Dual Nationality has Been Permitted in the U.S.A. since 1967: U.S. Supreme Court Confirmed Constitutional Rights of Citizenship (Afroyim v. Rusk,  387 U.S. 253 (1967))

Posted on

There is a common myth that still persists about U.S. citizenship. It is often stated (erroneously) that someone becoming a U.S. naturalized citizen must forsake citizenship to another country. Or a U.S. citizen becoming a naturalized citizen of another country must forsake U.S. citizenship. There are good reasons for this “myth.”

First, the federal government used to have a policy that discouraged (if not outright prohibited) nationality in another country while being a U.S. citizen in various circumstances. This despite the language in the 14th Amendment of the Constitution which provides in

relevant part:

“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. No state shall make or enforce any

law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 1 of the 14th Amendment

Congress then imposed various restrictions on citizens and provided they would lose nationality in various circumstances. Specifically the Nationality Act of 1940 imposed a strict statutory rule that a:

  • ” . . . national of the United States . . . shall lose their nationality by: . . . “(e) Voting in a political election in a foreign state” [since repealed]
Section  § 401(e) of the Nationality Act of 1940

The Supreme Court in 1967 found that specific provision as violating the U.S. Constitution. In

that case, Mr. Afroyim was Polish born and become a U.S. naturalized citizen in 1926. The Court concluded he had voted in elections in Israel (after emigrating from the U.S. to Israel in 1950 – without formally renouncing his U.S. citizenship). The opinion of the Court concluded:

 We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.

U.S. Supreme Court in Afroyim (1967)

The decision in Afroyim is in stark contrast to the earlier Supreme Court decision of Perez v. Brownell, 356 U.S. 44 (1958). In the earlier decision SCOTUS cited to the same 1940s Nationality Act – [Section  § 401(e) of the Nationality Act of 1940]. The Court explained that the petitioner was born in the U.S. (unlike Afroyim who was born in Poland per the Court); explaining the individual was born in Texas, yet found that he lost his citizenship by voting in political elections in Mexico. The odd notion in Perez is that although he was born in the U.S. the Court referred to him as a “native-born Mexican citizen”. The key facts summarized by that Court were as follows:

Petitioner was born in Texas in 1909. He resided in the United States until 1919 or 1920, when he moved with his parents to Mexico, where he lived, apparently without interruption, until 1943. In 1928 he was informed that he had been born in Texas. At the outbreak of World War II, petitioner

knew of the duty of male United States citizens to register for the draft, but he failed to do so. In 1943 he applied for admission to the United States as an alien railroad laborer, stating that he was a native-born citizen of Mexico, and was granted permission to enter on a temporary basis. He returned to Mexico in 1944 and shortly thereafter applied for and was granted permission, again as a native-born Mexican citizen, to enter the United States temporarily to continue his employment as a railroad laborer. Later in 1944 he returned to Mexico once more. In 1947 petitioner applied for admission to the United States at El Paso, Texas, as a citizen of the United States. At a Board of Special Inquiry hearing (and in his


subsequent appeals to the Assistant Commissioner and the Board of Immigration Appeals), he admitted having remained outside of the United States to avoid military service and having voted in political elections in Mexico. He was ordered excluded on the ground that he had expatriated himself; this order was affirmed on appeal. In 1952 petitioner, claiming to be a native-born citizen of Mexico, [356 U.S. 44, 47]   was permitted to enter the United States as an alien agricultural laborer. He surrendered in 1953 to immigration authorities in San Francisco as an alien unlawfully in the United States but claimed

the right to remain by virtue of his American citizenship. After a hearing before a Special Inquiry Officer, he was ordered deported as an alien not in possession of a valid immigration visa; this order was affirmed on appeal to the Board of Immigration Appeals.

It does not seem that either Mr. Perez of Mr. Afroyam were much concerned about U.S. federal

tax consequences of their U.S. citizenship. Indeed, Mr. Perez was only a boy of about 10 years old when his parents left Texas to reside in Mexico where he remained for about 23 years before returning to the U.S. Afroyam tried to return to the U.S. apparently after his marriage failed in Israel.

Today, the U.S. Department of State articulates their policy and law of dual nationality for U.S. citizens seeking foreign citizenship. See, U.S. Department of State website:

U.S. law does not impede its citizens’ acquisition of foreign citizenship whether by birth, descent, naturalization or other form of acquisition, by imposing requirements of permission from U.S. courts or any governmental agency. If a foreign country’s law permits parents to apply for citizenship on behalf of minor children, nothing in U.S. law impedes U.S. citizen parents from doing so.

Dual Nationality

With that said, see Survey of the Law of Expatriation from 2002: Department of Justice Analysis (Not a Tax Discussion)

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.