Voluntariness of Renunciations of Citizenship

Under 8 U.S.C. § 1481(a)(6)

A renunciation of citizenship would likely not be held involuntary by a court solely because it 

was undertaken as part of an agreement whereby federal prosecutors agreed not to proceed 

with denaturalization and deportation proceedings if the subjects of the investigation agreed 

to renounce their U.S. citizenship. In the analogous context of plea bargaining in criminal 

cases, courts have consistently held that the threat of greater punishment by prosecutors does 

not by itself deprive the defendant of the ability to voluntarily choose to plea bargain, absent 

other indicia of improper coercion. In the absence of facts indicating further government 

coercion, a court would likely look to principles applicable to the determination of voluntariness 

in criminal plea bargains and conclude that renunciation of citizenship pursuant to the 

agreements at issue did not violate the constitutional requirement of voluntariness per se.

September 27, 1984

M e m o r a n d u m O p i n i o n f o r t h e A c t i n g L e g a l A d v is o r

D e p a r t m e n t o f S t a t e

This responds to your request for our opinion whether renunciations of 

United States citizenship under 8 U.S.C. § 1481(a)(6)1 by two naturalized 

United States citizens who are alleged to have been involved in Nazi persecution are voluntary. These individuals, Mr. A and Mr. B, have formally renounced their United States citizenship pursuant to agreements negotiated with 

the Office of Special Investigations of the Department of Justice (OSI), whose 

mission is to identify, denaturalize, and deport persons who entered the United 

States subsequent to World War II and who obtained United States citizenship 

by concealing their involvement in Nazi persecution. Under those agreements, 

OSI agreed not to institute denaturalization and deportation proceedings if 

those individuals left the United States and formally renounced their citizenship.2

1 Section 1481(a)(6) provides in part that a national o f the United States may file 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.”

2 Your m em orandum also mentioned a third individual, Mr. C, who formally renounced his United States 

citizenship after OSI instituted denaturalization proceedings. His renunciation does not present the same 

underlying issue that is common to the renunciations by M r. A and Mr. B, because OSI did not negotiate or 

enter into any agreem ent in connection Mr. C ’s departure from the United States and his subsequent 

renunciation o f citizenship. You have since informed us that the denaturalization proceedings against M r C 

have been dism issed, and that OSI m ade representations to the court in connection with that dismissal, with 

your agreem ent, that Mr. C ’s renunciation was considered to be voluntary. We therefore do not address Mr. 

C ’s case here.

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You are concerned that the formal renunciations of citizenship made by Mr. 

A and Mr. B may not meet the constitutional requirement that expatriation be a 

voluntary act,3 because of the direct and substantial involvement of the United 

States Government in encouraging and facilitating the renunciations. Accordingly, you have asked this Office to review the background of these cases and 

to advise you whether the renunciations would be considered voluntary under 

applicable law. We understand that OSI and the Criminal Division of this 

Department have agreed to our consideration of these cases.

We believe it would be inappropriate, and indeed impossible, for this Office 

to provide you with a definitive answer as to whether these particular renunciations were in fact voluntary. We obviously cannot undertake any independent 

investigation of the underlying facts, and are not competent to resolve any 

factual disputes or contradictions that could conceivably arise in the course of 

such an investigation. Accordingly, our advice here focuses on the underlying 

legal standards and precedents that we believe should be applied to determine 

whether these renunciations were voluntary, and how we believe a court would 

apply those standards, based on the facts presented to us.

The question we address is whether, under applicable precedent, a court 

would find that the renunciations of citizenship pursuant to agreements with 

United States prosecutors are voluntary, in light of the influence brought to 

bear upon those individuals by the United States Government and the arguably 

coercive effect of the threatened denaturalization and deportation proceedings. 

For the reasons set forth below, we believe that a court would not conclude that 

a formal renunciation of citizenship is involuntary solely because it was undertaken pursuant to such an agreement. We do not believe that the involvement of 

United States prosecutors in influencing and facilitating such decisions necessarily amounts to duress or coercion that would vitiate the voluntariness of the 

choice faced by those individuals, i.e., whether to renounce citizenship or to 

face the denaturalization and deportation proceedings. In reaching this conclusion, we find highly relevant judicial consideration in the criminal context of 

similar voluntariness questions raised by plea bargaining. The analogy is not 

exact, but we believe it is apt, and the reasoning used by the courts in evaluating the voluntariness of plea bargains is quite similar to that used in determining the voluntariness of expatriating acts under 8 U.S.C. § 1481.

We believe that circumstances could arise in which a renunciation of citizenship pursuant to an agreement by the United States Government not to institute 

denaturalization and deportation proceedings could be considered involuntary 

by the courts. If, for example, the prosecutors used threats of physical or mental 

intimidation, materially misrepresented the basis for and consequences of the 

agreement, withheld material evidence, or refused to allow the individual the 

assistance of counsel in meetings with prosecutors, the resulting renunciation 

of citizenship might well be considered by the courts to be involuntary. Similarly, if the individual was not competent to understand the terms of the

3 See Afroyim v. Rusk. 387 U.S. 253 <1967); Perkins v. Elg. 307 U S. 325 (1939).

221
agreement and the consequences of his actions, or was not informed of the 

nature of the charges against him and of the consequences of his actions, his 

renunciation could well be considered to be involuntary. As far as we are 

aware, the Mr. A and Mr. B cases present none of these particular circumstances, 

and therefore we believe a court would find the renunciations to be voluntary.

I.

OSI was created by Attorney General Civiletti in 1979 to consolidate enforcement of immigration statutes and policy against suspected Nazi persecutors.4 The usual practice of OSI has been to institute denaturalization proceedings under 8 U.S.C. § 1451(a)5 if an investigation reveals that a Nazi persecutor 

obtained United States citizenship fraudulently or illegally, and then to institute deportation proceedings under 8 U.S.C. § 1251(a)(19) upon successful 

completion of denaturalization proceedings.6 This process inevitably takes 

substantial time, effort, and resources, and its success depends in general on 

finding another country that is willing to accept the deported individual.7

4 The A ttorney General assigned to O SI “the primary responsibility for detecting, investigating, and, where 

appropriate, taking legal action to deport, denaturalize, or prosecute any individual who was admitted as an 

alien into or becam e a naturalized citizen o f the United States and who had assisted the Nazis by persecuting 

any person because o f race, religion, national origin, or political opinion.” See Order of the Attorney General, 

Transfer o f Functions o f the Special Litigation Unit W ithin the Immigration and Naturalization Service o f the 

D epartm ent o f Justice to the Criminal D ivision of the Department of Justice, No. 851-79 (Sept. 4, 1979).

5 U nder 8 U.S.C. § 1451(a), a certificate o f naturalization may be cancelled if it was “illegally procured or 

. . . procured by concealm ent of a m aterial fact or by willful misrepresentation." Cases against alleged Nazi 

persecutors have been brought both on the basis that citizenship was procured “illegally,” see Fedorenko v. 

United States, 449 U.S. 490 (1981), and on the basis that the individual made material misrepresentations or 

concealed facts about his association and involvement w ith Nazi activities, see, e.g., Artukovic v. INS, 693 

F.2d 894 (9th Cir. 1982); United States v. Ryan, 360 F. Supp. 265 (E.D.N.Y. 1973). In denaturalization cases 

the governm ent bears the burden of p roof to establish by “clear and convincing” evidence that “citizenship 

was not conferred in accordance with strict legal requirem ents." Schneiderman v. United States, 320 U.S. 

118, 123 (1943).

6 That section, added by Pub. L. No. 95-549, § 103, 92 Stat. 2065, 2065-66 (1978), authorizes the 

deportation o f any alien who,

during the period beginning on M arch 23, 1933, and ending on M ay 8, 1945, under the direction 

of, or in association with —

(A ) the Nazi government in Germany,

(B) any governm ent in any area occupied by the military forces o f the Nazi government of 

Germany,

(C) any governm ent established with the assistance or cooperation o f the Nazi government 

o f Germ any, or

(D) any governm ent which w as an ally of the Nazi government of Germany,

ordered, incited, assisted, or otherwise participated in the persecution of any person because of 

race, religion, national origin, or political opinion.

8 U.S.C. § 1251(a)(19).

7 Under 8 U.S.C. § 1253, “[t]he deportation of an alien in the United States . . . shall be directed by the 

A ttorney General to a country promptly designated by the alien if that country is willing to accept him into its 

territory.*’ If the designated country does not agree to accept the individual into its territory, deportation of 

the alien “shall be directed to any country o f which such alien is a subject, national, or citizen if such country 

is w illing to accept him into its territory.” Only if that government also fails to advise the Attorney General 

or the alien w hether it will accept the alien (or advises that it will not), may the Attorney General exercise 

discretion to deport the alien elsewhere, in accordance with a specified list o f countries (country from which 

alien entered the United States, country in which he was bom , any country in which he resided prior to 

entering the country from which he entered the United States, etc.). Id. § 1253(a).

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OSI has informed us that, in accordance with its standard practice, it conducted investigations of Mr. A and Mr. B that included questioning of those 

individuals under oath by OSI attorneys. After OSI completed its investigations, it contacted lawyers for Mr. A and Mr. B and advised them that their 

respective clients were serious targets for denaturalization and deportation 

because of their wartime activities on behalf of the Nazi regime. According to 

OSI, after reviewing the evidence against their clients the lawyers for those 

individuals asked OSI how potential litigation could be avoided. They were 

advised that OSI would refrain from litigating only if it could secure all the 

relief to which it would be entitled through denaturalization and deportation 

proceedings.

After further discussions between OSI and counsel for Mr. A and Mr. B, 

separate agreements were reached and executed by Mr. A and by Mr. B. Each 

agreement was also executed by their respective counsel, and by representatives of OSI and the Criminal Division.

The two agreements differ slightly in their terms, but their essential elements 

are the same. In the agreements, Mr. A and Mr. B recited that they are familiar 

with the allegations made against them by OSI, that they are subject to denaturalization and deportation, and that they were involved in Nazi activities. Both 

agreed permanently to depart the United States, and to renounce formally their 

United States citizenship before an appropriate United States official abroad. 

They further consented to the entry of orders of denaturalization and deportation if they failed to comply with the terms of the agreement, and waived any 

right to apply for discretionary relief, appeal, or any other procedure that would 

have the effect of reviewing or contesting either the agreement itself or any 

order of denaturalization or deportation entered pursuant to the agreement. 

Each agreement recites expressly that it is entered into “freely and voluntarily 

upon consultation with counsel,” that the agreement had been personally 

reviewed and discussed with counsel, and that the signatory is not, and has not 

been, “under duress or compulsion of any kind.” OSI has informed us that both 

Mr. A and Mr. B acknowledged in the presence of OSI representatives that they 

understood the terms of the agreements and the consequences of their actions.

For its part, OSI agreed not to commence any litigation seeking denaturalization or deportation against Mr. A and Mr. B and, in accordance with its existing 

policy, not to commence litigation seeking the revocation of United States 

citizenship of any family member whose citizenship was derived from the 

subject. The agreements further recite that “[t]he United States recognizes that” 

if the subject complies fully with the terms of the agreement, “there is no basis 

under U.S. law for limiting in any way [the] receipt of Social Security benefits.”8

8 The agreem ent reached with Mr. A recites only that there would be “no basis” for lim iting receipt of 

Social Security benefits; the agreement reached with Mr. B recites that there would be no basis for limiting 

the receipt o f “federal retirement, health care, and/or Social Security benefits.” We do not read these 

provisions of the agreements to constitute a representation by OSI, on behalf of the United States Government, that no proceedings would be instituted against Mr. A and Mr. B to limit the receipt of such benefits. In 

fact, we would have some question about O SI’s authority to make such promises. We interpret the provision

Continued

223
In accordance with these agreements, Mr. A and Mr. B have executed formal 

oaths of renunciation, coincidentally both before United States consular officers in the Federal Republic of Germany. In both cases, they were counseled by 

those officers as to the seriousness and significance of a renunciation of 

citizenship, and were given the opportunity to reconsider their decisions, as 

required by applicable State Department procedures.9 Each also executed a 

“Statement of Understanding,” reciting that he was exercising his rights of 

renunciation voluntarily.10 In addition, Mr. B submitted a separate written 

“Declaration” stating that he was renouncing pursuant to an agreement with OSI.

In each case, the responsible consular officer raised questions with the State 

Department as to whether the renunciations may be considered voluntary, 

although they understood that under State Department regulations they were 

required to allow Mr. A and Mr. B to execute the oaths of renunciation. See

supra note 9. The consular officer who accepted Mr. A’s renunciation reported 

that Mr. A informed him he was renouncing his citizenship because of the 

agreement with OSI, and that Mr. A offered a statement that “[b]ecause I did 

not fully disclose the circumstances of my previous activities that would have 

affected my naturalization, I signed an agreement to avoid a hearing and

8 (. . . continued)

rather to reflect O SI’s understanding that under applicable federal laws and regulations a renunciation of 

citizenship would not affect entitlement to receipt of federal benefits accrued prior to that renunciation. We 

express no view as to the correctness o f that legal conclusion.

9 The State D epartm ent’s Foreign A ffairs Manual (FAM) sets forth the following procedure for acceptance 

of form al oaths of renunciation:

After the officer has verified that a would-be renunciant does possess the United States nationality which he seeks to surrender, he shall have the would-be renunciant read or have read to him, 

in the language he understands best and in the presence o f the consular officer and two witnesses 

thoroughly conversant in that language, the Statement of Understanding set forth [elsewhere in 

the FAM ]. The consular officer, in the presence of the witnesses, should explain in detail all of 

the consequences flowing from the intended renunciation. This must be done in every case.

The w ould-be renunciant should execute and sign the Statement in duplicate, under oath, in the 

language he understands best in the presence of the consular officer and two witnesses.

* * *

In every case, the officer should suggest to the person that he defer the act of renunciation for a 

period to permit further reflection on the gravity and consequence o f his contemplated act.... In 

no case, however, shall a United States citizen be denied the right to take the oath of renunciation.

8 FAM 225.6(g) & (h).

10 For reasons that are not explained in the material we have been provided, the form of the statement of 

understanding and the oath of renunciation executed by Mr. A differs somewhat from the forms executed by 

Mr. B. The oath o f renunciation executed by Mr. A recites that “I hereby absolutely and entirely renounce my 

U nited States nationality together w ith all rights and privileges and all duties of allegiance and fidelity 

therefore pertaining,” and the statement of understanding recites his understanding that “I have a right to 

renounce my United States citizenship and 1 have decided voluntarily to exercise that right . . . The 

extrem ely serious nature o f my contem plated act of renunciation has been fully explained to me . . and I 

fully understand the consequences o f m y intended action.” The oath executed by Mr. B states that “ I hereby 

absolutely and entirely, without mental reservation, coercion or duress renounce my United States nationality 

together with all rights and privileges and all duties of allegiance and fidelity thereunto pertaining.” His 

statem ent o f understanding recites that “I am exercising my right o f renunciation freely and voluntarily 

without any force, compulsion, or under influence placed upon me by any person . . . The extremely serious 

and irrevocable nature o f the act o f renunciation has been explained to me . . . and I fully understand its 

consequences.”

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possible deportation, and I voluntarily renounced U.S. citizenship.” Because of 

these statements, the consular officer declined to make a specific recommendation to the State Department concerning voluntariness, and left for “Departmental determination whether in view of this agreement Mr. A’s renunciation 

should be considered voluntary.” The consular officer who accepted Mr. B’s 

renunciation was also unwilling to attest to its voluntariness, in light of a 

written statement filed by Mr. B stating that he was renouncing pursuant to an 

agreement with OSI, and oral statements made by Mr. B that he had “no 

choice” but to renounce in the face of threatened legal proceedings.

The execution of the oath of renunciation does not end the State Department’s 

administrative role in renunciations of citizenship. Under current regulations, 

the consular officer must prepare a certificate of loss of nationality and submit 

it to the State Department for review and approval. 22 C.F.R. § 50.50, 8 FAM 

224.1. That certificate must be approved and returned to the consular official 

for submission to the individual. 8 FAM 224.9. We understand that in most 

cases involving formal renunciations of citizenship the State Department routinely approves the certificate of loss of nationality. The State Department has 

informed us orally, however, that it interprets its responsibility under 8 U.S.C. 

§ 1481 to encompass discretion to determine whether a particular renunciation 

meets the requirements of the statute and of the Constitution when information 

available to the Department suggests that the renunciation may be defective.11

Neither Mr. A nor Mr. B has indicated to the State Department that he will 

challenge the loss of his citizenship, although such a challenge would generally 

not be raised until the certificate of loss of nationality has been issued.12 Under 

current State Department practice, individuals may challenge any holding by 

the State Department of loss of United States nationality by an appeal to a 

Board of Appellate Review established in the State Department. See 22 C.F.R. 

§§ 7.3, 50.52. If the Board of Appellate Review upholds the loss of nationality, 

the individual may institute an action in federal district court for a judgment 

declaring him to be a national of the United States. 8 U.S.C. § 1503; 28 U.S.C. 

§ 2201.

II.

A. Constitutional and Statutory Framework

The Fourteenth Amendment guarantees that “[a]ll persons bom or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of 

the United States.” The Supreme Court has interpreted this guarantee to preclude Congress from stripping a citizen of citizenship without his assent. 

Afroyim v. Rusk, 387 U.S. 253, 268 (1967); see also Perkins v. Elg, 307 U.S.

11 This administrative construction appears consistent with the role given the State Department under 

§ 1481 We do not, however, find it necessary to address the validity or weight of that interpretation here.

12 State Department regulations provide that the time for filing an appeal to the Board of Appellate Review 

runs from the time of approval by the Department of the certificate o f loss of nationality. 22 C.F.R. § 7.5.

225
325, 334 (1939); Nishikawa v. Dulles, 356 U.S. 129, 133 (1958). The importance of citizenship and the severe consequences of a loss of that citizenship 

have heavily influenced the Court’s reading of the language of the Fourteenth 

Amendment:

Citizenship is no light trifle to be jeopardized any moment 

Congress decides to do so under the name of one of its general or 

implied grants of power. In some instances, loss of citizenship 

can mean that a man is left without the protection of citizenship 

in any country in the world — as a man without a country. 

Citizenship in this Nation is a part of a cooperative affair. Its 

citizenry is the country and the country is its citizenry. The very 

nature of our free government makes it completely incongruous 

to have a rule of law under which a group of citizens temporarily 

in office can deprive another group of citizens of their citizenship. 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.

Afroyim v. Rusk, 387 U.S. at 267-68.13 See also Trop v. Dulles, 356 U.S. 86,92 

(1958); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160-61 (1963).

Thus, with the exception of formal denaturalization,14 a United States citizen 

can lose his citizenship only if he voluntarily performs an act that is “in 

derogation of allegiance to the United States,” 42 Op. Att’y Gen. 397, 400 

(1969), and that was committed with the intent to relinquish United States 

citizenship. See Vance v. Terrazas, 444 U.S. 252, 261 (1980). “[A]n act which

13 In Afroyim v. Rusk, the Court expressly rejected the argument it had previously upheld in Perez v. 

Brownell, 356 U.S. 44 (1958), that C ongress’ im plied pow er to deal with foreign affairs as an indispensable 

attribute o f sovereignty, plus the Necessary and Proper C lause, em power Congress to withdraw citizenship 

without the assent of the citizen. Relying substantially on consideration by various Congresses of bills that 

would have provided for some form of expatriation, the Court concluded in Afroyim that the framers of the 

Fourteenth Amendment intended clearly “to put citizenship beyond the power of any governmental unit to 

destroy,” 387 U.S. at 263, and that Congress therefore lacks the constitutional authority to strip a citizen of 

citizenship w ithout his consent.

14 D enaturalization can apply only to citizens who acquired their citizenship by naturalization, because it is 

prem ised on im propriety in the naturalization proceedings. See 3 Gordon & Rosenfield, Immigration Law &

Procedure, § 20.1 (1983) (Gordon & Rosenfield) Expatriation, on the other hand, applies to any citizen, 

w hether he acquired his citizenship through birth or through naturalization, and does not involve any 

challenge to the lawfulness o f the individual's acquisition o f citizenship. Id. The power of Congress to 

provide for denaturalization o f naturalized citizens has long been viewed as an incident o f its authority “[t]o 

establish a uniform Rule o f Naturalization,” U.S. Const art. I, § 8, cl. 4, and necessary to protect the integrity 

o f the naturalization process. See Johannessen v. United States, 225 U.S. 227 (1912), Luria v. United States,

231 U.S. 9 (1913); Knauer v. United States, 328 U.S. 654, 673 (1946) Conceptually, denaturalization does 

not fall w ithin the general rule that citizenship can only be lost by voluntary action, because denaturalization 

is intended to redress errors in the naturalization process that would disentitle the individual to United States 

citizenship ab initio. See 3 Gordon & Rosenfield § 20.2C.

226
does not reasonably manifest an individual’s transfer or abandonment of allegiance to the United States cannot be made a basis for expatriation.” 42 Op. 

Att’y. Gen. at 400.

Although the Supreme Court has definitively held that Congress cannot 

provide by statute for involuntary expatriations, it has upheld Congress’ authority to prescribe by statute the types of acts that Congress considers to be 

generally “highly persuasive evidence . . . of a purpose to abandon citizenship.” See Nishikawa v. Dulles, 356 U.S. at 139; Vance v. Terrazas, 444 U.S. 

at 261, 265. These acts are set forth in § 349 of the Immigration and Nationality 

Act, 8 U.S.C. § 1481. One of these specified acts is a “formal renunciation of 

nationality before a diplomatic or consular officer of the United States in a 

foreign state.” 8 U.S.C. § 1481(a)(6). Other specified acts include: obtaining 

naturalization in a foreign state; taking an oath or making an affirmation or 

other formal declaration of allegiance to a foreign state; serving in the armed 

forces of a foreign state; serving in an office or employment under the government of a foreign state that requires assumption of the nationality of that state 

or a declaration of allegiance to that state; or committing an act of treason 

against the United States. Id. § 1481(a)(l)-(4), (7). The statute places the 

burden of proof on the party asserting that nationality has been lost, but 

establishes a rebuttable presumption that the act was committed voluntarily:

Whenever the loss of United States nationality is put in issue in 

any action or proceeding . . . the burden shall be upon the person 

or party claiming that such loss occurred, to establish such 

claims by a preponderance of evidence. Except as otherwise 

provided . . . 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.

Id. § 1481(c). This presumption and the “preponderance of the evidence” 

standard have been upheld by the Supreme Court as within the constitutional 

authority of Congress. Vance v. Terrazas, 444 U.S. at 264-67. The statutory 

presumption does not apply, however, to intent; the party asserting the loss of 

nationality bears the burden of proof, by a preponderance of the evidence, that 

the act was committed with the intent to relinquish United States citizenship. 

See id. at 268.

Thus, the analysis the courts have determined is required by the Constitution 

and by statute in any case in which a loss of nationality is alleged is three-fold:

(1) Has the individual committed one of the acts set out in 

§ 1481?

(2) If so, can the individual overcome the statutory presumption that the expatriating act was performed voluntarily?

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(3) Can the party claiming that citizenship was lost establish 

by a preponderance of the evidence that the act was committed 

with the intent to relinquish citizenship?

Here, our analysis focuses on the second question — that of the voluntariness 

of the renunciations in light of the threat that OSI would institute denaturalization and deportation proceedings.15 Obviously, judicial decisions construing 

the voluntariness requirement of § 1481 are relevant precedent, and provide the 

basic framework for that analysis. In addition, we believe that decisions involving the voluntariness of guilty pleas entered pursuant to criminal plea bargains 

are highly relevant. The agreements negotiated between OSI and Mr. A and 

Mr. B are analogous in many respects to plea bargains, albeit in a civil, rather 

than a criminal, context. As in criminal plea bargains, Mr. A and Mr. B have 

agreed to waive or relinquish important constitutional rights in exchange for an 

agreement by United States prosecutors not to press forward with judicial 

proceedings that they otherwise could properly institute. As we discuss further 

below, the plea bargain analogy must be applied with care, because plea 

bargains, unlike the agreements negotiated with OSI at issue here, are subject 

to scrutiny by the courts before they become final. Nonetheless, we believe the 

analysis of the voluntariness issue by the courts in plea bargain cases is 

instructive, particularly because we have found no cases under § 1481 that 

raise precisely the factual situation raised by your request.

We will outline first the relevant precedents under § 1481, and then discuss 

the relevant cases involving the voluntariness of plea bargains. Finally, we will 

apply those precedents to the cases of Mr. A and Mr. B.

B. Judicial Decisions Construing “Voluntariness” Requirement o f 8 U.S.C. § 1481

The courts have consistently recognized that an expatriating act cannot be 

considered to be voluntary if the circumstances demonstrate that the individual 

was coerced or compelled to commit the expatriating act:

There is no dispute that citizenship will not be relinquished 

when the citizen performs an act of expatriation with a gun at his 

head, or under threat of jail, or under other circumstances involving duress, mistake, or incapacity negating a free choice.

3 Gordon & Rosenfield § 20.9b. If a citizen is forced into an expatriating act by 

circumstances essentially beyond his control, the sine qua non of expatriation

13 There is no question that M r A and M r. B executed formal oaths o f renunciation in accordance with the 

forms and procedures established by the Secretary o f State under § 1481(a)(6). With respect to the question of 

intent, it seems unlikely that any successful challenge could be raised by either o f those individuals on the 

ground that he did not intend, by execution of that oath, to relinquish United States citizenship. See, e.g.,

Davis v. District Director, INS, 481 F. Supp 1178, 1181 (D.D.C. 1979) (in formal renunciation cases, 

question of intent would normally not arise). The State Department Board o f Appellate Review has taken the 

position that a formal renunciation of U nited States citizenship in the manner prescribed by law ipso facto

dem onstrates an intent on the part of renunciant to relinquish citizenship. See, e.g., Case ofVWvdH (Aug. 

25, 1982). In any event, we do not understand that the question raised by your request concerns the intent of 

Mr. A and Mr. B to relinquish United States citizenship, but rather concerns the voluntariness of their 

renunciations.

228
is lacking, and therefore no effect should be given to the expatriating act. See

Doreau v. Marshall, 170 F.2d 721, 724 (3d Cir. 1948); Stipa v. Dulles, 233 

F.2d 551, 555 (3d Cir. 1956).

The difficulty lies in determining what circumstances amount to duress or 

compulsion that would negate the voluntariness of the expatriating act. The 

courts have held that conscription into military service, particularly in a totalitarian country, may make such service and any attendant oath of allegiance 

involuntary, if the individual would otherwise face physical punishment, imprisonment, or economic deprivation.16 Under some circumstances, the courts 

have concluded that familial obligations, or the need to satisfy basic subsistence needs, may rebut the presumption of voluntariness for actions such as 

extended residence abroad17 or acceptance of employment by a state agency of 

a foreign government.18 Evidence that the individual relied on material misrepresentations or erroneous advice by government officials has been held to 

satisfy the burden of rebutting the presumption of voluntariness.19

Although the courts have been receptive to claims of duress because of the 

importance of citizenship and the severe consequences of expatriation, they 

have also recognized that the difficulty of making a choice between alternatives and the motivation for that choice does not necessarily make the expatriating act involuntary:

If by reason of extraordinary circumstances amounting to true 

duress, an American national is forced into the formalities of 

citizenship of another country, the sine qua non of expatriation 

is lacking .... On the other hand, it is just as certain that the 

forsaking of American citizenship, even in a difficult situation, 

as a matter of expediency, with attempted excuse of such conduct later when crass material considerations suggest that course, 

is not duress.

Doreau v. Marshall, 170 F.2d at 724. Particularly in cases involving formal 

renunciations of citizenship or other written disclaimers of citizenship,20 the

16See, e.g., Nishikawa v. Dulles, 356 U.S. at 139 (compulsory military service in Japanese army); Kamada

v. Dulles, 145 F. Supp. 457 (N.D. Cal. 1956) (same); see also Fukumoto v Dulles, 216 F.2d 553 (9th Cir. 

1954) (application for Japanese citizenship); Kuwahara v. Acheson, 96 F. Supp. 38 (S.D. Cal. 1951) (voting 

in post-war Japan compelled by fear of retaliation, loss of ration card, tradition o f obedience to authority); 

Takehara v. Dulles, 205 F.2d 560 (9th Cir. 1953) (same), Kamada v. Dulles, 145 F. Supp. at 460-61 (same).

17 See, e.g., Mendelsohn v Dulles, 207 F.2d 37 (D.C. Cir. 1953) (need to care for gravely ill wife); Ryckman

v. Acheson, 106 F. Supp. 739 (S.D. Tex. 1952) (need to care for ill mother).

18 See, e.g., Insogna v Dulles, 116 F. Supp. 473 (D.D.C. 1953) (acceptance of employment in bureau of 

Italian Government); Kamada v. Dulles, 145 F. Supp. at 459 (acceptance of employment as teacher in Japan).

]9See, e.g., Moser v. United States, 341 U.S. 41 (1951) (alien not disbarred from application for citizenship 

because he signed w aiver of eligibility for military service, where government representatives had informed 

him that he would not be precluded from citizenship); Podea v. Acheson, 179 F.2d 306 (2d Cir. 1950) (steps 

leading to conscription in Rumanian Army caused by erroneous advice o f State Department); Hong v. Dulles,

214 F.2d 753 (7th Cir. 1954) (im proper refusal of U.S passport).

20 The only judicial decision we are aware of in which a court concluded that a formal renunciation o f 

citizenship was involuntary is Acheson v. Murakami, 176 F.2d 953 (9th Cir. 1949). In that case, the court 

concluded that renunciations by United States citizens of Japanese descent, while they were interned during

Continued

229
courts have drawn a distinction between duress and motivation, and have 

emphasized that the critical question is whether the individual was free to 

choose between alternatives available to him, even if the choices might be 

difficult and the individual might be motivated by economic, emotional, or 

moral concerns. In Jolley v. INS, 441 F.2d 1245 (5th Cir.), cert, denied, 404 

U.S. 946 (1971), the court considered whether a formal renunciation of citizenship by a United States citizen was voluntary, in light of the petitioner’s 

contention that he was compelled to renounce citizenship in order to avoid 

violation of the United States selective service laws. The petitioner relied 

primarily on cases such as Nishikawa v. Dulles, supra, in which the courts had 

been receptive to arguments that service in the Japanese armed forces was 

involuntary and therefore not expatriating. In Jolley, the court drew what we 

believe is a valid distinction between petitioner’s claim and the claims upheld 

in Nishikawa and other similar cases:

Nishikawa was faced with the choice of either subjecting himself to Japanese penal sanctions or relinquishing his United 

States citizenship. The conflicting laws of the United States and 

Japan created a Hobson’s choice which rendered either alternative involuntary. The same dilemma did not confront Jolley.

While we accept the assertion that Jolley’s abhorrence of the 

Selective Service laws caused him to apostatize himself, he 

cannot equate that abhorrence with coercion sufficient to render 

his renunciation involuntary as a matter of law .... The compulsion he felt to renounce his citizenship was of his own 

design. But opportunity to make a decision based upon personal 

choice is the essence of voluntariness. Such a choice was unavailable to Nishikawa, for he was forced by Japanese penal law 

to engage in what was then termed an expatriating act. The 

duress he felt was not of his own making. Jolley’s expatriating 

act, on the other hand, was not compelled by law. He had the 

alternative to obey the dictates of the Selective Service System, 

an alternative he found impossible solely because of his own 

moral code. His renunciation was therefore the product of personal choice and consequently voluntary.

441 F.2d at 1250 (footnote omitted).21 In cases involving the execution by

20 (. . . continued)

W orld W ar II in the Tule Lake Relocation Center, were not a result of intelligent choice, but rather of “mental 

fear, intim idation, and coercion” that deprived them of the free exercise o f their will. 176 F 2d at 959, 960- 

61. The court based its decision on evidence o f the coercive effect of the cruel and inhuman treatment o f those 

citizens during their imprisonment, the shock and resentm ent caused by the racist attitude of the commanding 

general of the cam p, and fear of reprisal from militant pro-Japanese groups within the camp. The extraordinary circum stances found by the court to override the free will o f those renunciants bears little factual 

resem blance to the circumstances surrounding Mr. A 's and Mr. B’s renunciations, and therefore we believe 

the Acheson holding is o f limited precedential value here.

21 Nishikawa and most of the other cases cited above w ere decided prior to 1961, when Congress amended

Continued

230
neutral aliens of waivers of eligibility for military service, which require the 

alien to waive future eligibility for United States citizenship, the courts have 

similarly rejected claims that pressures such as fear of retaliation or financial 

burden were sufficient grounds to constitute duress.22 Recent relevant decisions by the State Department Board of Appellate Review provided to OSI 

have applied the Jolley rationale to reject claims of duress and compulsion, 

particularly when the expatriating act was a formal renunciation of citizenship 

or a formal rejection of allegiance to the United States.23

C. Voluntariness o f Guilty Pleas Accepted Pursuant to Plea Bargains

Although the reasoning of the decisions under § 1481 is instructive, none of 

those decisions presents a factual situation directly analogous to the renunciations by Mr. A and Mr. B. However, as we noted above, the agreements 

between OSI and Mr. A and Mr. B are analogous to plea bargains negotiated in 

the criminal context. In both, the individual gives up valuable constitutional 

rights — the right of citizenship, in the case of Mr. A and Mr. B, and the rights 

to trial by jury and to confront witnesses and the protection against compelled 

self-incrimination in the case of criminal defendants — in exchange for less 

severe treatment by government prosecutors, such as dismissal of other charges, 

reduction in charges, or a recommendation for a reduced sentence. The critical 

question is whether the individual gave up those constitutional rights voluntarily, or whether he was coerced into the waiver by the influence of the government prosecutors or by other factors. As in voluntariness cases arising under 

§ 1481, the courts have held that the voluntariness of a guilty plea entered 

pursuant to a plea bargain can only be determined based on all of the relevant 

circumstances surrounding the waiver. See Brady v. United States, 391 U.S. 

742, 749 (1970). Thus, although we recognize that there are procedural differences between the plea bargain cases and the Mr. A and Mr. B cases, we 

believe the analysis by the courts of the substantive issues involved — i.e.,

whether a waiver of constitutional rights as part of a bargain with government 

prosecutors can be considered voluntary — is highly relevant to our analysis here.

21 ( .. continued)

§ 1481 to include the current presumption o f voluntariness and the preponderance of evidence standard Prior 

to that amendment, the burden was on the party claiming loss of citizenship to establish by “clear and 

convincing” evidence that the allegedly expatriating act was committed voluntarily. See Nishikawa v. D ulles,

356 U.S. at 135; Vance v. Terrazas, 444 U.S. at 264-65. Thus, although the reasoning of the courts in those 

pre-1961 cases remains instructive, it is impossible to determine whether the results would have been the 

same under the current evidentiary standards.

22 See, e.g., Ceballos v Skaughnessy, 352 U.S. 599 (1957); Prieto v. United States, 289 F.2d 12 (5th Cir. 

1961); Jubran v. United States, 255 F 2d 81 (5th Cir. 1958); see generally 1 Gordon & Rosenfield § 2.49d 

(collecting cases) (“[l)t was concluded that the alien had a free choice, that he chose to forego m ilitary service 

and must endure the consequences, and that there was no coercion in contemplation o f law. The mere 

difficulty of this choice is not deemed to constitute duress. If the alien made a free and deliberate choice to 

accept benefits, he will be bound by his election/*).

23 See, e.g.. Case o f D R L (July 6, 1984) (naturalization in Canada); Case o f N A McG (Sept. 2, 1982) 

(formal renunciation); Case ofEMvdH (Aug. 25, 1982) (same); Case ofVWvdH (Aug. 25, 1982) (same).

231
The practice of criminal plea bargaining has been recognized by the Supreme Court as constitutional, and indeed as an important part of the criminal 

justice system. See Brady v. United States, 397 U.S. at 750; Mabry v. Johnson

467 U.S. 504 (1984). The Court has specifically rejected the argument that 

guilty pleas entered pursuant to such bargains must be considered involuntary 

because of the government’s involvement in and responsibility for some of the 

circumstances motivating the plea:

The State to some degree encourages pleas of guilty at every 

important step in the criminal process .... All these pleas of 

guilty are valid in spite of the State’s responsibility for some of 

the factors motivating the pleas; the pleas are no more improperly compelled than is the decision by a defendant at the close of 

the State’s evidence at trial that he must take the stand or face 

certain conviction.

Brady v. United States, 397 U.S. at 750. The involvement of government 

prosecutors and the overhanging threat of greater punishment does not necessarily deprive the defendant of free choice:

The standard was and remains whether the plea represents a 

voluntary and intelligent choice among the alternative courses 

of action open to the defendant. That he would not have pleaded 

except for the opportunity to limit the possible penalty does not 

necessarily demonstrate that the plea of guilty was not the 

product of a free and rational choice ....

North Carolina v. Alford, 400 U.S. 25, 31 (1970) (citations omitted). The 

courts have emphasized that plea bargaining rests on a mutuality of advantage; 

the government perceives an advantage in avoiding a trial that would consume 

scarce resources and in which it might not prevail, while the defendant avoids 

the burdens of trial and limits his exposure to penalties. See Brady v. United

States, 397 U.S. at 752.

Because of the importance of the constitutional rights at stake and the risk of 

abuse by government prosecutors, courts have been extraordinarily careful in 

reviewing plea bargains, and have required that “[w]aivers of constitutional 

rights not only must be voluntary but must be knowing, intelligent acts done 

with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. at 742; see also North Carolina v. 

Alford, 400 U.S. at 31; Johnson v. Zerbst, 304 U.S. 458, 464 (1938). In 

reviewing the constitutional sufficiency of plea bargains, the courts have 

generally required proof of a number of factors, including: (1) that the defendant has real notice of the charges against him;24 (2) that he is aware of the 

evidence, both inculpatory and exculpatory, available to the prosecutors;25 (3)

24 See M arshall v. Lonberger, 459 U.S. 422, 436 (1983); Henderson v. Morgan, 426 U.S. 637, 638 (1976).

25 See Fambo v. Sm ith, 433 F. Supp. 590, 598-99 (W .D.N.Y.), a ffd , 565 F.2d 233 (1977).

232
that he has been fully informed of the consequences of the plea;26 (4) that he is 

competent to understand the plea and its consequences;27 and (5) that he has 

had the effective assistance of counsel.28 In addition, the courts have recognized that government misconduct or overreaching such as physical abuse or 

threats, extensive interrogation of the defendant without assistance of counsel, 

or material misrepresentation by prosecutors can amount to duress that undercuts the voluntariness of a plea.29

However, a threat to prosecute where the facts warrant prosecution is generally not considered to be coercion or intimidation. “To establish fear and 

coercion on a plea an individual must show he was subjected to threats or 

promises of illegitimate action.” O ’Neill v. United States, 315 F. Supp. 1352, 

1354 (D. Minn. 1970), a ffd , 438 F.2d 1236 (1971); see also Ford v. United

States, 418 F.2d 855, 858 (8th Cir. 1969). Moreover, while the defendant’s 

admission that he committed the acts charged in the indictment may be highly 

significant evidence of the voluntariness of his act and an important protection 

against abuse, such an admission is not a constitutional prerequisite to acceptance of the plea, provided the defendant “intelligently concludes that his 

interests required entry of a guilty plea and the record before the judge contains 

strong evidence of actual guilt.” North Carolina v. Alford, 400 U.S. at 37.

Of course, the process of plea bargaining and the entering of guilty pleas is 

subject to stringent procedural requirements that provide the court with an 

opportunity to assess the circumstances of the bargain and the defendant’s 

understanding and acceptance of the bargain before the plea is accepted. In the 

federal courts, plea bargaining is governed by Rule 11 of the Federal Rules of 

Criminal Procedure, which requires the court to address the defendant personally in open court in order to determine “that the plea is voluntary and not the 

result of force or threats or promises apart from a plea agreement.” Fed. R. 

Crim. P. 11(d). The rule requires disclosure of a plea agreement in open court, 

and directs the court, if it accepts the agreement, to inform the defendant that it 

will embody in the judgment and sentence the disposition provided for by the 

agreement. Fed. R. Crim. P. 11(e). Finally, the court is required to make “such 

inquiry as shall satisfy it that there is a factual basis for the plea.” Fed. R. Crim. 

P. 11(f). Most, if not all, state courts have similar procedural requirements. See,

e.g., 21 Am. Jur. 2d Criminal Law II 470-85; Uniform R. Crim. P. 443 & 444.

We understand concern has been raised that the lack of any comparable 

procedures or requirements applicable to the negotiation of agreements between OSI and alleged Nazi persecutors could potentially lead to abuses of the 

process. Procedural rules such as Rule 11 or comparable rules in state courts 

provide a mechanism to ensure that the plea bargaining process meets constitutional standards, and to provide a complete record at the time the plea was

26 See Brady v. United States, 397 U.S. at 755-56.

27See Smith v. O ’Grady, 321 U.S. at 334.

28 See Brady v. United States, 397 U.S. at 750; Fontaine v. United States, 411 U.S. 213, 214-15 (1973); 

Sanders v. United States, 373 U S. 1, 19-20 (1963); Machibroda v. United States, 368 U.S. 487, 489-90 

(1962); United States v. Briscoe, 432 F.2d 1351, 1353 (D.C. Cir. 1970).

29 See Henderson v. M organ, 426 U.S. 637, 638 (1976).

233
entered of the factors relevant to the voluntariness determination. See Halliday

v. United States, 394 U.S. 831, 832 (1969). However, the particular procedures 

embodied in those rules are not constitutionally mandated, see McCarthy v. 

United States, 394 U.S. 459, 465 (1969); Waddy v. Heer, 383 F.2d 789, 794 

(6th Cir. 1967), cert, denied, 392 U.S. 911 (1968), and they do not address the 

substantive determination that must be made as to the voluntariness of a guilty 

plea. Further, expatriation in general does not necessarily require judicial 

proceedings, but rather entails an administrative finding that loss of citizenship 

has occurred. See 3 Gordon & Rosenfield § 20.1. Congress has by statute 

provided for judicial review of that administrative determination in 8 U.S.C. 

§ 1503, but the process does not, unlike the acceptance of guilty pleas in 

criminal cases, necessarily require a judicial determination at the time the 

expatriating act is committed that the act was committed voluntarily.

Therefore, we do not believe that the lack of any specific procedural safeguards renders the agreements reached between OSI and Mr. A and Mr. B 

invalid or undercuts the relevance of the substantive analysis by the courts of 

the voluntariness of criminal plea bargains. We would be somewhat more 

concerned about the lack of procedural safeguards if the individuals could not 

obtain judicial review at some point of the voluntariness of their renunciations. 

As we pointed out above, however, current State Department regulations 

provide for administrative review of any determination of loss of citizenship, 

and an opportunity for judicial review is provided by statute.

In that regard, we are unsure as to the effect of the undertaking in Mr. A’s 

and Mr. B’s agreements that they would not institute any actions to challenge 

the basis for the agreements or their renunciations. Given the importance of the 

constitutional right at stake, and the absence of particular procedural safeguards applicable to negotiation of the agreements, we are not certain that such 

an undertaking would be held enforceable in court.30 Because a resolution of 

that question is not necessary to this opinion, we do not attempt to resolve it here.

D. Voluntariness o f Renunciations by Mr. A and Mr. B

We believe that the analysis of the voluntariness issue in the plea bargain 

cases is substantively consistent with the voluntariness standard articulated in 

Afroyim v. Rusk, particularly as that standard was interpreted in Jolley v. 

Immigration & Naturalization Service. The emphasis in both instances is on 

whether the individual could reasonably choose between alternatives, however 

difficult that choice might be and whatever the individual’s motivation might 

be for making the choice. The plea bargain cases establish that a choice such as 

that faced by Mr. A and Mr. B — between waiver of constitutional rights and 

prosecution — can be voluntary, if intelligently made by a competent individual. Here, both men had substantial interests in avoiding the expense, strain, 

and publicity of deportation and denaturalization proceedings. In addition, they

30 See, e.g., Halliday v. United States, 394 U.S at 833 (noting importance of availability of post-conviction 

rem edy to challenge voluntariness of p lea bargain); see also Fontaine v. United States, 411 U.S. at 215 

(coerced guilty plea is open to collateral attack)

234
had an interest in avoiding other consequences or sanctions that might flow 

from denaturalization and deportation, such as the possible loss of federal 

benefits accrued while they were citizens. The facts available to us indicate that 

counsel for Mr. A and Mr. B reviewed the evidence and were involved in the 

discussions, that Mr. A and Mr. B were informed, either by OSI or through 

counsel, of the charges and evidence against them, that they were informed of 

the consequences of their action both at the time they signed the agreements 

and at the time they executed the oaths of renunciation, that both admitted in 

the agreements that they had been involved in Nazi activities and that they were 

subject to denaturalization and deportation, and that both repeatedly acknowledged the voluntariness of their acts.

Although Mr. B has since professed his innocence of the charges against 

him, OSI has informed us that it has substantial evidence supporting those 

charges, much of it from statements made under oath by Mr. B. Under North

Carolina v. Alford, 400 U.S. at 37, therefore, it would not appear that his later 

self- serving statements undercut the voluntariness of his renunciation. In 

addition, as far as we know the only threat made by OSI prosecutors in the 

bargaining process was the threat to institute denaturalization and deportation 

proceedings, with whatever consequences might flow from those proceedings. 

Because OSI believed it had developed facts that would warrant such proceedings, that threat cannot be viewed as illegitimate or overreaching.

At least in the absence of other facts indicating that government prosecutors 

engaged in misrepresentation or illegitimate threats, or that Mr. A and Mr. B 

were not fully informed of the nature of the charges against them or the 

consequences of their plea — none of which is suggested in the material we 

have reviewed — and based on the facts as they have been presented to us, we 

are confident that a court would find that both renunciations were voluntary. In 

reaching that conclusion, we believe that the courts would find relevant, as we 

have, the clear analogy between these agreements and plea bargains, and 

therefore apply the well-established principles applicable to the determination 

of voluntariness in that context. See generally United States v. Ryan, 360 F. 

Supp. 265, 270 (E.D.N.Y. 1973) (noting analogy between plea bargains and 

consent judgment entered in denaturalization case requiring renunciation of 

citizenship by subject of proceedings).31

R a l p h W . T a r r

Deputy Assistant Attorney General

Office o f Legal Counsel

31 Although we believe the courts would certainly find the plea bargain analogy relevant, they might not 

feel bound by the strict scrutiny generally given to criminal pleas Denaturalization and deportation proceedings are civil rather than criminal in nature, see, e.g., Harisiades v. Shaughnessy, 342 U.S. 580 (1952); 

Bugajewitz v. Adams, 228 U.S 585 (1913); United States v. Stromberg, 227 F 2d 903 (1 1th Cir. 1955), and 

proceedings relating to expatriation are clearly civil tn nature, see 8 U.S C. § 1503. Although the consequences o f denaturalization and deportation or voluntary expatriation are severe, they do not involve a loss of 

liberty or criminal punishment. In addition, in any challenge to the loss of citizenship the burden would be on 

Mr. A or Mr. B to rebut the presumption of voluntariness that flows from § 1481 (c). Therefore, it may be that 

courts would not scrutinize bargains struck in the context of expatriations by renunciation o f citizenship as 

closely as they generally scrutinize criminal plea bargains.

235