respect to claims of involuntariness in ordinary civil cases cannot be doubted. To invalidate the rule here would be to disagree flatly with Congress on the balance to be struck between the interest in citizenship and the burden the Government must assume in demonstrating expatriating conduct. It would also constitutionalize that disagreement and give the Citizenship Clause of the Fourteenth Amendment far more scope in this context than the relevant circumstances that brought the Amendment into being would suggest appropriate. Thus we conclude that the presumption of voluntariness included in § 1481 (c) has continuing vitality.

V

In sum, we hold that in proving expatriation, an expatriating act and an intent to relinquish citizenship must be proved by a preponderance of the evidence. We also hold that when one of the statutory expatriating acts is proved, it is constitutional to presume it to have been a voluntary act until and unless proved otherwise by the actor. If he succeeds, there can be no expatriation. If he fails, the question remains whether on all the evidence the Government has satisfied its burden of proof that the expatriating act was performed with the necessary intent to relinquish citizenship.

9 The Secretary asserts that the § 1481 (c) presumption cannot survive constitutional scrutiny if we hold that intent to relinquish citizenship is a necessary element in proving expatriation. Brief for Appellant 26. The predicate for this assertion seems to be that § 1481 (c) presumes intent to relinquish as well as voluntariness. We do not so read it. Even if we did, and even if we agreed that presuming the necessary intent is inconsistent with Afroyim, it would be unnecessary to invalidate the section insofar as it presumes that the expatriating act itself was performed voluntarily. 444 U.S. 252, 264, 266-270.

On remand, the U.S. District Court in Terrazas v. Muskie, 494 F. Supp. 1017 (N.D. Ill. 1980), aff'd sub nom. Terrazas v. Haig, 653 F.2d 285 (7th Cir. 1981), ruled again for the defendant.

In his memorandum opinion dated August 12, 1980, District Judge Abraham Lincoln Marovitz stated that he had applied Afroyim's interpretation of 8 U.S.C. 1481, when evaluating the evidence presented at the original trial of the case and concluding both that the plaintiff had voluntarily committed an act of expatriation within section 1481's meaning and that the plaintiff had voluntarily relinquished his citizenship.

Judge Marovitz noted that, although the Supreme Court had rejected the Government's argument, asserted before it "apparently for the first time during the course of this litigation, that the Government need not establish an intent to relinquish citizenship..

only that one of section 1481's enumerated acts has been

committed", neither the Supreme Court nor the Seventh Circuit had "in any way suggested" that the District Court had not found such intent to relinquish citizenship on the plaintiff's part. His (original) findings and conclusions, Judge Marovitz pointed out, indicated that he had "distinctly found that plaintiff had knowingly and voluntarily performed an act of expatriation within the meaning of section 1481(a) (i.e., took an oath of allegiance to Mexico) and renounced allegiance to the United States."

Terrazas had been a dual national, born in the United States to a Mexican citizen father and an American citizen mother. He had resided for most of his life in the Chicago, Illinois, area, but had attended the Colegio Comercial Ingles in Monterrey, Mexico, from 1968 through 1971.

While in Chicago in Sept. 1970, he had executed an Application for a Certificate of Mexican Nationality, in which he expressly renounced his U.S. citizenship, as well as "any submission, obedience, and loyalty to any foreign government, especially to that of the United States of America. . . ." When affirming Judge Marovitz's second decision in 1981, the Seventh Circuit stated:

* * *

[T]he timing of plaintiff's actions casts some doubts upon his motivation. Plaintiff executed the Application for a Certificate of Mexican Nationality just one week after taking and passing his Selective Service physical examination. He later approached the United States Consulate in Monterrey to inquire about his citizenship status only after his student and hardship deferments were withdrawn and he was classified 1-A by the Selective Service. Moreover, when informed by consulate officials that by acquiring the Certificate of Mexican Nationality plaintiff probably had expatriated himself, plaintiff immediately sought to inform his draft board in Chicago that he was no longer a citizen.

653 F.2d 285, 288-289.

See, also, the 1978 Digest, pp. 239-242.

Termination of "Bancroft" and Other Naturalization Conventions

By notes to the embassies in Washington of a number of countries with which the United States had concluded "Bancroft" or other conventions relating to naturalization, the Department of State gave notification of their termination in accordance with the respective treaty provisions.

The Department pointed out in each notification that the convention had "long ceased to offer any positive benefits" and, also, created "a presumption that a naturalized citizen intends to abandon that citizenship should he reside in his country of origin for a period of two years." The United States could no longer apply this presumption to its naturalized citizens, the Department stated, because such action "would violate the United States Constitution as interpreted by the Supreme Court of the United States in recent years."

The notifications of termination covered the following Conventions: Naturalization Convention between the United States and Belgium, signed at Brussels, Nov. 16, 1868, 16 Stat. 747; T.S. 24; 5 Bevans, Treaties, etc. (1970) 476; termination notified by note dated Oct. 20, 1980, Dept. of State File No. P80 0138-2350.

Naturalization Convention between the United States and Costa Rica, signed at San Jose, June 10, 1911, 37 Stat. 1603; T.S. 570; 6 Bevans, Treaties, etc. (1971) 1027; termination notified by note dated Oct. 20, 1980, Dept. of State File No. P80 0138-2344.

Naturalization Convention between the United States and Denmark, signed at Copenhagen, July 20, 1872, 17 Stat. 941; T.S. 69; 7 Bevans, Treaties, etc. (1971) 24; termination notified by note dated Oct. 3, 1980, Dept. of State File No. P80 0132-1919.

Naturalization Convention between the United States and El Salvador, signed at San Salvador, Mar. 14, 1908, 35 Stat. 2038; T.S. 503; 7 Bevans, Treaties, etc. (1971) 503; termination notified by note dated Oct. 20, 1980, Dept. of State File No. P80 0138-2346.

Naturalization Treaty between the United States and Haiti, signed at Washington, Mar. 22, 1902, 33 Stat. 2101; T.S. 432; 8 Bevans, Treaties, etc. (1971) 650 (on which the date for exchange of ratifications had been extended by the Supplemental Naturalization Convention between the United States and Haiti, signed at Washington Feb. 28, 1903; 33 Stat. 2157; T.S. 433; 8 Bevans, Treaties, etc. (1971) 652); termination notified by note dated Oct. 20, 1980, Dept. of State File No. P80 0138-2352.

Naturalization Convention between the United States and Honduras, signed at Tegucigalpa on June 23, 1908, 36 Stat. 2160; T.S. 525; 8 Bevans, Treaties, etc. (1971) 890; termination notified by note dated Oct. 20, 1980, Dept. of State File No. P80 0138-2354.

Treaty between the United States and Lithuania Defining in Certain Cases the Liability for Military Service and other Acts of Allegiance of Naturalized Persons and Persons Born with Double Nationality, signed at Kaunas, Oct. 18, 1937, 53 Stat. 1569; T.S. 936; 9 Bevans, Treaties, etc. (1972) 690; termination notified by note (to Chargé d'Affaires) dated Oct. 24, 1980, Dept. of State File No. P80 0141-1517.

Naturalization Convention between the United States and Nicaragua, signed at Managua, Dec. 7, 1908, 37 Stat. 1560; T.S. 566; 10 Bevans, Treaties, etc. (1972) 362 (on which the date for exchange of ratifications had been extended by the Supplementary Convention between the United States and Nicaragua, signed at Managua, June 17, 1911, 37 Stat. 1563; T.S. 567; 10 Bevans, Treaties, etc. (1972) 377); termination notified by note dated Oct. 24, 1980, Dept. of State File No. P80 0141-1529.

Naturalization Convention between the United States and Norway, signed at Stockholm, May 26, 1869, 17 Stat. 809; T.S. 350; 11 Bevans, Treaties, etc. (1974) 888; termination notified by note dated Oct. 3, 1980, Dept. of State File No. P80 0132-1917.

Naturalization Convention between the United States and Peru, signed at Lima, Oct. 15, 1907, 36 Stat. 2181; T.S. 532; 10 Bevans, Treaties, etc. (1972) 1079; termination notified by note dated Oct. 24, 1980, Dept. of State File No. P80 0141-1515.

Naturalization Convention between the United States and Portugal, signed at Washington, May 7, 1908, 35 Stat. 2082; T.S. 513; 11 Bevans, Treaties, etc. (1974) 322; termination notified by note dated Oct. 20, 1980, Dept. of State File No. P80 0138-2356.

Naturalization Convention between the United States and Sweden, signed at Stockholm, May 26, 1869, 17 Stat. 809; T.S. 350;

11 Bevans, Treaties, etc. (1974) 888; termination notified by note dated Oct. 3, 1980, Dept. of State File No. P80 0132-1915.

Naturalization Convention between the United States and Uruguay, signed at Montevideo, Aug. 10, 1908, 36 Stat. 2165; T.S. 527; 12 Bevans, Treaties, etc. (1974) 984; termination notified by note dated Oct. 20, 1980, Dept. of State File No. P80 0138-2348.

The United States also gave notification of its denunciation of the (Inter-American) Convention Establishing the Status of Naturalized Citizens Who Again Take Up Their Residence in the Country of their Origin, signed at Rio de Janeiro, Aug. 13, 1906, 37 Stat. 1653; T.S. 575; 1 Bevans, Treaties, etc. (1968) 544; denunciation notified by note to the Ambassador of Brazil, dated Oct. 20, 1980, Dept. of State File No. P80 0138-2358.

See, further, III Hackworth, Digest of International Law (1942), Ch. IX, “Nationality", §256, "International Agreements", pp. 377-417.

§2 Passports and Other Travel
Documents; Travel
Passports

Restrictions: Iran

On April 20, 1980, Secretary of State Cyrus R. Vance, acting under the authority conferred by Executive Orders 11295 and 12211, and in accordance with 22 C.F.R. §51.72 (a) (3), issued a Public Notice, effective April 23, 1980, restricting the use of United States passports for travel to, in, or through Iran, unless specifically validated for such travel under the authority of the Secretary of State. The notice stated in part:

This action is required by the increasingly unstable situation in Iran and the concomitant increase in the threat of hostile acts against Americans. The governing authorities in Iran have repeatedly demonstrated their unwillingness to maintain public order and to protect United States nationals from hostile and uncontrolled mob action. The Government of Iran has approved the holding in unlawful captivity of 51 United States diplomatic and consular personnel and two additional United States nationals who are not employees of the United States Government; both the governmental authorities and militant groups express extreme hostility to the United States in their public statements.

In these circumstances, where the governing authorities have approved attacks upon United States nationals and where protection against such attacks is unavailable, there is an imminent danger to the physical safety of United States nationals in Iran. Accordingly, United States passports shall cease to be valid for travel to, in, or through Iran unless specifically validated for such travel under the authority of the Secretary of State.

Fed. Reg., Vol. 45, No. 80, Apr. 23, 1980, p. 27600.

The notice was to expire at the end of one year unless extended or revoked sooner by

Public Notice. Following the release of the hostages on Jan. 20, 1981, the Department of State allowed the notice to expire.

Exec. Order 11295, dated Aug. 5, 1966, is a delegation from the President to the Secretary of State of his authority under the act of July 3, 1926 (22 U.S.C. §211a) to designate and prescribe for and on behalf of the United States rules governing the granting, issuing, and verifying of passports. 3 C.F.R. 1966-70 Comp. (1971) 570. Exec. Order 12211 provided in sec. 1-106:

1-106. The Secretary of State is delegated, and authorized to exercise in furtherance of the purposes of this Order, the powers vested in the President by Section 2001 of the Revised Statutes (22 U.S.C. 1732), Section 1 of the Act of July 3, 1926 (22 U.S.C. 211a), and Section 215 of the Immigration and Nationality Act (8 U.S.C. 1185), with respect to:

(a) the restriction of the use of United States passports for travel to, in or through Iran; and

(b) the regulation of departures from and entry into the United States in connection with travel to Iran by citizens and permanent residents of the United States. Fed. Reg., Vol. 45, No. 78, Apr. 21, 1980, pp. 26685, 26686.

On May 6, 1980, the Department of State amended, effective May 8, 1980, its regulation relating to special validation of passports for travel to restricted areas, in order to: (1) narrow the categories of applications that must be considered; and (2) expedite the consideration of such applications. Categories of applicants for whose travel the Assistant Secretary of State for Consular Affairs (or an authorized designee) might consider special passport validation to be in the United States' national interest included: (1) professional reporters, whose purpose in travelling was to obtain and make publicly available information about the restricted area; (2) American Red Cross representatives; (3) an applicant establishing that compelling humanitarian considerations justified his (her) travel; and (4) an applicant whose request was otherwise in the national interest.

Fed. Reg., Vol. 45, No. 92, May 9, 1980, p. 30619, codified to 22 CFR 51.73 (Apr. 1, 1986).

Revocation

Agee v. Muskie, 629 F.2d 80 (D.C. Cir. 1980), rev'd, 453 U.S. 280 (1981), presented an appeal by the Secretary of State from an order of the United States District Court for the District of Columbia, granting the plaintiff Agee's motion for summary judgment on his action for declaratory and injunctive relief against revocation of his passport.

In the district court Judge Gerhard A. Gesell had ruled on January 28, 1980, in Agee v. Vance, 483 F. Supp. 729 (D. D.C. 1980), that there was no Congressional authorization, express or implied, for the regulation (22 CFR 51.70(b)(4) and 51.71(a), promulgated in October 1966) under which the Secretary of State had revoked Agee's passport; namely, a determination that the national's (Agee's) activities abroad were causing or were likely to cause serious damage to the national security or the foreign policy of the United States.