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as amended by sections 1 and 2 of the Act of October 24, 1968 (82 Stat. 1343; 8 U.S.C. 1440), and by the authority of section 3 of that Act of October 24, 1968 (82 Stat. 1344; 8 U.S.C. 1440e), it is hereby ordered that the statutory period of Vietnam hostilities which began on February 28, 1961, shall be deemed to have terminated on October 15, 1978, for the purpose of ending the period in which active-duty service in the Armed Forces qualifies for certain exemptions from the usual requirements for naturalization, including length of residence and fees.

Fed. Reg., Vol. 46, No. 183, Sept. 20, 1978, p. 42237.

The underlying statute, sec. 329 of the Immigration and Nationality Act, as last amended, in 1968, 8 U.S.C. 1440 (1976), provides in part:

§ 1440. Naturalization through active-duty service in the armed forces during World War I, World War II, Korean hostilities, Vietnam hostilities, or other periods of military hostilities

(a) Requirements

Any person who, while an alien or a noncitizen national of the United States, has served honorably in an active-duty status in the military, air, or naval forces of the United States during either World War I or during a period beginning September 1, 1939, and ending December 31, 1946, or during a period beginning June 25, 1950, and ending July 1, 1955, or during a period beginning February 28, 1961, and ending on a date designated by the President by Executive order as of [sic] the date of termination of the Vietnam hostilities, or thereafter during any other period which the President by Executive order shall designate as a period in which Armed Forces of the United States are or were engaged in military operations involving armed conflict with a hostile foreign force, and who, if separated from such service, was separated under honorable conditions, may be naturalized as provided in this section if (1) at the time of enlistment or induction such person shall have been in the United States, the Canal Zone, American Samoa, or Swains Island, whether or not he has been lawfully admitted to the United States for permanent residence, or (2) at any time subsequent to enlistment or induction such person shall have been lawfully admitted to the United States for permanent residence. The executive department under which such person served shall determine whether persons have served honorably in an active-duty status, and whether separation from such service was under honorable conditions: Provided, however, That no person who is or has been separated from such service on account of alienage, or who was a conscientious objector who performed no military, air, or naval duty whatever or refused to wear the uniform, shall be regarded as having served honorably or having been separated under honorable conditions for the purposes of this section. No period of service in the Armed Forces shall be made the basis of a petition for naturalization under this section if the applicant has previously been naturalized on the basis of the same period of service. (b) Exceptions

A person filing a petition under subsection (a) of this section shall comply in all other respects with the requirements of this subchapter, except that

(1) he may be naturalized regardless of age, and notwithstanding the provisions of section 1429 of this title as they relate to deportability and the provisions of section 1442 of this title;

(2) no period of residence or specified period of physical presence within the United States or any State shall be required;

(3) the petition for naturalization may be filed in any court having naturalization jurisdiction regardless of the residence of the petitioner;

(4) service in the military, air or naval forces of the United States shall be proved by a duly authenticated certification from the executive department under which the petitioner served or is serving, which shall state whether the petitioner served honorably in an active-duty status during either World War I or during a period beginning September 1, 1939, and ending December 31, 1946, or during a period beginning June 25, 1950, and ending July 1, 1955, or during a period beginning February 28, 1961, and

ending on a date designated by the President by Executive order as the date of termination of the Vietnam hostilities, or thereafter during any other period which the President by Executive order shall designate as a period in which Armed Forces of the United States are or were engaged in military operations involving armed conflict with a hostile foreign force, and was separated from such service under honorable conditions; and

(5) notwithstanding section 1447 (c) of this title, the petitioner may be naturalized immediately if prior to the filing of the petition the petitioner and the witnesses shall have appeared before and been examined by a representative of the Service.

Section 3 of Public Law 95-579, approved November 2, 1978 (92 Stat. 2474; 8 U.S.C. 1423(1)), amended the naturalization requirement for understanding the English language, set out in section 312 (1) of the Immigration and Nationality Act of 1952, by updating an existing exemption there from of persons who were fifty years old and had lived in the United States for periods totaling at least twenty years on the effective date of the Act (December 24, 1952). The amendment ties the twenty-year residence requirement to the date of filing of the petition for naturalization, and specifies that the residence periods shall have been subsequent to a lawful admission for permanent residence.

In announcing this amendment (and others) to the Act, on October 25, 1978, the Commissioner of the Immigration and Naturalization Service, Leonel J. Castillo, commented that "This will enable many older persons who desire citizenship but have never mastered the language to become citizens of this country."

Dept. of Justice Press Release, unn., Oct. 25, 1978.

General

Dual Nationality and Loss of Nationality

Public Law 95-432, approved October 10, 1978 (92 Stat. 1046), repealed, effective as of the date of its enactment, the United States residence requirement for retention of United States citizenship by children born outside the United States of one citizen and one noncitizen parent, set out in section 301 (b) of the Immigration and Nationality Act of 1952, as amended (8 U.S.C. 1401 (b)). It repealed, as well, sections 301(c) and (d) (8 U.S.C. 1401 (c), (d)), which related respectively, to residence requirements under the Nationality Act of 1940, and under section 301 (b) of the Immigration and Nationality Act of 1952, as governed by the act of September 11, 1957 (71 Stat. 644; 8 U.S.C. 1401b; repealed, P.L. 92-584, October 27, 1972; 86 Stat. 1289). Public Law 95-432 also repealed certain expatriation sections of the Immigration and Nationality Act which had either been declared unconstitutional, or whose application had

been restricted by Supreme Court decisions: sections 349 (a), paragraphs (5) and (8), 350, 352, 353, 354, and 355 (8 U.S.C. 1481 (a) (5), (8), 1482, 1484-1487).

The House Committee on the Judiciary explained the purpose and effect of the bill enacted as Public Law 95-432. Excerpts from its report follow:

PURPOSE OF THE BILL

The purpose of the bill is to repeal certain expatriation sections of the Immigration and Nationality Act which have either been declared unconstitutional, or whose application has been severely limited, by Supreme Court decisions.

The bill also corrects an inconsistency which has developed in our citizenship law by repealing section 301(b) of that act. . . .

[T]he intent of the bill . . . is to repeal sections 301(b) and 350 in a prospective manner. Thus, those citizens who have lost their U.S. citizenship under those provisions before the date of enactment of this bill will not be restored to citizenship.

ANALYSIS OF THE BILL

Section 1. Repeal of sections 301(b) and 350 of the Immigration and Nationality Act

Section 301 (a) (7) of the Immigration and Nationality Act provides that a person who is born abroad of one alien parent and one U.S. citizen parent shall be a U.S. citizen at birth if the citizen parent has resided in the United States for 10 years, 5 of which occurred after attaining the age of 14.

Section 301 (b) provides that citizens who derived their citizenship through the operation of section 301 (a) (7) shall lose their U.Ŝ. citizenship if they are not physically present in the United States for 2 years between the ages of 14 and 28.

H.R. 13349 repeals section 301 (b), thereby eliminating the residency requirement for retention of U.S. citizenship for this particular group of citizens. The committee believes that section 301 (b) of the Immigration and Nationality Act currently creates an inconsistency in our citizenship laws, in that this is the only class of U.S. citizens who are subject to any residence requirement in order to retain their citizenship.

In 1958, the Supreme Court held section 349 (a) (8) unconstitutional. Trop v. Dulles, 356 U.S. 86 (1958)1. That section provided for loss of citizenship for soldiers who desert in time of war. Even though desertion is a serious crime punishable by extreme sanctions, the Court held that U.S. citizenship may not be revoked for such an offense. In 1964, the Supreme Court held in Schneider v. Rusk, 377 U.S. 167 (1964)2, that section 352 was unconstitutional. That section provided for loss of citizenship by a naturalized citizen through residence abroad. In 1967, the Supreme Court held in Afroyim v. Rusk, 387 U.S. 253 (1967), that U.S. citizenship, once

acquired, could only be lost through an act of voluntary relinquishment.

The court in Afroyim stated that although, pursuant to section 8 of article I of the Constitution, Congress has the power to provide for a "uniform rule of naturalization", the fourteenth amendment restricts Congress' power to revoke citizenship once it is acquired.

In Rogers v. Bellei, 401 U.S. 815 (1971), the same Court upheld the constitutionality of section 301(b). The Court held that the narrow class of persons who are U.S. citizens by virtue of birth abroad, were not "born or naturalized in the United States." In other words, those who acquired their U.S. citizenship solely by statute were not protected to the same extent as those who acquired it under the fourteenth amendment.

Consequently, the committee is of the opinion that section 301 (b) creates an inequity which should be removed. Concern has been expressed that repeal of section 301 (b) would create the possibility of generations of citizens residing abroad with little, or no, connection with the United States. This situation is precluded by section 301(a)(7) which provides that in order for a U.S. citizen to transmit U.S. citizenship to his child born abroad of one alien parent, the U.S. citizens must have resided in the United States for 10 years, 5 of which were after attaining 14 years of age. H.R. 13349 does not modify these transmission requirements.

Loss of citizenship has been likened to banishment and exile. Citizenship should not be lightly conferred, but once it is conferred, it should not be lightly, nor discriminatorily revoked. The committee, therefore, recommends the repeal of section 301 (b).

Section 350 of the Immigration and Nationality Act sets forth the requirement which a U.S. citizen must satisfy in order to retain his citizenship if he was a dual national at birth. In short it provides that a person who, at birth, acquired the nationality of the United States and a foreign state [and] who has sought the benefits of his foreign nationality, loses his U.S. citizenship if he resides for three years after the age of 22 in that foreign state unless he takes an oath of allegiance to the United States.

At present, this section is rarely used to revoke citizenship. In response to the Supreme Court decisions, discussed above, administrative authorities will only uphold a revocation of citizenship under section 350 if the citizen clearly intended to relinquish his U.S. citizenship or performed an act in derogation of allegiance to the United States. Since section 350 is greatly restricted in its operation and no longer serves any useful purpose, the committee believes its repeal is appropriate. The primary effect of this section is to cause needless anxiety among American citizens residing abroad. In addition, it is difficult to administer and has caused considerable confusion within the Departments of State and Justice.

Section 2. Repeal of unconstitutional provisions

H.R. 13349 repeals the following sections of the Immigration and Nationality Act which have already been declared unconstitutional: Section 349 (a) (5) (providing for loss of citizenship for voting in a foreign election) was declared unconstitutional in Afroyim v. Rusk, 387 U.S. 253 (1967). Section 349 (a) (8) (providing for loss

of citizenship for desertion in time of war) was declared unconstitutional in Trop v. Dulles, 356 U.S. 86 (1958). Section 352 (providing for loss of citizenship by a naturalized citizen through residence abroad) was declared unconstitutional in Schneider v. Rusk, 377 U.S. 163 (1964).

This section also repeals other provisions of title III of the Immigration and Nationality Act which are rendered obsolete by H.R.

13349.

Sections 3 and 4

These sections make additional technical and conforming changes.

178 S.Ct. 590, 2 L.Ed.2d 630.

2 84 S.Ct. 1187, 12 L.Ed.2d 218.
3 87 S.Ct. 1660, 18 L.Ed.2d 757.

91 S.Ct. 1060, 28 L.Ed.2d 499.

H.R. Rept. 95-1493, 95th Cong.. 2d sess. (1978), pp. 1–5; [1978] United States Code Congressional and Administrative News, Vol. 3 (1979), pp. 2521-2525. The Depts. of State and Justice supported enactment of the legislation. For their reports on its predecessor bill, H.R. 9637, see, ibid., pp. 2525-2528.

In a message to all diplomatic and consular posts, October 12, 1978, the Department of State transmitted the text of Public Law 95–432 and instructed them to give the widest possible publicity to its repeal of certain sections of the United States Immigration and Nationality Act that had related (1) to retention of nationality for children born abroad of one United States citizen parent and one alien parent and (2) to loss of nationality by persons, dual nationals by reason of birth. The message also set out the following advice for citizens:

3. Section 301 (b). Public Law 95-432 does not restore citizenship to anyone who has failed to comply with 301 (b) and lost citizenship prior to October 10, 1978.

4. Section 301 (b). Anyone formerly subject to 301 (b) who has reached his or her 26th birthday before October 10, 1978, without ever entering the United States to commence compliance with section 301 (b) lost his or her U.S. citizenship on his or her 26th birthday and Public Law 95-432 does not affect that status. A determination of loss of nationality should be made.

5. Section 301(b). Anyone who has not repeat not reached his or her 26th birthday before October 10, 1978, has not lost his or her U.S. citizenship and is not repeat not subject to any retention provisions since they are no longer in effect.

6. Section 301 (b). Anyone who is now complying with section 301 (b) is now free and clear of any further compliance and need not repeat not remain in the United States.

7. Section 301 (b). Anyone who was temporarily absent from the United States on October 10, 1978, after having commenced compliance with the two-year provision of section 301 (b) by entry into

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