UNCLASSIFIED (U)

8 FAM 102.4

AppeLlate court Decisions

(CT:CITZ-35;   05-15-2020)
(Office of Origin:  CA/PPT/S/A)

8 FAM 102.4-1  Introduction

(CT:CITZ-7;   08-14-2018)

This subchapter summarizes various appellate courts decisions which have considered the issues of acquisition and retention of U.S. citizenship on various occasions.

8 FAM 102.4-2  Rucker v. Saxbe

(CT:CITZ-7;   08-14-2018)

a. In Rucker v. Saxbe, 552 F.2d 998 (1977), the Third Circuit Court found that the government has no affirmative duty to inform citizens residing abroad of changes in U.S. nationality laws on a continuing basis, and that it was not barred from applying the retention requirements to Mr. Rucker by its failure to inform him directly of the amendments to those requirements.

b. Unawareness of the requirements of INA 301(b), when accompanied by an awareness of a claim to U.S. citizenship, does not prevent application of the retention requirements.  The Supreme Court declined to review Rucker.

c.  The court found that the Government has no affirmative duty to inform citizens residing abroad of changes in U.S. nationality laws on a continuing basis, and that it was not barred from applying the retention requirements to Mr. Rucker by its failure to inform him directly of the amendments to those requirements.  This opinion coincides with the Department's longtime belief that citizens are obliged to keep themselves informed of the duties imposed on them by their citizenship.

8 FAM 102.4-3  Runnett v. Shultz

(CT:CITZ-7;   08-14-2018)

In Runnett v. Schultz, 902 F. 2d 782 (1990), the Ninth Circuit Court held that the applicable law for transmitting citizenship to a child born abroad when one parent is a U.S. citizen is the statute that was in effect at the time of the child's birth.

8 FAM 102.4-4  Drozd v. Immigration and Naturalization Service

(CT:CITZ-7;   08-14-2018)

In Drozd v. INS, 155 F. 3d 81 (1998), the Second Circuit Court found that:

Because Congress has expressly specified certain exceptions from the physical presence requirement of section 301(a)(7), Drozd's request for an additional exception to the physical presence requirement for citizens who could not be physically present in the United States because of financial reasons or war or imprisonment cannot be accommodated “in the absence of evidence of a contrary legislative intent.”

Nothing in the legislative history of the 1952 Act dictates a contrary construction.

8 FAM 102.4-5  Tullius v. Albright

(CT:CITZ-7;   08-14-2018)

In Tullius v. Albright, 240 F.3d 1317 (2001), the Eleventh Circuit Court found that:

"the district court properly found that the doctrine of constructive physical presence does not apply to the physical presence requirement for transmission of United States citizenship under 8 U.S.C. § 1401(a)(7) (1973)"

8 FAM 102.4-6  Perri v. Dulles

(CT:CITZ-7;   08-14-2018)

In Perri V. Dulles, 206 F.2d 586 (3rd Cir. 1953), the Third Circuit Court found that:

"Moreover for the constitutional reasons already referred to we conclude that the two years period of limitation must also be regarded as not beginning to run until the plaintiff learned that he had a claim to American citizenship. For to provide that a citizen "shall be forever estopped" from claiming citizenship by his failure to return to the United States at a time when he was wholly unaware of his citizenship would certainly be to deprive him of it arbitrarily and without his knowledge, much less his concurrence."

8 FAM 102.4-7  Petition of Acchione

(CT:CITZ-7;   08-14-2018)

In Petition of Acchione, 213 F.2d 845 (3rd Cir. 1954), the Third Circuit Court found that:

"[E]ven though appellee had no knowledge of her right to American citizenship until 1948 since she did not come to America within two years of January 13, 1941 (the effective date of the Act) she committed an overt act of expatriation and should be considered as having elected to remain a citizen of Italy.  This contention is squarely opposed to our decision in Perri v. Dulles, 3 Cir., 1953, 206 F.2d 586."

8 FAM 102.4-8  Rogers v. Patokoski

(CT:CITZ-7;   08-14-2018)

In Rogers v. Patokoski, 271 F.2d 858 (9th Cir. 1959), the Ninth Circuit Court held that expatriating acts committed by an individual while he was unaware of his claim to U.S. citizenship did not cause him to lose his U.S. citizenship.  Despite the applicant's admission in that case that he knew that his father was a U.S. citizen, the court accepted his claim of unawareness of his own citizenship since there was no evidence to the contrary.  His lack of awareness was demonstrated by evidence that he had entered the United States on several occasions as a nonimmigrant.  In effect, the court stated that the applicant met the burden of proof on the basis of his own credible and convincing testimony.  (Although this case does not directly relate to the retention requirements, its development of the notion of unawareness can be applied by analogy in this context.)

""The plaintiff could not expatriate himself or lose or abandon his United States of America citizenship by taking an oath of allegiance to the Finnish Government or by serving in the Finnish Army or by voting in a Finnish election because he did not know he was a citizen of the United States of America when he did those things, and the plaintiff has not expatriated himself or lost or abandoned his United States of America citizenship by doing those things with such lack of knowledge."

8 FAM 102.4-9  Dela Cruz v. United States

(CT: CITZ-24;   08-07-2019)

Dela Cruz v. United States (U.S.D. Ct. CNMI, July 31, 1987) granted citizenship to persons who were under the age of 18 on November 4, 1986, were domiciled in the CNMI or the U.S. on that date and were born in the CNMI of at least one parent born in the former Trust Territory.  The Dela Cruz decision went further to define “all persons” as used in section 301 as any person and his or her child or children.  Child is defined in section 101(b)(1) INA.  Such children did not have to be born in the CNMI nor did they have to be domiciled in the CNMI or U.S. on November 4, 1986.

8 FAM 102.4-10  Shoda and Reyes v. United States

(CT: CITZ-24;   08-07-2019)

Shoda and Reyes v. United States (U.S.D. Ct. CNMI, August 3, 1988) allowed for acquisition of citizenship for persons who were 18 or older on November 4, 1986, were domiciled in the CNMI or the U.S. on that date and were born in the CNMI of at least one parent born in the former Trust Territory.

8 FAM 102.4-11  Barasi v. United States

(CT: CITZ-24;   08-07-2019)

Barasi v. United States (U.S.D. Ct. CNMI, August 3, 1988) provided guidelines for determining whether an applicant met the continuous domicile requirement of section 301(c) of the Covenant, as follows:

(1)  The totality of the applicant's conduct will be used to determine domicile;

(2)  The substantially continuous presence of the applicant in the CNMI since before 1974 will be viewed as affirmative evidence of his or her intent to remain in the CNMI indefinitely and accorded great weight; and

(3)  Any official statement to the contrary about his or her residence made by the applicant will not by itself serve to negate his or her true intent.

8 FAM 102.4-12  Amog v. United States

(CT: CITZ-24;   08-07-2019)

Amog v. United States (U.S.D. Ct. CNMI, May 1, 1991) reaffirmed the Department’s position that persons born in the CNMI on or after January 1, 1974 and before November 4, 1986 of two alien parents, neither of who acquired U.S. citizenship under the Covenant did not acquire U.S. citizenship pursuant to the Covenant.  Caution: Some of these individuals were admitted to the United States by showing only their CNMI birth certificate, and may file a U.S. passport application.  However, as a result of Sabangan, now the Amog class consists of only persons born in the CNMI between January 1, 1974 and 11 a.m., Saipan time January 9, 1978 (8 p.m. EST January 8, 1978) of two alien parents, neither of whom acquired U.S. citizenship under the Covenant.  This subset of the original Amog class does not acquire U.S. citizenship pursuant to the covenant.

8 FAM 102.4-13  Sabangan v. Powell

(CT: CITZ-24;   08-07-2019)

In Sabangan v. Powell, 375 F.3d 818 (2004), a panel of the U.S. Court of Appeals (9th Circuit) held that two individuals born in the Northern Mariana Islands between January 9, 1978, and November 3, 1986, acquired U.S. citizenship under section 501(a) of the covenant to establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America.  The court reasoned that beginning at 11 A.M. January 9, 1978 (Saipan time), when section 501(a) made section 1 of Amendment 14 of the U.S. Constitution applicable in the Northern Marianas Islands under section 501(a) “as if the Northern Mariana Islands were one of the several States,” the Northern Mariana Islands were to be treated as if they were “in the United States” for purposes of the Citizenship Clause in the first sentence of section 1 of Amendment 14.  Although the Department (CA and L/CA) believed the decision was clearly erroneous, the Solicitor General’s office did not seek Supreme Court review, and it is now final.  In order to maintain a uniform application of the nationality laws and for operations reasons, the Department (CA) decided to apply the decision worldwide.  Applications from individuals who were born in the Northern Mariana Islands between 11 a.m., Saipan time January 9, 1978 (8 P.M. EST, January 8, 1978) and 12:01 a.m. November 4, 1986 (9 a.m. EST, November 3, 1986), who provide satisfactory birth records and evidence of identity, and who otherwise meet the requirements and qualifications may be approved and a U.S. passport may be issued.

8 FAM 102.4-14  U.S. v. Gancy

(CT:CITZ-35;   05-15-2020)

a. U.S. v. Gancy, 54 F.Supp. 755 (1944) United States v. Gancy (1945), 4 F. Supp. 755 (D. Minn. 1944), affirmed 149 F.2d 788 (C.A. 8), cert. denied 326 U.S. 727, rehearing denied 326 U.S. 810 (1945).

b. Braulio Malim Gancy was indicted for failure to register pursuant to the Alien Registration Act of 1940, Tit. 3, Secs. 30-37, 8 U.S.C.A. §§ 451-460, and he moved to quash the indictment on the ground that he is not an alien, but a citizen of the United States.  The Court found:

"We may, as these cases suggest, owe the Filipinos a duty of protection in return for their allegiance and they may be entitled to certain fundamental personal rights as nationals of a dependency, but their rights under our immigration laws are a matter for Congress to determine. That question has now been settled beyond any controversy.  It follows, therefore, that the motion to quash the indictment will be, and is, denied. An exception is reserved to the defendant."

 

UNCLASSIFIED (U)