The Nature of American Emigration Cycles:
A Qualitative Longitudinal Analysis

MagdalenaI. Rappl
Tennessee Technological University

SECTION I
INTRODUCTION
     The purpose of this project is to acquire knowledge on the principal factors molding the nature of American emigration cycles, reflected in the choices of individuals to emigrate, expatriate or denaturalize, over time. The secondary purpose is to document changing patterns in the core beliefs underpinning the legislative and judicial responses to these actions over time in an attempt to establish a cohesive Emigration Policy.
     Section II presents the historical preamble, consisting of a description of the evolution of the nature of the legislative and judicial responses to the processes of emigration, expatriation and denaturalization. It presents an analysis of how the reasons have evolved over time, and how these new and ongoing challenges have worked themselves into the legislative and judicial decisions.
     The next task of this research endeavor consists of developing a classification system in order to generate an Emigration Flow Behavioral Model. This Model describes emigration trends, the rules governing the trends, and the patterns in core beliefs, over historical sweeps of time. In Section III the author summarizes the fundamental tenets instinct with this system.
     In Section IV, the author presents an Analysis of Perception of the legislative and judicial responses in their objective to develop an adaptable, efficient, and user-friendly Emigration Policy. To do so, this author designs and develops the Eight Canons of Migratory Flow Management. The eight canons produce eight indicators. The integration of significant indicators leads to the generation of a composite index titled Emigration Holistic Fluidity Index. The last section, Section V, contains the Summary, Principal Findings and Conclusions.
SECTION II
HISTORICAL PREAMBLE
EVOLUTION OF THE NATURE OF LEGISLATIVE AND JUDICIAL RESPONSES
     The purpose of this section is to study the processes of emigration, expatriation and denaturalization, analyze how the reasons and causes have evolved over time, and how these new and ongoing challenges have worked themselves into legislative and judicial decisions. Under current immigration law, U.S. Citizenship may only be relinquished by carrying out one of the acts described in the statute, and doing so in a voluntary and intentional manner. (1),(2)  In what follows, this author describes the ideological evolution that culminated in the current ideological climate.
STAGE ONE: PERPETUAL ALLEGIANCE
     In the early days of the United States as a nation, in accordance with common law, allegiance to a person’s place of birth was immutable. This custom represented a carry-over from early colonial times, during which the British Crown imposed the doctrine of perpetual allegiance, which stated that a subject did not have the right to terminate his allegiance to his place of nativity. This ideological framework became widely accepted in the United States as well as the British colonies on a world-wide basis. (3) With the exception of an Act of Congress, explicitly giving a citizen the right to renounce his allegiance to the United States, the rule of perpetual allegiance would automatically prevail in all cases. As late as the 1830’s neither the U.S. Constitution or the U.S. Code had evolved away from the doctrine of perpetual allegiance. (4), (4a) There were no explicit prescriptions concerning whether or how a person could relinquish his citizenship up to this point in time.
     Justice Story applied the rule of perpetual allegiance as late as 1830, in total disregard of the Treaty of 1783. During this period, marriage to an alien did not produce dissolution of the native allegiance of an American citizen. Likewise, no person could change their allegiance without an explicit Act of Congress. However, according to the Treaty of 1783, leaving the United States for Great Britain served as a virtual dissolution of allegiance to the U.S. and beginning of allegiance to Great Britain. Justice Story sent a writ of error to the highest court of appeals proclaiming the preponderance of the rule of perpetual allegiance over the tenets of the Treaty of 1783. (5)
STAGE TWO: EXPATRIATION AS A NATURAL AND INHERENT RIGHT
     In 1868, in response to the hardships experienced by foreign nationals who had migrated to the United States, and who were trying to free themselves of the jurisdictional subjugation of their countries of origin, the U.S. Congress declared in the preamble to a new statute titled 5 United States Statute at Large, and also known as the Expatriation Statute, that “the right to expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness.” (6), (6a) In essence, the statutory preamble of the Act of July 27, 1868 paved the rights of foreign nationals who had migrated to the United States to become American citizens by naturalization, and affirmed their rights to relinquish their citizenship and allegiance to their country of birth.  In this ideological phase, it had not yet been explicitly determined whether or how a U.S. citizen could expatriate, yet, implicitly, the possibility was established.
     Later on, in the same year of 1868, the U.S. government proceeded to explicitly declare the right of expatriation of U.S. citizens, in the Bancroft Treaties. Acting in a very precautionary manner, while treading on unchartered territory, the Attorney General’s opinion prepared for the Department of State, suggested a case-by-case approach. The Department of State would exercise the administrative authority to evaluate and declare expatriation, following the actions of allegiance to a foreign country, or naturalization in a foreign country, or relinquishment of citizenship in the United States. (7), (7a) Ideologically, the purpose of the Bancroft Conventions was to generate a legal impediment to using naturalization as a means of avoiding military service and any other legal obligation in the country of nativity.
STAGE THREE: SPECIFICATION OF REBUTTABLE PRESUMPTIONS
     Nearly four decades later, in 1907, the U.S. Congress was compelled to approach the subject of loss of U.S. citizenship one more time. In the Citizenship Act of March 2, 1907, it developed a specific list of actions that could culminate in the loss of citizenship, such as taking an oath of allegiance to a foreign country, or naturalizing in a foreign country. In addition, naturalized U.S. citizens were treated under the presumption that they had expatriated, if they either lived two consecutive years in their country of origin, or five consecutive years in another country other than their country of origin. This presumption was explicitly rebuttable, meaning that it could be opposed by formal legal argument.  In cases of marriages to foreign nationals, leading to emigration, and subsequent return immigration, U.S. citizens could submit a petition to reclaim their citizenship, in alignment with the ideological tenet that the presumption of expatriation was rebuttable. (8) The act also addresses the rights of U.S. children born outside of the United States upon reaching the age of eighteen years, and practices to maintain their citizenship.
STAGE FOUR: INCONGRUENCY BETWEEN LEGISLATIVE ACTIONS AND JUDICIAL INTERPRETATIONS
     Taking inventory, at this stage of evolution in the ideological process, the U.S. Congress had passed a law containing a list of voluntary actions leading to voluntary or involuntary expatriation, from the point of view of the individual. However, from the perspective of the U.S. Supreme Court, both the actions leading to expatriation and the resulting expatriation were viewed as voluntary, due to the fact that the decider was in control of the actions. (3), (9),(9a)
STAGE FIVE: MORE INCONGRUENCY: THE LOSS OF U.S. CITIZENSHIP DUE TO MISCONDUCT AND THE SUPREME COURT’S DECLARATION OF UNCONSTITUTIONALITY
     This section studies a series of laws enacted by the U.S. Congress that set forth provisions that could result in the irrevocable loss of citizenship, such as desertion from the U. S. military service.  The Supreme Court declared that these provisions, used as forms of punishment in such cases of misconduct, as unconstitutional, and likewise, a violation of due process. (10), (10a), (10b), (10c)
STAGE SIX: MORE INCLUSIVENESS IN THE CURRENT STATUTE: SEVEN COMMON TYPES OF ACTIONS CAN RESULT IN LOSS OF CITIZENSHIP
     Under the current Immigration and Nationality Act there exist seven types of actions that may result in expatriation, in the form of loss of an individual’s citizenship right by birth or naturalization. They are summarized as (11), (1), (2)

1. Obtaining naturalization in a foreign state after the age of 18;
2. Taking an oath of allegiance, or making a declaration of allegiance to a foreign state or political subdivision thereof:
3. Entering or serving in the armed forces of a foreign state, if these armed forces are engaged in hostilities against the United States, or acting in the capacity of a commissioned or non-commissioned officer;
4. Accepting employment under the government of a foreign state, after the age of 18, if he has or acquires the nationality of that state, or carries out an oath of allegiance to that state;
5. Making, outside of the United States, a formal renunciation of U.S. nationality in the presence of a U. S. diplomatic or consular officer, in a manner prescribed by the Secretary of State;
6. Making, inside of the United States, a formal written renunciation of nationality, as prescribed the Attorney General, under certain circumstances;
7. Committing an act of treason, conspiring to overthrow or bearing arms against the United States, if and when the individual is convicted by a court martial.

Generally, the actions described in categories I, 2 and 4 above represent necessary but not sufficient evidence leading to the loss of U.S. citizenship. Categories 3, 5, 6 and 7 represent necessary and sufficient evidence leading to the loss of U.S. citizenship.
STAGE SEVEN: REQUIREMENT OF VOLUNTARY AND INTENTIONAL ACTIONS FOLLOWED BY VERIFICATION PROCESS
     In addition to the seven types of actions specified above, there exist two additional constitutional requirements prescribed by the U.S. Supreme Court, namely, that the actions have to be voluntary and intentionally carried out with the purpose of relinquishing the U.S. nationality. Even though it is presumed that the person acted voluntarily, such presumption may also be rebutted. In this case, the burden of proof shall rest on the person claiming the loss of nationality, and this loss can be rebutted by a preponderance of the evidence that the actions committed were not voluntary, but rather involuntary or coerced. (11), (1), (2), (12), (13), (14)
STAGE EIGHT: THE STAGE OF SCIENTIFIC PRECISION AND EXTENSIVE CONTROL BY THE INDIVIDUAL
     Under the current ideological climate, the primary objective is to protect a person’s U.S. citizenship against unintentional loss. To effectuate relinquishment of nationality, a series of prescribed, and voluntary, and intentional actions have to be carried out by the individual. Additionally, the U. S. State Department’s policy since 1990 presumes that, if an individual acts to become naturalized in a foreign country, or makes a declaration of allegiance to a foreign country, or takes on a low-level, non-critical job under a foreign government, the intention is to safeguard U. S. citizenship. Furthermore, if brought to the attention of the U.S. Consulate, the individual must confirm his intentions to retain U.S. citizenship, in written manner in the presence of a U.S. consular officer, who certifies the declaration and passes it along to the State Department.  However, if the individual intends the relinquishment of his U.S. nationality, the U.S. Consulate will issue a Certificate of Loss of Nationality. The date of the loss of nationality will coincide with the date that the act of expatriation was performed. (11), (1), (2)
STAGE NINE: THE POWERS OF ANY AND ALL U.S. ATTORNEYS
     Under the current ideological climate, even though citizenship by birth is strongly protected against unintentional loss, citizenship by naturalization is strongly protected under certain conditions of personal integrity. In cases of questionable integrity concerning the naturalization process,   any U.S. Attorney has the power to introduce an action in federal court for the purpose of cancelling a certificate of naturalization. If there exists persuasive evidence indicating that the certificate was illegally procured, by using false or incomplete information, the naturalization process can be reversed.  (15)
STAGE TEN: THE POTENTIAL RETURN TO VOLUNTARY PERPETUAL ALLEGIANCE AND THE POSSIBILITY OF AN OPEN-DOOR CLAUSE FOR RETURN IMMIGRATION OF U.S. CITIZENS? (16) (17) (18) (19) (20) (21) (22) (23)
     For over one decade, starting in 1996, emigration is being propelled by an entirely new set of variables. The principal reasons for emigration, expatriation and denationalization are mostly financial in nature. High net worth individuals are becoming citizens of the world. In response to this trend, the U.S. Congress added an amendment to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (26 USC 877(a)(1)). This amendment gives the Internal Revenue Service the right to tax expatriates for ten consecutive years after relinquishing U.S. citizenship. Secondly, HIPAA also includes an amendment containing a provision mandating the transparency of expatriation rosters. (26 USC 6039G (e) (3)). The roles of expatriates are published in the Federal Register on a quarterly basis.
     A third response to this trend is found in an amendment to the Immigration and Nationality Act of 1986, (8 USC  1182(a)(10)(E), titled Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). The amendment contains upper limits or time ceilings for expatriates concerning their entry and stay in the United States if the reasons for emigration are primarily deemed to be tax evasion.
     A fourth response to financially motivated emigration is contained in the proposal (S. 1701). The Senate bill, titled Civil Asset Forfeiture Reform Act of 1999, proposed the full disclosure of foreign asset holdings in order to preserve the legal right to challenge property forfeitures in the United States.
     A fifth response to financially motivated emigration is embedded in the Jobs Creation Act of 2004. This law significantly changed the expatriation tax rules in the Internal Revenue Code section 877. The presumption of tax avoidance was replaced with an objective standard and with a new physical presence test.
     Four years later, a sixth response to financially motivated emigration was set forth, with the passage of the Heroes Earnings Assistance and Relief Tax Act of 2008. The most relevant amendment is contained in the expatriation tax section. The IRC section 877A replaces IRC section 877. Section 877A grants the IRS authority to tax net unrealized gains on the world wide property of expatriating persons.  It also imposes a tax on recipients of gifts from expatriating persons. (Section 2801)
     The Fair Tax Act 2007 (HR 25, 110th Congress) is another response to financial emigration. This seventh response represents an ideological inflexion from the previous responses.  (HR 25) otherwise known as the National Retail Sales Tax Bill, has the side benefit of potentially replacing the financial privacy disincentives contained in the Patriot Act with financial incentives. It would serve as a motivator to slow down expatriating individuals and expatriating capital, and perhaps reverse the flows.
SECTION III
HISTORICAL EMIGRATION FLOW BEHAVIORAL MODEL
(See Model)
SECTION IV
QUALITATIVE ANALYSIS OF THE EVOLUTION OF CORE BELIEFS AS REFLECTED IN THE FACILITATION OF EMIGRATION, EXPATRIATION AND DENATURALIZATION FLOWS
EMIGRATION HOLISTIC FLUIDITY INDEX
     The author’s survey of the emigration, expatriation and denaturalization case history provides sufficient information to develop an Emigration Holistic Fluidity Index. The author accomplishes this by designing, building and consolidating the Eight Canons of Migratory Flow Management, and then integrating the eight relevant indicators which devolve from the canons. The Index measures the degree of evolution in the facilitation, the efficiency, and the policy consistency expressed toward outgoing flows, by incorporating the following information:

1. The Feasibility Canon: The feasibility of emigration, expatriation or denaturalization under the statute, over time
2. The Procedural Existence Canon: The existence/availability of a specific set of rules and regulations to follow, over time
3. The Consistency Canon: The degree of consistency of the procedures and interpretations, over time
4. The Safeguard Canon: The emphasis on safeguarding citizenship rights, over time
5. The Clarity Canon: The clarity and degree of logic in the presentation of procedural steps, over time
6. The Efficiency Canon: The degree of efficiency as reflected in the minimization of compliance costs, over time
7. The Egalitarianism Canon: The degree of egalitarianism as expressed in the application of policy, over time
8. The Flexibility Canon: The degree of flexibility as reflected in the degree of openness to suggestions, over time

CONSTRUCTION OF THE EMIGRATION HOLISTIC FLUIDITY INDEX
     The Index components developed in this section devolve directly from the Eight Canons of Migratory Flow Management, otherwise known as the eight benchmarks of efficiency in the management of demographic flows. In addition, these Index components chosen to be included below reflect the major challenges, and the recurrence of these major challenges, and the importance placed on these challenges, by the courts and the legislature, over time.  They also reflect the turn-around time concerning resolution of a case, the intensity of the debate over potential disagreements, the relevance placed on the case by the U.S. Congress and the Court System, as well as the consistency in their approaches.
DATA COMPILATION
     The data set for the Emigration Holistic Fluidity Index measurements was obtained by compiling the results from the Questionnaire on Historical Emigration Flows Management summarized below.  Appropriate weights were placed on a series of significant indicators of facilitation and efficiency in the process of emigration, expatriation, or denaturalization.
     The results were collected and compiled in the summer of 2008, for the ten principal phases of ideological evolution. The eight relevant indicators where applied consistently to the ten phases of ideological evolution. The results represent the perceptions of a sample of migration specialists. An abridged version of the building blocks for the application of the Index is presented below. A more complete treatment of the eight relevant indicators is contained in Appendix A.  Appendix A is available upon request from the author.
EMIGRATION HOLISTIC FLUIDITY INDEX INTERPRETATION
     The scores obtained from the data analysis are found in Section III, under the column title Emigration Holistic Fluidity Index.  In general, the scores can be interpreted in terms of the three categories described here:
     ONE: 100 to 67 points indicate: a high level of facilitation and efficiency in the emigration, expatriation, or denaturalization flow. The policy outcomes are consistent with the free flow of human resources across political and economic borderlines.
     TWO: 66 to 34 points indicate: a normal level of facilitation and efficiency. The policy outcomes represent substantial impediments to the free flow of human resources from areas of excess supply to areas of excess demand.
     THREE: 33 to 0 points indicate: a low level, or non-existence of facilitation and efficiency. The policy outcomes represent unsurpassable barriers to demographic mobility and the free flow of human resources.
SECTION V
SUMMARY, PRINCIPAL FINDINGS, CONCLUSION AND RECOMMENDATION
SUMMARY
     The purpose of this project was to acquire knowledge on the principal factors molding the nature of American emigration cycles, as expressed in the choices of individuals to emigrate, expatriate, or denaturalize, over time. The secondary purpose was to document the legislative and judicial responses to these actions, as conditioned by the changing patterns in core beliefs, over time.
     When interpreting the results of the Historical Emigration Flows Management Questionnaire and applying them to the Emigration Holistic Fluidity Index, it was determined that:

1. In Stages One and Two there appears a non-existent, to very low, to low level of facilitation, efficiency and flexibility. The policy outcomes represent total and unsurpassable barriers to demographic mobility and the free flow of human resources.
2. As time advances from Stage Three to Stage Five, the level of facilitation rises, levels off, drops, and increases again.
3. In Stages Six, Seven and Eight, there appears a normal, to noticeably smooth level of facilitation, efficiency and adaptability. The policy outcomes still represent a substantial impediment to the free flow of human resources from excess supply to areas of excess demand.
4. In Stages Nine and Ten, there appears a higher level of facilitation, efficiency and evolution in the emigration, expatriation and denaturalization process. The policy outcomes are more consistent with the free flow of human resources across political and economic barriers. The level of facilitation is very high for exit migration, but is less user-friendly for re-entry purposes.

CONCLUSION
     The documentation process facilitated by the Questionnaire and the Questionnaire results brought this researcher back to the original Historical Emigration Flow Behavioral Model. The Model seems to capture numerous distinctive phases in the evolution of reasons for emigration actions, reasons for legislative and judicial outcomes, and reasons for evolving core beliefs.
     Unfortunately, but not surprisingly, when using  any (of the ten) current ideological climate as a predictor for future ideological environments, with the expectations of relative continuity in core beliefs, numerous inconsistencies and surprises arise. The inconsistencies or discontinuations are generally attributable to previously unforeseen and unexpected significant variables outside the range of normal and seen possibilities. These variables are usually the actions of departing individuals.

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HISTORICAL EMIGRATION FLOW BEHAVIORAL MODEL

*   Details on the construction of the Index are presented in Section IV.  The Index serves as an external audit score.