Eligibility of a Noncitizen Dual National for a Paid Position Within the Department of Justice
The D epartm ent o f Justice must determine the “ dominant, effective" nationality o f a noncitizen with dual nationality to determine that person’s eligibility for a paid position in the Department under section 606 o f the Treasury, Postal Service, and General Government Appropriations Act, 1997.
O c to b e r 11, 1996
M e m o r a n d u m O p in io n for t h e A s s is t a n t D ir e c t o r O f f ic e of Atto r n ey Perso nn el M anagem ent
You have sought our views on the question whether, in light of section 606 of the Treasury, Postal Service, and General Government Appropriations Act, 1997, Pub. L. No. 104-208, 110 Stat. 3009-314, -354 (1996) (“ section 606” ), the Department of Justice may offer a paid position to a noncitizen who is a national of two foreign States.1 Section 606 prohibits, with various exceptions, the use of appropriated funds to employ noncitizens whose post of duty is in the continental United States; the prohibition is, however, inapplicable to “ nation als of those countries allied with the United States in the current defense effort.” In the case you have described, a noncitizen law student, who is a dual national of Canada and Bangladesh, is an applicant for the Department’s Summer Law Intern Program. That program involves employment at the GS-7 level solely with in the continental United States. The State Department maintains a list of countries “ allied with the United States in the current defense effort.” 2 You have advised us that Canada is included on this list, but that Bangladesh is not. Although Congress has repeatedly enacted appropriations laws that restrict the employment of noncitizens, it has also significantly modified those restrictions through a series of exceptions. See Hampton v. M ow Sun Wong, 426 U.S. 88, 108-09 (1976). Specifically, in 1943, it created an exception for “ ‘nationals of those countries allied with the United States in the prosecution of the war’ ” Id. at 109 (quoting Act of June 26, 1943, ch. 146, 57 Stat. 196, 196). That exception,
xSee M emorandum for Richard L. Shiffrin, Deputy Assistant Attorney General, Office o f Legal Counsel, from M arc R. Salans, Assistant Director, Office o f Attorney Personnel Management, Re: Eligibility o f Dual Citizen for Paid Position (Oct. 7, 1996). 2 W e have review ed the basis of the S tate Department’s determinations in Memorandum to Files, from Todd D. Peterson, A ttorney Advisor, Office o f L egal Counsel, Re: Request for Advice from Administrative Office o f United States Courts Concerning the Interpretation o f 31 U.S.C. §699(b) (Dec. 20, 1982) (the “ Peterson M emo” ). W e note that the Comptroller General's O ffice has stated that the decision concerning what countries should be considered “ allied'* is a political one, w hich it will not challenge in an audit. In particular, it has stated that “ a determ ination that Canada is allied with th e United States in the current defense effort is a political judgm ent not subject to the decision o f this Office. However, we believe it to be a commonly accepted fact that C anada is so allied, and we would not question an affirm ative administrative determination to that effect.” Matter of: Clarence D. Swanson, U npublished Opinion B-188852, 1977 W L 12358 at *3 (C.G.).
366 Eligibility o f a Noncitizen Dual National fo r a P aid Position Within the Department o f Justice
the substance of which has often been re-enacted, is the basis of the present section 606. See Peterson Memo at 1.
Analysis
The plain language of section 606 does not decide the question presented. It is true that the applicant is a national of an “ allied” country, and so would seem eligible for hire. But it is also true that the applicant is a national of a nonallied State, and thus would remain subject to the general ban on noncitizens. Moreover, Congress has crafted careful, narrowly drawn exceptions in section 606 for the nationals of particular nonallied countries (e.g., for aliens from Cuba, provided they are lawfully admitted permanent residents, or for nationals of the People’s Republic of China, if they qualify for adjustment of status under the Chinese Stu dent Protection Act). It would seem, therefore, that nationals of other nonallied countries should remain ineligible, notwithstanding that they may also happen to have the nationality of an “ allied” State. Thus, the language of the statute does not resolve the issue. Similarly, examination of the policies behind section 606 does not yield a straightforward answer. The general exclusion of noncitizens from federal employ ment in the United States seems to be aimed chiefly at protecting national security by ensuring the loyalty of federal employees, encouraging noncitizens who seek federal employment to become naturalized, and shielding United States nationals from competition in a substantial sector of the labor market. See Hampton v. M ow Sun Wong, 426 U.S. at 94, 104 (reviewing arguments of executive branch). The exception for nationals of “ allied” foreign States, on the other hand, serves dis tinct, indeed often contrary, interests: it allows federal employers greater flexibility in meeting their personnel needs; it expresses this Nation’s solidarity with its al lies; and it signifies confidence that the nationals of such allies are unlikely to betray the trust that the United States Government has reposed in them. Any sim ple, “ bright line” rule that treated dual nationals in the applicant’s position as eligible— or as ineligible — would promote some of these policies only at the expense of others. We think that the statute is best read, and the policies behind it most satisfyingly accommodated, by applying the concept of “ effective, dominant nationality.” That concept, which derives from international law ,3 has also been invoked by 3 See Nottebohm (Liechtenstein v. Guatemala), 1955 I.C J. 4, 22 (Apr. 6) ( “ International arbitrators . . . have given their preference to the real and effective nationality, that which accorded with the facts, that based on stronger factual ties between the person concerned and one o f the States whose nationality is involved . . . . Similarly, the courts o f third States, w hen they have before them an individual whom tw o other States hold to be their national, seek to resolve the conflict by having recourse to international criteria and their prevailing tendency is to prefer the real and effective nationality."); see also 8 Marjorie M. Whiteman, Digest o f International Law 1252-55 (1967) (quoting decision o f Italian-United States Conciliation Commission in Merge Claim, see United States ex rel. Merge v. Italy, 22 I.L.R. 443 (Italian-U.S. Conciliation C om m ’n, 1955) discussing international law origins and applications o f concept o f effective, dominant nationality). Continued
367 Opinions o f the Office o f Legal Counsel in Volume 20
the federal courts to resolve disputes under domestic law that involve dual nation als. For example, the court in Sadat v. M ertes, 615 F.2d 1176 (7th Cir. 1980), made use of the concept in analyzing whether the “ alienage jurisdiction” statute, 28 U.S.C. § 1332
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Eligibility of a Noncitizen Dual National for a Paid Position Within the Department of Justice
The D epartm ent o f Justice must determine the “ dominant, effective" nationality o f a noncitizen with dual nationality to determine that person’s eligibility for a paid position in the Department under section 606 o f the Treasury, Postal Service, and General Government Appropriations Act, 1997.
O c to b e r 11, 1996
M e m o r a n d u m O p in io n for t h e A s s is t a n t D ir e c t o r O f f ic e of Atto r n ey Perso nn el M anagem ent
You have sought our views on the question whether, in light of section 606 of the Treasury, Postal Service, and General Government Appropriations Act, 1997, Pub. L. No. 104-208, 110 Stat. 3009-314, -354 (1996) (“ section 606” ), the Department of Justice may offer a paid position to a noncitizen who is a national of two foreign States.1 Section 606 prohibits, with various exceptions, the use of appropriated funds to employ noncitizens whose post of duty is in the continental United States; the prohibition is, however, inapplicable to “ nation als of those countries allied with the United States in the current defense effort.” In the case you have described, a noncitizen law student, who is a dual national of Canada and Bangladesh, is an applicant for the Department’s Summer Law Intern Program. That program involves employment at the GS-7 level solely with in the continental United States. The State Department maintains a list of countries “ allied with the United States in the current defense effort.” 2 You have advised us that Canada is included on this list, but that Bangladesh is not. Although Congress has repeatedly enacted appropriations laws that restrict the employment of noncitizens, it has also significantly modified those restrictions through a series of exceptions. See Hampton v. M ow Sun Wong, 426 U.S. 88, 108-09 (1976). Specifically, in 1943, it created an exception for “ ‘nationals of those countries allied with the United States in the prosecution of the war’ ” Id. at 109 (quoting Act of June 26, 1943, ch. 146, 57 Stat. 196, 196). That exception,
xSee M emorandum for Richard L. Shiffrin, Deputy Assistant Attorney General, Office o f Legal Counsel, from M arc R. Salans, Assistant Director, Office o f Attorney Personnel Management, Re: Eligibility o f Dual Citizen for Paid Position (Oct. 7, 1996). 2 W e have review ed the basis of the S tate Department’s determinations in Memorandum to Files, from Todd D. Peterson, A ttorney Advisor, Office o f L egal Counsel, Re: Request for Advice from Administrative Office o f United States Courts Concerning the Interpretation o f 31 U.S.C. §699(b) (Dec. 20, 1982) (the “ Peterson M emo” ). W e note that the Comptroller General's O ffice has stated that the decision concerning what countries should be considered “ allied'* is a political one, w hich it will not challenge in an audit. In particular, it has stated that “ a determ ination that Canada is allied with th e United States in the current defense effort is a political judgm ent not subject to the decision o f this Office. However, we believe it to be a commonly accepted fact that C anada is so allied, and we would not question an affirm ative administrative determination to that effect.” Matter of: Clarence D. Swanson, U npublished Opinion B-188852, 1977 W L 12358 at *3 (C.G.).
366 Eligibility o f a Noncitizen Dual National fo r a P aid Position Within the Department o f Justice
the substance of which has often been re-enacted, is the basis of the present section 606. See Peterson Memo at 1.
Analysis
The plain language of section 606 does not decide the question presented. It is true that the applicant is a national of an “ allied” country, and so would seem eligible for hire. But it is also true that the applicant is a national of a nonallied State, and thus would remain subject to the general ban on noncitizens. Moreover, Congress has crafted careful, narrowly drawn exceptions in section 606 for the nationals of particular nonallied countries (e.g., for aliens from Cuba, provided they are lawfully admitted permanent residents, or for nationals of the People’s Republic of China, if they qualify for adjustment of status under the Chinese Stu dent Protection Act). It would seem, therefore, that nationals of other nonallied countries should remain ineligible, notwithstanding that they may also happen to have the nationality of an “ allied” State. Thus, the language of the statute does not resolve the issue. Similarly, examination of the policies behind section 606 does not yield a straightforward answer. The general exclusion of noncitizens from federal employ ment in the United States seems to be aimed chiefly at protecting national security by ensuring the loyalty of federal employees, encouraging noncitizens who seek federal employment to become naturalized, and shielding United States nationals from competition in a substantial sector of the labor market. See Hampton v. M ow Sun Wong, 426 U.S. at 94, 104 (reviewing arguments of executive branch). The exception for nationals of “ allied” foreign States, on the other hand, serves dis tinct, indeed often contrary, interests: it allows federal employers greater flexibility in meeting their personnel needs; it expresses this Nation’s solidarity with its al lies; and it signifies confidence that the nationals of such allies are unlikely to betray the trust that the United States Government has reposed in them. Any sim ple, “ bright line” rule that treated dual nationals in the applicant’s position as eligible— or as ineligible — would promote some of these policies only at the expense of others. We think that the statute is best read, and the policies behind it most satisfyingly accommodated, by applying the concept of “ effective, dominant nationality.” That concept, which derives from international law ,3 has also been invoked by 3 See Nottebohm (Liechtenstein v. Guatemala), 1955 I.C J. 4, 22 (Apr. 6) ( “ International arbitrators . . . have given their preference to the real and effective nationality, that which accorded with the facts, that based on stronger factual ties between the person concerned and one o f the States whose nationality is involved . . . . Similarly, the courts o f third States, w hen they have before them an individual whom tw o other States hold to be their national, seek to resolve the conflict by having recourse to international criteria and their prevailing tendency is to prefer the real and effective nationality."); see also 8 Marjorie M. Whiteman, Digest o f International Law 1252-55 (1967) (quoting decision o f Italian-United States Conciliation Commission in Merge Claim, see United States ex rel. Merge v. Italy, 22 I.L.R. 443 (Italian-U.S. Conciliation C om m ’n, 1955) discussing international law origins and applications o f concept o f effective, dominant nationality). Continued
367 Opinions o f the Office o f Legal Counsel in Volume 20
the federal courts to resolve disputes under domestic law that involve dual nation als. For example, the court in Sadat v. M ertes, 615 F.2d 1176 (7th Cir. 1980), made use of the concept in analyzing whether the “ alienage jurisdiction” statute, 28 U.S.C. § 1332(a)(2), which vests the district courts with jurisdiction over civil actions between citizens of States of the United States and citizens of foreign States, gave rise to jurisdiction in a case involving a naturalized citizen who was also an Egyptian national under that country’s law s.4 The court explained the concept as follows:
Under international law, a country is responsible for official con duct harming aliens, for example, the expropriation of property without compensation. It is often said, however, that a state is not responsible for conduct which would otherwise be regarded as wrongful if the injured person, although a citizen of a foreign state, is also a national of the state taking the questioned action . . . .
Despite the general rule of nonresponsibility under international law for conduct affecting dual nationals, there are recognized ex ceptions. One is the concept of effective or dominant nationality . . . . [T]his exception provides that a country (respondent state) will be responsible for wrongful conduct against one of its citizens whose dominant nationality is that of a foreign state, that is,
(i) his dominant nationality, by reason of residence or other association subject to his control . . . is that of the other state and (ii) he . . . has manifested an intention to be a national of the other state and has taken all reasonably prac ticable steps to avoid or terminate his status as a national of the respondent state.
R estatem ent (Second) o f the Foreign Relations Law o f the United States § 171(c) (1965).
615 F.2d at 1187 (citation omitted). Applying the Restatement' s tests, the Sadat court found that the plaintiff was not a “ citizen[] or subject[] of a foreign state” under 28 U.S.C. § 1332(a)(2), The doctrine o f dominant and effective nationality rests on tw o fundamental principles that reflect a contem porary view o f the link of nationality. First, the concept o f nationality embodies more than a tenuous legal bond asserted by municipal law . . . . Second, nationality is a product o f personal choice and action. The conduct o f the individual furnishes the only sound juridical foundation for recognition of a single nationality. Note. Claims o f Dual Nationals in the M odem Era: The Iran-United States Claims Tribunal, 83 Mich. L. Rev. 597, 613 (1984) (footnote omitted). 4 Later decisions have followed Sadat. See, e.g., Soghanalian v. Soghanalian , 693 F. Supp. 1091 (S.D. Fla. 1988).
368 Eligibility o f a Noncitizen D ual National fo r a Paid Position Within the Department o f Justice
i.e., that his dominant, effective nationality was American, not Egyptian. Although the plaintiff had resided in Egypt rather than in the United States, his actions “ manifested] his continued, voluntary association with the United States and his intent to remain an American.” 615 F.2d at 1188.5 For example, he had registered with the U.S. Embassy during his sojourns abroad, had cast an absentee ballot in a Presidential election, and had not sought employment that might jeopardize his status as a naturalized U.S. citizen. Id. These tests should be used to determine the dominant, effective nationality of the applicant in question.6 The primary question to be asked is what nationality is indicated by the applicant’s residence or other voluntary associations. A second question is whether the applicant has manifested an intention to be a national of one of the two States, while also seeking to avoid or terminate nationality in the other. Of these two questions, the former will ordinarily be the more impor tant. In Sadat itself, it was the plaintiffs voluntary associations with the United States that led the court to find that his dominant nationality was American: he had not sought to terminate or avoid his Egyptian nationality, and had in fact maintained significant contacts with that country. Consequently, we believe that a dual national can be found to have a dominant, effective nationality of one country, even if he or she takes no affirmative steps to terminate or avoid the nationality of the other— indeed, even if he or she makes a conscious decision to retain the latter nationality.7 We believe that the procedure we have outlined serves the various, and some times conflicting, goals of section 606. In particular, it will enable the United States to demonstrate its good will toward allied States and its confidence in their nationals, without compromising national security. Moreover, the results of fol lowing the procedure should be both fair to individual applicants and satisfactory to federal employers. Because “ municipal law determines how citizenship may be acquired,” Perkins v. Elg, 307 U.S. 325, 329 (1939),8 an applicant may be deemed a national of a particular country under its domestic law, even if he or she has no significant voluntary ties whatever to that country.9 It would be unfair 3 As the Internationa] Court o f Justice explained in Nottebohm, “ the habitual residence o f the individual concerned is an important factor [in determining dominant nationality], but there are other factors such as the centre o f his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc.” 1955 I.C J. at 22. 6 Although making these determinations may entail some administrative inconvenience, we think that the difficulties should not be substantial. 7 We note also that it may be a legal impossibility, under applicable municipal law, for an individual to renounce a particular nationality. Knowing that the effort to renounce that nationality would be futile, the individual may make no attempt to do so. In such a case, the decision not to make such an attempt should obviously not prevent a court or agency from fmding the individual's other nationality to be dominant. e See also Murarka v. Bachrack Bros., Inc., 215 F.2d 547, 553 (2d Cir. 1954) (Harlan, J.) ( “ It is the undoubted right of each country to determine w ho are its nationals, and it seems to be general international usage that such a determination will usually be accepted by other nations.” ). 9 “ Municipal laws broadly applying the doctrine o f jus sanguinis can . . . create dual nationality without regard to the individual's connection to the state. Under this doctrine children are nationals if their parents are nationals. Continued
369 Opinions o f the Office o f Legal Counsel in Volume 20
to deny the possibility of federal employment to that applicant merely because of such an incidental, nonvoluntary status, if the country in question happened to be nonallied. Equally, it would be unreasonable to treat such an applicant as eligible for federal employment merely because the country happened to be allied, when the applicant’s actions and choices demonstrated a conscious commitment to the nationality of another, nonallied State.
RICHARD L. SHIFFRIN D eputy Assistant A ttorney General Office o f Legal Counsel
irrespective o f the links (birth o r domicile) between the child and the state.” Note, supra note 3, at 607 (footnote om itted).