User:Quant18/History of United States laws on loss of citizenship

U.S. recognition of the right to relinquish
The passage of the Expatriation Act of 1868 marked unequivocal recognition by the U.S. government that a citizen had the right to give up citizenship voluntarily.

Relinquishment of domicile and state citizenship
In the Santissima Trinindad case in 1830, the Supreme Court ruled that a Maryland-born man remained an American despite an explicit declaration of expatriation to the United States consul at Buenos Aires. The court found that the declaration was insufficient in law without "a bona fide change of domicile" and it was clear from the facts and circumstances that the defendant had not changed his domicile.

The Supreme Court settled this dispute in Dred Scott v. Sanford (1857), holding that Dred Scott was not a U.S. citizen despite his Mississippi citizenship. The Fourteenth Amendment made Scott and all other persons born in the United States into citizens, and required states to extend citizenship to U.S. citizens resident therein, but did not disturb the holding in Scott that a non-U.S. citizen could be a citizen of a state. Peter Spiro has argued in other contexts that that an alien could thus be a citizen of a state without obtaining or even being eligible for U.S. citizenship. However, he also notes that state citizenship could not provide any rights to enter or remain in the United States.

Draft evasion and desertion
Section 21 of the Enrollment Act of 1865 provided several consequences for people who deserted from the army or navy or went abroad with the intent of draft evasion: citizens would be deemed to have voluntarily forfeited the "rights of citizenship" and would become incapable of holding any office of trust or profit under the U.S. or exercising rights of U.S. citizens, while aliens would lose "the right to become a citizen". This was motivated partly by controversies over naturalized citizens who returned to their countries of origin and sought U.S. diplomatic protection; in some cases, citizens who had left the U.S. to avoid Civil War conscription also asked U.S. consuls abroad to intervene when their native lands sought to conscript them as well. A 1912 act later restricted the loss of "rights of citizenship" to wartime.

It is unclear whether the 1865 Act actually caused loss of citizenship, or just disenfranchisement and (for citizens residing abroad) loss of diplomatic protection; one scholar argued that the rule against surplusage precluded the former reading of the statute, as otherwise the second portion of the statute, providing that draft evaders or deserters became incapable of exercising rights of citizenship, would be redundant to the first part. Nevertheless, the 1865 Act provided the basis for later provisions which definitely did result in loss of citizenship. Sections 401(g) and 401(j) of the Nationality Act of 1940 made explicit the loss of citizenship for desertion and draft evasion respectively, but added the requirement of a conviction. The same provisions were re-enacted at Section 349(a)(8) and (10) of the Immigration and Nationality Act of 1952.

These provisions did not survive litigation in the late 1950s and 1960s. First, the Supreme Court held in Trop v. Dulles (1958) that loss of citizenship for desertion in time of war was unconstitutionally cruel and unusual punishment under the Eighth Amendment. Then in Kennedy v. Mendoza-Martinez (1963), the Supreme Court held that loss of citizenship as punishment for draft evasion violated the due process protections of the Fifth and Sixth Amendments. However, related provisions of law prevent draft evaders from re-entering the United States if they choose to give up citizenship some other way; such provisions have never been declared unconstitutional and continue to be enforced (see below).

Birth abroad and ongoing non-residence
The Expatriation Act of 1907 provided that a person born in a foreign country to U.S. citizen parents would have to swear an oath upon reaching the age of majority that he or she intended to become a resident of the United States. Failing this, the person would lose his or her citizenship. In Rogers v. Bellei, the Supreme Court held that citizens born abroad did not fall under the Fourteenth Amendment's Citizenship Clause ("born or naturalized in the United States"), and thus it was constitutional for Congress to pass laws to strip citizenship from those who did not meet additional requirements. However, Congress repealed this provision in 1978.

Expatriation
These grounds for loss of citizenship originated from U.S. treaty obligations under the Bancroft Treaties, which the U.S. signed after the passage of the Expatriation Act of 1868. The treaties generally provided that while naturalized citizens who returned to their native lands temporarily should continue to be treated as citizens of their country of naturalization, if they returned permanently then their native allegiance would be revived in law. (Four treaties, with Baden, Sweden and Norway, Belgium, and the United Kingdom did not provide for "revival of native allegiance".) In Perkins v. Elg (1939), the Supreme Court upheld the State Department's general practice of requiring a dual citizen taken abroad in childhood to elect U.S. citizenship in adulthood, but held that the expatriation provision in the treaty with Sweden could not apply to a minor.

Denaturalization
The Naturalization Act of 1906 also provided for denaturalization of naturalized citizens who took up residence abroad within five years of naturalization. Such people would be presumed to have lacked bona fide intention to become U.S. citizens, and the Attorney-General could begin proceedings to cancel their certificates of naturalization. The period within which a naturalized citizen's move out of the U.S. would create a presumption of naturalization fraud was reduced to one year in the Immigration and Nationality Act Amendments of 1986, and the provision was eliminated in the Immigration and Nationality Technical Corrections Act of 1994.

In 2017, Philippine Secretary of Foreign Affaiirs Perfecto Yasay Jr. attempted to defend himself against accusations of holding dual allegiance while serving in a governmental position by claiming that his 1987 departure from the U.S., within two months of his U.S. naturalization had caused him to lose citizenship. Yasay had even written a letter in 1993 to the Immigration and Naturalization Service citing this law, and received a U.S. tourist visa on his Philippine passport that same year. However, immigration lawyer Lourdes Tancinco noted that the statute required court proceedings to confirm denaturalization, and there was no evidence that such proceedings had ever occurred. Yasay went to the U.S. Embassy in Manila to swear an oath of renunciation of U.S. citizenship in December 2016.