AFROYIM v.

RUSK
250 F.Supp. 686 (1966)
Beys AFROYIM, Plaintiff,
v.
Dean RUSK, as Secretary of State, Defendant.
United States District Court S. D. New York.
February 25, 1966.
American Civil Liberties Union, New York City, for plaintiff; Nanette Dembitz, New York
City, of counsel.
Robert M. Morgenthau, U. S. Atty. for Southern District of New York, for defendant;
James G. Greilsheimer, Sp. Asst. U. S. Atty., of counsel.
FREDERICK van PELT BRYAN, District Judge:
In this declaratory judgment action plaintiff, who has lost his American citizenship under
401(e) of the Nationality Act of 1940, 8 U.S.C. 1481(a)
[250 F.Supp. 687]
(5), challenges the constitutionality of that section.
While it does not appear whether plaintiff was within the United States when the action was
commenced, there is jurisdiction in any event. If he was, this court has jurisdiction under 360
(a) of the Immigration and Nationality Act of 1952, 8 U.S.C. 1503(a). If he was not, this court
has jurisdiction under 10 of the Administrative Procedure Act, 5 U.S.C. 1009, as
implemented by the Declaratory Judgment Act, 28 U.S.C. 2201. See Rusk v. Cort, 369 U.S.
367, 82 S.Ct. 787, 7 L.Ed.2d 809 (1962).
Both parties have cross-moved for summary judgment on stipulated facts pursuant to Rule
56(a), (b), F.R.Civ.P.
Plaintiff was born in Poland in 1893, and emigrated to the United States in 1912. He became a
naturalized citizen in this court on June 14, 1926.
Some time during 1950 the plaintiff emigrated to Israel. He resided there some ten years,
pursuing his profession as an artist. By his residence in Israel plaintiff apparently has acquired
Israeli citizenship, though the parties have not argued the question here. There has been no
claim by the plaintiff that the deprivation of his American citizenship will render him a stateless
person.
On November 14, 1960, in preparation for a return to this country, plaintiff applied to the
United States Consulate in Haifa for a passport. His application was rejected, and the
American Vice Consul issued a Certificate of Loss of Nationality to plaintiff on the ground that
he had expatriated himself on July 30, 1951, by casting a ballot in a political election in a
foreign state in contravention of 401(e).1 The Vice Consul's action was approved by the
Passport Office of the Department of State on January 4, 1961. Plaintiff appealed to the State
Department's Board of Review on the Loss of Nationality which affirmed the Vice Consul's
determination on May 3, 1965. This action followed.

Throughout the administrative proceedings plaintiff contended that he had never voted in an
election of the State of Israel, but only entered the polling place to sketch the voters as they
cast their ballots. Before this court, however, it is stipulated that on July 30, 1951, plaintiff
voted in the elections for the Second Knesset, the Parliament of the State of Israel. And it is
agreed that he did so voluntarily.2
Plaintiff contends that at no time did he intend to abandon his American citizenship. Defendant
refuses to stipulate that this allegation is true or false, but urges that in any event it is
immaterial for purposes of deciding the case at bar.
It has been said with good reason that the "[v]iews of the Justices have varied when it comes
to the problem of expatriation." Schneider v. Rusk, 377 U.S. 163, 166, 84 S.Ct. 1187, 1189,
12 L.Ed.2d 218 (1964). Under these circumstances the task of a District Court, charged with
applying the law as declared by the Supreme Court of the United States, is not without its
difficulties.
The decision in Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568, 2 L.Ed.2d 603 (1958), is directly
called into question by the plaintiff in the case at bar. There the Supreme Court by a 5-4 vote
squarely upheld the constitutionality of 401 (e) as a proper incident of the power of
[250 F.Supp. 688]
Congress to regulate foreign affairs; the statute was applieddespite Fifth and Fourteenth
Amendment objections to a natural born American citizen who had voted in political
elections in Mexico. Plaintiff candidly concedes that Perez would be controlling here, were it
not, as he urges, that the vitality of that decision has been so completely undermined by
subsequent cases that it no longer has the force of law. I am fully conversant with the
speculation to the effect that the Supreme Court in recent years has sub
silentio overruled Perez,3 but in my view that case is still a precedent binding on this court.
The issue posed by Justice Frankfurter in Perezand restated as the controlling question by
Justice Douglas in the recent case of Schneider v. Rusk, supra, 377 U.S. at 166, 84 S.Ct.
1187is whether "the means, withdrawal of citizenship, [is] reasonably calculated to effect
the end that is within the power of Congress to achieve, the avoidance of embarrassment in
the conduct of our foreign affairs." 356 U.S. at 60, 78 S.Ct. at 577. In Perez the court
answered that question in the affirmative as to 401(e), finding that it was the "possession of
American citizenship" that made the act of voting in a foreign political election "potentially
embarrassing to the American Government and pregnant with the possibility of embroiling this
country in disputes with other nations." Ibid. It was therefore held that Congress could provide
for termination of citizenship so as to eliminate the problem.
Perez also flatly rejected the contention that a person, voting abroad in a foreign political
election, must intend to give up his citizenship before it may be taken away. Whether 401(e)
requires a purposeful abandonment of citizenship is simply a matter of statutory interpretation
which is closed in this court by thePerez decision.4 In any event, Justice Frankfurter's
interpretation is supported by the intent and the plain meaning of the statute as well as by
precedent.5 And it is sustained by reason. Indeed, if, as Perez holds, it is the foreign affairs
power which supports deprivation of citizenship under 401(e), then Congress quite justifiably

1
CONFLICT - CITIZENSHIP

can attach a loss of citizenship for voting in a foreign political election without regard to the
voter's intent. It is the "possession of American citizenship" by the voter, not the state of his
mind, which poses a hazard to the conduct of our international relations. For example,
participation by Americans in the plebiscite to determine sovereignty over the Saaractivity
which was the immediate catalyst for the passage of 401(e)did not hamper the conduct of
foreign affairs any the less because some of those voting may have had no intention of
abandoning their American citizenship.
Since Perez is direct authority against plaintiff on the question presented here, the function of
this court is only to determine whether the vitality of that decision
[250 F.Supp. 689]
has survived. The four Justices who dissented in Perez joined in the opinion of the Court in
Trop v. Dulles,356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958), which held unconstitutional a
statute denationalizing any citizen who had been convicted of desertion by a court-martial.
One Justice concurred on a separate ground. Four others dissented. Unconstitutionality, in the
opinion of the Court, rested upon: (1) a total inability of Congress to effectuate a deprivation of
citizenship except on voluntary renunciation, and (2) the cruel and unusual punishment clause
of the 8th Amendment. Neither factor has significance here.
As to the first ground, the view that Congress is incapable of accomplishing involuntary
expatriation has simply "not yet commanded a majority of the entire Court." Schneider v.
Rusk, supra 377 U.S. at 166, 84 S.Ct. at 1189. The second ground in Trop, the cruel and
unusual punishment clause, is inapplicable to the case at bar because 401(e) is non-penal
in nature. Justice Frankfurter concluded in Perez that the statute was designed to prevent
intentional or unwitting interference with the foreign relations of the United States by an
American citizen abroad. The purpose of the statute, he held, was regulation, not punishment.
It was for this reason that the mere casting of a ballot in a foreign political electionconduct
on its face quite harmless or even commendablewas deemed to be sufficient to trigger the
drastic and irremediable sanction of forfeiture of citizenship. Thus Trop cannot be said to
undermine Perez. It is not open for plaintiff to contend here that 401(e) is in essence a penal
law passed in a spirit of vindictiveness, and must satisfy constitutional standards more
stringent than those applied in Perez.
The holding in Perez that 401(e) is non-penal in nature also distinguishes the present case
from the two decisions in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9
L.Ed.2d 644 (1963). The Supreme Court there invalidated 401(j) and 349(a) (10) of the
Nationality Act of 1952 "because in them Congress [had] plainly employed the sanction of
deprivation of nationality as a punishmentfor the offense of leaving or remaining outside the
country to evade military servicewithout affording the procedural safeguards guaranteed by
the Fifth and Sixth Amendments." Id. at 165-166, 83 S.Ct. at 566. Perez,however, was
considered by the Court to be distinguishable because 401(e) was supported by "legislative
history totally different from that underlying 401(j) and 349(a) (10)." Id. at 164, 83 S.Ct. at
565; see id. at 170, 83 S.Ct. 554 n. 30. Thus the reservation in Mendoza-Martinez, rather than
the decision, is instructive here.

In addition to contending that Perez has been in effect overruled by recent cases, plaintiff
directly assails the reasoning of that decision. He attacks the wisdomand even the
rationaleof a statute which presumes that an American citizen by merely voting in a foreign
political election could involve this country in international difficulties. He challenges the
conclusion in Perez that "[t]he citizen may by his action unwittingly promote or encourage a
course of conduct contrary to the interests of his own government," 356 U.S. at 59, 78 S. Ct.
at 576, because any citizen may do that simply by voting in this country for a candidate who
turns out badly or by exercising his rights of free speech at home or abroad. Plaintiff seeks to
discount any danger in the possibility that the "people or government of the foreign country
may regard [the voter's] action" to be a "reflection if not an expression" of the policy of the
United States, ibid, because the same likelihood obtains whenever an American citizen
abroad expresses his views on any matter of political import.
Plaintiff's attacks upon 401 (e) and upon these isolated observations in the Perez opinion
are not wholly unpersuasive. But in the delicate field
[250 F.Supp. 690]
of constitutional adjudication a court is not called upon to pass on the wisdom or the efficacy
of a statute; the question is only "whether or not Congress may have concluded not
unreasonably that there is a relevant connection between [the] fundamental source of power
and the ultimate legislative action." Id. at 58, 78 S.Ct. at 576. Perez found a sufficient
connection. It is not within the province of this court to overrule that conclusion. Suffice it to
say that Perez, read as a whole, holds that the Constitution does not deny Congress the
power to prevent American citizens from engaging in the processes of political decision in a
foreign state, regardless of whether our government is interested one way or another in the
specific outcome of the election or interested only in maintaining an appearance of
circumspect neutrality. Perezconfirmed a Congressional power to determine that the
formulation of sensitive political decisions vitally important to a foreign stateand indirectly
affecting the international community at largeshould properly be conducted without the
participation of American citizens.
Beyond this, Congress might well conclude that a citizen's voting abroad constituted conduct
"inconsistent with undiluted allegiance to this country." Kennedy v. Mendoza-Martinez, supra,
372 U.S. at 214, 83 S.Ct. at 591 (Stewart, J., dissenting). As was said in Acheson v.
Wohlmuth, 90 U.S.App.D.C. 375, 196 F.2d 866, 870, cert. den., 344 U.S. 833, 73 S.Ct. 40, 97
L.Ed. 648 (1952):
"the intent of Congress in the Nationality Act was to attach the consequence of loss of
citizenship to conduct which substantially evidences allegiance to a government existing in a
territory other than our own. * * * When we come to consider the meaning of Section 401 (e)
as a whole, it becomes apparent that Congress there sought to distinguish between acts
performed in the interest of maintaining our own governmental institutions and acts which tend
to support or implement institutions other than our own."

2
CONFLICT - CITIZENSHIP

Thus, if it is now the law that Congress may effectuate a withdrawal of the precious rights of
citizenship only upon conduct evincing something less than full allegiance to this country,
compare Schneider v. Rusk, supra 377 U.S. at 168, 84 S.Ct. at 1190 (Douglas, J.) with id, at
178, 84 S.Ct. at 1195 (Clark, J., dissenting), then 401(e) satisfies that test. Indeed, the
suggestion in Perez that in the opinion of Congress voting in a foreign political election could
import "allegiance to another country" in some measure "inconsistent with American
citizenship," 356 U.S. at 61, 78 S.Ct. 568 might well be the source of the doctrine which
apparently gained a consensus of the Justices in Schneider.
In my view the authority of Perez v. Brownell still stands and is controlling here. This
conclusion is in full accord with the decisions of the Second Circuit in which the vitality
of Perez was at least collaterally challenged. Tanaka v. Immigration & Naturalization
Service, 346 F.2d 438 (2 Cir. 1965); United States ex rel. Marks v. Esperdy, 315 F.2d 673 (2
Cir. 1963), aff'd by an equally divided court, 377 U.S. 214, 84 S.Ct. 1224, 12 L.Ed.2d 292
(1964). See also Rocha v. United States, 351 F.2d 523 (1 Cir. 1965), petition for cert. filed, 34
U.S.L.Week 3272 (U.S. Jan. 10, 1966).
Defendant's motion for summary judgment is granted. Plaintiff's oral cross-motion for the
same relief is denied. Judgment will be entered accordingly.
It is so ordered.

prohibit the application of 401(e)which is non-penal in nature, see p. 689 infrato an

actor who was unaware of the consequences of his conduct.
5. E. g., Savorgnan v. United States, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287 (1950);
Mackenzie v. Hare,239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297 (1915); Acheson v. Mariko
Kuniyuki, 189 F.2d 741 (9 Cir. 1951), cert. den., 342 U.S. 942, 72 S.Ct. 554, 96 L.Ed. 701
(1952).

FOOTNOTES
1. 8 U.S.C. 1481(a) (5) reads as follows: "From and after the effective date of this chapter a
person who is a national of the United States whether by birth or naturalization, shall lose his
nationality by * * * * * "(5) voting in a political election in a foreign state or participating in an
election or plebiscite to determine the sovereignty over foreign territory; * * * * *."
2. The effect of this stipulation is to remove the oft-litigated issue of duress from the case at
bar. See, e. g., Tanaka v. Immigration & Naturalization Service, 346 F.2d 438 (2 Cir. 1965);
Takehara v. Dulles, 205 F.2d 560 (9 Cir. 1953); Acheson v. Mariko Kuniyuki, 189 F.2d 741 (9
Cir. 1951), cert. den., 342 U.S. 942, 72 S.Ct. 554, 96 L.Ed. 701 (1953); Doreau v.
Marshall, 170 F.2d 721 (3 Cir. 1948).
3. See, e. g., Tanaka v. Immigration & Naturalization Service, 346 F.2d 438, 447-448 n. 3 (2
Cir. 1965) (Kaufman, J., dissenting); Agata, Involuntary Expatriation and Schneider v. Rusk,
27 U.Pitt. L.Rev. 1 (1965); Kurland, Foreword: Equal in Origin and Equal in Title to the
Legislative and Executive Branches of the Government, 78 Harv.L.Rev. 143 (1964).
4. Certainly it cannot be said that intent must necessarily be included as an element of
401(e) in order to save its constitutionality. There is even a serious question as to whether the
Constitution in any significant degree forbids criminal punishment for unintentional conduct.
See Shevlin-Carpenter Co. v. State of Minnesota, 218 U.S. 57, 30 S.Ct. 663, 54 L. Ed. 930
(1910); Packer, Mens Rea and the Supreme Court, 1962 Sup.Ct.Rev. 107. Much less would it

3
CONFLICT - CITIZENSHIP

AFROYIM v. RUSK
Facts of the Case
After immigrating to the United States from Poland in 1912, Beys Afroyim became a
naturalized American citizen in 1926. In 1950, Afroyim went to Israel where he voted in that
country's 1951 governmental elections. In 1960, Afroyim applied for renewal a of his American
passport. The State Department informed him that he had forfeited his American citizenship
by virtue of Section 401(e) of the 1940 Nationality Act which stipulates that citizens of the
United States shall "lose" their citizenship upon voting in a foreign state's political elections.
Afroyim challenged the constitutionality of Section 401(e). On appeal from a district court's
summary judgment favoring Secretary of State Dean Rusk, the Second Circuit Court of
Appeals affirmed. The Supreme Court granted Afroyim certiorari.
Question
Does Section 401(e) of the 1940 Nationality Act, revoking U.S. citizenship to persons who
vote in other countries' elections, violate either the Fifth Amendment right to Due Process or
the Fourteenth Amendment, under which naturalized citizens are granted national citizenship?
Argument

Facts: Afroyim was born in Poland in 1893, immigrated to the United States in 1912, and
became a naturalized American citizen in 1926. He went to Israel in 1950 and voted in an
election for the Israeli Knesset (the Israeli legislature) in 1951. According to Section 401(e) of
the 1940 Nationality Act, citizens of the United States forfeit their citizenship when they vote in
a foreign country's political elections. Therefore, when Afroyim tried to renew his U.S.
passport in 1960, the State Department denied his application and informed him that he had
forfeited his U.S. citizenship. Afroyim challenged the constitutionality of that part of the
Nationality Act, but on the basis of thePerez v. Brownell case, the lower federal court judged
in favor of Secretary of State Dean Rusk. A Court of Appeal affirmed that decision.
Issue: Does Congress violate either the Fifth Amendment or 14th Amendment to the
Constitution when it removes a person's U.S. citizenship?
Holding: Yes. The 14th Amendment states, "all persons born or naturalized in the United
States...are citizens of the United States...." Congress has no "general power, express or
implied, to take away an American's citizen's citizenship without his assent." The Constitution
gives Congress no express power (in the actual words of the Constitution) to strip people of
their citizenship. There is also no implied power (assumed power) to do so in the regulation of
foreign affairs. In fact, in the many years before the ratification of the 14th Amendment,
Congress rejected three proposals to enact laws that would give Congress the power to
determine when it could take away someone's citizenship. The only way a person may "lose"
their citizenship is to voluntarily renounce it. Therefore, the court's prior decision in
the Perez case is overturned.

Conclusion
Decision: 5 votes for Afroyim, 4 vote(s) against
Legal provision: Citizenship Clause
Yes. In a 5-to-4 decision, overruling Perez v. Brownell (356 US 44), the Court held that
Congress has no general power to revoke American citizenship without consent. Noting the
special bond between Americans and their government, a bond that protects every citizen
against all manner of destruction of their rights, the Court held that only citizens themselves
may voluntarily relinquish their citizenship. This sacred principle applies equally to natural and
naturalized citizens. As such, Section 401(e) violated both the Fifth and Fourteenth
Amendments.

4
CONFLICT - CITIZENSHIP

VANCE v. TERRAZAS, 444 U.S. 252 (1980)

444 U.S. 252
VANCE, SECRETARY OF STATE v. TERRAZAS.
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT.

1. In establishing loss of citizenship, the Government must prove an intent to surrender United
States citizenship, not just the voluntary commission of an expatriating act such as swearing
allegiance to a foreign nation. Congress does not have any general power to take away an
American citizen's citizenship without his "assent," which means an intent to relinquish
citizenship, whether the intent is expressed in [444 U.S. 252, 253] words or is found as a fair
inference from his conduct. The expatriating acts specified in 349 (a) cannot be treated as
conclusive evidence of the indispensable voluntary assent of the citizen. The trier of fact must

No. 78-1143.

in the end conclude that the citizen not only voluntarily committed the expatriating act
prescribed in the statute, but also intended to relinquish his citizenship. Cf. Afroyim v.

Argued October 30, 1979.

Decided January 15, 1980.

Rusk, 387 U.S. 253 . Pp. 258-263.

2. However, the Constitution permits Congress to prescribe the standard of proof in

Section 349 (a) (2) of the Immigration and Nationality Act provides that "a person who is a

expatriation proceedings. The specific evidentiary standard provided in 349 (c) is not invalid

national of the United States whether by birth or naturalization, shall lose his nationality by . . .

under either the Citizenship Clause of the Fourteenth Amendment or the Due Process Clause

taking an oath or making an affirmation or other formal declaration of allegiance to a foreign

of the Fifth Amendment. Although the Due Process Clause imposes requirements of proof

state or a political subdivision thereof." Section 349 (c) provides that the party claiming that

beyond a preponderance of the evidence in criminal and involuntary commitment contexts,

such loss of citizenship occurred must "establish such claim by a preponderance of the

nevertheless expatriation proceedings are civil in nature and do not threaten a loss of liberty,

evidence" and that a person who commits any act of expatriation "shall be presumed to have

and thus Congress did not exceed its powers by requiring proof of an intentional expatriating

done so voluntarily, but such presumption may be rebutted upon a showing, by a

act by only a preponderance of evidence. Pp. 264-267.

preponderance of the evidence, that the act or acts committed or performed were not done
voluntarily." Appellee, who was a citizen of both the United States and Mexico at birth,
subsequently obtained a certificate of Mexican citizenship after executing an application in
which he swore allegiance to Mexico and expressly renounced his United States citizenship.
Thereafter, the Department of State issued a certificate of loss of nationality, and the Board of
Appellate Review of the Department of State affirmed. Appellee then brought suit for a
declaration of his United States nationality, but the District Court concluded that the United
States had proved by a preponderance of the evidence that appellee had knowingly and
voluntarily taken an oath of allegiance to Mexico and renounced allegiance to the United
States, thus voluntarily relinquishing United States citizenship pursuant to 349 (a) (2). The

3. Nor is the presumption of voluntariness provided in 349 (c) constitutionally infirm. While the
statute provides that any of the statutory expatriating acts, if proved, is presumed to have
been committed voluntarily, it does not also direct a presumption that the act has been
performed with the intent to relinquish United States citizenship, which matter remains the
burden of the party claiming expatriation to prove by a preponderance of the evidence.
Section 349 (c) and its legislative history make clear that Congress preferred the ordinary rule
that voluntariness of an act is presumed and that duress is an affirmative defense to be
proved by the party asserting it, and to invalidate the rule here would give the Citizenship
Clause far more scope in this context than the relevant circumstances that brought the

Court of Appeals reversed and remanded, holding that Congress had no power to legislate the

Fourteenth Amendment into being would suggest appropriate. Pp. 267-270.

evidentiary standard contained in 349 (c) and that the Constitution required that proof be not

577 F.2d 7, reversed and remanded.

merely by a preponderance of the evidence, but by "clear, convincing and unequivocal

evidence."

WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and BLACKMUN,
POWELL, and REHNQUIST, JJ., joined. MARSHALL, J., post, p. 270, and STEVENS, J.,

Held:

post, p. 272, filed opinions concurring in part and dissenting in part. BRENNAN, J., filed a

5
CONFLICT - CITIZENSHIP

dissenting opinion, in Part II of which STEWART, J., joined, post, p. 274. STEWART, J., filed
a dissenting statement, post, p. 270.

U.S. 252, 256] Id., at 8a. Terrazas read and understood the certificate upon receipt. App. to
Juris. Statement 21a.

Allan A. Ryan, Jr., argued the cause for appellant. With him on the briefs were Solicitor

A few months later, following a discussion with an officer of the United States Consulate in

General McCree, Assistant [444 U.S. 252, 254] Attorney General Heymann, Deputy Solicitor
General Geller, William G. Otis, and William C. Brown.

Monterrey, proceedings were instituted to determine whether appellee had lost his United

Kenneth K. Ditkowsky argued the cause and filed a brief for appellee.
MR. JUSTICE WHITE delivered the opinion of the Court.
Section 349 (a) (2) of the Immigration and Nationality Act (Act), 66 Stat. 267, 8 U.S.C. 1481
(a) (2), provides that "a person who is a national of the United States whether by birth or
naturalization, shall lose his nationality by . . . taking an oath or making an affirmation or other
formal declaration of allegiance to a foreign state or a political subdivision thereof." The Act
also provides that the party claiming that such loss of citizenship occurred must "establish
such claim by a preponderance of the evidence" and that the voluntariness of the expatriating
conduct is rebuttably presumed. 349 (c), as added, 75 Stat. 656, 8 U.S.C. 1481
(c). 1 The [444 U.S. 252, 255] issues in this case are whether, in establishing loss of
citizenship under 1481 (a) (2), a party must prove an intent to surrender United States
citizenship and whether the United States Constitution permits Congress to legislate with
respect to expatriation proceedings by providing the standard of proof and the statutory
presumption contained in 1481 (c).
I
Appellee, Laurence J. Terrazas, was born in this country, the son of a Mexican citizen. He
thus acquired at birth both United States and Mexican citizenship. In the fall of 1970, while a
student in Monterrey, Mexico, and at the age of 22, appellee executed an application for a
certificate of Mexican nationality, swearing "adherence, obedience, and submission to the
laws and authorities of the Mexican Republic" and "expressly renounc[ing] United States
citizenship, as well as any submission, obedience, and loyalty to any foreign government,
especially to that of the United States of America. . . ." App. to Brief for Appellant 5a. 2 The
certificate, which issued upon this application on April 3, 1971, recited that Terrazas had
sworn adherence to the United Mexican States and that he "has expressly renounced all
rights inherent to any other nationality, as well as all submission, obedience, and loyalty to any
foreign government, especially to those which have recognized him as that national." [444

States citizenship by obtaining the certificate of Mexican nationality. Appellee denied that he
had, but in December 1971 the Department of State issued a certificate of loss of nationality.
App. to Brief for Appellant 31a. The Board of Appellate Review of the Department of State,
after a full hearing, affirmed that appellee had voluntarily renounced his United States
citizenship. App. to Juris. Statement 31a. As permitted by 360 (a) of the Act, 66 Stat. 273, 8
U.S.C. 1503 (a), appellee then brought this suit against the Secretary of State for a
declaration of his United States nationality. Trial was de novo.
The District Court recognized that the first sentence of the Fourteenth Amendment, 3 as
construed in Afroyim v. Rusk, 387 U.S. 253, 268 (1967), "`protect[s] every citizen of this
Nation against a congressional forcible destruction of his citizenship'" and that every citizen
has "`a constitutional right to remain a citizen . . . unless he voluntarily relinquishes that
citizenship.'" App. to Juris. Statement 25a. A person of dual nationality, the District Court said,
"will be held to have expatriated himself from the United States when it is shown that he
voluntarily committed an act whereby he unequivocally renounced his allegiance to the United
States." Ibid. Specifically, the District Court found that appellee had taken an oath of
allegiance to Mexico, that he had "knowingly and understandingly renounced allegiance to the
United States in connection with his Application for a Certificate of Mexican Nationality," id., at
28a, and that "[t]he taking of [444 U.S. 252, 257] an oath of allegiance to Mexico and
renunciation of a foreign country [sic] citizenship is a condition precedent under Mexican law
to the issuance of a Certificate of Mexican Nationality." Ibid. The District Court concluded that
the United States had "proved by a preponderance of the evidence that Laurence J. Terrazas
knowingly, understandingly and voluntarily took an oath of allegiance to Mexico, and
concurrently renounced allegiance to the United States," id., at 29a, and that he had therefore
"voluntarily relinquished United States citizenship pursuant to 349 (a) (2) of the . . . Act." Ibid.
In its opinion accompanying its findings and conclusions, the District Court observed that
appellee had acted "voluntarily in swearing allegiance to Mexico and renouncing allegiance to
the United States," id., at 25a, and that appellee "knew he was repudiating allegiance to the
United States through his actions." Ibid. The court also said, relying upon and quoting from

6
CONFLICT - CITIZENSHIP

United States v. Matheson, 400 F. Supp. 1241, 1245 (SDNY 1975), aff'd, 532 F.2d 809 (CA2),

stripped of his United States citizenship. Consistently with Perez v. Brownell, 356 U.S.

cert. denied, 429 U.S. 823 (1976), that "the declaration of allegiance to a foreign state in

44 (1958), which had sustained 401 (e), the District Court affirmed the power of Congress to

conjunction with the renunciatory language of United States citizenship `would leave no room
for ambiguity as to the intent of the applicant.'" App. to Juris. Statement 23a.

expatriate for such conduct regardless of the citizen's intent to renounce his citizenship. This

The Court of Appeals reversed. 577 F.2d 7 (1978). As the Court of Appeals understood the
law - and there appears to have been no dispute on these basic requirements in the Courts of
Appeals - the United States had not only to prove the taking of an oath to a foreign state, but
also to demonstrate an intent on appellee's part to renounce his United States citizenship. The
District Court had found these basic elements to have been proved by a preponderance of the

Court, however, in overruling Perez, "reject[ed] the idea . . . that, aside from the
Fourteenth [444 U.S. 252, 260] Amendment, Congress has any general power, express or
implied, to take away an American citizen's citizenship without his assent." Afroyim v. Rusk,
supra, at 257. The Afroyim opinion continued: 1 of the Fourteenth Amendment is "most
reasonably . . . read as defining a citizenship which a citizen keeps unless he voluntarily
relinquishes it." 387 U.S., at 262 .

evidence; and the Court of Appeals observed that, "[a]ssuming that the proper [evidentiary]

The Secretary argues that Afroyim does not stand for the proposition that a specific intent to

standards were applied, we are convinced that the record fully supports the court's findings."

renounce must be shown before citizenship is relinquished. It is enough, he urges, to establish

Id., at 10. The Court of Appeals ruled, however, that under Afroyim v. Rusk, supra, Congress

one of the expatriating acts specified in 1481 (a) because Congress has declared each of

had no power to legislate the [444 U.S. 252, 258] evidentiary standard contained in 1481 (c)

those acts to be inherently inconsistent with the retention of citizenship. But Afroyim

and that the Constitution required that proof be not merely by a preponderance of the

emphasized that loss of citizenship requires the individual's "assent," 387 U.S., at 257 , in

evidence, but by "clear, convincing and unequivocal evidence." 577 F.2d, at 11. The case was
remanded to the District Court for further proceedings. 4

addition to his voluntary commission of the expatriating act. It is difficult to understand that

The Secretary took this appeal under 28 U.S.C. 1252. Because the invalidation of 1481 (c)
posed a substantial constitutional issue, we noted probable jurisdiction. 440 U.S. 970 .
II
The Secretary first urges that the Court of Appeals erred in holding that a "specific intent to
renounce U.S. citizenship" must be proved "before the mere taking of an oath of allegiance
could result in an individual's expatriation." 577 F.2d, at 11. 5 His position is that he need
prove only the [444 U.S. 252, 259] voluntary commission of an act, such as swearing
allegiance to a foreign nation, that "is so inherently inconsistent with the continued retention of
American citizenship that Congress may accord to it its natural consequences, i. e., loss of
nationality." Brief for Appellant 24. We disagree.
In Afroyim v. Rusk, 387 U.S. 253 (1967), the Court held that 401 (e) of the Nationality Act of
1940, 54 Stat. 1168-1169, which provided that an American citizen "shall lose his nationality
by . . . [v]oting in a political election in a foreign state," contravened the Citizenship Clause of
the Fourteenth Amendment. Afroyim was a naturalized American citizen who lived in Israel for
10 years. While in that nation, Afroyim voted in a political election. He in consequence was

"assent" to loss of citizenship would mean anything less than an intent to relinquish
citizenship, whether the intent is expressed in words or is found as a fair inference from
proved conduct. Perez had sustained congressional power to expatriate without regard to the
intent of the citizen to surrender his citizenship. Afroyim overturned this proposition. It may be,
as the Secretary maintains, that a requirement of intent to relinquish citizenship poses
substantial difficulties for the Government in performance of its essential task of determining
who is a citizen. Nevertheless, the intent of the Fourteenth Amendment, among other things,
was to define citizenship; and as interpreted in Afroyim, that definition cannot coexist with a
congressional power to specify acts that work a renunciation of citizenship even absent an
intent to renounce. In the last analysis, expatriation depends on the will of the citizen rather
than on the will of Congress and its assessment of his conduct.
The Secretary argues that the dissent in Perez, which it is said the Court's opinion in Afroyim
adopted, spoke of conduct [444 U.S. 252, 261] so contrary to undivided allegiance to this
country that it could result in loss of citizenship without regard to the intent of the actor and
that "assent" should not therefore be read as a code word for intent to renounce. But Afroyim
is a majority opinion, and its reach is neither expressly nor implicitly limited to that of the
dissent in Perez. Furthermore, in his Perez dissent, Mr. Chief Justice Warren, in speaking of
those acts that were expatriating because so fundamentally inconsistent with citizenship,

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concluded by saying that in such instances the "Government is simply giving formal

intent to relinquish his United States citizenship." App. to Juris. Statement 50a. This same

recognition to the inevitable consequence of the citizen's own voluntary surrender of his

view - that expatriation depends on the will of a citizen as ascertained from his words and

citizenship." Perez v. Brownell, supra, at 69. This suggests that the Chief Justice's conception

conduct - was also reflected in the United States' response to the petition for certiorari in

of "actions in derogation of undivided allegiance to this country," 356 U.S., at 68 , in fact would
entail an element of assent.

United States v. Matheson, 532 F.2d 809, cert. denied, 429 U.S. 823 (1976). 7 Insofar as we

In any event, we are confident that it would be inconsistent with Afroyim to treat the

are advised, this view remained the official position of the United States until the appeal in this
case.

expatriating acts specified in 1481 (a) as the equivalent of or as conclusive evidence of the

As we have said, Afroyim requires that the record support a finding that the expatriating act

indispensable voluntary assent of the citizen. "Of course," any of the specified acts "may be

was accompanied by an intent to terminate United States citizenship. The submission of the

highly persuasive evidence in the particular case of a purpose to abandon citizenship."

United States is inconsistent with this holding, and we are unprepared to reconsider it. [444
U.S. 252, 264]

Nishikawa v. Dulles, 356 U.S. 129, 139 (1958) (Black, J., concurring). But the trier of fact must
in the end conclude that the citizen not only voluntarily committed the expatriating act
prescribed in the statute, but also intended to relinquish his citizenship.
This understanding of Afroyim is little different from that expressed by the Attorney General in
his 1969 opinion explaining the impact of that case. 42 Op. Atty. Gen. 397. An "act which does
not reasonably manifest an individual's transfer or abandonment of allegiance to the United
States," the Attorney General said, "cannot be made a basis for expatriation." Id., at 400.
Voluntary relinquishment is "not confined to a written renunciation," but "can also be [444 U.S.

III
With respect to the principal issues before it, the Court of Appeals held that Congress was
without constitutional authority to prescribe the standard of proof in expatriation proceedings
and that the proof in such cases must be by clear and convincing evidence rather than by the
preponderance standard prescribed in 1481 (c). We are in fundamental disagreement with
these conclusions.

252, 262] manifested by other actions declared expatriative under the [A]ct, if such actions

In Nishikawa v. Dulles, 356 U.S. 129 (1958), an American-born citizen, temporarily in Japan,

are in derogation of allegiance to this country." Ibid. Even in these cases, however, the issue

was drafted into the Japanese Army. The Government later claimed that, under 401 (c) of the

of intent was deemed by the Attorney General to be open; and, once raised, the burden of

Nationality Act of 1940, 54 Stat. 1169, he had expatriated himself by serving in the armed

proof on the issue was on the party asserting that expatriation had occurred. Ibid. "In each

forces of a foreign nation. The Government agreed that expatriation had not occurred if

case," the Attorney General stated, "the administrative authorities must make a judgment,

Nishikawa's army service had been involuntary. Nishikawa contended that the Government

based on all the evidence, whether the individual comes within the terms of an expatriation

had to prove that his service was voluntary, while the Government urged that duress was an

provision and has in fact voluntarily relinquished his citizenship." Id., at 401. It was under this

affirmative defense that Nishikawa had the burden to prove by overcoming the usual

advice, as the Secretary concedes, that the relevant departments of the Government have

presumption of voluntariness. This Court held the presumption unavailable to the Government
and required proof of a voluntary expatriating act by clear and convincing evidence.

applied the statute and the Constitution to require an ultimate finding of an intent to expatriate.
Brief for Appellant 56-57, n. 28. 6 [444 U.S. 252, 263]

Section 1481 (c) soon followed; its evident aim was to supplant the evidentiary standards

Accordingly, in the case now before us, the Board of Appellate Review of the State

prescribed by Nishikawa. 8 [444 U.S. 252, 265] The provision "sets up rules of evidence

Department found that appellee not only swore allegiance to Mexico, but also intended to

under which the burden of proof to establish loss of citizenship by preponderance of the

abandon his United States citizenship: "In consideration of the complete record, we view

evidence would rest upon the Government. The presumption of voluntariness under the

appellant's declaration of allegiance to Mexico and his concurrent repudiation of any and all

proposed rules of evidence, would be rebuttable - similarly - by preponderance of the

evidence. . . ." H. R. Rep. No. 1086, 87th Cong., 1st Sess., 41 (1961).

submission, obedience, and loyalty to the United States as compelling evidence of a specific

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We see no basis for invalidating the evidentiary prescriptions contained in 1481 (c). Nishikawa

None of these cases involved a congressional judgment, [444 U.S. 252, 267] such as that

was not rooted in the Constitution. The Court noted, moreover, that it was acting in the

present here, that the preponderance standard of proof provides sufficient protection for the

absence of legislative guidance. Nishikawa v. Dulles, supra, at 135. Nor do we agree with the

interest of the individual in retaining his citizenship. Contrary to the Secretary's position, we

Court of Appeals that, because under Afroyim Congress is constitutionally devoid of power to

have held that expatriation requires the ultimate finding that the citizen has committed the

impose expatriation on a citizen, it is also without power to prescribe the evidentiary standards

expatriating act with the intent to renounce his citizenship. This in itself is a heavy burden, and

to govern expatriation proceedings. 577 F.2d, at 10. Although 1481 (c) had been law since

we cannot hold that Congress has exceeded its powers by requiring proof of an intentional
expatriating act by a preponderance of evidence.

1961, Afroyim did not address or advert to that section; surely the Court would have said so
had it intended to construe the Constitution to exclude expatriation proceedings from the
traditional powers of Congress to prescribe rules of evidence and standards of proof in the

IV

federal courts. This power, rooted in the authority [444 U.S. 252, 266] of Congress conferred

The Court of Appeals did not discuss separately the validity of the statutory presumption

by Art. 1, 8, cl. 9, of the Constitution to create inferior federal courts, is undoubted and has

provided in 1481 (c). By holding that the section was beyond the power of Congress, however,

been frequently noted and sustained. See, e. g., Usery v. Turner Elkhorn Mining Co., 428 U.S.

and by requiring that the expatriating act be proved voluntary by clear and convincing

1, 31 (1976); Hawkins v. United States, 358 U.S. 74, 78 (1958); Tot v. United States, 319 U.S.
463, 467(1943).

evidence, the Court of Appeals effectively foreclosed use of the 1481 (c) presumption of

We note also that the Court's opinion in Afroyim was written by Mr. Justice Black who, in
concurring in Nishikawa, said that the question whether citizenship has been voluntarily
relinquished is to be determined on the facts of each case and that Congress could provide
rules of evidence for such proceedings. Nishikawa v. Dulles, supra, at 139. In this respect, we

voluntariness, not only in the remand proceedings in the District Court, but also in other
expatriation proceedings in that Circuit. As we have indicated, neither the Citizenship Clause
nor Afroyim places suits such as this wholly beyond the accepted power of Congress to
prescribe rules of evidence in federal courts. We also conclude that the presumption of
voluntariness provided in 1481 (c) is not otherwise constitutionally infirm.

agree with Mr. Justice Black; and since Congress has the express power to enforce the

Section 1481 (c) provides in relevant part that "any person who commits or performs, or who

Fourteenth Amendment, it is untenable to hold that it has no power whatsoever to address

has committed or performed, any act of expatriation under the provisions of this chapter or

itself to the manner or means by which Fourteenth Amendment citizenship may be

relinquished.

any other Act shall be presumed to have done so voluntarily, but such presumption may be

We are unable to conclude that the specific evidentiary standard provided by Congress in
1481 (c) is invalid under either the Citizenship Clause or the Due Process Clause of the Fifth
Amendment. It is true that in criminal and involuntary commitment contexts we have held that
the Due Process Clause imposes requirements of proof beyond a preponderance of the
evidence. Mullaney v. Wilbur, 421 U.S. 684 (1975); Addington v. Texas, 441 U.S. 418 (1979).

rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed
or performed were not done voluntarily." In enacting 1481 (c), Congress did not dispute the
holding of Nishikawa that the alleged expatriating act - there, service in a foreign army - must
be performed voluntarily, but it did [444 U.S. 252, 268] insist that the Government have the
benefit of the usual presumption of voluntariness and that one claiming that his act was
involuntary make out his claim of duress by a preponderance of the evidence.

This Court has also stressed the importance of citizenship and evinced a decided preference

It is important at this juncture to note the scope of the statutory presumption. Section 1481 (c)

for requiring clear and convincing evidence to prove expatriation. Nishikawa v. United States,

provides that any of the statutory expatriating acts, if proved, are presumed to have been

supra. But expatriation proceedings are civil in nature and do not threaten a loss of liberty.

committed voluntarily. It does not also direct a presumption that the act has been performed

Moreover, as we have noted, Nishikawa did not purport to be a constitutional ruling, and the

with the intent to relinquish United States citizenship. That matter remains the burden of the

same is true of similar rulings in related areas. Woodby v. INS, 385 U.S. 276, 285 (1966)

party claiming expatriation to prove by a preponderance of the evidence. As so understood,

we cannot invalidate the provision. 9

(deportation); Schneiderman v. United States, 320 U.S. 118, 125 (1943) (denaturalization).

9
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The majority opinion in Nishikawa referred to the "ordinary rule that duress is a matter of

expatriation. If he fails, the question remains whether on all the evidence the Government has

affirmative defense" to be proved by the party claiming the duress. Nishikawa v. Dulles, 356

satisfied its burden of proof that the expatriating act was performed with the necessary intent
to relinquish citizenship.

U.S., at 134 . Justices Frankfurter and Burton, concurring in the result, also referred to the
"ordinarily controlling principles of evidence [that] would suggest that the individual, who is
peculiarly equipped to clarify an ambiguity in the meaning of outward events, should have the
burden of proving what his state of mind was." Id., at 141. And Mr. Justice Harlan, in dissent
with Mr. Justice Clark, pointed to the "general rule that consciously performed acts are
presumed voluntary" and referred to Federal Rule of Civil Procedure 8 (c), which treats duress
as a matter of affirmative defense. 356 U.S., at 144 . Yet the Court in Nishikawa,[444 U.S.
252, 269] because it decided that "the consequences of denationalization are so drastic" and
because it found nothing indicating a contrary result in the legislative history of the Nationality
Act of 1940, held that the Government must carry the burden of proving that the expatriating
act was performed voluntarily. Id., at 133-138. 10
Section 1481 (c), which was enacted subsequently, and its legislative history, H. R. Rep. No.
1086, 87th Cong., 1st Sess., 40-41 (1961), make clear that Congress preferred the ordinary
rule that voluntariness is presumed and that duress is an affirmative defense to be proved by
the party asserting it. See Hartsville Oil Mill v. United States, 271 U.S. 43, 49 -50 (1926);
Towson v. Moore, 173 U.S. 17, 23 -24 (1899); Savage v. United States, 92 U.S. 382, 387 -388
(1876). "Duress, if proved, may be a defense to an action . . . but the burden of proof to
establish the charge . . . is upon the party making it. . . ." Mason v. United States, 17 Wall. 67,
74 (1873). 11 The rationality of the procedural rule with respect to claims of involuntariness in

The judgment of the Court of Appeals is reversed, and the case is remanded for further
proceedings consistent with this opinion.
So ordered.
MR. JUSTICE STEWART dissents for the reasons stated in Part II of MR. JUSTICE
BRENNAN'S dissenting opinion, which he joins.
Vance v. Terrazas case brief summary
444 U.S. 252 (1980)
CASE SYNOPSIS
Certiorari was issued to the United States Court of Appeals for the Seventh Circuit to
determine if it was properly held that Congress had no power to legislate the evidentiary
standard contained in 8 U.S.C.S. 1481(c), and that the Constitution required that proof that
appellee renounced allegiance and relinquished United States citizenship be not merely by a
preponderance of the evidence, but by clear, convincing and unequivocal evidence.
DISCUSSION

ordinary civil cases cannot be doubted. To invalidate the rule here would be to disagree flatly
with Congress [444 U.S. 252, 270] 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

The Court reversed and remanded the judgment below which held that Congress
had no power to legislate the evidentiary standard contained in 8 U.S.C.S.
1481(c), and that the Constitution required that proof that a citizen renounced
allegiance and relinquished United States citizenship be not merely by a
preponderance of the evidence, but by clear, convincing and unequivocal evidence.
The Court held that in proving expatriation, an expatriating act and an intent to
relinquish citizenship must be proved by a preponderance of the evidence.
The Court further held 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.
The Court determined that if he succeeded, there could be no expatriation, but if he
failed, the question remained whether on all the evidence the government had
satisfied its burden of proof that the expatriating act was performed with the
necessary intent to relinquish citizenship.

CONCLUSION
The Court reversed and remanded the judgment upon a finding that an expatriating act and an
intent to relinquish citizenship had to be proved by a preponderance of the evidence to

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establish loss of citizenship, and seeing no basis for invalidating the evidentiary prescriptions
contained in 8 U.S.C.S. 1481(c), held that the standard of proof and statutory presumption
therein were constitutional. - See more at: http://www.lawschoolcasebriefs.net/2013/11/vancev-terrazas-case-brief.html#sthash.1lveJkk6.dpuf

Held:

Vance v. Terrazas No. 71143 Argued October 30, 1979 Decided January 15, 1980 444
U.S. 252

1. In establishing loss of citizenship, the Government must prove an intent to surrender United
States citizenship, not just the voluntary commission of an expatriating act such as swearing
allegiance to a foreign nation. Congress does not have any general power to take away an
American citizen's citizenship without his "assent," which means an intent to relinquish
citizenship, whether the intent is expressed in

Syllabus

Page 444 U. S. 253

Section 349(a)(2) of the Immigration and Nationality Act provides that

words or is found as a fair inference from his conduct. The expatriating acts specified in
349(a) cannot be treated as conclusive evidence of the indispensable voluntary assent of the
citizen. The trier of fact must, in the end, conclude that the citizen not only voluntarily
committed the expatriating act prescribed in the statute, but also intended to relinquish his
citizenship. Cf. Afroyim v. Rusk,387 U. S. 253. Pp. 444 U. S. 258-263.

"a person who is a national of the United States whether by birth or naturalization, shall lose
his nationality by . . . taking an oath or making an affirmation or other formal declaration of
allegiance to a foreign state or a political subdivision thereof."
Section 349(c) provides that the party claiming that such loss of citizenship occurred must
"establish such claim by a preponderance of the evidence," and that a person who commits
any act of expatriation
"shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a
showing, by a preponderance of the evidence, that the act or acts committed or performed
were not done voluntarily."
Appellee, who was a citizen of both the United States and Mexico at birth, subsequently
obtained a certificate of Mexican citizenship after executing an application in which he swore
allegiance to Mexico and expressly renounced his United States citizenship. Thereafter, the
Department of State issued a certificate of loss of nationality, and the Board of Appellate
Review of the Department of State affirmed. Appellee then brought suit for a declaration of his
United States nationality, but the District Court concluded that the United States had proved
by a preponderance of the evidence that appellee had knowingly and voluntarily taken an oath
of allegiance to Mexico and renounced allegiance to the United States, thus voluntarily
relinquishing United States citizenship pursuant to 349(a)(2). The Court of Appeals reversed
and remanded, holding that Congress had no power to legislate the evidentiary standard
contained in 349(c), and that the Constitution required that proof be not merely by a
preponderance of the evidence, but by "clear, convincing and unequivocal evidence."

2. However, the Constitution permits Congress to prescribe the standard of proof in

expatriation proceedings. The specific evidentiary standard provided in 349(c) is not invalid
under either the Citizenship Clause of the Fourteenth Amendment or the Due Process Clause
of the Fifth Amendment. Although the Due Process Clause imposes requirements of proof
beyond a preponderance of the evidence in criminal and involuntary commitment contexts,
nevertheless expatriation proceedings are civil in nature, and do not threaten a loss of liberty,
and thus Congress did not exceed its powers by requiring proof of an intentional expatriating
act by only a preponderance of evidence. Pp.444 U. S. 264-267.
3. Nor is the presumption of voluntariness provided in 349(c) constitutionally infirm. While
the statute provides that any of the statutory expatriating acts, if proved, is presumed to have
been committed voluntarily, it does not also direct a presumption that the act has been
performed with the intent to relinquish United States citizenship, which matter remains the
burden of the party claiming expatriation to prove by a preponderance of the evidence.
Section 349(c) and its legislative history make clear that Congress preferred the ordinary rule
that voluntariness of an act is presumed and that duress is an affirmative defense to be
proved by the party asserting it, and to invalidate the rule here would give the Citizenship
Clause far more scope in this context than the relevant circumstances that brought the
Fourteenth Amendment into being would suggest appropriate. Pp. 444 U. S. 267-270.
577 F.2d 7, reversed and remanded.

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