Interpretation 349.1 General principles of expatriation.

(a) Law in force at time of expatriation act applies.

(b) Expatriation must be voluntary.

(c) Citizen must have knowledge of citizenship claim.

(d) Lack of intent to relinquish citizenship and ignorance of expatriative consequences as defenses.

(e) Application of the Afroyim principle to persons whose citizenship was acquired at birth abroad.

(f) Burden of proof, presumptions, and other evidentiary matters.

(g) Restrictions upon expatriation generally imposed by law.

(h) Expatriative foreign oath nonexpatriatory when taken as concomitant or inseparable part of another ineffective expatriatory act.

(a) Law in force at time of expatriation act applies . Determinations of expatriation are made by applying the statutes, treaties or, in the absence thereof, the "applicable legal principles" 1/ relating to loss of nationality which were in force or recognized at the time of the expatriatory act or conduct. Generally, the expatriation provisions of the successive statutes or the various treaties have not been retrospective in their effect so that status is not destroyed thereunder by actions committed in the past which, at the time of commission, were not in themselves grounds for expatriation. 2/

(b) Expatriation must be voluntary. (1) Definition of voluntary expatriation . Expatriation, whether it occurs under accepted legal principles in the absence of statute or treaty, 3 or as the result of statute or treaty always involves "voluntary" action, 4/ unconstrained and deliberate in nature. 5/ Prior to the decision in Afroyim v. Rusk, 6/ expatriation was said to be voluntary when the performance standing alone could cause nationality loss under viewpoints which prevailed prior to that decision. However, while voluntary performance of an expatriative act continues to be the first essential of every expatriation, standing alone it can no longer be regarded as resulting in nationality loss unless the test laid down in Afroyim [see (d)(2), infra] has been met.

(2) Duress as a defense . Since expatriation must be voluntary, the courts have given effect to the defense of duress 8/ and, upon such basis, have relieved many citizens from a loss of nationality. Duress has precluded expatriation by foreign naturalization, 9/ foreign military service, 10/ foreign governmental employment, 11/ foreign voting, 12/ citizenship renunciation, 13/ and foreign oath of allegiance. 14/ Obviously, where duress precludes expatriation, application of the Afroyim principle [see (d)(2), infra] becomes unnecessary.

The means of exercising duress is not limited to guns, clubs, physical threats, 15/ imprisonment, 16/ or the like, but may include a threat of economic deprivation, if the ability to secure the necessities of life is adversely affected thereby. Expatriation through foreign governmental employment has been avoided under such circumstances, 17/ as has loss of nationality premised upon voting in foreign election. 18/

Under certain conditions, the threat or fear of statelessness may constitute duress and a defense to expatriation based upon foreign naturalization. Thus, where a naturalized citizen of the United States on her own initiative applied for and was granted naturalization in a foreign state, such application having been made solely because such citizen wished to avoid becoming stateless, a condition she believed was imminent and would prevail solely because she previously had been informed by an American consul ar official that her continued residence in the foreign state would expatriate her under former section 353, 19/ information which later proved to be erroneous be reason of the decision in Schneider v. Rusk, 20/ the Service regarded the foreign naturalization as involuntary and nonexpatriatory. For the effect of official misinformation as to citizenship loss under section 494(a), (b), or (c), Nationality Act of 1940, consult INTERP 352.1(b)(2). ( Revised )

Again, military service in the armed forces of foreign states entered upon prior to January 13, 1941, on which date such action first became a statutory ground of expatriation, remained nonexpatriative when continued beyond such date, provided the person concerned was merely fulfilling the unavoidable obligation of his original enlistment. Under such circumstances, the continued service was and is deemed involuntary. 21/

(3) Burden of proving voluntary performance; presumptions . See INTERP 349.1(f)(3). infra.

(c) Citizen must have knowledge of citizenship claim . (1) General rules . While the rule did not apply to certain concepts of expatriation, 22/ administrative authority initially held that a citizen who voluntarily performed a statutory act of expatriation lost his citizenship even though, at the time the act was performed, he did not know he was a United States citizen, or know the facts which resulted in his acquisition of such status. 23/

(i) Expatriatory act performed after official misinformation or action . Prior to Afroyim v. Rusk, an otherwise expatriative act did not cause loss of citizenship when the citizen, being originally aware that he had acquired citizenship, performed the act in the mistaken belief that he was an alien based upon advice to the effect given him directly or through a member of his family by a government official whose duty it was to furnish it, and that advice was erroneous when given, or became erroneous by reason of change in the law or its interpretations. 26/ Moreover, as explained in (1) just above the Afroyim principle also would preclude nationality loss in these circumstances.

Similarly, before Afroyim, when a government official ruled that evidence presented in support of a citizenship claim was inadequate and, thereafter, the citizen committed an otherwise effective expatriatory act in the belief (formed as a result of such ruling) that he was an alien, the expatriatory act was regarded as ineffective when the citizenship claim by newly uncovered evidence. 27/ Here again the same conclusion would be reached through application of the Afroyim principle; i.e., since the claimant believed he was an alien and not a citizen, he could not be regarded as having performed the expatriatory act with an intent to relinquish citizenship.

The government official referred to in the two paragraphs immediately above was founded upon erroneous advice furnished by a Canadian government official, it was held that the citizen had expatriated himself. 28/ It is apparent that, under the Afroyim principle, the distinction drawn is not material and that this last ruling has ceased to be valid. The essence of the matter is that, where a person, in good faith, actually believes he is no longer a citizen, whatever the source of that belief may have been, he cannot be regarded as having performed an expatriatory act with intent to relinquish citizenship.

(ii) Section 349(b) does not supply requisite knowledge of citizenship claim . While under conditions specified in current section 349(b), the performance of a statutory act of expatriation is conclusively presumed to have been voluntary, the applicability of the presumption in the case of a person who performed an expatriatory act without the requisite knowledge that he was a citizen or had claim to citizenship does not supply such knowledge. 29/

(d) Lack of intent to relinquish citizenship and ignorance of expatriative consequences as defenses . (1) Prior to Afroyim v. Rusk . (i) General rules . Prior to the decision n Afroyim v. Rusk, 30/ the United States Supreme and Federal appellate courts held that a citizen who voluntarily performed an expatriatory act could undergo expatriation even though he did not intend to relinquish citizenship by, and at the time of, commission of the act. 31/

As a conclusive implication of the above ruling, and also consistent with the general legal principle that everyone is presumed to know the law, it was also held that a citizen could suffer a loss of nationality by the voluntary performance of an expatriatory act, even though he was then ignorant of the expatriative consequences flowing from the commission of the act. 32/

(ii) Intent to relinquish in relation to expatriation by voluntary action in accordance with applicable legal principles (doctrine of election) . Contrasted with (1) above, expatriation predicated upon the doctrine of election, 33/ or voluntary action in accordance with applicable legal principles (concepts recognized prior to January 13, 1941), required an intent to elect or accept a foreign nationality and to renounce or abandon allegiance to the United States. In effect, a voluntary choice between United States citizenship and a foreign nationality had to be made and, necessarily, expatriation in this manner could not occur unless the person concerned knew that he had dual nationality or, in any event, was aware of the facts upon which the conclusion of dual nationality was premised.

The requisite intent described above could be evidenced by a voluntary express or formal declaration of intention, or could be deduced solely from subsequent voluntary behavior or conduct inconsistent with the retention of United States citizenship and denoting a choice of the foreign nationality. Any secret intent unexpressed by overt acts was immaterial in determination of the issue.

(2) Effect of Afroyim v. Rusk . (i) Intent to relinquish citizenship required . The Supreme Court decision in Afroyim v. Rusk 34/ overruled the court's decision in Perez v. Brownell which, in part pertinent to this discussion, 35/ had reaffirmed the court's earlier view 36/ that expatriation could flow from a voluntary act even though the citizen did not intend thereby to relinquish his United States citizenship. Moreover, in Afroyim, the majority specifically rejected what was stated to be the idea expressed in Perez, namely, that the Congress has any general power, express or implied, to take away an American citizen's citizenship without his assent. The court, in rejecting this idea, asserted that such power cannot be sustained as an implied attribute of sovereignty posses sed by all nations, and that the Constitution grants Congress no express power to strip people of their citizenship, whether in exercise of the implied power to regulate foreign affairs or in the exercise of any specifically granted power (such as the power to pass a uniform rule of naturalization). Finally, the court affirmatively stated that its holding did no more than give to the citizen a right which was already his-- a constitutional right (under the Fourteenth Amendment) to remain a citizen unless he voluntarily relinquishes that citizenship. 37/ ( Revised )

While Afroyim v. Rusk precludes loss of citizenship unless the citizen has "voluntarily relinquished" it, the decision did not consider or specify what declarations or other conduct can properly be regarded as a "voluntary relinquishment" of citizenship. However, taking guidance in this connection from language in earlier decisions of the United States Supreme Court, 38/ the Attorney General concluded that voluntary relinquishment of citizenship is not confined to a written renunciation, as under current sections 349(a)(6) and (7), 39/ but also may be manifested by other actions 40/ are in derogation of allegiance to the United States. Carrying this thought further, he also stated that, under any reading of Afroyim, an act which does not reasonably manifest a transfer of an individual's allegiance (from the United States to a foreign state), or an individual's abandonment of allegiance to the United States, cannot be made a basis for expatriation. 41/ Moreover, he further concluded that, even where an action designated as expatriative by statute is of a type considered to be in derogation of allegiance to the United States, "Afroyim leaves it open to the individual to raise the issue of intent." 41/

Since, as indicated above, Afroyim leaves it open to the individual to raise the issue of intent (to relinquish citizenship), it is evident that the rule set forth in the first paragraph of (d)(1)(i), supra, which holds that an "intent to relinquish citizenship" is not an essential element of expatriation, has ceased to have validity. Again, the Afroyim principle has also invalidated the rule in the second paragraph of (d)(1)(i), supra, for a person who commits an act without knowledge that the commission t hereof will have expatriative consequences cannot logically be regarded as having committed the act with an intent to relinquish citizenship.

The subjective intent of the individual in committing expatriatory acts under subsections 349(a)(1) and (2) was determinative of the issue of expatriation in Matter of Wayne . 41a/ Evidence that an individual performed these acts in reliance upon a government official's erroneous advice regarding the effect of their commission on his United States citizenship status created considerable proof that he did not intend to relinquish his United States citizenship. This proof rebutted the government's prima facie case of voluntary relinquishment of citizenship when these acts are performed by casting a cloud on what might otherwise be regarded as a clear demonstration of intent to abandon allegiance to the United States. 41b/

(ii) Section 349(b) does not supply requisite intent to relinquish citizenship . While under conditions specified in current section 349(b), the performance of a statutory act of expatriation is conclusively presumed to have been voluntary, the applicability of the presumption in the case of a person who performed an expatriatory act without intent to relinquish citizenship, does not supply such intent.

(iii) Burden of proving intent to relinquish citizenship . See INTERP 349.1(f)(4), infra.

(3) Effect of Vance v. Terrazas . (i) Section 349(c) deemed constitutional . In the recent decision of Vance v. Terrazas 41c/ the Supreme Court upheld the constitutionality of section 349(c). Under that provision, the party claiming that citizenship has been lost has the burden of proving such loss by preponderance of evidence. Moreover, a person who commits a statutory act of expatriation is presumed to have committed the act voluntarily, but the presumption may be overcome upon a showing, by a preponderance of the evidence, that the act was not performed voluntarily. The Court expressly rejected the contention that expatriation must be proved by clear and convincing evidence. ( Added )

(ii) Reaffirmation of Afroyim v. Rusk . In the same opinion the Supreme Court reaffirmed and explained its holding in Afroyim v. Rusk . In order to find expatriation, the court explained, "the trier of fact must...conclude that the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to relinquish his citizenship." The court declared that it would not be consistent with Afroyim "to treat the expatriating acts specified in (the statute) as the equivalent of or as conclusive evidence of the indispensable voluntary assent of the citizen." "In the last analysis," the Court said, "expatriation depends on the will of the citizen rather than on the will of Congress and its assessment of his conduct." ( Added )

(e) Application of the Afroyim principle to persons whose citizenship was acquired at birth abroad . While the Supreme Court in Afroyim v. Rusk, stated that its holding did no more than give to the citizen a right (under the Fourteenth Amendment) to remain a citizen unless he voluntarily relinquishes that citizenship, 42/ and although the Fourteenth Amendment confers United States citizenship only upon persons born or naturalized in the United States, and contains no reference to persons who become citizens in any other manner, the Service initially held that the Afroyim principle should be applied in determining questions of expatriation, without regard to the manner in which citizenship may have been acquired. 43/ Thus, originally, the principle was applied in cases involving questions of citizenship loss by persons who became citizens at birth abroad through a parent or parents. ( Revised )

However, the Supreme Court decision in Rogers v. Bellei 43a/ has compelled a reconsideration of the Service position expressed above. That opinion declared that the acquisition of United States citizenship at birth abroad is not a "naturalization" within the meaning of the Fourteenth Amendment, and that the announcement in Afroyim v. Rusk that Congress has no power to take away citizenship without the citizen's assent is not to be judicially extended to citizenship not based upon the Fourteenth Amendment. 43b/ These judicial declarations permit Bellei to be read as stating that pre-Afroyim Supreme Court rulings still govern the resolution of questions involving nationality loss by persons who became citizens at birth abroad 43c/ and, as indicated in INTERP 349.1(d)(1)(i), these earlier decisions did not require the citizen to intend or assent to a relinquishment of citizenship. The Service has yet to take a position in this matter and, in the interim, related cases are being processed under rules set forth in memoranda furnished all regions. 44/

(f) Burden of proof, presumptions, and other evidentiary matters . (1) Party alleging expatriation has burden of proof (judicial policy) . The burden of proving expatriation is upon the party who affirmatively alleges it, 45/ and the courts, recognizing the seriousness of a decision adversely affecting citizenship status, invariably have construed facts and laws in favor of the citizen to the greatest extent possible. 46/

When a person claims United States citizenship in a proceeding to which the government is a party, and establishes a prima facie case of citizenship by fair preponderance of evidence, the government must assume the burden of proving an affirmative allegation of expatriation if the claim is to be defeated upon such basis. 47/ A prima facie case of citizenship within this rule may be established by the Government's concession that the adversary party, at one time, had been vested with citizenship status. 48/

(2) Quality and quantity of evidence required to meet the burden of proof . (i) Proceeding begun prior to September 26, 1961 . When the issue of expatriation arose in a proceeding commenced prior to September 26, 1961, the Government had to sustain the burden of proving nationality loss, not by a mere inference, hypothesis, surmise, 49/ or bare preponderance of proof, 50/ but by "clear, unequivocal, and convincing evidence" which did not leave the issue in doubt, 51/ a standard of proof similar to that required for revocation of naturalization.

(ii) Proceeding begun on or after September 26, 1961 . By reason of amendatory legislation, 52/ questions involving the burden of proof in its relationship to expatriation arising under both past or present legislation, must be considered in the light of current section 349(c), if they arise in a proceeding commenced 53/ on or after September 26, 1961. While under section 349(c) the burden of proving nationality loss in such proceeding continued to be upon the party alleging such loss, the first sentence of the section also made it clear that such burden will be met by a preponderance of the evidence.

(3) Burden of proving voluntary performance of an expatriatory act--related presumptions . (i) Proceeding begun prior to September 26, 1961 . A citizenship claimant who consciously commits an act designated as expatriatory by statute is subject to the rule dictated by common experience that one ordinarily acts voluntarily. 54/ Accordingly, as an initial matter, the government was not obligated to introduce independent evidence establishing that the performance of the expatriatory act was voluntary. Rather, the burden of proving nationality loss described in paragraph (2)(i) above, including the requisite element of voluntariness, 55/ was regarded as having been sustained once the actual commission of a statutory act of expatriation had been established by clear, unequivocal, and convincing evidence. 56/

However, notwithstanding the basic rule set forth above, if the issue of voluntariness was injected into the proceeding, as where the circumstances surrounding the commission of the expatriative act, and the reasonable inferences to be drawn therefrom indicated involuntary performance, the Government was obligated to go forward with the evidence and disprove the defense of duress, 57/ by "clear, unequivocal, and convincing evidence" establishing the voluntary character of the expatriative act. 58/

Applying the rule last stated above, it was held that the uncorroborated testimony of a native-born citizen that he voted in a political election in Greece, under a genuine, if unfounded, fear of being branded a Communist and of harm being done to his home and family should he abstain from voting, was sufficient to raise the issue of voluntariness, making it obligatory for the Government to go forward with the proof, by presenting "clear, unequivocal, and convincing evidence" to establish that the expatriat ory act was performed voluntarily. Lending substance to the citizen's subjective fear was the finding that it was engendered by a mob atmosphere prevailing in the remote area of Greece in which he resided, where communication with the outside world was slight and rumors, once started, were not easily stifled. 59/

On the other hand, where the fear is purely subjective, and there is no showing of any additional circumstances justifying the fear, the burden of going forward with the evidence to prove voluntary performance does not shift to the Government. Thus, the testimony of a dual national of the United States and Japan that he voted in Japanese elections because he was fearful of what his neighbors would think if he refrained from voting did not put the Government to its proof, when he failed to present any eviden ce showing that he had a reason to fear bodily harm or other form of oppression if he did not vote, and when he affirmatively testified that he was on good terms with his neighbors, that no one checked up on or took official action against those who did not vote, and that he never had heard of anyone being assaulted for not voting. 60/

In cases involving native-born citizens of Japanese parentage who renounce United States citizenship while isolated at the Tule Relocation Center during World War II, it was held that the circumstances of their imprisonment and other conditions at the center raised the issue of voluntariness and, in effect, created a rebuttable presumption that the renunciants acted involuntarily, a factor which required the government to go forward with the evidence in rebuttal. 61/ Many, 62/ although not all, 63/ of these renunciations were set aside as involuntary because of the conditions which prevailed at the center.

Should a past finding of nationality loss, founded upon the established performance of a statutory act of expatriation, such performance having been proved voluntary under the evidentiary rules described in the paragraphs above, be reconsidered in the light of Afroyim v. Rusk, 64/ the expatriate would have to be afforded an opportunity to raise the "issue of intent" (to relinquish citizenship), and if such issue is raised, the expatriation determination would have to be reversed unless the aforesaid intent is established under the evidentiary rules set forth in (4), infra.

(ii) Proceeding begun on or after September 26, 1961 (section 349(c)) . The view that a citizen who consciously commits a statutory act of expatriation should, upon the basis of common experience, ordinarily be regarded as having acted voluntarily, a view held by the courts in earlier proceedings, 65/ found strong legislative expression in the enactment of current section 349(c) 66/

The second sentence of section 349(c) provides that, except where the conclusive presumption of voluntariness in current section 349(b) applies [see (iii) which follows in sequence], a person who commits any statutory act of expatriation will be presumed to have committed the act voluntarily, until he establishes the involuntary nature of the act by a preponderance of evidence. Moreover, since the first sentence of section 349(c) also stipulates that the burden of proving nationality loss is met by a prepon derance of evidence, all the government need do to prove "voluntary performance" in a proceeding begun on of after September 26, 1961, is to introduce preponderance of evidence proving the commission of a statutory act of expatriation. Otherwise stated, until the citizen establishes the involuntary nature of the act by a preponderance of evidence, the government is not required to introduce any independent evidence of voluntariness. Furthermore, should involuntariness be established by requisite quantum of evidence, the government's evidence in rebuttal need only preponderate and need not amount to clear, convincing, and unequivocal evidence of voluntariness. 67/

Thus, pursuant to the above rules, where the evidence established that citizenship was formally renounce in 1967 before an American consul in Canada, the renunciation was presumed voluntary under section 349(c), and held to be expatriative under current section 349(a)(6), when the citizen did not offer any testimony or other evidence to support a conclusion that his renunciation was other than voluntary. Moreover, although it was found to be clearly inferable that the citizen's renunciation was motivated by a desire to avoid military induction, and that the desire may have been based upon conscientious scruples, the Board of Immigration Appeals stated that such desire did not make his act of renunciation any the less deliberate or voluntary. 67a/ Recently, the Supreme Court in Vance v. Terrazas 67b/ has upheld the portion of the statute concerning "voluntariness." It is constitutional to presume the act is voluntary unless and until the actor can prove otherwise. ( Revised )

However, it should be recognized that, because of the Afroyim principle, 68/ which has been reaffirmed in Vance v. Terrazas the voluntary performance of an act declared expatriative by statute even when fully established in accordance with the rules of evidence above, no longer constitutes a sufficient basis for expatriation unless the act is performed with an "intent" (to relinquish citizenship). Whether the case is one being reconsidered in the light of Afroyim or a new case, the aforesaid question of intent must be resolved in accordance with the evidentiary rules set forth in (4) infra. Where a U.S. citizen was naturalized in Canada, the presumption of having done so voluntarily was rebutted by a preponderance of evidence showing that he was mentally incompetent to make an intelligent decision to surrender U.S. citizenship. 68a/ ( Revised )

(iii) Conclusive presumption of voluntariness (current section 349(b)) .The difficulty in establishing that the performance of an expatriatory act was voluntary is considerably lessened by current subsection 349(b), which had no counterpart in previous legislation. The presumption provided for by this subsection conclusively eliminates duress as a defense to expatriation under the circumstances specified therein. 69/ However, the applicability of the presumption does not eliminate the necessity for compliance with the Afroyim principle, 70/ and an "intent to relinquish citizenship" must be proved in accordance with the evidentiary rules set forth in (4), infra.

Moreover, the above presumption is inoperative against a person who performed the expatriatory act in the mistaken belief that he was an alien based on advice given him directly or through a member of his family by a Government official whose duty it was to furnish such advice and that advice no longer was true because of a change in the law or in the interpretation of the law. 71/

It is also inoperative against a person when the period of physical presence in the foreign state, required to activate the presumption, has accrued involuntarily by reason of the refusal of that state's government to permit departure. 72/

(iv) Voluntariness of military service and concomitant oath under conscription statue . Military service for a foreign state, or an oath of allegiance taken incident thereto, separate grounds of expatriation, are generally considered to be suspect as involuntary in character when performed or taken pursuant to foreign conscription statutes. 73/

However, the effect in evidence of military induction and taking the oath under compulsion of a conscription law upon the issue of voluntariness had been the subject of judicial conflict. Some courts had ruled that a dual national had established a prima facie case of involuntary action under such circumstances. 74/ Other authority had stated that conscription alone would not render an oath involuntary, 75/ and that no presumption of involuntariness arose under such conditions. 76/

In Nishikawa v. Dulles, 77/ a case decided before September 26, 1961, the Supreme Court stated that conscription in a totalitarian country to whose conscription law, with its penal sanctions, the dual national was subject, was sufficient to inject the issue of voluntariness and to place the Government under the necessity of proving voluntary conduct by clear, convincing, and unequivocal evidence.

Even before Nishikawa, administrative authority had taken the position that neither conscripted service in the armed forces of Fascist Italy nor an oath of allegiance taken in connection therewith, in and of itself, was sufficient to establish the voluntary action needed to support a finding of expatriation. 78/ The effect of such ruling was to require the government to go forward with the evidence and affirmatively prove the voluntary nature of the service or oath by clear, convincing, and unequivocal evidence. 79/

While it appears clear that the burden of going forward with the evidence to prove the voluntary nature of foreign military service or a concomitant oath shifts to the government when it is shown that the service was performed or the oath was taken under compulsion of a conscription statute, this circumstance is not necessarily conclusive of the issue of voluntariness. It has been recognized that military service performed pursuant to a conscription law may nonetheless be proved voluntary 80/ by clear, convincing, and unequivocal, 81/ or a preponderance of, 82/ evidence establishing voluntariness, as the case may be. Evidence of protest against induction or taking the oath, of solicitation of aid from American officials, or the lack of any such protest or solicitation, have been given weight in resolving the issue of voluntariness. 83/ However, where it appeared that such protest or solicitation would have been in vain, the absence thereof was deemed to be of insufficient probative value. 84/

The relatively recent decision in Cafiero v. Kennedy 85/ is an excellent illustration of a case in which the government was able to prove the voluntary nature of a dual national's conscripted service by evidence in the categories described above. Specifically, the court held that Cafiero's naval service during the period 1953-1955 pursuant to an Italian conscription law was voluntary, because he had made no real attempt to avoid such service through the several avenues open to him, as evidenced by his failure to come to America and thereby render himself immune from conscription at a nearby American consulate (which his brothers and sister had visited on numerous occasions), his failure to seek the Secretary of Defense's permission to serve without loss of citizenship and, finally, his failure to challenge his draft enrollment in civil court upon the basis of his American citizenship, a right granted him by Italian law. It should also be noted that, while the "preponderance of evidence" standard could have been applied based upon the date of the proceeding in whic h the question of expatriation arose, the court found that the described evidentiary items added up to clear, convincing, and unequivocal evidence of voluntary performance, the earlier more stringent standard of proof.

(4) Proving intent to relinquish citizenship . (i) Burden of proof . The final burden of proving such intent is upon the party asserting that expatriation has occurred. 86/

(ii) Express admission . Unless the statutory provision designating an act as expatriative has been declared unconstitutional, the intent to relinquish citizenship required for nationality loss under Afroyim can be conclusively established by a voluntary admission that such act was performed with the intention of relinquishing citizenship.

(iii) Act in derogation of allegiance to the United States . Unless persuasive evidence of an intent not to transfer or abandon allegiance to the United States is forthcoming, the final burden of proof will be met by establishing the voluntary performance of a statutory act of expatriation which is in derogation of allegiance to the United States in the sense that such act is of a type normally or commonly associated with a transfer or abandonment of allegiance to one's country. 87/ The statutory acts of expatriation which are to be regarded as falling within this category will be identified as each individual expatriatory act is hereafter considered in INTERP 349.

(iv) Act not in derogation of allegiance to United States, coupled with persuasive evidence of intent to transfer or abandon allegiance to the United States . Certain acts designated as expatriative by statute are not, in themselves, regarded as being in derogation of allegiance to the United States. 88/ Consequently, the voluntary performance of an act in this category, standing alone, does not denote an intent to relinquish citizenship and cannot, without more, result in expatriation. Nonetheless, the voluntary performance of such an act coupled with other persuasive evidence of an intent to transfer or abandon allegiance to the United States can satisfy the burden of proof and cause a loss of citizenship. 89/

(v) Effect of expatriate's death or unavailability upon burden of proof . When the nature of a statutory act of expatriation is such that it is considered to be in derogation in (iii) above, and a statement of the facts, circumstances, motives and purposes surrounding the commission of the act cannot be obtained from the person committing it because he or she is deceased or otherwise unavailable, it is deemed possible but most unlikely that proof from other sources 90/ relating to these circumstantial matters will amount to persuasive evidence that the act was committed without intent to transfer or abandon allegiance to the United States and that, therefore, the person committing the act did not expatriate under the Afroyim principle.

On the other hand, if the expatriatory act is one not generally regarded as being in derogation of allegiance to the United States, as explained in (iv) above, the death or unavailability of the person committing the act will make it equally improbable that persuasive evidence of an intent to transfer or abandon allegiance to the United States can be developed from other sources, and thus warrant a finding that expatriation resulted from commission of the act.

(vi) Required interrogation of the citizen . The interrogation eliciting the testimony of the citizen should avoid the use of leading questions which can be answered by a simple "yes" or "no" response and, in effect, suggest to the opportunist that a given self-serving reply will effectively absolve him from expatriation under the Afroyim principle. Initially, the citizen should be questioned at length in a manner which does not lead or offer other improper guidance, and which seeks to develop in citizen's own words (as the basis for concluding that he did or did not transfer his allegiance to a foreign state, abandon the allegiance he owes the United States, or otherwise relinquish his citizenship of the United States) all the facts circumstances, motives, and purposes surrounding his performance of the expatriative act, as well as any information indicating that he subsequently engaged in conduct denoting a preference for a foreign citizenship over United States citizenship, or vice versa. It is only after a substantial adequate record along these l ines has been established that questions using the words "intent" and "intention" should be introduced into the proceeding. Moreover, even at this point, suggestive or leading questions susceptible to a simple affirmative or negative response such as "When you took an oath of allegiance to the British Crown, did you intend to relinquish your United States citizenship?", or "When you applied for and were granted naturalization in France, did you intend to transfer your allegiance from the United States citi zenship?", or the like, should never be asked. Rather, the questions should be so phrased as to compel a composition answer by the citizen in his or her own words.

(g) Restrictions upon expatriation generally imposed by law . Despite the accepted principle that expatriation is an inherent right, 91/ the law has always imposed certain general restrictions upon loss of nationality, either to protect the interests of the United States, 92/ or to render effective the concept that expatriation can only occur as the result of voluntary action. Minority, war, and other factors constituting a general bar to expatriation are considered later in these Interpretations in relationship to each individual ground of expatriation, under either a specific heading entitled "Restrictions upon expatriation," or a more extensive heading inclusive of the quoted caption.

(h) Expatriative foreign oath nonexpatriatory when taken as concomitant or inseparable part of another ineffective expatriatory act . Even though an oath of allegiance to a foreign state is taken under conditions which would cause citizenship loss under the general principles of expatriation considered heretofore, such oath becomes nonexpatriatory when it is taken as a concomitant or an inseparable part of another independent expatriative act which, in itself for one reason or another, is ineffective in causing a loss of United States citizenship (see INTERPS 349.3(a)(3)(vi) and 349.3(b)(2)).