Naturalization and Rogers v. Bellei

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Article I, Section 8, Clause 4:

[The Congress shall have Power . . . ] To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; . . .

In the 1971 case of Rogers v. Bellei, the Supreme Court considered a constitutional challenge to a requirement under the Immigration and Nationality Act (INA) that a child born abroad to a U.S. citizen parent and an alien parent maintain citizenship by residing in the United States continuously for five years between the ages of fourteen and twenty-eight.1 The plaintiff, Aldo Mario Bellei, was born in Italy to an Italian father and a U.S. citizen mother in 1939.2 Despite his birth abroad, Bellei acquired his U.S. citizenship under the Equal Nationality Act of 1934 (the law in effect at the time of his birth) because his U.S. citizen mother had established her residence in the United States before Bellei’s birth.3 Bellei, who lived most of his life in Italy and periodically visited the United States, eventually lost his U.S. citizenship in 1962 because he failed to satisfy the INA’s continuous residence requirement.4

Bellei argued that the INA’s residency condition violated his constitutional rights.5 A federal district court agreed, ruling that the requirement was unconstitutional in light of the Supreme Court’s decisions in Schneider v. Rusk and Afroyim v. Rusk.6 In Schneider, the Supreme Court had held that a separate INA provision revoking the citizenship of a naturalized U.S. citizen who subsequently resided in her former country of nationality for three years violated due process under the Fifth Amendment because there was no similar restriction against foreign residence for native-born U.S. citizens.7 In Afroyim, the Court invalidated an INA provision that terminated the citizenship of a naturalized U.S. citizen who voted in a foreign election, holding that, under the Fourteenth Amendment, a U.S. citizen has a constitutional right to remain a citizen unless he voluntarily relinquishes citizenship.8

The Supreme Court held that applying the INA’s residency condition to Bellei did not violate the Fourteenth Amendment’s Citizenship Clause, which provides that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” 9 The Court determined that the protections against involuntary expatriation under the Fourteenth Amendment applied only to those who were “born or naturalized in the United States.” 10 The Court noted that Bellei, who had lived in Italy most of his life, was not born or naturalized in the United States, and had not been subject to the jurisdiction of the United States.11 The Court distinguished these facts from Schneider and Afroyim, where the plaintiffs had naturalized and resided in the United States.12 The Court declared that the Fourteenth Amendment “obviously did not apply to any acquisition of citizenship by being born abroad of an American parent.” 13 Thus, the Court explained, it was “necessarily left” to Congress, under its power “to establish an uniform rule of naturalization,” to determine when a person born abroad to U.S. citizen parents may become a citizen.14

Given “[t]he reach of congressional power in this area,” and the Court’s prior recognition of that power, the Supreme Court held that imposing the INA’s residency condition on Bellei was not “irrational, arbitrary, or unfair.” 15 The Court stated that “Congress has an appropriate concern with problems attendant on dual nationality,” particularly when a child’s non-U.S. citizen father chooses to raise his family in his home country rather than the United States.16 In those circumstances, the Court noted, “[t]he child is reared, at best, in an atmosphere of divided loyalty.” 17 In light of these concerns, the Court determined that Congress may require a person born abroad to establish a sufficient connection to the United States to enjoy the benefits of citizenship.18 The Court concluded that it was reasonable for Congress to impose a conditional period of residence for aliens born abroad to U.S. citizen parents, and that the INA provision containing this requirement was constitutional.19

The Supreme Court’s decision in Bellei underscores that Congress has broad power over naturalization, and that it may set forth the terms and conditions in which an alien may become a U.S. citizen as long as those terms are not “unreasonable, arbitrary, or unlawful.” 20

1: 401 U.S. 815, 816 (1971).
2: Id. at 817.
3: Id. at 818, 826.
4: Id. at 818–20.
5: Id. at 820.
6: Id.
7: Schneider v. Rusk, 377 U.S. 163, 168–69 (1964).
8: Afroyim v. Rusk, 387 U.S. 253, 267–68 (1967).
9: Bellei, 401 U.S. at 827; see also U.S. Const. amend. XIV, § 1.
10: Bellei, 401 U.S. at 827.
11: Id.
12: Id.
13: Id. at 830; see also United States v. Wong Kim Ark, 169 U.S. 649, 688 (1898) ( “This sentence of the Fourteenth Amendment is declaratory of existing rights, and affirmative of existing law, as to each of the qualifications therein expressed,––'born in the United States,’ and ‘subject to the jurisdiction thereof'; in short, as to everything relating to the acquisition of citizenship by facts occurring within the limits of the United States. But it has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the constitution to establish a uniform rule of naturalization.” ).
14: Bellei, 401 U.S. at 829–30.
15: Id. at 828, 833.
16: Id. at 831–32.
17: Id. at 832.
18: Id. at 832–33.
19: Id. at 833–34, 836. Furthermore, observing that Congress already imposes a “condition precedent” requiring the U.S. citizen parent to have been in the United States for at least ten years prior to the birth of the child, the Court determined that “it does not make good constitutional sense, or comport with logic, to say, on the one hand, that Congress may impose a condition precedent, with no constitutional complication, and yet be powerless to impose precisely the same condition subsequent” on the child seeking citizenship. Id. at 834.
20: Id. at 831; see also United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898) ( “Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law.” ). Ultimately, with respect to children born abroad to a U.S. citizen parent and an alien parent, Congress in 1978 removed the residence requirement for children that had been challenged in Bellei. Act of Oct. 10, 1978, Pub. L. No. 95-432, § 1, 92 Stat. 1046.