Nishikawa v. Dulles

PETITIONER: Mitsugi Nishikawa
RESPONDENT: John Foster Dulles, Secretary of State
LOCATION: Illinois General Assembly

DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 356 US 129 (1958)
ARGUED: May 01, 1957 / May 02, 1957
REARGUED: Oct 28, 1957
DECIDED: Mar 31, 1958

A. L. Wirin - for the petitioner at reargument
Fred Okrand - for the petitioner at argument
Oscar H. Davis - for the respondent

Facts of the case


Media for Nishikawa v. Dulles

Audio Transcription for Oral Argument - May 02, 1957 in Nishikawa v. Dulles
Audio Transcription for Oral Argument - May 01, 1957 in Nishikawa v. Dulles

Audio Transcription for Oral Reargument - October 28, 1957 in Nishikawa v. Dulles

Earl Warren:

Number 44 -- no, no.

Number 19, I beg your pardon.

Number 19, Mitsugi Nishikawa, Petitioner, versus John Foster Dulles.

Mr. Wirin.

A. L. Wirin:

May it please the Court.

This case as the preceding one and as the one to follow, deals with a subsection of Section 401 of the Nationality Act of 1940 which involves a loss of citizenship.

The subsection here is 401 (c) which provides the loss of United States citizenship by an American citizen who serves in a foreign army and who at the same is a citizen of that foreign state.

We have raised the constitutionality on its face of this subsection in our brief and since the constitutional question has been argued substantially in the former case and will also be considered in the next case, I am not going to discuss that feature of this case.

I'm going to address myself particularly to what Mr. Justice Frankfurter indicated with the due process features of this statute as applied to the petitioner.

I'm going to assume the power of Congress to legislate in the field, (a) of persons serving in a foreign army abroad, (b) where those persons have dual nation -- dual nationality.

I'm going to assume the -- the making of broad power and I'm going to urge upon Your Honors that that power was not properly exercised so far as this case is concerned because it was exercised in a manner to be unreasonable and to offend due process.

More particularly, to narrow my point and to narrow the problem, I'm going to be dealing with a question which Mr. Justice Harlan has with respect to the matter of in -- of voluntariness and involuntariness.

And I want to make at the very beginning a distinction which to me seems to be cardinal in connection with the use of the word “voluntariness or involuntariness” because it can be used in two separate contexts and with two separate meanings.

For instance, whether or not a person, when he does something, intends to lose his citizenship or as one of the cases that concurs in the loss of his citizenship by doing something.

This is one example of voluntariness.

For the purpose of my argument, I'm going to assume that this is utterly inconsequential and that in that context, he may lose his citizenship though his -- though he -- he doesn't want to, though it is involuntary.

But when Congress undertakes to specify various grounds for the loss of citizenship which it did in this -- Section 401 of which (c) is an -- an example.

And it provides that merely doing that which Congress says, if done, results in loss of citizenship.It is clear and it is undisputed by the Government that that Act which Congress defines must be voluntary.

For instance, if it's a question of service in the Armed Forces of another country, the Government concedes there could be no loss of citizenship if the service was involuntary, if the service in the Armed Forces.

So in that respect and in this narrow fashion, voluntariness is important, it is conceded and it is the heart of the petitioner's case so far as this -- this case is concerned.

Because we say that in the trial below under Section 503, the trial court in ultimately ruling that the petitioner voluntarily served in the Armed Forces of Japan, ignored and violated the rules laid down by this Court as to the quantum and burden and nature of the truth which is upon the Government where the stakes are deprivation and forfeiture of this most precious of rights, the rights of citizenship, that the court below laid down an incorrect rule of law as to where the burden of proof was.

It followed an incorrect rule of law so far as any presumption that might follow upon a showing that the petitioner -- the petitioner served in a foreign army or developed conscription and that in any event, the court below ruled against to the petitioner without complying with the standards imposed by this Court in connection both with persons who were citizens by naturalization or by birth, namely that the evidence against the petitioner and in favor of the Government, is not clear and convincing and unequivocal to warrant the forfeiture of this precious right.

Now, fortunately, we have here a record of some 40 pages, not the 15,000-page record to which Your Honors wrestled with in -- in Gates versus United States and the record is before Your Honors and in a moment I want to refer to it.I mean the record of the trial as compared to our brief, it is some -- some 40 pages in that.

First, with respect to a couple of propositions of law and then I want to deal with these propositions of law as reflected by the facts in this case.

We say that where the Government says that an American has lost his citizenship by virtue of doing something which so far as the citizen is concerned, is not accompanied by any knowledge on his part that he is forfeiting or abandoning or affecting his citizenship that as a minimum, the burden of proof that the petitioner has committed the act proscribed and set forth in the statute, voluntarily that that burden is upon the Government.

Now, additionally we say --

It's sort of an exception to the rule as if would be in ordinary cases, other types of cases?

A. L. Wirin:


We say it is not exception to the rule in other types of cases that are analogous.

We say it is the rule because we say that this Court has defined expatriation as the voluntary renunciation or abandonment of United States citizenship.