The Legal Status and Problems of the American Abroad

• Author: Murdaugh Stuart Madden,Sherman L. Cohn
• Published date: 01 November 1966
• Date: 01 November 1966
• DOI: 10.1177/000271626636800112
• Subject Matter: Articles

The Legal Status and Problems of the
American Abroad
By MURDAUGH STUART MADDEN AND SHERMAN L. COHN
ABSTRACT: The American abroad is, of course, still legally
an American.
His status, however, is far from simple. Some
will find themselves subject to foreign military draft where
they reside abroad. Some will have property expropriated by
their foreign host. Some will be thrown in jail and search in
vain for the "due process of law" to which they had grown
accustomed at home. During the ten years from 1954 to
1963, more than 43,000 Americans lost their citizenship for a
variety of reasons. To some three-quarters of a million Ameri-
cans residing abroad today, there are real problems in their
daily maintenance of status. This article demonstrates in a
summary manner the legal pitfalls that can await the Ameri-
can abroad because he is abroad.
These pitfalls can often be
avoided if recognized. An awareness of their existence is the
first essential.
Murdaugh Stuart Madden, LL.B., Washington, D.C., is a practicing lawyer and a
partner in the Washington law firm of Shaw, Pittman, Potts, Trowbridge &
Madden.
His international litigation has involved private legal matters in Moscow, Taipei, Buenos
Aires, and elsewhere throughout the world. He is also a Trustee of the Friends
of India Committee and of the Institute for the Study of National Behavior.
Sherman L. Cohn, LL.B., LL.M., Washington, D.C., is Professor of Law, Georgetown
University Law Center, and was formerly Assistant Chief, Appellate Section, Civil
Division, United States Department of Justice, with extensive experience in the United
States Supreme Court and Courts of Appeals. He is a Codirector of the Institute
of Law, Human Rights, and Social Values.
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THE American citizen’s presence in
a
When the American has a child born
foreign country, indeed his re-
abroad, however, certain problems may
siding in a foreign country for years,
arise.
Should both parents be Ameri-
does not ipso facto deprive him of the
can citizens, the child is an American
legal status of a citizen of the United
citizen as long as one of the parents
States of America.
That status may
had resided within the United States at
be altered by certain acts that he may
some time prior to the birth of the
do, but in the normal situation, separa-
child.3
3
Should only one of the parents
tion from American soil alone, even
be an American citizen, but the other
with the positive intent not to return,
an American national,4 the law requires
is not enough.
that for the child to be a citizen auto-
The American abroad, however, is
matically, the citizen parent must have
faced with certain legal problems and
resided in the United States for at least
situations that do not confront his
a year prior to the birth of the child.5
5
brother who remained at home. Some
Should the noncitizen parent be an
of these are imposed upon him by the
alien, the citizen parent must have re-
country where he lives.
Others arise
sided in the United States for at least
because of action on the part of the
ten years prior to the child’s birth, and
United States government. While a
at least five of these years must have
definitive study of any one of these
been after the parent had attained the
situations would take a treatise at least
age of fourteen years;
and even then,
as long as this article, it is hoped that
to retain his citizenship, the child must
from these pages one can acquire a
spend at least five years within the
concept of the types of problems to be
United States between the ages of four-
faced and a generalized impression as
teen and twenty-eight.
7
A child born
to the current legal solutions.
of one American citizen who does
not automatically become an American
PERSONAL STATUS
citizen under these provisions is per-
The American abroad takes with him
mitted to become naturalized through
his personal status. His marriage, or
a route
somewhat easier
than if
divorce, or adoption is not affected as
neither parent was an American citi-
long as this domestic status was legally
created where the American was resi-
v. Wood, 245 N.Y.S. 2d 800, 804 (Sup.Ct.,
dent or domiciled at the time of its
N.Y. County 1963).
creation.
While resident abroad he
3
Section 301(a) (3) of the Immigration and
Naturalization Act of 1952, 66 Stat. 235, as
may alter his domestic status and still
amended 8 U.S.C. 1401(a)(3). All further
remain an American citizen.’- And this
citations to the Immigration and Naturaliza-
alteration in status will generally be
tion Act of 1952 will be given only to the
recognized in the United States as long
applicable section of Title 8 of the United
States Code.
as the residency in the foreign country
4
8 U.S.C. 1101(a)(21) defines "national" as
was bona fide and not just temporary
meaning "a person owing permanent allegiance
for the purpose of alteration of domestic
to a state."
8 U.S.C. 1101(a)(22) defines
status.2
2
"national of the United States" as meaning
"(A) a citizen of the United States, or (B) a
1
Until 1922 a woman lost her American
person who, though not a citizen of the
citizenship automatically by marrying an
United States, owes permanent allegiance to
alien, 34 Stat. 1228 (1906), repealed by 42
the United States."
Stat. 1022 (1922).
5
8 U.S.C. 1401(a)(4).
2

Inkpen v. Leahy Constr. Co., 207 N.Y.S.
6
8 U.S.C. 1401(a)(7).
2d 700 (App. Div., 3d Dep’t 1960); Wood
7
8 U.S.C. 1401 (b).

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121
zen.8
A child born abroad of aliens
foreign state is due to employment by
who is then adopted by American par-
the United States government, or (b)
ents does not automatically become an
he is resident abroad to represent an
American citizen by reason of the adop-
American organization or business or
tion, but may be naturalized through a
an international organization, or (c) is
procedure that is simpler than that he
prevented from returning by the illness
would need to fulfill if he had not
of himself, his wife, parent, or child, or
been adopted.9
(d) he is a full-time university student
As noted, merely living abroad does
(not to exceed five years), or (e) is
not deprive one of one’s American
the spouse or child of an American
citizenship. But there are certain ac-
citizen who has his residence abroad
tions that one can take that may de-
for one of the above-enumerated rea-
prive one of one’s citizenship. Congress
sons, or (f) he is the spouse or child of
has provided that either a natural-born
an American national living in that
or naturalized citizen
may lose his
country and had resided in the United
citizenship by being naturalized in a
States for at least ten years, or (g) is
foreign state on his own application,
a veteran of an American war or the
taking an oath of allegiance to a for-
spouse, child, or dependent parent of
eign state, serving in a foreign armed
such veteran, or (h) is over sixty years
force without the approval of the Sec-
of age and had lived in the United
retaries of State and Defense, serving
States for at least twenty-five years af-
in a foreign political post requiring an
ter having reached eighteen.&dquo;
1
Finally,
oath or affirmation of allegiance to the
Congress provided that a naturalized
foreign country, voting in a foreign
citizen loses his citizenship by con-
country, formally renouncing Ameri-
tinuously residing in the country of his
can citizenship, deserting an American
former nationality or birth for three
armed force in time of war, being con-
years or in any other foreign state or
victed of desertion by court martial and
states for five years, unless that resi-
being dishonorably discharged from the
dence is for any of the purposes listed
service therefor, committing an act of
for dual nationals.12
treason or certain other criminal acts
The Supreme Court, however, in a
involving subversion, or departing from
series of cases has declared that certain
or remaining outside the United States
of the congressionally provided causes
in time of war or declared national
for automatic expatriation are uncon-
emergency for purpose of evading or
stitutional.
The first of these cases,
avoiding military service.1-0 In addi-
Trop v. Dulles, 13 invalidated the
tion, a person who is a national both of
clause14 that provided for automatic
the United States and of another nation
loss of citizenship for conviction by
automatically loses his American citi-
court martial of desertion during war.
zenship if he has a continuous residence
The Court declared this to be a cruel
in the foreign state of which he is a
and unusual punishment contrary to
national for three years, unless (1) he
the Eighth Amendment to the Constitu-
takes an oath of allegiance before a
tion.
In 1963 the Court in Kennedy
United States consular or diplomatic
11
8 U.S.C. 1482. For a legal discussion of
officer, and ( 2 ) (a) his residence in the
dual nationality and expatriation, see Note,
68 Yale Law Journal, 1167 (1959).
8
8 U.S.C. 1433; see also 8 U.S.C. 1431 .
12
8
U.S.C. 1484.
9
8 U.S.C. 1434.
13
356 U.S. 86 (1958).
10
8 U.S.C. 1481(a).
14
8 U.S.C. 1481 (a) (8).

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v. Mendoza-Martinez15 declared invalid
One may be assured that these de-
the provision 16 automatically expatri-
cisions will severely cut down the num-
ating an American citizen who departs
ber of expatriations that occur each
from or remains out of the United States
year.23 This is particularly true of the
during time of war or declared national
Schneider case, which, although tech-
emergency for the purpose of...