NISHIKAWA V. DULLES, 356 U. S. 129 (1958)

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U.S. Supreme Court

Nishikawa v. Dulles, 356 U.S. 129 (1958)

Nishikawa v. Dulles

No. 19

Argued May 1-2, 1957

Restored to the calendar for reargument June 24, 1957

Reargued October 28, 1957

Decided March 31, 1958

356 U.S. 129


Petitioner was a native-born citizen of the United States and he was considered by Japan to be a citizen of that country because his parents were Japanese citizens. In 1939, he went to Japan, intending to stay between two and five years visiting and studying. In 1941, he was conscripted into the Japanese Army, and he served in that Army while Japan was at war with the United States. After the war, he applied for an American passport, but was given instead a certificate of loss of nationality. He sued for a declaratory judgment that he was a citizen of the United States. This was denied because the district judge did not believe his testimony that his service in the Japanese Army was involuntary. Petitioner alone testified at the trial. The Government introduced no testimony, and its only affirmative evidence was that petitioner went to Japan at a time when he was subject to conscription.

Held: the evidence was not sufficient to establish petitioner's loss of citizenship under § 401(c) of the Nationality Act of 1940 as a result of his entering and serving in the armed forces of a foreign state. Pp. 356 U. S. 130-138.

(a) No conduct results in expatriation unless the conduct is engaged in voluntarily. P. 356 U. S. 133.

(b) 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, and this rule governs cases under all subsections of § 401. P. 356 U. S. 133.

(c) Because the consequences of denationalization are so drastic, the burden is upon the Government of persuading the trier of fact by clear, convincing and unequivocal evidence that the act showing renunciation of citizenship was performed voluntarily whenever the question of voluntariness is put in issue. Pp. 356 U. S. 133-137.

Page 356 U. S. 130

(d) On the record in this case, the Government has not sustained the burden of establishing the voluntary conduct that is an essential ingredient of expatriation. Pp. 356 U. S. 137-138.

235 F.2d 135 reversed.

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