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Rucker v. Saxbe

argued: January 3, 1977.

ROBERT RUCKER, APPELLANT
v.
WILLIAM B. SAXBE, ATTORNEY GENERAL OF THE UNITED STATES, HENRY KISSINGER, SECRETARY OF STATE; LEONARD F. CHAPMAN, JR., COMMISSIONER OF IMMIGRATION AND NATURALIZATION SERVICE; DOMINICK RINALDI, DISTRICT DIRECTOR OF IMMIGRATION AND NATURALIZATION SERVICE, NEWARK, NEW JERSEY (D.C. CIVIL NO. 1288-73)



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.

Van Dusen and Adams, Circuit Judges, and Charles R. Weiner, District Judge*fn* Adams, Circuit Judge

Author: Van Dusen

Opinion OF THE COURT

VAN DUSEN, Circuit Judge.

This is an appeal from a district court judgment entered in favor of the Government in a September 1973 action for declaration of citizenship brought pursuant to 8 U.S.C. § 1503. Plaintiff Rucker contests both the applicability and constitutionality of the provisions related to retention of citizenship (8 U.S.C. § 1401(b)) by persons born outside of the limits and jurisdiction of the United States to a parent citizen and a parent alien. Plaintiff urges that: the retention requirements should not apply, absent specific knowledge of them; such application would violate due process; and, in any event, the defendants are estopped from applying them to him for failure to inform his father, Max Rucker, of changes in the statute and for failure to inform plaintiff of the statute's existence. On the facts of this case, we hold that there is no constitutional infirmity to application of those requirements to plaintiff.

I.

Robert Rucker was born in Argentina on August 30, 1939. His mother was a citizen of Argentina; his father, Max Rucker, was a United States citizen by birth.

At the time of his birth, the plaintiff acquired United States citizenship under R.S. § 1993, as amended in 1934, 48 Stat. 797, formerly 8 U.S.C. § 6, which provided that one born abroad of a parent who was a United States citizen and a parent who was an alien was a United States citizen at birth and would retain citizenship if (1) he resided in the United States for five years immediately prior to his 18th birthday, and (2) he took an oath of allegiance within six months after attaining age 21. We quote the statute in the margin.*fn1

On January 17, 1941, Max Rucker registered the date and place of plaintiff's birth with the United States Embassy in Buenos Aires, which issued a Report of Birth. That document indicates that on or about January 12, 1941, Max Rucker became aware of the above residency requirements established by R.S. § 1993, as amended, which was quoted on the back of the Report of Birth. As is apparent, and as the parties stipulated, at all times material to this law suit, Max Rucker was aware of the existence of residency requirements, and aware of their applicability to his son, plaintiff Robert Rucker. Max Rucker registered himself and his son as citizens of the United States with the United States Embassy in 1941, 1943, 1946, 1955 and 1957. The 1955 registration form (Report of Birth, Child Born Abroad of American Parent or Parents), used to report the birth of Max Rucker's daughter Alice to the United States Embassy in Buenos Aires, was sent to Max Rucker on April 26, 1955, by mail. It contained notice of the 1952 amendments to the Immigration and Nationality Act, providing that divestiture of citizenship would occur if the individual whose birth was reported failed to "come to the United States and remain physically present therein for 5 years between the ages of 14 and 28."*fn2 In January 1962, Max Rucker registered himself alone. Robert Rucker was married in Argentina in May 1962 at the age of 22.

After applying for and obtaining a United States passport, Max Rucker left Argentina for the United States in 1964. His son remained there until 1968, when he came to the United States on a tourist visa issued in Lima, Peru, where he had been involved in a business venture. Plaintiff never made any inquiries to the United States Embassy in Buenos Aires, Argentina, the United States State Department or any other agency of the United States Government concerning his rights to United States citizenship.

In May 1969, plaintiff applied for a Certificate of Citizenship with the Immigration and Naturalization Service, which was denied in May 1973, after an evidentiary hearing, on the ground that he had not complied with the retention requirements of 8 U.S.C. § 1401(b), or any of its predecessor statutes. In June 1973, the Assistant Commissioner for Naturalization affirmed the District Director's decision to deny plaintiff's application for a certificate of citizenship.

Plaintiff sought a declaratory judgment that he was a citizen from the district court, which found in favor of the Government. This appeal followed.

II.

In upholding the decision of the Immigration and Naturalization Service, the district court made specific findings. The judge was satisfied that Robert Rucker "was subjectively unaware of the [retention] requirement until after arriving here" and talking with his father, and that until that time "Rucker merely assumed he was a citizen and merely needed to come here to apply." The court noted that, judging from the Record of Birth filed with the Embassy in Argentina, Max Rucker was aware of the retention requirements from at least the time that the plaintiff was 1 1/2 years old, and accepted the testimony that Max Rucker, when asked why he had not told his son of the retention requirements earlier, replied that there were no funds for travel to the United States before Robert's 18th birthday, that his mother had been sick, that the ...


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