Rogers v. Bellei

PETITIONER: William P. Rogers, Secretary of State
RESPONDENT: Aldo Mario Bellei
LOCATION: Ohio State Bar Association

DOCKET NO.: 24
DECIDED BY: Burger Court (1970-1971)
LOWER COURT:

CITATION: 401 US 815 (1971)
ARGUED: Jan 15, 1970
REARGUED: Nov 12, 1970
DECIDED: Apr 05, 1971

Facts of the case

Question

Media for Rogers v. Bellei

Audio Transcription for Oral Argument - January 15, 1970 in Rogers v. Bellei

Audio Transcription for Oral Reargument - November 12, 1970 in Rogers v. Bellei

Warren E. Burger:

This morning is number 24, Rogers against Bellei.

Mr. Solicitor General.

Erwin N. Griswold:

Mr. Chief Justice and may it please the court.

This case comes here on a direct appeal from a three-judge court in the District of Columbia.

The legal question involved is the constitutional validity of an Act of Congress relating to the citizenship of a child born abroad, one of whose parents is an American citizen.

The statutory provision in question is Sections 301(a) (7) and 301(b) of the Nationality Act of 1952.

These are set forth beginning at the bottom of page 45 of the Government’s brief and continuing on to page 46.

I would like to read the important portions of the statute.

Beginning at the bottom of page 45, the following shall be nationals and citizens of the United States at birth (7).

A person born outside the geographical limits of the United States in its outlying possession of parents, one of whom is a alien and the other, a citizen of the United States who prior to the birth of such person was physically present in the United States or its outlying possession for a period or periods totaling not less than 10 years, at least five of which were after attaining the age of 14 years.

And then 301(b), any person who is a national and citizen of the United States at birth under paragraph (7) of subsection (a) of this Section shall lose his nationality and citizenship unless he shall come to the United States prior to attaining the age of 23 years and shall immediately following any such coming be continuously physically present in the United States for at least five years.

Provided that such physical presence follows the attainment of the age of 14 years and precedes the age of 28 years.

And I may add that there is another statute which provides that the continuous presence is not broken by absences which do not exceed one year so that he is perfectly possible to go back for visits, but he must have five years without more than a one year break.

The case arises on the following facts which were stipulated and thus are not the subject of any dispute.

The appellee, Aldo Mario Bellei was born in Italy in 1939.

His father is an Italian, a native and citizen of Italy.

Aldo Mario Bellei became an Italian citizen at birth.

He is an Italian citizen today.

Thus, there is no question of statelessness here.

The appellee’s mother was born in the United States and has always been an American citizen.

The father and mother were married in Philadelphia on March 14, 1939.

A few days later, they left for Italy where the appellee was born in December 1939 and the family has since recited in Italy.

At the time of the appellee’s birth, an Act of 1934 was in effect.

This is printed on page 44 of my brief.

It was an amendment to Section 1993 of the Revised Statutes and it provided that a child in these circumstances is declared to be a citizen of the United States, but the rights of citizenship shall not descend to any such child unless the citizen father or citizen mother as the case maybe has resided in the United States previous to the birth of such child.

And then it goes on to provide that where one of the parents is an alien, the right of citizenship shall not descend unless the child comes to the United States and resides therein for at least five years continuously, immediately previous state to his 18th birthday.

And unless within six months after the child’s 21st birthday, he or she shall take an oath of allegiance to the United States of America as prescribed by the Immigration and Naturalization Service.

That statute in 1934 was amended in 1940, liberalizing the time period and casting it and not in terms of citizenship shall not descend but in terms of a statement that he is a citizen, but that he shall lose his citizenship if the condition is not met and the time provision was further extended by the 1952 statute which is the one now in effect and before the Court.

Under this statute as I’ve indicated, the child born abroad with one parent or citizen may retain or perfect his citizenship by residing in the United States for five continuous years, some time between his 14th birthday and his 28th birthday.

And that means that if he has not started to do that residence by his 23rd birthday, then there is no possibility if the statute is valid that he can retain his citizenship under the statute.