U.S. Supreme Court Vance v. Terrazas, 444
U.S. 252 (1980) Vance v. Terrazas No. 71143 Argued October 30,
1979 Decided January 15,
1980 444
U.S. 252 APPEAL FROM THE UNITED STATES COURT
OF APPEALS FOR THE SEVENTH
CIRCUIT Syllabus Section 349(a)(2) of the Immigration and Nationality Act
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."

															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." Held: 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 Page 444 U. S. 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, 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.

															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.

															WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. MARSHALL,
J., post, p. 444 U. S. 270 ,
and STEVENS, J., post, p. 444 U. S. 272 ,
filed opinions concurring in part and dissenting in part. BRENNAN,
J., filed a dissenting opinion, in Part II of which STEWART, J.,
joined, post, p. 444 U. S. 274 .
STEWART, J., filed a dissenting statement, post, p. 444 U. S.
270 . Page 444 U. S. 254 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). [ Footnote 1 ]
The Page 444 U. S. 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. [ Footnote 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." Page 444 U. S. 256 Id. at 8a. Terrazas read and understood the certificate
upon receipt. App. to Juris.Statement 21a.

															A few months later, following a discussion with an officer of
the United States Consulate in Monterrey, proceedings were
instituted to determine whether appellee had lost his United 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, [ Footnote
3 ] as construed in Afroyim v. Rusk, 387 U.
S. 253 , 387 U. S. 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 Page 444 U. S. 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 United States v. Matheson, 400
F. Supp. 1241 , 1245 (SDNY 1975), aff'd, 532 F.2d 809
(CA2), cert. denied, 429 U.S. 823 (1976), that

															"the declaration of allegiance to a foreign state in 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.

															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 evidence; and the Court of Appeals observed that,
"[a]ssuming that the proper [evidentiary] standards were applied,
we are convinced that the record fully supports the court's
findings." Id. at 10. The Court of Appeals ruled, however,
that. under Afroyim v. Rusk, supra, Congress had no power
to legislate the Page 444 U. S. 258 evidentiary standard contained in § 1481(e) and that the
Constitution required that proof be not merely by a preponderance
of the evidence, but by "clear, convincing and unequivocal
evidence." 577 F.2d at 11. The case was remanded to the District
Court for further proceedings. [ Footnote 4 ]

															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. [ Footnote 5 ] His position is that he
need prove only the Page 444 U. S. 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. 116 1169, which provided that an American citizen
"shall lose his nationality by . . . [v] voting 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
stripped of his United States citizenship. Consistently with Perez v. Brownell, 356 U. S. 44 (1958), which had sustained § 401(e), the District Court affirmed
the power of Congress to expatriate for such conduct regardless of
the citizen's intent to renounce his citizenship. This Court,
however, in overruling Perez, "reject[ed] the idea . . . that, aside from the Fourteenth Page 444 U. S. 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 387 U. S. 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 387 U. S.
262 .

															The Secretary argues that Afroyim does not stand for
the proposition that a specific intent to renounce must be shown
before citizenship is relinquished. It is enough, he urges, to
establish one of the expatriating acts specified in § 1481(a),
because Congress has declared each of those acts to be inherently
inconsistent with the retention of citizenship. But Afroyim emphasized that loss of citizenship requires the
individual's "assent," 387 U.S. at 387 U. S. 257 ,
in addition to his voluntary commission of the expatriating act. It
is difficult to understand that "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 Page 444 U. S. 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
t.o 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, concluded by saying that, in such
instances, the "Government is simply giving formal recognition to
the inevitable consequence of the citizen's own voluntary surrender
of his citizenship." Perez v. Brownell, supra at 356 U. S. 69 .
This suggests that the Chief Justice's conception of "actions in
derogation of undivided allegiance to this country," 356 U.S. at 356 U. S. 68 , in
fact would entail an element of assent.

															In any event, we are confident that it would be inconsistent
with Afroyim to treat the expatriating acts specified in §
1481(a) as the equivalent of or as conclusive evidence of the
indispensable voluntary assent of the citizen. "Of course," any of
the specified acts "may be highly persuasive evidence in the
particular case of a purpose to abandon citizenship." Nisikawa
v. Dulles, 356 U. S. 129 , 356 U. S. 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 Page 444 U. S. 262 manifested by other actions declared expatriative under the
[A]ct, if such actions are in derogation of allegiance to this
country." Ibid. Even in these cases, however, the issue of
intent was deemed by the Attorney General to be open; and, once
raised, the burden of proof on the issue was on the party asserting
that expatriation had occurred. Ibid. "In each case," the
Attorney General stated,

															"the administrative authorities must make a judgment, based on
all the evidence, whether the individual comes within the terms of
an expatriation provision and has, in fact, voluntarily
relinquished his citizenship." Id. at 401. It was under this advice, as the Secretary
concedes, that the relevant departments of the Government have
applied the statute and the Constitution to require an ultimate
finding of an intent to expatriate. Brief for Appellant 557, n. 28.
[ Footnote 6 ] Page 444 U. S. 262 Accordingly, in the case now before us, the Board of Appellate
Review of the State Department found that appellee not only swore
allegiance to Mexico, but also intended to abandon his United
States citizenship:

															"In consideration of the complete record, we view appellant's
declaration of allegiance to Mexico and his concurrent repudiation
of any and all submission, obedience, and loyalty to the United
States as compelling evidence of a specific intent to relinquish
his United States citizenship."

															App. to Juris.Statement 50a. This same view -- that expatriation
depends on the will of a citizen as ascertained from his words and
conduct -- was also reflected in the United States' response to the
petition for certiorari in United States v. Matheson, 532
F.2d 809, cert. denied, 429 U.S. 823 (1976). [ Footnote 7 ] Insofar as we are advised,
this view remained the official position of the United States until
the appeal in this case.

															As we have said, Afroyim requires that the record
support a finding that the expatriating act was accompanied by an
intent to terminate United States citizenship. The submission of
the United States is inconsistent with this holding, and we are
unprepared to reconsider it. Page 444 U. S. 264 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.

															In Nishikawa v. Dulles, 356 U.
S. 129 (1958), an American-born citizen, temporarily in
Japan, was drafted into the Japanese Army. The Government later
claimed that, under § 401(c) of the Nationality Act of 1940, 54
Stat. 119, he had expatriated himself by serving in the armed
forces of a foreign nation. The Government agreed that expatriation
had not occurred if Nishikawa's army service had been involuntary.
Nishikawa contended that the Government had to prove that his
service was voluntary, while the Government urged that duress was
an affirmative defense that Nishikawa had the burden to prove by
overcoming the usual 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.

															Section 1481(c) soon followed; its evident aim was to supplant
the evidentiary standards prescribed by Nishikawa. [ Footnote 8 ] Page 444 U. S. 265 The provision

															"sets up rules of evidence under which the burden of proof to
establish loss of citizenship by preponderance of the evidence
would rest upon the Government. The presumption of voluntariness
under the proposed rules of evidence, would be rebuttable --
similarly -- by preponderance of the evidence. . . ."

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

															We see no basis for invalidating the evidentiary prescriptions
contained in § 1481(c). Nishikawa was not rooted in the
Constitution. The Court noted, moreover, that it was acting in the
absence of legislative guidance. Nishikawa v. Dulles,
supra, at 356 U. S. 135 .
Nor do we agree with the Court of Appeals that, because, under Afroyim, Congress is constitutionally devoid of power to
impose expatriation on a citizen, it is also without power to
prescribe the evidentiary standards to govern expatriation
proceedings. 577 F.2d at 10. Although § 1481(c) had been law since
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 federal courts. This power, rooted in the
authority Page 444 U. S. 266 of Congress conferred by Art. 1, § 8, cl. 9, of the Constitution
to create inferior federal courts, is undoubted and has been
frequently noted and sustained. See, e.g., Usery v. Turner
Elkhorn Mining Co., 428 U. S. 1 , 428 U. S. 31 (1976); Hawkins v. United States, 358 U. S.
74 , 358 U. S. 78 (1958); Tot v. United States, 319 U.
S. 463 , 319 U. S. 467 (1943).

															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 356 U. S. 139 .
In this respect, we agree with Mr. Justice Black; and since
Congress has the express power to enforce the Fourteenth Amendment,
it is untenable to hold that it has no power whatsoever to address
itself to the manner or means by which Fourteenth Amendment
citizenship may be relinquished.

															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). This Court has also stressed the
importance of citizenship, and evinced a decided preference for
requiring clear and convincing evidence to prove expatriation. Nishikawa v. United States, supra. But expatriation
proceedings are civil in nature, and do not threaten a loss of
liberty. Moreover, as we have noted, Nishikawa did not
purport to be a constitutional ruling, and the same is true of
similar rulings in related areas. Woodby v. INS, 385 U. S. 276 , 385 U. S. 285 (1966) (deportation); Schneiderman v. United States, 320 U. S. 118 , 320 U. S. 125 (1943) (denaturalization). None of these cases involved a
congressional judgment, Page 444 U. S. 267 such as that present here, that the preponderance standard of
proof provides sufficient protection for the interest of the
individual in retaining his citizenship. Contrary to the
Secretary's position, we have held that expatriation requires the
ultimate finding that the citizen has committed the expatriating
act with the intent to renounce his citizenship. This in itself is
a heavy burden, and we cannot hold that Congress has exceeded its
powers by requiring proof of an intentional expatriating act by a
preponderance of evidence. IV The Court of Appeals did not discuss separately the validity of
the statutory presumption provided in § 1481(c). By holding that
the section was beyond the power of Congress, however, and by
requiring that the expatriating act be proved voluntary by clear
and convincing evidence, the Court of Appeals effectively
foreclosed use of the § 1481(c) presumption of 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.

															Section 1481(c) provides in relevant part that

															"any person who commits or performs, or who has committed or
performed, any act of expatriation under the provisions of this
chapter or any other Act 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."

															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 Page 444 U. S. 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.

															It is important at this juncture to note the scope of the
statutory presumption. Section 1481(c) provides that any of the
statutory expatriating acts, if proved, are 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. That matter remains the burden of the party
claiming expatriation to prove by a preponderance of the evidence.
As so understood, we cannot invalidate the provision. [ Footnote 9 ]

															The majority opinion in Nishikawa referred to the
"ordinary rule that duress is a matter of affirmative defense" to
be proved by the party claiming the duress. Nishikawa v.
Dulles, 356 U.S. at 356 U. S. 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 356 U. S. 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 356 U. S. 144 .
Yet the Court in Nishikawa, Page 444 U. S. 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 356 U. S.
133 -138. [ Footnote
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 , 271 U. S. 49 -50
(1926); Towson v. Moore, 173 U. S. 17 , 173 U. S. 23 -24
(1899); Savage v. United States, 92 U. S.
382 , 92 U. S.
387 -388 (1876). "Duress, if proved, may be a defence 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, 84 U. S. 74 (1873). [ Footnote 11 ] The
rationality of the procedural rule with respect to claims of
involuntariness in ordinary civil cases cannot be doubted. To
invalidate the rule here would be to disagree flatly with
Congress Page 444 U. S. 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
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.

															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 444 U. S. JUSTICE BRENNAN's dissenting opinion, which he Joins.

															[ Footnote 1 ]

															The relevant statutory provisions are §§ 349(a)(2),(c) of the
Act, 66 Stat. 267, as amended, 75 Stat. 656, as set forth in 8
U.S.C. § 1481:

															"(a) 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 -- "

															" * * * *" "(2) taking an oath or making an affirmation or other formal
declaration of allegiance to a foreign state or a political
subdivision thereof;"

															" * * * *" "(c) Whenever the loss of United States nationality is put in
issue in any action or proceeding commenced on or after September
26, 1961 under, or by virtue of, the provisions of this chapter or
any other Act, the burden shall be upon the person or party
claiming that such loss occurred, to establish such claim by a
preponderance of the evidence. Except as otherwise provided in
subsection (b) of this section, any person who commits or performs,
or who has committed or performed, any act of expatriation under
the provisions of this chapter or any other Act 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."

															[ Footnote 2 ]

															The application contained the following statement:

															"I therefore hereby expressly renounce __________ citizenship,
as well as any submission, obedience, and loyalty to any foreign
government, especially to that of _________, of which I might have
been subject, all protection foreign to the laws and authorities of
Mexico, all rights which treaties or international law grant to
foreigners; and furthermore I swear adherence, obedience, and
submission to the laws and authorities of the Mexican
Republic."

															The blank spaces in the statement were filled in with the words
"Estados Unidos" (United States) and "Norteamerica" (North
America), respectively. Brief for Appellant 4.

															[ Footnote 3 ]

															The Fourteenth Amendment, § 1, reads:

															"All persons born or naturalized in the United States and
subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside."

															[ Footnote 4 ]

															In remanding the case to the District Court, the Court of
Appeals did not "necessarily requir[e] that court to conduct a new
trial." 577 F.2d at 12. The Court of Appeals recognized that, even
granting the higher standard of proof it had imposed on the
District Court, the factual determinations already on the record
might be adequate to permit consideration of the case on remand
without the holding of another trial or evidentiary hearing. Ibid. [ Footnote 5 ]

															The Court of Appeals' discussion of specific intent is submerged
in its analysis of proper evidentiary standards. Id. at
11. The absence of independent analysis undoubtedly resulted from
the Secretary's failure to contend in either the District Court or
the Court of Appeals that it was unnecessary to prove an intent to
relinquish citizenship. Indeed, the jurisdictional statement filed
by the Secretary in this Court presented the single question
whether 8 U.S.C. § 1481(c) is unconstitutional under the
Citizenship Clause of the Fourteenth Amendment; it did not present
separately the question whether proof of a specific intent to
relinquish is essential to expatriation.

															Our Rule 15(1)(c) states that "[o]nly the questions set forth in
the jurisdictional statement or fairly comprised therein will be
considered by the court." The Secretary now argues that resolution
of the intent issue is an essential, or at least an advisable,
predicate to an intelligent resolution of the constitutionality of
§ 1481(c). There is some merit in this position: arguably, the
intent issue is fairly comprised in the question set forth in the
jurisdictional statement. In any event, consideration of issues not
present in the jurisdictional statement or petition for certiorari
and not presented in the Court of Appeals is not beyond our power,
and, in appropriate circumstances, we have addressed them. Blonder-Tongue Laboratories, Inc. v. University of Illinois
Foundation, 402 U. S. 313 , 402 U. S. 320 ,
n. 6 (1971); Erie R. Co. v. Tompkins, 304 U. S.
64 (1938) (parties agreed that Swift v.
Tyson , 16 Pet. 1 (1842), was still good law
[argument of counsel omitted from electronic version]). Cf.
Vachon v. New Hampshire, 414 U. S. 478 (1974); Moragne v. States Marine Lines, 398 U.
S. 375 (1970); Silber v. United States, 370 U. S. 717 (1962). See generally R. Stern & E. Gressman, Supreme
Court Practice §§ 6.27 and 7.14 (5th ed.1978).

															As will be more apparent below, the Secretary, represented in
this Court by the Solicitor General, has changed his position on
the intent issue since the decision of the Court of Appeals; and
his present position is at odds with a 1969 opinion of the Attorney
General, 42 Op.Atty.Gen. 397, which interpreted Afroyim v.
Rusk and guided the administrative actions of the State
Department and the Immigration and Naturalization Service. The
issue of intent is important, the parties have briefed it, and we
shall address it.

															[ Footnote 6 ]

															As the Secretary states in his brief, Brief for Appellant 57, n.
28,

															"both the State Department and the Immigration and
Naturalization Service have adopted administrative guidelines that
attempt to ascertain the individual's intent by taking into
consideration the nature of the expatriating act and the
individual's statements and actions made in connection with that
act."

															The State Department's guideline evidences a position on intent
quite similar to that adopted here:

															"In the light of the Afroyim decision and the Attorney
General's Statement of Interpretation of that decision, the
Department now holds that the taking of a meaningful oath
of allegiance to a foreign state is highly persuasive evidence of
an intent to transfer or abandon allegiance. The taking of an oath
that is not meaningful does not result in expatriation. The
meaningfulness of the oath must be decided by the Department on the
individual merits of each case."

															Department of State, 8 Foreign Affairs Manual § 224.2, p. 2
(1970) (emphasis in original). Cf. Immigration and
Naturalization Service, Interpretations § 349.1(d)(2), p. 6976.4
(1970) (characterizing Afroyim as overruling Perez's holding "that expatriation could flow from a
voluntary act even though the citizen did not intend thereby to
relinquish his United States citizenship"). Contemporaneous
academic commentary agreed that Afroyim imposed the
requirement of intent to relinquish citizenship on a party seeking
to establish expatriation. See Comment, An Expatriation
Enigma: Afroyim v. Rusk, 48 B.U.L.Rev. 295, 298 (1968);
Note, Acquisition of Foreign Citizenship: The Limits of Afroyim
v. Rusk, 54 Cornell L.Rev. 624, 624-625 (1969); The Supreme
Court: 1966 Term, 81 Harv.L.Rev. 69, 126 (1967); Note, 29 Ohio
St.L.J. 797, 801 (1968).

															[ Footnote 7 ]

															In his response to the petition for certiorari in Matheson, the Solicitor General argued that
" Afroyim broadly held that Congress has no power to
prescribe any objective conduct that will automatically result in
expatriation, absent the individual's voluntary relinquishment of
citizenship. . . ." Brief in Opposition in Matheson v. United
States, O T.1976, No. 75-1651, p. 8. In Matheson, it
was maintained,

															"there is nothing in the record that would support a finding
that decedent's application for a certificate of Mexican
nationality was prompted by a specific intent to relinquish her
American citizenship." Id. at 7. Thus, the Solicitor General concluded no
expatriation could be said to have taken place.

															[ Footnote 8 ]

															The House Report accompanying § 1481(c), H.R.Rep. No. 108, 87th
Cong., 1st Sess., 40 (1961), took direct aim at Nishikawa's holding that "the Government must in each case
prove voluntary conduct by clear, convincing and unequivocal
evidence." Nishikawa v. Dulles, 356 U.S. at 356 U. S. 138 .
The Report quoted with approval from Mr. Justice Harlan's
dissenting opinion in Nishikawa: "Although the Court recognizes the general rule that consciously
performed acts are presumed voluntary [citations omitted], it in
fact alters this rule in all denationalization cases by placing the
burden of proving voluntariness on the Government, thus relieving
citizen-claimants in such cases from the duty of proving that their
presumably voluntary acts were actually involuntary."

															"One of the prime reasons for imposing the burden of proof on
the party claiming involuntariness is that the evidence normally
lies in his possession."

															"I . . . find myself compelled to dissent because, in my
opinion, the majority's position can be squared neither with
congressional intent nor with proper and well established rules
governing the burden of proof on the issue of duress."

															H.R.Rep. No. 1086, supra at 41 (quoting Nishikawa
v. Dulles, supra at 356 U. S.
144 -145).

															The Report continued:

															"In order to forestall further erosion of the statute designed
to preserve and uphold the dignity and the priceless value of U.S.
citizenship, with attendant obligations, [§ 1481(c)] sets up rules
of evidence under which the burden of proof to establish loss of
citizenship by preponderance of the evidence would rest upon the
Government."

															H.R.Rep. No. 1086, supra at 41. The Report concluded by
describing the rebuttable presumption of voluntariness in §
1481(c).

															[ Footnote 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.

															[ Footnote 10 ]

															The Court's departure from the normal rule that duress is an
affirmative defense to be proved by the party seeking to rely on it
was noted when Nishikawa was handed down. See The
Supreme Court: 1957 Term, 72 Harv.L.Rev. 77, 166, 171 (1958)
( Nishikawa "not only extended the Government's burden in
expatriation proceedings to include the absence of duress if this
issue is raised, but also determined the standard by which it must
be shown. The position of the majority runs counter to the usual
rule that duress is an affirmative defense").

															[ Footnote 11 ]

															The rule that duress is an affirmative defense to be pleaded and
proved by the party attempting to rely on it is well established.
Even where a plaintiff's complaint improperly contains allegations
that seek to avoid or defeat a potential affirmative defense,

															"it is inappropriate for the court to shift the burden of proof
on the anticipated defense to plaintiff as a 'sanction' for failing
to follow the burden of pleading structure established by Rule 8 or
by adopting the fiction that plaintiff's anticipation of the issue
evidences his intention to 'assume' the burden of proving it."

															5 C. Wright & A. Miller, Federal Practice and Procedure §
1276, p 327 (1969). On affirmative defenses generally, see
id. § 1270, at 289 et seq. MR. JUSTICE MARSHALL, concurring in part and dissenting in
part.

															I agree with the Court's holding that a citizen of the United
States may not lose his citizenship in the absence of a finding
that he specifically intended to renounce it. I also concur in the
adoption of a saving construction of 8 U.S.C. § 1481(a)(2) Page 444 U. S. 271 to require that the statutorily designated expatriating acts be
done with a specific intent to relinquish citizenship.

															I cannot, however, accept the majority's conclusion that a
person may be found to have relinquished his American citizenship
upon a preponderance of the evidence that he intended to do so. The
Court's discussion of congressional power to "prescribe rules of
evidence and standards of proof in the federal courts," ante at 444 U. S. 265 ,
is the beginning, not the end, of the inquiry. It remains the task
of this Court to determine when those rules and standards impinge
on constitutional rights. As my Brother STEVENS indicates, the
Court's casual dismissal of the importance of American citizenship
cannot withstand scrutiny. And the mere fact that one who has been
expatriated is not locked up in a prison does not dispose of the
constitutional inquiry. As Mr. Chief Justice Warren stated over 20
years ago:

															"[T]he expatriate has lost the right to have rights."

															"This punishment is offensive to cardinal principles for which
the Constitution stands. It subjects the individual to a fate of
ever-increasing fear and distress. He knows not what
discriminations may be established against him, what proscriptions
may be directed against him, and when and for what cause his
existence in his native land may be terminated. He may be subject
to banishment, a fate universally decried by civilized people. He
is stateless, a condition deplored in the international community
of democracies. It is no answer to suggest that all the disastrous
consequences of this fate may not be brought to bear on a stateless
person. The threat makes the punishment obnoxious." Trop v. Dulles, 356 U. S. 86 , 356 U. S. 102 (1958) (plurality opinion) (footnotes omitted).

															For these reasons I cannot understand, much less accept, the
Court's suggestion that "expatriation proceedings . . . do not
threaten a loss of liberty." Ante at 444 U. S. 266 .
Recognizing that Page 444 U. S. 272 a standard of proof ultimately " reflects the value society
places'" on the interest at stake, Addington v. Texas, 441 U. S. 418 , 441 U. S. 425 (1979), I would hold that a citizen may not lose his citizenship in
the absence of clear and convincing evidence that he intended to do
so. MR. JUSTICE STEVENS, concurring in part and dissenting in
part.

															The Court today unanimously reiterates the principle set forth
in Afroyim v. Rusk, 387 U. S. 253 ,
that Congress may not deprive an American of his citizenship
against his will, but may only effectuate the citizen's own
intention to renounce his citizenship. I agree with the Court that
Congress may establish certain standards for determining whether
such a renunciation has occurred. It may, for example, provide that
expatriation can be proved by evidence that a person has performed
an act that is normally inconsistent with continued citizenship,
and that the person thereby specifically intended to relinquish his
American citizenship.

															I do not agree, however, with the conclusion that Congress has
established a permissible standard in 8 U.S.C. § 1481(a)(2). Since
we accept dual citizenship, taking an oath of allegiance to a
foreign government is not necessarily inconsistent with an intent
to remain an American citizen. Moreover, as now written, the
statute cannot fairly be read to require a finding of specific
intent to relinquish citizenship. The statute unambiguously states
that

															"a national of the United States . . . shall lose his
nationality by --"

															" * * * * " "(2) taking an oath or making an affirmation or other formal
declaration of allegiance to a foreign state or a political
subdivision thereof."

															There is no room in this provision to imply a requirement of a
specific intent to relinquish citizenship. The Court does Page 444 U. S. 273 not attempt to do so, nor does it explain how any other part of
the statute supports its conclusion that Congress required proof of
specific intent. [ Footnote 2/1 ]

															I also disagree with the holding that a person may be deprived
of his citizenship upon a showing by a mere preponderance of the
evidence that he intended to relinquish it. The Court reasons that,
because the proceedings in question are civil in nature, and do not
result in any loss of physical liberty, no greater burden of proof
is required than in the ordinary civil case. Such reasoning
construes the constitutional concept of "liberty" too narrowly.

															The House Report accompanying the 1961 amendment to the
Immigration and Naturalization Act of 1952 refers to "the dignity
and the priceless value of U.S. citizenship." H.R.Rep. Page 444 U. S. 274 No. 1086, 87th Cong., 1st Sess., 41 (1961). That
characterization is consistent with this Court's repeated appraisal
of the quality of the interest at stake in this proceeding.
[ Footnote 2/2 ] In my judgment, a
person's interest in retaining his American citizenship is surely
an aspect of "liberty" of which he cannot be deprived without due
process of law. Because the interest at stake is comparable to that
involved in Addington v. Texas, 441 U.
S. 418 , essentially for the reasons stated in THE CHIEF
JUSTICE's opinion for a unanimous Court in that case, see
id. at 441 U. S.
425 -427, 441 U. S.
431 -433, I believe that due process requires that a
clear and convincing standard of proof be met in this case as well
before the deprivation may occur.

															[ Footnote 2/1 ]

															It could perhaps be argued that a specific intent requirement
can be derived from 8 U.S.C. § 1481(c). That subsection creates a
rebuttable presumption that any expatriating act set forth in
subsection (a) was performed "voluntarily." The term "voluntary"
could conceivably be stretched to include the concept of a specific
intent to renounce one's citizenship. While the person seeking to
retain his citizenship would thus have the burden of showing a lack
of specific intent, such a construction would at least provide a
statutory basis for bringing the issue of intent into the
proceeding. The majority apparently would not be willing to accept
such a construction in order to salvage the statute, however,
inasmuch as it rejects the appellant Secretary's argument that, if
there is a requirement of specific intent, it is also subject to
the presumption applicable to voluntariness. Ante at 444 U. S.
268 .

															The majority's assumption that the statute can be read to
require specific intent to relinquish citizenship as an element of
proof is also contradicted by the Court's treatment in Afroyim of a different subsection of the same statute.
Like the subsection at issue here, subsection (a)(5) provided that
an American automatically lost his nationality by performing a
specific act: in that case, voting in a foreign election. If the
majority's analysis in this case were correct, the Court in Afroyim should not have invalidated that provision of the
statute; rather, it should merely have remanded for a finding as to
whether Afroyim had voted in a foreign election with specific
intent to relinquish his American citizenship. That the Court did
not do so is strong evidence of its belief that the statute could
not be reformed as it is today.

															[ Footnote 2/2 ] See Kennedy v. Mendoza-Martinez, 372 U.
S. 144 , 372 U. S. 160 ,
where the Court quoted another report describing American
citizenship as " one of the most valuable rights in the world
today.'" See also Afroyim v. Rusk, 387 U.
S. 253 , 387 U. S.
267 -268; Trop v. Dulles, 356 U. S.
86 , 356 U. S.
92 . MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART joins as to
Part II, dissenting.

															The Court holds that one may lose United States citizenship if
the Government can prove by a preponderance of the evidence that
certain acts, specified by statute, were done with the specific
intent of giving up citizenship. Accordingly, the Court, in
reversing the judgment of the Court of Appeals, holds that the
District Court applied the correct evidentiary standards in
determining that appellee was properly stripped of his citizenship.
Because I would hold that one who acquires United States
citizenship by virtue of being born in the United States,
U.S.Const., Amdt. 14, § 1, can lose that citizenship only by
formally renouncing it, and because I would hold that the act of
which appellee is accused in this case cannot be an expatriating
act, I dissent. I This case is governed by Afroyim v. Rusk, 387 U.
S. 253 Page 444 U. S. 275 (1967). Afroyim , emphasizing the crucial importance of
the right of citizenship, held unequivocally that a citizen has "a
constitutional right to remain a citizen . . . unless he
voluntarily relinquishes that citizenship." Id. at 387 U. S. 268 .
"[T]he only way the citizenship . . . could be lost was by the
voluntary renunciation or abandonment by the citizen himself." Id. at 387 U. S. 266 .
The Court held that, because Congress could not "abridge,"
"affect," "restrict the effect of," or "take . . . away"
citizenship, Congress was "without power to rob a citizen of his
citizenship" because he voted in a foreign election. Id. at 387 U. S.
267 .

															The same clearly must be true of the Government's attempt to
strip appellee of citizenship because he swore an oath of
allegiance to Mexico. [ Footnote
3/1 ] Congress has provided for a procedure by which one may
formally renounce citizenship. [ Footnote 3/2 ] In this case, the appellant concedes that
appellee has not renounced his citizenship under that procedure.
[ Footnote 3/3 ] Brief for Appellant
56. Because one can lose citizenship only by voluntarily renouncing
it and because appellee has not formally renounced his, I would
hold that he remains a citizen. Accordingly, I would remand the
case with orders that appellee be given a declaration of United
States nationality. [ Footnote
3/4 ] Page 444 U. S. 276 II I reach the same result by another, independent line of
reasoning. Appellee was born a dual national. He is a citizen of
the United States because he was born here, and a citizen of Mexico
because his father was Mexican. The only expatriating act of which
appellee stands accused is having sworn an oath of allegiance to
Mexico. If dual citizenship, per se, can be consistent
with United States citizenship, Perkins v. Elg, 307 U. S. 325 , 307 U. S. 329 ,
(1939), [ Footnote 3/5 ] then I
cannot see why an oath of allegiance to the other country of which
one is already a citizen should create inconsistency. One owes
allegiance to any country of which one is a citizen, especially
when one is living in that country. Kawakita v. United
States, 343 U. S. 717 , 343 U. S.
733 -735 (1952). [ Footnote
3/6 ] The formal oath adds nothing to the existing foreign
citizenship and, therefore, cannot affect his United States
citizenship.

															[ Footnote 3/1 ]

															He was a Mexican citizen by virtue of his father's
citizenship.

															[ Footnote 3/2 ]

															Title 8 U.S.C. § 1481(a)(6) provides that

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

															" * * * *" "making a formal renunciation of nationality before a diplomatic
or consular officer of the United States in a foreign state, in
such form as may be prescribed by the Secretary of State."

															The Secretary of State has prescribed such procedures in 22 CFR
§ 50.50 (1979). See Department of State, 8 Foreign Affairs
Manual § 225.6 (1972). Congress also provided for renunciation by
citizens while in the United States in 8 U.S.C. § 1481(a) (7). This
last provision is not relevant to our case.

															[ Footnote 3/3 ]

															Therefore, the appellant does not argue that appellee can be
expatriated under 8 U.S.C. § 1481(a)(6). See 444
U.S. 252 fn3/2|>n. 2, supra. [ Footnote 3/4 ]

															I would not reach the issues concerning 8 U.S.C. § 1481(c).

															[ Footnote 3/5 ] Rogers v. Bellei, 401 U. S. 815 (1971), is not to the contrary. Bellei's citizenship was not based
on the Fourteenth Amendment, id. at 401 U. S. 833 , 401 U. S. 835 ,
and the issue before the Court was whether Bellei could lose his
statutory citizenship for failure to satisfy a condition subsequent
contained in the same statute that accorded him citizenship.

															[ Footnote 3/6 ]

															Indeed, the opinion of the State Department once was

															"that a person with a dual citizenship who lives abroad in the
other country claiming him as a national owes an allegiance to it
which is paramount to the allegiance he owes the United
States." Kawakita v. United States, 343 U.S. at 343 U. S.
734 -735.

Summary: In Vance v. Terrazas (1980), the US government argued that Terrazas, a dual citizen of the US and Mexico, had relinquished his US citizenship by obtaining a Mexican citizenship certificate and swearing allegiance to Mexico. The Supreme Court ruled that the government must prove Terrazas' intent to surrender US citizenship, not just the voluntary act of swearing allegiance to Mexico. The Court held that Terrazas' actions did not indicate a voluntary assent to relinquish US citizenship and that an oath of allegiance to another country of which one is already a citizen does not affect US citizenship. The Court also addressed the evidentiary standard, with the majority upholding the standard of "preponderance of the evidence" while dissenters argued for a higher standard of "clear, convincing, and unequivocal evidence."