Interpretation 349.7 Expatriation by formal renunciation of United States citizenship.

(a) Before Afroyim v. Rusk.

(b) Effect of Afroyim v. Rusk.

(a) Before Afroyim v. Rusk . (1) Abroad . (i) Statutory development and provisions . Fortified by the Act of July 27, 1868, declaring expatriation to be an inherent right, 400/ the Attorney General of the United States ventured the opinion that a formal renunciation of United States citizenship abroad should be regarded as an act of expatriation, if the renunciant emigrated to a foreign country and took the renunciatory action in accordance with its laws with a view to acquiring its nationality. 401 /

Despite the early pronouncement of the Attorney General, as set forth above, the statutes did not provide for loss of nationality based upon a formal renunciation of citizenship abroad until January 13, 1941, when section 401(f) of the Nationality Act of 1940 became effective. The provisions of such section, identical with those of current section 349(a)(6), provide that a formal renunciation before a United States diplomatic or consular officer in a foreign state and in a form prescribed by the Secretary o f the State results in expatriation.

(ii) Restrictions upon expatriation . The statutes have never precluded or restricted expatriation by formal renunciation abroad because of the existence of a state of war.

While expatriation by formal renunciation abroad did not occur under the 1940 statute if the renunciant was less than 18 years of age, 402/ a renunciant who is under such age will suffer expatriation pursuant to current section 349(a)(6) in the absence of timely elective action specified in current section 351(b).

(2) Within the United States . (i) Prior to January 13, 1941; statutory development and restrictions upon expatriation . A formal renunciation of United States nationality effecting loss of such status could be accomplished before a naturalization court in the United States between March 2, 1907, and September 22, 1922, by women who had derived United States citizenship as a result of marriage, 403/ subsequently terminated. Loss of nationality did not occur if the renunciation was made during World War I (April 7, 1917 - July 1, 1921, incl.), 404/ unless on the July date, the woman was still unmarried and manifested no intention to retain United States citizenship.

Expatriation by formal renunciation before a naturalization court could also be achieved on and after September 22, 1922, through January 12, 1941, by a United States citizen woman who married an alien during such period 405/ under circumstances which did not cause loss of nationality, 406/ or by a male citizen on or after May 24, 1934, and before January 13, 1941, if he married an alien woman within such period. 407/ During the effective period of the 1934 legislation, 408/ neither man nor woman could effectively renounce United States nationality during wartime. Furthermore, the statute in question provided for automatic voidance of expatriation should war be declared within one year after a renunciation.

(ii) January 13, 1941; statutory development and restrictions upon expatriation . As originally enacted, effective January 13, 1941, the Nationality Act of 1940 did not provide for expatriation by formal renunciation made within the United States. However, the Act of July 1, 1944, made such provision by adding section 401(i) to the 1940 statute, and that section was continued without change in the present law as section 349(a)(7).

Under the two statutes in question, a formal written renunciation must be made in a form prescribed by the Attorney General approves it as not contrary to the national defense.

For purposes of section 401(i) of the 1940 statute, World War II terminated on July 25, 1947. 409/ It has also been determined that, for purposes of current section 349(a)(7), the United States has not been in a state war during the period of the Viet Nam hostilities, and is not now in a state of war by reason of that conflict. Accordingly, any attempt to renounce citizenship within the United States under the current provision, based upon the Viet Nam conflict, should be regarded as ineffectual. 410/

Minority, which generally precluded or restricted nationality loss flowing from most otherwise effective expatriatory acts, in the absence of express statutory age restriction, was regarded as an effective defense to expatriation in cases involving renunciation under section 401(i) of the 1940 statute, 411/ it being noted that the general age restriction appearing in section 403(b) of that enactment has no application to section 401(i).

(b) Effect of Afroyim v. Rusk . The decision in Afroyim v. Rusk 412/ stated that Congress lacked the constitutional power to deprive a person of United States citizenship without his assent, and that every citizen has a constitutional right to remain a citizen unless he voluntarily relinquishes citizenship. Since a citizen who voluntarily renounces citizenship in the manner required by secs. 401(f) and (i) of the Nationality Act of 1940 or current secs. 349(a)(6) and (7) is, in somewhat different words, voluntarily relinquishing citizenship, it is clear that Afroyim has had no effect upon the validity of the sections in question, and the Attorney General's Statement of Interpretation and the rules implementing it, 413/ as well as a subsequent decision by the Board of Immigration Appeals, 413a/ have drawn that conclusion. Moreover, this position is consistent with the observation of Chief Justice Warren, dissenting in Perez v. Brownell, 414/ to the effect that "It has long been recognized that citizenship may ... be voluntarily renounced through exercise of the right of expatriation," and with a statement in Nishikawa v. Dulles 415/ made by Justice Black who wrote the majority opinion in Afroyim, to wit, "Of course a citizen has the right to abandon or renounce his citizenship and Congress can enact measures to regulate and affirm such abjuration."