GENERAL INFO ON "Intent to Reside" permanently in the U.S. of a naturalized citizen
The question of "intent to reside" permanently in the U.S. a is tricky subject.
The only current sections that require it to be eligible for naturalization are INA 319(b) and (c) which relieve an applicant from any specific period of prior residence and physical presence.
Formerly, showing a lack of intent to reside in the U.S. after naturalization, was a ground for expatriation, whereby it merely had to be found out that the naturalized person had moved back to their home country and the State Dept. documented it. That prodecure was ruled unconstitutional by Schneider v. Rusk, 377 U.S. 163 (1964) as discriminatory and violative of due process. Decided May 18, 1964
After that, the INA was altered ,to provide for due process, and required that Revocation Proceedings be brought in District Court and required a high level of evidence to be proven that foreign residence after naturalization was expatriative but the naturalized person could present evidence to try to overcome a "rebuttable presumption" of a lack of intent to reside at time of naturalization. That specific ground for revocation was eliminated in 1994, and subsummed into a broader, misrepresentation or concealment of a material fact, ground for revocation in subsection 340(a) INA.
Loss of Nationality is currently covered by 349 INA and Revocation of Naturalization is covered by 340 INA.
The law at issue in Rusk was Former 352 INA which read:
The Immigration and Nationality' Act of 1952, 66 Stat. 163, 269, 8 U.S.C. §§ 1101, 1484, provides by § 352:
"(a) A person who has become a national by naturalization shall lose his nationality by --"
"(1) having a continuous residence for three years in the territory of a foreign state of which he was formerly a national or in which the place of his birth is situated, except as provided in section 353 of this title, whether such residence commenced before or after the effective date of this Act. . . ."
FROM the dissent to Rusk:
MR. JUSTICE CLARK, whom MR. JUSTICE HARLAN and MR. JUSTICE WHITE join, dissenting.
".....in the debate in the First Congress on the first naturalization bill, it was proposed to expatriate naturalized citizens who resided abroad. During the entire nineteenth century, only naturalized citizens were, as a general rule, expatriated on the grounds of foreign residence, and, for nearly 100 years, our naturalization treaties have contained provisions authorizing the expatriation of naturalized citizens residing in their native lands. Indeed, during the consideration of the 1952 Act, not a single witness specifically objected to § 352(a)(1). Even the Americans for Democratic Action suggested that it was a reasonable regulation. ......."
"The Court bases its decision on the fact that § 352(a)(1) applies only to naturalized, not native-born, citizens. It says this results in a discrimination in violation of the Due Process Clause of the Fifth Amendment. ...."
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616 F.2d 1143
UNITED STATES of America, Plaintiff-Appellee,
v.
Parviz BANAFSHE, Defendant-Appellant.
No. 78-2685.
United States Court of Appeals,
Ninth Circuit.
April 10, 1980.
"Parviz Banafshe appeals the judgment of the district court revoking his naturalization as a citizen of the United States on the ground that, under 8 U.S.C. § 1451(a) and (d), he lacked the intent to reside permanently in the United States at the time he filed his petition for naturalization. Banafshe contends that the rebuttable presumption in § 1451(d) which presumes that persons who become permanent foreign residents within five years after naturalization lacked the intent to become permanent United States citizens at the time of their application, is unconstitutional. Banafshe further contends that, even if the presumption is constitutional, he produced sufficient evidence to rebut the presumption. We find that the presumption is not unconstitutional and was not rebutted by Banafshe, and affirm the judgment of the district court.
Banafshe, a native citizen of Iran, entered the United States as a visitor in 1963 when he was 21 years old. That same year, he married a United States citizen and adjusted his status to that of a permanent resident alien. The marriage ended by annulment within a year.
Banafshe continued to reside in the United States, and in 1969 filed a petition for naturalization. The petition was granted and Banafshe was admitted to citizenship in September 1969.
In June 1970, after giving up his apartment, selling his car, and terminating his job in the United States, Banafshe returned to Iran. He took up residence in Iran, married an Iranian citizen, acquired an interest in an apartment house, and established his own business.
In August 1976 the Government commenced proceedings to revoke Banafshe's naturalization on the ground that he obtained citizenship by concealing his intent to take up permanent residence in Iran, which is ground for revocation under 8 U.S.C. § 1451(a) and (d). At trial, the Government offered the affidavit of the American vice-consul in Tehran. The affidavit stated that Banafshe established a permanent residence in Iran in 1970. It further stated that:
He owns no property in the U.S. and maintains no permanent residence but has an established business in Tehran, Iran, and owns 1/3 of a house in Tehran. He has no family ties in the U.S. but his entire family, including wife, are Iranian nationals living in Iran. Mr. Banafshe has not renounced his Iranian nationality."
The statute at issue was:
Under FORMER 8 U.S.C. § 1451(d) [340(d) INA]:
(d) If a person who shall have been naturalized shall, within five years after such naturalization, return to the country of his nativity, or go to any other foreign country, and take permanent residence therein, it shall be considered prima facie evidence of a lack of intention on the part of such person to reside permanently in the United States at the time of filing his petition for naturalization, and, in the absence of countervailing evidence, it shall be sufficient in the proper proceeding to authorize the revocation and setting aside of the order admitting such person to citizenship and the cancellation of the certificate of naturalization as having been obtained by concealment of a material fact or by willful misrepresentation, and such revocation and setting aside of the order admitting such person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and certificate, respectively. The diplomatic and consular officers of the United States in foreign countries shall from time to time, through the Department of State, furnish the Department of Justice with statements of the names of those persons within their respective jurisdictions who have been so naturalized and who have taken permanent residence in the country of their nativity, or in any other foreign country, and such statements, duly certified, shall be admissible in evidence in all courts in proceedings to revoke and set aside the order admitting to citizenship and to cancel the certificate of naturalization.
Amendments:
1994--Subsec. (d). Pub. L. 103-416 redesignated subsec. (e) as (d)
and substituted ``subsection (c)'' for ``subsections (c) or (d)'', and
struck out former subsec. (d) which related to revocation of
naturalization of persons who, within one year of naturalization, have
taken permanent residence in country of their nativity or in any other
foreign country.
1986--Subsec. (d). Pub. L. 99-653 substituted ``one year'' for
``five years''.
Currently that section relates to the effect upon the spouse and children of a person denaturalized under (a).
Currently "intent to reside" is a non-issue in naturalization for most applicants.
That irritates some people including some naturalization officers and judges but they can't do anything about it before naturalization.
What do you think about this subject??
The question of "intent to reside" permanently in the U.S. a is tricky subject.
The only current sections that require it to be eligible for naturalization are INA 319(b) and (c) which relieve an applicant from any specific period of prior residence and physical presence.
Formerly, showing a lack of intent to reside in the U.S. after naturalization, was a ground for expatriation, whereby it merely had to be found out that the naturalized person had moved back to their home country and the State Dept. documented it. That prodecure was ruled unconstitutional by Schneider v. Rusk, 377 U.S. 163 (1964) as discriminatory and violative of due process. Decided May 18, 1964
After that, the INA was altered ,to provide for due process, and required that Revocation Proceedings be brought in District Court and required a high level of evidence to be proven that foreign residence after naturalization was expatriative but the naturalized person could present evidence to try to overcome a "rebuttable presumption" of a lack of intent to reside at time of naturalization. That specific ground for revocation was eliminated in 1994, and subsummed into a broader, misrepresentation or concealment of a material fact, ground for revocation in subsection 340(a) INA.
Loss of Nationality is currently covered by 349 INA and Revocation of Naturalization is covered by 340 INA.
The law at issue in Rusk was Former 352 INA which read:
The Immigration and Nationality' Act of 1952, 66 Stat. 163, 269, 8 U.S.C. §§ 1101, 1484, provides by § 352:
"(a) A person who has become a national by naturalization shall lose his nationality by --"
"(1) having a continuous residence for three years in the territory of a foreign state of which he was formerly a national or in which the place of his birth is situated, except as provided in section 353 of this title, whether such residence commenced before or after the effective date of this Act. . . ."
FROM the dissent to Rusk:
MR. JUSTICE CLARK, whom MR. JUSTICE HARLAN and MR. JUSTICE WHITE join, dissenting.
".....in the debate in the First Congress on the first naturalization bill, it was proposed to expatriate naturalized citizens who resided abroad. During the entire nineteenth century, only naturalized citizens were, as a general rule, expatriated on the grounds of foreign residence, and, for nearly 100 years, our naturalization treaties have contained provisions authorizing the expatriation of naturalized citizens residing in their native lands. Indeed, during the consideration of the 1952 Act, not a single witness specifically objected to § 352(a)(1). Even the Americans for Democratic Action suggested that it was a reasonable regulation. ......."
"The Court bases its decision on the fact that § 352(a)(1) applies only to naturalized, not native-born, citizens. It says this results in a discrimination in violation of the Due Process Clause of the Fifth Amendment. ...."
************************
616 F.2d 1143
UNITED STATES of America, Plaintiff-Appellee,
v.
Parviz BANAFSHE, Defendant-Appellant.
No. 78-2685.
United States Court of Appeals,
Ninth Circuit.
April 10, 1980.
"Parviz Banafshe appeals the judgment of the district court revoking his naturalization as a citizen of the United States on the ground that, under 8 U.S.C. § 1451(a) and (d), he lacked the intent to reside permanently in the United States at the time he filed his petition for naturalization. Banafshe contends that the rebuttable presumption in § 1451(d) which presumes that persons who become permanent foreign residents within five years after naturalization lacked the intent to become permanent United States citizens at the time of their application, is unconstitutional. Banafshe further contends that, even if the presumption is constitutional, he produced sufficient evidence to rebut the presumption. We find that the presumption is not unconstitutional and was not rebutted by Banafshe, and affirm the judgment of the district court.
Banafshe, a native citizen of Iran, entered the United States as a visitor in 1963 when he was 21 years old. That same year, he married a United States citizen and adjusted his status to that of a permanent resident alien. The marriage ended by annulment within a year.
Banafshe continued to reside in the United States, and in 1969 filed a petition for naturalization. The petition was granted and Banafshe was admitted to citizenship in September 1969.
In June 1970, after giving up his apartment, selling his car, and terminating his job in the United States, Banafshe returned to Iran. He took up residence in Iran, married an Iranian citizen, acquired an interest in an apartment house, and established his own business.
In August 1976 the Government commenced proceedings to revoke Banafshe's naturalization on the ground that he obtained citizenship by concealing his intent to take up permanent residence in Iran, which is ground for revocation under 8 U.S.C. § 1451(a) and (d). At trial, the Government offered the affidavit of the American vice-consul in Tehran. The affidavit stated that Banafshe established a permanent residence in Iran in 1970. It further stated that:
He owns no property in the U.S. and maintains no permanent residence but has an established business in Tehran, Iran, and owns 1/3 of a house in Tehran. He has no family ties in the U.S. but his entire family, including wife, are Iranian nationals living in Iran. Mr. Banafshe has not renounced his Iranian nationality."
The statute at issue was:
Under FORMER 8 U.S.C. § 1451(d) [340(d) INA]:
(d) If a person who shall have been naturalized shall, within five years after such naturalization, return to the country of his nativity, or go to any other foreign country, and take permanent residence therein, it shall be considered prima facie evidence of a lack of intention on the part of such person to reside permanently in the United States at the time of filing his petition for naturalization, and, in the absence of countervailing evidence, it shall be sufficient in the proper proceeding to authorize the revocation and setting aside of the order admitting such person to citizenship and the cancellation of the certificate of naturalization as having been obtained by concealment of a material fact or by willful misrepresentation, and such revocation and setting aside of the order admitting such person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and certificate, respectively. The diplomatic and consular officers of the United States in foreign countries shall from time to time, through the Department of State, furnish the Department of Justice with statements of the names of those persons within their respective jurisdictions who have been so naturalized and who have taken permanent residence in the country of their nativity, or in any other foreign country, and such statements, duly certified, shall be admissible in evidence in all courts in proceedings to revoke and set aside the order admitting to citizenship and to cancel the certificate of naturalization.
Amendments:
1994--Subsec. (d). Pub. L. 103-416 redesignated subsec. (e) as (d)
and substituted ``subsection (c)'' for ``subsections (c) or (d)'', and
struck out former subsec. (d) which related to revocation of
naturalization of persons who, within one year of naturalization, have
taken permanent residence in country of their nativity or in any other
foreign country.
1986--Subsec. (d). Pub. L. 99-653 substituted ``one year'' for
``five years''.
Currently that section relates to the effect upon the spouse and children of a person denaturalized under (a).
Currently "intent to reside" is a non-issue in naturalization for most applicants.
That irritates some people including some naturalization officers and judges but they can't do anything about it before naturalization.
What do you think about this subject??
