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NISHIKAWA v. DULLES

decided: March 31, 1958.

NISHIKAWA
v.
DULLES, SECRETARY OF STATE



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

Warren, Black, Frankfurter, Douglas, Burton, Clark, Harlan, Brennan, Whittaker

Author: Warren

[ 356 U.S. Page 130]

 MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

In this, the third of the denationalization cases decided today, issues concerning Section 401 (c) of the Nationality Act of 1940 are presented. That statute provides:

"A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:

"(c) Entering, or serving in, the armed forces of a foreign state unless expressly authorized by the laws of the United States, if he has or acquires the nationality of such foreign state . . . ."*fn1

We need not in this case consider the constitutionality of Section 401 (c). This case thus differs from Perez v. Brownell, ante, p. 44, and Trop v. Dulles, ante, p. 86,

[ 356 U.S. Page 131]

     where questions of the constitutionality of Sections 401 (e) and 401 (g) were determined. The issues with which we are concerned here relate solely to problems of burden of proof.

Petitioner brought this action in a District Court praying for a judgment declaring him to be a citizen of the United States. The controversy arose from petitioner's application to a United States Consulate in Japan for an American passport. Instead of the passport, he received more than a year later a Certificate of the Loss of the Nationality of the United States. Petitioner alone testified at the trial, the Government introducing no testimony. What follows is a summary of his testimony.

Petitioner was born in Artesia, California, in 1916. By reason of that fact, he was a citizen of the United States, and because of the citizenship of his parents, he was also considered by Japan to be a citizen of that country. Petitioner was educated in the schools of this country and lived here until 1939. In August of that year, having been graduated from the University of California with a degree in engineering, he went to Japan, intending to stay between two and five years, visiting and studying. He knew that his father had registered him in the family register in Japan. In November of 1939 petitioner's father, who was paying his way, died in this country and petitioner, lacking funds, went to work for an aircraft manufacturing company in Japan for the equivalent of $15 a month. He was unable to accumulate any savings. Pursuant to the Military Service Law of Japan, petitioner was required about June 1940 to take a physical examination, and on March 1, 1941, he was inducted into the Japanese Army. The Military Service Law provided for imprisonment for evasion. Between the time of his physical examination and his induction, petitioner did not protest his induction or attempt to renounce his

[ 356 U.S. Page 132]

     Japanese nationality, to return to the United States or to secure the aid of United States consular officials. He testified that he was told by a friend who worked at the American Embassy that the American Consulate could not aid a dual national; the Government has not contended that this was not so. He further testified that he had heard rumors about the brutality of the Japanese secret police which made him afraid to make any protest.

Petitioner testified that he did not know when he went to Japan that he was likely to be drafted. He said he was not aware at that time of any threat of war between the United States and Japan. He had left the United States just prior to the outbreak of war in Europe and two years and four months before Pearl Harbor. He testified that he was unable to read the Japanese language and lived too far out in the country to subscribe to an English-language newspaper, and therefore did not read any newspapers while in Japan.

Petitioner served as a maintenance man or mechanic in an Air Force regiment in China, Indo-China, the Philippines and Manchuria. He testified that when war between the United States and Japan began, he expressed the opinion to a group of noncommissioned officers that there was no chance of Japan's winning the war. That night he was given a thorough beating; he was beaten almost every day for a month, and afterwards he was beaten "a couple days a month." He won the nickname "America."

After hearing this testimony, the district judge announced from the bench that "the court simply does not believe the testimony of the witness. That is all. I simply do not believe his testimony." He went on to express his opinion that petitioner "went over because as a Japanese citizen under the laws of Japan it was necessary for him to serve his hitch in the army. . . . He went over and he waited until they reached him on the draft,

[ 356 U.S. Page 133]

     and when they did he was drafted." Formally, the court found as a fact on the basis of petitioner's testimony alone, which did not include an admission to that effect, that his "entry and service in the Japanese Armed Forces was his free and voluntary act." Therefore he was held to have lost his nationality under Section 401 (c) and judgment was rendered for respondent. The Court of Appeals for the Ninth Circuit affirmed that judgment.*fn2 We granted certiorari. 352 U.S. 907.

Whatever divergence of view there may be as to what conduct may, consistent with the Constitution, be said to result in loss of nationality, cf. Perez v. Brownell, ante, pp. 44, 62, it is settled that no conduct results in expatriation unless the conduct is engaged in voluntarily. Mandoli v. Acheson, 344 U.S. 133.*fn3 The Government does not contend otherwise. Likewise, the parties are agreed that when a citizenship claimant proves his birth in this country or acquisition of American citizenship in some other way, the burden is upon the Government to prove an act that shows expatriation by clear, convincing and unequivocal evidence. In Gonzales v. Landon, 350 U.S. 920, we held that the rule as to burden of proof in denaturalization cases*fn4 applied to expatriation cases under Section 401 (j) of the Nationality Act of 1940. We now conclude that the same rule should govern cases under all the subsections of Section 401.

The parties disagree as to whether the Government must also prove that the expatriating act was voluntarily performed or whether the citizenship claimant bears the

[ 356 U.S. Page 134]

     burden of proving that his act was involuntary.*fn5 Petitioner contends that voluntariness is an element of the expatriating act, and as such must be proved by the Government. The Government, on the other hand, relies upon the ordinary rule that duress is a matter of affirmative defense and contends that the party claiming that he acted involuntarily must overcome a presumption of voluntariness.

Because the consequences of denationalization are so drastic petitioner's contention as to burden of proof of voluntariness should be sustained. This Court has said that in a denaturalization case, "instituted . . . for the purpose of depriving one of the precious right of citizenship previously conferred we believe the facts and the law should be construed ...


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