Dual Nationality, the Myth of Election, and a Kinder, Gentler State Department

University of Miami Law School Institutional Repository University of Miami Inter-American Law Review 1-1-1992 Dual Nationality, the Myth of Election, and a Kinder, Gentler State Department H. Ansgar Kelly Follow this and additional works at: http://repository.law.miami.edu/umialr Recommended Citation H. Ansgar Kelly, Dual Nationality, the Myth of Election, and a Kinder, Gentler State Department, 23 U. Miami Inter-Am. L. Rev. 421 (1992) Available at: http://repository.law.miami.edu/umialr/vol23/iss2/4 This Article is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami InterAmerican Law Review by an authorized administrator of Institutional Repository. For more information, please contact . 421 DUAL NATIONALITY, THE MYTH OF ELECTION, AND A KINDER, GENTLER STATE DEPARTMENT H. ANSGAR KELLY* I. INTRODUCTION ....................................................... 421 II. THE STATE DEPARTMENT ON CURRENT LAW .................................... 422 III. THE VARIETIES OF ELECTION ........................................... 423 IV. EXPATRIATION, DEPATRIATION, AND THE LAWS OF DUALS ................... 425 V. THE 1952 SUPREME COURT: KAWAKITA AND MANDOLI ..................... 429 VI. LOWER-COURT REACTIONS TO MANDOLI IN 1953 .......................... 433 VII. REPEALS AND AMENDMENTS ............................................ 438 VIII. EXERCISING AND ADDING EXTRA NATIONALITIES, 1980-90 .................. 440 ................. 442 IX. THE NEW STATE DEPARTMENT PRESUMPTION, APRIL 1990 X. RENUNCIATION OF ALLEGIANCE AND THE QUESTION OF PERJURY ............... 448 X I. KELLY FAMILY EXAMPLES .............................................. 451 XII. CONCLUSION: DEALING WITH ANTI-DuALISM .................................... 455 X III. A PPENDICES .......................................................... 457 I. INTRODUCTION Nothing is harder to kill than a good myth. Beat on it with the hard facts, and it will hardly notice. Chop off its head, and it will grow another one by nightfall.' There is a widespread belief both in the United States and * A.B. 1959, A.M. 1961, Ph.L. 1961, St. Louis University; Ph.D. 1965, Harvard University; Professor of English, UCLA. 1. Donal Henahan, Music Views, N.Y. TIMES, July 15, 1990, at H21. INTER-AMERICAN LAW REVIEW [Vol. 23:2 abroad that United States law permits dual nationality only to minors and requires them to elect one allegiance and to repudiate the other upon reaching majority. This belief is false. There is not now, nor has there ever been, any such restriction or requirement in force, either by statute or by binding judicial precedent. If certain dual citizens find themselves faced with a choice between citizenships, the requirement is that of the foreign country, not that of the United States. In the pages that follow, I will first discuss present-day law as interpreted by the State Department. I will then attempt to explain some of the ways in which the myth of election originated and was propagated, not least through misinterpretations of law by both the judiciary and officials of the State Department. In the course of my discussion, I will review past and present laws on the gain and loss of nationality, especially the effects of the 1986 legal reforms and the new policy adopted by the State Department in 1990. I will show that it is now much harder for U.S. citizens, whether single or dual, to lose U.S. citizenship, and much easier to acquire other citizenships, even as adults. Finally, I will give some practical examples and advice to present and potential dual citizens on how to protect or acquire dual status. II. THE STATE DEPARTMENT ON CURRENT LAW I will not detail here the twenty years of misinformation that I have received from every level of official and nonofficial sources, including U.S. and Australian passport, consular, and legislative offices, and even, directly and indirectly, from the State Department in Washington. I will only note that the first account of the true state of the law that I was able to receive came from officers staffing the various national desks of the Overseas Citizens Services (OCS) of the State Department, who verified the statement of law that I gave in my opening paragraph: there is no constitutional, statutory, or judicial provision prohibiting a U.S. citizen from holding at the same time citizenship of another country, or requiring a dual national to relinquish either his U.S. or his foreign citizenship. On the day that I received this verification by the OCS, June 28, 1989, I was sent two versions of the State Department leaflet on Dual Nationality. The fuller version, which I include in Appendix 1,2 is a splendidly simple and mainly accurate 2. Appendix I is an edition of U.S. DEP'T OF STATE LEAFLET, DUAL NATIONALITY. I have DUAL NATIONALITY 1991-92] explanation of the law as it stands today, with citations of relevant statutes and Supreme Court decisions. The leaflet should answer most of the practical questions one might have about double citizenship and the use of passports. I have only one correction of fact to make, and one query of law. The correction concerns the statement, "[t]he current nationality laws of the United States do not specifically refer to dual nationality."' 3 As I will show below,' there is still such a reference in section 1481(a)(4)(A) of the Immigration and Nationality Act of 1952 as amended in 1986. 5 The legal query concerns the alleged requirement of U.S. citizens to use U.S. passports when entering or leaving the United States. The authors base this stipulation on section 1185(b) of the Immigration and Nationality Act of 1952, as amended in 1978,6 which makes it "unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid passport."7 Because the law does not address the question of dual citizens at this point, the supposition is that each citizen would have only one valid passport, namely, a U.S. passport, and that it was to be used. But since this section is a criminal statute and must therefore be narrowly construed,8 it is arguable that any valid passport would do. Suppose that my children's U.S. passports had expired when they last departed from the United States and that they were travelling on their valid Australian passports intending to renew their U.S. passports in Sydney. Could they not be said to have fulfilled the letter of the law? (Practically speaking, of course, the question would not normally come up, since the United States as a rule does not inspect passports of its departing citizens-except as delegated to airline ticket agents-and does not use exit stamps.) III. THE VARIETIES OF ELECTION I will draw more practical conclusions later, but now I wish to noted a modification made after the departmental change of policy in Ap (...truncated)