RS 02640.040 Stateless Persons
A. DEFINITIONS
There are two classes of stateless persons:
- DE JURE—Persons who do not have nationality in any
country.
- DE FACTO—Persons who have left the country of which
they were nationals and no longer enjoy its protection and assistance.
They are usually political refugees. They are legally citizens
of a country because its laws do not permit denaturalization
or only permit it with the country's approval.
B. POLICY
1. De Jure Status
Once it is established that a person is de jure stateless, he/she
keeps this status until he/she acquires nationality in some country.
Any of the following establish an individual is de jure stateless:
- a “travel document” issued by the individual's country of
residence showing the:
- holder is stateless; and
- document is issued under the United Nations Convention
of 28 September 1954 Relating to the Status of Stateless
Persons. (The document shows the phrase “Convention of 28
September 1954” on the cover and sometimes on each page.)
- a “travel document” issued by the International Refugee
Organization showing the person is stateless.
- a document issued by the officials of the country of former
citizenship showing the individual has been deprived of citizenship
in that country.
2. De Facto Status
Assume an individual is de facto stateless if he/she:
- says he/she is stateless but cannot establish he/she is
de jure stateless; and
- establishes that:
De facto status stays in effect only as long as the conditions
in b. continue to exist. If, for example, the individual returns
to his/her country of nationality, de facto statelessness ends.
3. Residents of Hong King
and Macau
The following applies to residents of Hong Kong for months before
July 1997 and without a time restriction to residents of Macau.
Consider as stateless any person who:
- resides in Hong Kong or Macau; and
- alleges citizenship in China, Taiwan or Nationalist China
(The Republic of China).
Consider him/her stateless only as long as he/she resides in
Hong Kong or Macau.
Do not consider him/her stateless if he/she states he/she
is a citizen of The People's Republic of China (PRC).
Effective July 1997, the PRC took control of Hong Kong. Thus,
residents of Hong Kong can be considered stateless for months after
June 1997 only if they meet the criteria in
RS 02640.040B.1. or
RS 02640.040B.2.
Petitioner Newman-Green,
Inc., an Illinois corporation, brought this state law contract action
in District Court against a Venezuelan corporation, four Venezuelan
citizens, and William L. Bettison, a United States citizen domiciled
in Caracas, Venezuela. Newman-Green's complaint alleged that
the Venezuelan corporation had breached a licensing agreement, and that
the individual defendants, joint and several guarantors of royalty payments
due under the agreement, owed money to Newman-Green. Several years of
discovery and pretrial motions followed. The District Court ultimately
granted partial summary judgment for the guarantors and partial summary
judgment for Newman-Green. 590 F.Supp. 1083 (ND Ill.1984). Only Newman-Green
appealed.
At oral argument before
a panel of the Seventh Circuit Court of Appeals, Judge Easterbrook inquired
as to the statutory basis for diversity jurisdiction, an issue which
had not been previously raised either by counsel or by the District
Court Judge. In its complaint, Newman-Green had invoked 28 U.S.C. §
1332(a)(3), which confers jurisdiction in the District Court when a
citizen of one State sues both aliens and citizens of a State (or States)
different from the plaintiff's. In
order to be a citizen of a State within the meaning of the diversity
statute, a natural person must both be a citizen of the United States
and be domiciled within the State. See Robertson v. Cease, 97 U.S. 646,
648-649 (1878); Brown v. Keene, 8 Pet. 112, 115 (1834). The problem
in this case is that Bettison, although a United States citizen, has
no domicile in any State. He is therefore "stateless" for purposes of
§ 1332(a)(3). Subsection 1332(a)(2), which confers jurisdiction in the
District Court when a citizen of a State sues aliens only, also could
not be satisfied because Bettison is a United States citizen. [490 U.S.
829]
When a plaintiff sues more
than one defendant in a diversity action, the plaintiff must meet the
requirements of the diversity statute for each defendant or face dismissal.
Strawbridge v. Curtiss, 3 Cranch 267 (1806).{1} Here, Bettison's "stateless"
status destroyed complete diversity under § 1332(a)(3), and his United
States citizenship destroyed complete diversity under § 1332(a)(2).
Instead of dismissing the case, however, the Court of Appeals panel
granted Newman-Green's motion, which it had invited, to amend the complaint
to drop Bettison as a party, thereby producing complete diversity under
§ 1332(a)(2). 832 F.2d 417 (1987). The panel, in an opinion by Judge
Easterbrook, relied both on 28 U.S.C. § 1653 and on Rule 21 of the Federal
Rules of Civil Procedure as sources of its authority to grant this motion.
The panel noted that, because the guarantors are jointly and severally
liable, Bettison is not an indispensable party, and dismissing him would
not prejudice the remaining guarantors. 832 F.2d at 420, citing Fed.Rule
Civ.Proc. 19(b). The panel then proceeded to the merits of the case,
ruling in Newman-Green's favor in large part, but remanding to allow
the District Court to quantify damages and to resolve certain minor
issues.{2}
[Newman-Green
v. Alfonso Larrain, 490 U.S. 826 (1989)]
III. Conclusion.
For the reasons stated above, the motion to dismiss of Defendant Robert James Fox is GRANTED and count one of the indictment, charging a violation of Title 18, United States Code, Section 1546(a) is hereby DISMISSED.
SO ORDERED.
NOTES
[1] Fox was found not guilty of the Section 915 count after a trial before the Court.
[2] In this regard the Court notes that Fox denies being a citizen of any worldly country or having allegiance to any political entity. In his Answer to the Charges, filed November 27, 1990, Fox stated the following.
I am a Hebrew man of the tribes of Israel. I am a descendant of Shem, Abraham, Isaac and Jacob (Israel). I am a native born American and a stranger and sojourner in the land of my birth. I am not now nor have I ever been a citizen of the United States.
. . . . .
I created the Kingdom of Israel passport as a travel document and as a means of identifying myself and it is evidence of my declaration of my allegiance to the Creator of the Universe.
I deny that the passport is forged, counterfeited or falsely made. It is a genuine Kingdom of Israel passport and I have made no attempt to impersonate myself, I am myself.
[United States v. Fox, 766 F. Supp. 569 (N.D. Tex. 1991)]
Since a majority of the Court concluded in Perez v. Brownell that citizenship may be divested in the exercise of some governmental power, I deem it appropriate to state additionally why the action taken in this case exceeds constitutional limits, even under the majority's decision in Perez. The Court concluded in Perez that citizenship could be divested in the exercise of the foreign affairs power. In this case, it is urged that the war power is adequate to support the divestment of citizenship. But there is a vital difference between the two statutes that purport to implement these powers by decreeing loss of citizenship. The statute in Perez decreed loss of citizenship—so the majority concluded— to eliminate those international problems that were thought to arise by reason of a citizen's having voted in a foreign election. The statute in this case, however, is entirely different. Section 401 (g) decrees loss of citizenship for those found guilty of the crime of desertion. It is essentially like Section 401 (j) of the Nationality Act, decreeing loss of citizenship for evading the draft by remaining outside the United States.[10] This provision 94*94 was also before the Court in Perez, but the majority declined to consider its validity. While Section 401 (j) decrees loss of citizenship without providing any semblance of procedural due process whereby the guilt of the draft evader may be determined before the sanction is imposed, Section 401 (g), the provision in this case, accords the accused deserter at least the safeguards of an adjudication of guilt by a court-martial.
The constitutional question posed by Section 401 (g) would appear to be whether or not denationalization may be inflicted as a punishment, even assuming that citizenship may be divested pursuant to some governmental power. But the Government contends that this statute does not impose a penalty and that constitutional limitations on the power of Congress to punish are therefore inapplicable. We are told this is so because a committee of Cabinet members, in recommending this legislation to the Congress, said it "technically is not a penal law."[11] How simple would be the tasks of constitutional adjudication and of law generally if specific problems could be solved by inspection of the labels pasted on them! Manifestly the issue of whether Section 401 (g) is a penal law cannot be thus determined. Of course it is relevant to know the classification employed by the Cabinet Committee that played such an important role in the preparation of the Nationality Act of 1940. But it is equally relevant to know that this very committee acknowledged that Section 401 (g) was based on the provisions of the 1865 Civil War statute, which the committee itself termed "distinctly penal in character."[12] Furthermore, the 1865 95*95 statute states in terms that deprivation of the rights of citizenship is "in addition to the other lawful penalties of the crime of desertion . . . ."[13] And certainly it is relevant to know that the reason given by the Senate Committee on Immigration as to why loss of nationality under Section 401 (g) can follow desertion only after conviction by court-martial was "because the penalty is so drastic."[14] Doubtless even a clear legislative classification of a statute as "non-penal" would not alter the fundamental nature of a plainly penal statute.[15] With regard to Section 401 (g) the fact is that the views of the Cabinet Committee and of the Congress itself as to the nature of the statute are equivocal, and cannot possibly provide the answer to our inquiry. Determination of whether this statute is a penal law requires careful consideration.
In form Section 401 (g) appears to be a regulation of nationality. The statute deals initially with the status of nationality and then specifies the conduct that will result in loss of that status. But surely form cannot provide the answer to this inquiry. A statute providing that "a person shall lose his liberty by committing bank robbery," though in form a regulation of liberty, would nonetheless be penal. Nor would its penal effect be altered by labeling it a regulation of banks or by arguing that there is a rational connection between safeguarding banks and imprisoning bank robbers. The inquiry must be directed to substance.
This Court has been called upon to decide whether or not various statutes were penal ever since 1798. Calder v. Bull, 3 Dall. 386. Each time a statute has been challenged as being in conflict with the constitutional prohibitions against bills of attainder and ex post facto 96*96 laws,[16] it has been necessary to determine whether a penal law was involved, because these provisions apply only to statutes imposing penalties.[17] In deciding whether or not a law is penal, this Court has generally based its determination upon the purpose of the statute.[18] If the statute imposes a disability for the purposes of punishment —that is, to reprimand the wrongdoer, to deter others, etc.—it has been considered penal.[19] But a statute has been considered nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose.[20] The Court has recognized that any statute decreeing some adversity as a consequence of certain conduct may have both a penal and a nonpenal effect. The controlling nature of such statutes normally depends on the evident purpose of the legislature. The point may be illustrated by the situation of an ordinary felon. A person who commits a bank robbery, for instance, loses his right to liberty and often his right to vote.[21] If, in the exercise of the power to protect banks, both sanctions were imposed for the purpose of punishing bank robbers, the statutes authorizing both disabilities would be penal. But because the purpose of 97*97 the latter statute is to designate a reasonable ground of eligibility for voting, this law is sustained as a nonpenal exercise of the power to regulate the franchise.[22]
The same reasoning applies to Section 401 (g). The purpose of taking away citizenship from a convicted deserter is simply to punish him. There is no other legitimate purpose that the statute could serve. Denationalization in this case is not even claimed to be a means of solving international problems, as was argued in Perez. Here the purpose is punishment, and therefore the statute is a penal law.
It is urged that this statute is not a penal law but a regulatory provision authorized by the war power. It cannot be denied that Congress has power to prescribe rules governing the proper performance of military obligations, of which perhaps the most significant is the performance of one's duty when hazardous or important service is required. But a statute that prescribes the consequence that will befall one who fails to abide by these regulatory provisions is a penal law. Plainly legislation prescribing imprisonment for the crime of desertion is penal in nature. If loss of citizenship is substituted for imprisonment, it cannot fairly be said that the use of this particular sanction transforms the fundamental nature of the statute. In fact, a dishonorable discharge with consequent loss of citizenship might be the only punishment meted out by a court-martial. During World War II the threat of this punishment was explicitly communicated by the Army to soldiers in the field.[23] If this statute taking away citizenship is a congressional exercise of the war power, then it cannot rationally be treated other than as a penal law, because it imposes the sanction of denationalization 98*98 for the purpose of punishing transgression of a standard of conduct prescribed in the exercise of that power.
The Government argues that the sanction of denationalization imposed by Section 401 (g) is not a penalty because deportation has not been so considered by this Court. While deportation is undoubtedly a harsh sanction that has a severe penal effect, this Court has in the past sustained deportation as an exercise of the sovereign's power to determine the conditions upon which an alien may reside in this country.[24] For example, the statute[25] authorizing deportation of an alien convicted under the 1917 Espionage Act[26] was viewed, not as designed to punish him for the crime of espionage, but as an implementation of the sovereign power to exclude, from which the deporting power is derived. Mahler v. Eby, 264 U. S. 32. This view of deportation may be highly fictional, but even if its validity is conceded, it is wholly inapplicable to this case. No one contends that the Government has, in addition to the power to exclude all aliens, a sweeping power to denationalize all citizens. Nor does comparison to denaturalization eliminate the penal effect of denationalization in this case. Denaturalization is not imposed to penalize the alien for having falsified his application for citizenship; if it were, it would be a punishment. Rather, it is imposed in the exercise of the power to make rules for the naturalization of aliens.[27] In short, the fact that deportation and denaturalization for fraudulent procurement of citizenship may be imposed for purposes other than punishment affords no 99*99 basis for saying that in this case denationalization is not a punishment.
Section 401 (g) is a penal law, and we must face the question whether the Constitution permits the Congress to take away citizenship as a punishment for crime. If it is assumed that the power of Congress extends to divestment of citizenship, the problem still remains as to this statute whether denationalization is a cruel and unusual punishment within the meaning of the Eighth Amendment.[28] Since wartime desertion is punishable by death, there can be no argument that the penalty of denationalization is excessive in relation to the gravity of the crime. The question is whether this penalty subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the Eighth Amendment.
At the outset, let us put to one side the death penalty as an index of the constitutional limit on punishment. Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment—and they are forceful— the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty. But it is equally plain that the existence of the death penalty is not a license to the Government to devise any punishment short of death within the limit of its imagination.
The exact scope of the constitutional phrase "cruel and unusual" has not been detailed by this Court.[29] But the 100*100 basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice. The phrase in our Constitution was taken directly from the English Declaration of Rights of 1688,[30] and the principle it represents can be traced back to the Magna Carta.[31] The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect. This Court has had little occasion to give precise content to the Eighth Amendment, and, in an enlightened democracy such as ours, this is not surprising. But when the Court was confronted with a punishment of 12 years in irons at hard and painful labor imposed for the crime of falsifying public records, it did not hesitate to declare that the penalty was cruel in its excessiveness and unusual in its character. Weems v. United States, 217 U. S. 349. The Court recognized in that case that the words of the Amendment are not precise,[32] and that their 101*101 scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.
We believe, as did Chief Judge Clark in the court below,[33] that use of denationalization as a punishment is barred by the Eighth Amendment. There may be involved no physical mistreatment, no primitive torture. There is instead the total destruction of the individual's status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights, and presumably as long as he remained in this country he would enjoy the limited rights of an alien, no country need do so because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination 102*102 at any time by reason of deportation.[34] In short, the expatriate has lost the right to have rights.
This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people. He is stateless, a condition deplored in the international community of democracies.[35] It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious.[36]
The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime. It is true that several countries prescribe expatriation in the event that their nationals engage in conduct in derogation of native allegiance.[37] Even statutes of this sort are generally applicable primarily 103*103 to naturalized citizens. But use of denationalization as punishment for crime is an entirely different matter. The United Nations' survey of the nationality laws of 84 nations of the world reveals that only two countries, the Philippines and Turkey, impose denationalization as a penalty for desertion.[38] In this country the Eighth Amendment forbids this to be done.
In concluding as we do that the Eighth Amendment forbids Congress to punish by taking away citizenship, we are mindful of the gravity of the issue inevitably raised whenever the constitutionality of an Act of the National Legislature is challenged. No member of the Court believes that in this case the statute before us can be construed to avoid the issue of constitutionality. That issue confronts us, and the task of resolving it is inescapably ours. This task requires the exercise of judgment, not the reliance upon personal preferences. Courts must not consider the wisdom of statutes but neither can they sanction as being merely unwise that which the Constitution forbids.
We are oath-bound to defend the Constitution. This obligation requires that congressional enactments be judged by the standards of the Constitution. The Judiciary has the duty of implementing the constitutional safeguards that protect individual rights. When the Government acts to take away the fundamental right of citizenship, the safeguards of the Constitution should be examined with special diligence.
The provisions of the Constitution are not time-worn adages or hollow shibboleths. They are vital, living principles that authorize and limit governmental powers in our Nation. They are the rules of government. When the constitutionality of an Act of Congress is challenged in this Court, we must apply those rules. If we 104*104 do not, the words of the Constitution become little more than good advice.
When it appears that an Act of Congress conflicts with one of these provisions, we have no choice but to enforce the paramount commands of the Constitution. We are sworn to do no less. We cannot push back the limits of the Constitution merely to accommodate challenged legislation. We must apply those limits as the Constitution prescribes them, bearing in mind both the broad scope of legislative discretion and the ultimate responsibility of constitutional adjudication. We do well to approach this task cautiously, as all our predecessors have counseled. But the ordeal of judgment cannot be shirked. In some 81 instances since this Court was established it has determined that congressional action exceeded the bounds of the Constitution. It is so in this case.
The judgment of the Court of Appeals for the Second Circuit is reversed and the cause is remanded to the District Court for appropriate proceedings.
[Trop v. Dulles, 356 US 86 (1958)]
We recognize at the outset that we are confronted here with an
issue of the utmost import. Deprivation of citizenship -- particularly
American citizenship, which is "one of the most valuable rights
in the world today," Report of the President's Commission on Immigration
and Naturalization (1953), 235 -- has grave practical consequences.
An expatriate who, like Cort, had no other nationality becomes a
stateless person -- a person who not only has no rights as an American
citizen, but no membership in any national entity whatsoever.
Such individuals as do not possess any nationality enjoy,
in general, no protection whatever, and if they are aggrieved
by a State, they have no means of redress, since there is no
State which is competent to take up their case. As far as the
Law of Nations [372 U.S. 161] is concerned, there is, apart
from restraints of morality or obligations expressly laid down
by treaty . . . , no restriction whatever to cause a State to
abstain from maltreating to any extent such stateless individuals.
1 Oppenheim, International Law (8th ed., Lauterpacht, 1955),
§ 291, at 640.{14} The calamity is "[n]ot the loss of specific rights,
then, but the loss of a community willing and able to guarantee
any rights whatsoever. . . ." Arendt, The Origins of Totalitarianism
(1951), 294. The stateless person may end up shunted from nation
to nation, there being no one obligated or willing to receive him,{15}
or, as in Cort's case, may receive the dubious sanctuary of a Communist
regime lacking the essential liberties precious to American citizenship.{16}
[372 U.S. 162]
B. The Perez and Trop Cases
The basic principles
here involved, the gravity of the issue, and the arguments bearing
upon Congress' power to forfeit citizenship were considered by the
Court in relation to different provisions of the Nationality Act
of 1940 in two cases decided on the same day less than five years
ago: Perez v. Brownell, 356 U.S. 44, and Trop v. Dulles, 356 U.S.
86.
In Perez, § 401(e), which imposes loss of nationality for "[v]oting
in a political election in a foreign state or participating in an
election or plebiscite to determine the sovereignty over foreign
territory," was upheld by a closely divided Court as a constitutional
exercise of Congress' power to regulate foreign affairs. The Court
reasoned that, since withdrawal of citizenship of Americans who
vote in foreign elections is reasonably calculated to effect the
avoidance of embarrassment in the conduct of foreign relations,
such withdrawal is within the power of Congress, acting under the
Necessary and Proper Clause. Since the Court sustained the application
of § 401(e) to denationalize Perez, it did not have to deal with
§ 401(j), upon which the Government had also relied, and it expressly
declined to rule on the constitutionality of that section, 356 U.S.
at 62. There were three opinions written in dissent. The principal
one, that of THE CHIEF JUSTICE, recognized
that citizenship may not only be voluntarily renounced through
exercise of the right of expatriation, but also by other actions
in derogation of undivided allegiance to this country,
id. at 68, but concluded that "[t]he mere act of voting in a
foreign election, however, without regard to the circumstances attending
[372 U.S. 163] the participation, is not sufficient to show a voluntary
abandonment of citizenship," id. at 78.
In Trop, § 401(g), forfeiting the citizenship of any American
who is guilty of
[d]eserting the military or naval forces of the United States
in time of war, provided he is convicted thereof by court martial
and as the result of such conviction is dismissed or dishonorably
discharged . . . ,
was declared unconstitutional. There was no opinion of the Court.
THE CHIEF JUSTICE wrote an opinion for four members of the Court,
concluding that § 401(g) was invalid for the same reason that he
had urged as to § 401(e) in his dissent in Perez, and that it was
also invalid as a cruel and unusual punishment imposed in violation
of the Eighth Amendment. JUSTICE BRENNAN conceded that it is
paradoxical to justify as constitutional the expatriation
of the citizen who has committed no crime by voting in a Mexican
political election, yet find unconstitutional a statute which
provides for the expatriation of a soldier guilty of the very
serious crime of desertion in time of war,
356 U.S. at 105. Notwithstanding, he concurred because "the requisite
rational relation between this statute and the war power does not
appear . . . ," id. at 114. Justice Frankfurter, joined by three
other Justices, dissented on the ground that § 401(g) did not impose
punishment at all, let alone cruel and unusual punishment, and was
within the war powers of Congress.
[Kennedy
v. Mendoza-Martinez, 372 U.S. 144 (1963)]
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