Waiver of Oath of Allegiance for Candidates for Naturalization ( 1997 )

Waiver of Oath of Allegiance for Candidates for Naturalization
T he required oath o f allegiance as a condition o f naturalization under section 337 o f the Im m igration
and Nationality Act, 8 U.S.C. § 1448(a), cannot be waived.
February 5, 1997
M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l
Im m ig r a t io n a n d N a t u r a l iz a t io n S e r v ic e
This letter responds to your request for the advice of this Office as to whether
the Immigration and Naturalization Service ( “ INS” ) can waive the statutory
requirement that all applicants for naturalization take an oath of allegiance, found
at section 337(a) of the Immigration and Nationality Act (“ INA” ), 8 U.S.C.
§ 1448(a) (1994). See Memorandum for Dawn Johnsen, Acting Assistant Attorney
General, Office of Legal Counsel, from David A. Martin, General Counsel,
Immigration and Naturalization Service (Jan. 8, 1997) (“ INS Memo” ). We gave
you our views on this question by telephone on January 31, 1997, and hereby
memorialize that advice.
It is our conclusion that the oath requirement of section 337 cannot be waived.
Since the earliest days of our republic, Congress has exercised its power to “ estab­
lish an uniform Rule of Naturalization,” U.S. Const, art. I, §8, cl. 4, to require
some form of an oath of allegiance as a condition of naturalization. See Act of
March 26, 1790, ch. 3, § 1, 1 Stat. 103, 103 (requiring applicants for naturalization
to take oath “ to support the Constitution of the United States” ); see also Charles
Gordon, Stanley Mailman & Stephen Yale-Loehr, 7 Immigration Law and Proce­
dure §96.05[1] (1996) (noting that “ U.S. naturalization laws have always required
an oath of allegiance as a prerequisite to naturalization” and chronicling statutory
evolution of that oath). As “ a promise of future conduct,” Knauer v. United
States, 328 U.S. 654, 671 (1946), the oath of allegiance has been, and remains,
an “ indispensable legal requirem ent ]” of naturalization. United States v. Tuteur,
215 F.2d 415, 417 (7th Cir. 1954); see also United States v. Shapiro, 43 F. Supp.
927, 929 (S.D. Cal. 1942) (“ The alien makes a contract with the government
of the United States. In return for the benefits and high privileges bestowed upon
the alien, he makes a solemn agreement expressed in the oath required of all
who become citizens.” ); cf. Luria v. United States, 231 U.S. 9, 22 (1913) ( “ Citi­
zenship is membership in a political society and implies a duty of allegiance on
the part of the member and a duty of protection on the part of the society. These
are reciprocal obligations, one being a compensation for the other.” ).
The current version of the oath of allegiance contains five elements: (1) support
the Constitution; (2) renounce all allegiance to any foreign state or sovereign;
(3) support and defend the Constitution and laws of the United States against
all enemies; (4) bear “ true faith and allegiance” to the same; and (5) bear arms,
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Opinions o f the Office o f Legal Counsel in Volume 21
perform noncombatant service, or perform work of national importance on behalf
of the United States. 8 U.S.C. § 1448(a). In order to attain U.S. citizenship, an
applicant must satisfy each of these elements, for the INA demands strict compli­
ance with its statutory conditions.1 See 8 U.S.C. § 1421(d) (1994) ( “ A person
may only be naturalized as a citizen of the United States in the manner and under
the conditions prescribed in this subchapter and not otherwise.") (emphasis
added); cf. INS v. Pangilinan, 486 U.S. 875, 884 (1988) (courts’ role in naturaliza­
tion process requires “ strict compliance with the terms of [the] authorizing
statute” ). Moreover, courts have long recognized that naturalization is a privilege,
not a right, to be granted only in accordance with the precise conditions estab­
lished by Congress. See Rogers v. Bellei, 401 U.S. 815, 830 (1971) ( “ ‘No alien
has the slightest right to naturalization unless all statutory requirements are com­
plied with.’ ” ) (quoting United States v. Ginsberg, 243 U.S. 472, 475 (1917)).
Your memorandum raises the possibility that Congress might have intended to
waive the oath of allegiance requirement when, in 1994, it amended section 312(b)
of the INA to permit waiver of the English language and civics requirements for
naturalization applicants who are “ unable because of physical or developmental
disability or mental impairment to comply therewith.” 8 U.S.C. § 1423(b)(1)
(1994). According to this argument, by waiving the English language and civics
requirements for disabled applicants who would otherwise be denied naturaliza­
tion, Congress must also have intended to waive the oath of allegiance for those
disabled applicants who could not satisfy that requirement.
We agree with the conclusion reached in your memorandum that this argument
is unpersuasive. INS Memo at 3. To begin with, as you have also noted, not
all disabled applicants who would benefit from a waiver of the English language
and civics requirements would also need a waiver of the oath requirement in order
to become U.S. citizens. The fact that Congress chose to waive one statutory
requirement for a certain subset o f naturalization applicants in no way compels
the conclusion that Congress thereby implicitly intended to waive another statutory
requirement for a larger subset of applicants. On the contrary, both the language
and legislative history of section 312(b) indicate that Congress intended only to
waive the English language and civics requirements. See 8 U.S.C. § 1423(b)(1)
(waiver applies only to § 1423(a), language and civics requirements); 140 Cong.
Rec. 29,220 (1994) (Rep. Mineta’s statement that individuals obtaining waiver
under section 312(b)(2) would benefit immigrants “ who are eager to declare their
loyalty to this, their adopted country, by taking the oath of citizenship” ).
Indeed, it can be argued that Congress’s failure to provide an explicit waiver
of the oath requirement supports the view that Congress considered the oath of
allegiance a critical, indispensable element of the naturalization process. To be
■The only category o f naturalization applicants that Congress exempted from the oath requirement are children
who are applying for derivative citizenship pursuant to 8 U .S C §1433 (1994) and who, m the opinion of the
Attorney G eneral, are “ unable to understand [the o a th ’s] meaning ” 8 U.S C. § 1448(a).
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Waiver o f Oath o f Allegiance fo r Candidates fo r Naturalization
sure, Congress recognized that there might be naturalization applicants who,
because of serious illness, permanent or developmental disability, advanced age,
or other exigent circumstances, would be unable to take the oath of allegiance
in a public ceremony as required by section 337(a). In 1990, Congress accommo­
dated the needs of such applicants through the establishment of an alternative,
expedited procedure for administration of the oath. See 8 U.S.C. § 1448(c).
Notably, however, Congress chose not to excuse them from the oath requirement
altogether, thereby reaffirming the centrality of the oath to the naturalization
process.
In concluding that the oath requirement of section 337 cannot be waived, we
do not disagree with the proposition advanced in your memorandum that section
504 of the Rehabilitation Act, 29 U.S.C. §794 (1994), might require some sort
o f accommodation for persons who, because of their disabilities, cannot take the
oath of allegiance. Whether there exists any accommodation to the oath require­
ment that would not result in a “ fundamental alteration” of the naturalization
program, see Southeastern Community College v. Davis, 442 U.S. 397, 410 (1979),
and what the parameters of such an accommodation might be, are difficult and
complex questions. Should you determine that you would like us to address these
questions, we will solicit the views of the Civil Rights Division and the State
Department.
DAWN E. JOHNSEN
Acting Assistant Attorney General
Office o f Legal Counsel
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