusk.
Before Afroyim v. Rusk
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, by judicial opinion differed in respect to the question.
Some courts took the position that, under common-law principles, expatriation resulted form marriage to an alien, irrespective of other factors,
whereas other authority adopted the viewpoint that citizenship was not terminated in such manner unless the citizen wife resided abroad with the alien husband.
A few courts, influenced by the doctrine of "perpetual allegiance,"
held that expatriation did not occur even though such foreign residence had been established.
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
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.
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.
The validity of the above view has been undermined by the Opinion of the Attorney General in a case
arising under the Trading with the Enemy Act,
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,
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.
March 2, 1907, through September 21, 1922
. Except during World War I,
any marriage of a citizen or noncitizen national
woman to an alien which occurred during the period from March 2, 1907, to September 21, 1922, both dates inclusive, effected loss of nationality,
regardless of the parties' residence,
the minority of the citizen women,
the manner in which she had acquired citizenship,
and even if the laws of the husband's country did not confer his nationality upon her as a result of the marriage.
A similar loss of United States citizenship was sustained by a citizen woman who married a United States citizen before September 22, 1922, if, during the subsistence of the marriage and within the captioned period, the citizen husband acquired a new nationality by naturalization in a foreign state, the citizen wife established residence abroad with the naturalized husband prior to September 22, 1922, and through his naturalization acquired the nationality of the foreign country in which he was naturalized.
/ Expatriation of the wife in these circumstances constituted loss by naturalization in a foreign state,
a subject that is discussed further,in terms of the husband's naturalization after September 21, 1922, in INTERP 349.2(a)(3)(x).
A citizen wife's loss of citizenship in the manner described in the paragraph next above did not occur unless the husband acquired a foreign nationality as a concomitant of his expatriative act.
Thus, when a citizen husband expatriated himself by taking an oath of allegiance to a foreign state, but did not thereby become a citizen thereof, the wife retained her nationality.
During World War I
. While, as stated in subparagraph (2) above, expatiation did not result from marriage to an alien, or the foreign naturalization of a citizen husband, if such events occurred during World War I,
loss of nationality did ensue on July 2, 1921, the war's termination date,
if the marital status then remained intact.
It necessarily followed form the above rule that a citizen woman who married an alien during the conflict did not lose her status if the marriage terminated prior to July 2, 1921,
and, logically enough, it has been further held that loss of nationality did not occur when the alien husband became a naturalized citizen of the United States before the end of the war.
Act of September 21, 1922
. The Act of September 22, 1922, not only repealed
the aforementioned 1907 statutory provisions, under which citizenship was lost through marriage, but also specifically prohibited expatriation by marriage contracted thereafter,
unless the citizen wife renounced her nationality before a naturalization court,
or unless the husband was an alien racially ineligible to naturalization.
Under a construction of the 1922 statute, a noncitizen national woman, as distinguished from the citizen woman mentioned above, did not lose her noncitizen nationality by marriage to a racially ineligible alien.
Marriage to a racially ineligible alien ceased to be a ground of expatriation after March 2, 1931,
and since that date, the statutes have not provided for loss of citizenship solely by marriage.
Effect of Afroyim v. Rusk
Expatriation by marriage to an alien before March 2, 1907
. The effect of Afroyim v. Rusk upon the expatriation of citizen women who married aliens prior to March 2, 1907, will not be considered unless and until the question arises in an actual case before the Service. (
Expatriation through a citizen husband's acquisition of foreign nationality before September 22, 1922
. The Service position relative to the effect of Afroyim v. Rusk upon these expatriatory situations (see INTERP
) is expressed in INTERP
Expatriation by marriage to an alien between March 2, 1907, and September 22, 1922
Rule and evidentiary requirements generally
. The United States Supreme Court in MacKenzie v. Hare,
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,
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.
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.
The Attorney General's Statement of Interpretation construing the effect of Afroyim upon citizenship loss
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.
However, the rules formulated for applying the Attorney General's Statement of Interpretation
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.
Moreover, under these conditions, the Service has the initial burden of proving both the marriage and the requisite intention.
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
by the United States Court of Appeals for the First Circuit, which withdrew its earlier decision in Rocha v. Immigration and Naturalization Service,
and in effect found section 3 of the 1907 enactment to be unconstitutional by reason of Afroyim.
Specific considerations relating to proof
. Obviously, to determine whether the burden of proof described (i) above has been met, one must ascertain the motivations and intentions of the citizen woman at the time she married the alien. It is conceivable that, to promote the most complete unity of husband and wife, and assure the closest possible marital union between the parties, a United States citizen woman who marries an alien may wish and intend to relinquish her citizenship and transfer her allegiance from the United States to the foreign stat
e of which her husband is a national, especially if she plans to take up residence in the foreign state and becomes a national thereof under its law. Information of this nature is peculiarly within the knowledge of the parties to the marriage and where they are both deceased and cannot give testimony, or are otherwise unavailable to testify, it is considered exceedingly improbable that any secondary proof which may be forthcoming would amount to the "persuasive" evidence of the intention required to sustain
a finding of expatriation.
Moreover, since nationality change is not a normal objective of the marital union, it is to be expected that most marriages were in fact actually contracted for the usual reasons, entirely unconnected with any transfer or abandonment of allegiance, or relinquishment of United States citizenship, and without the citizen woman giving any thought or consideration to such matters. While never foreclosing the possibility of expatriation because of special circumstances in a given case, this truism supported by t
he citizen woman's affirmative testimony that she did not intend to transfer her allegiance from the United States to the foreign state of which her husband was a national, or otherwise abandon her allegiance to an citizenship of the United States, will make it exceedingly difficult to sustain a finding of expatriation upon the basis of evidence from other sources.
Comparable difficulty in proof will prevail when the citizen woman is deceased or unavailable to give testimony, and the required interview with her available surviving husband elicits similarly favorable testimony relative to the nonexpatriatory intentions of his deceased wife at the time of the marriage.
The assignment of almost conclusive probative value to the citizen woman's testimony disclaiming an intent to abandon or transfer allegiance, or to relinquish citizenship, as stated just above, presupposes that such testimony was elicited in an intelligent manner and amounts to more than mere self-serving negative answers to a few direct leading questions which were so phrased as to inevitably point the way to a defense under Afroyim (see INTERP 349.1(f)(4(vi)).
Expatriation through marriage after September 21, 1922, and before March 3, 1931, to an alien racially ineligible for naturalization
. Determinations as to the effect of the decision in Afroyim v. Rusk, 387 U.S. 253 (1967) upon expatriations within the captioned category,
/ are governed by the rules set forth in (b)(3).
Expatriation by marrying an alien and then renouncing citizenship before a naturalization court during the period September 22, 1922, to January 12, 1941, both dates inclusive
. Proof that a citizen woman voluntarily performed the captioned acts, both of which are necessary for expatriation under the statutes,
amounts to persuasive evidence of her intention to relinquish United States citizenship, and will ordinarily be sufficient to warrant a finding of citizenship loss.