" Kurland, Foreward: "Equal in Origin and Equal in Title to the Legislative and Executive Branches of the Government," 78 Harv.L.Rev. 143, 174 (1964). If Perez is no longer controlling, then I am inclined to read Jalbuena v. Dulles, 254 F.2d 379 (3 Cir. 1958), as good authority for the proposition that the expatriation statutes have limited application to dual nationals. See also Dulles v. Katamoto, 256 F.2d 545, 548-549 (9 Cir. 1958).
The significance of the differing interpretations of the Mexican law is that if citizenship were not acquired automatically upon marriage, then the oath was undertaken to procure citizenship and may indicate an intention to abandon United States citizenship. If, however, Mrs. Burns became a Mexican citizen immediately upon marriage, then her application for a certificate of nationality can be seen as a routine act of a dual citizen availing herself of a prerogative of her Mexican nationality. See Kawakita v. United States, 343 U.S. 717, 72 S.Ct. 950, 96 L.Ed. 1249 (1952); Jalbuena v. Dulles, 254 F.2d 379 (2d Cir. 1958). The arguments developed by the parties as to whether the 1949 law merely restated or changed existing law are both very persuasive.
The implication is unmistakable that while expatriation for such service is no longer limited to dual nationals in Cafiero's position, they are still subject to its operation. Compare Jalbuena v. Dulles, 254 F.2d 379 (3rd Cir. 1958); Dulles v. Katamoto, 256 F.2d 545 (9th Cir. 1958); Tanaka v. Immigration Naturalization Service, 346 F.2d 438, 448 (2nd Cir. 1965) Judge Kaufman dissenting.Jalbuena and Katamoto, both decided shortly after the Perez-Nishikawa-Trop trilogy was handed down by the Supreme Court, interpreted them as requiring some rejection or flouting of the petitioner's American nationality. It is argued that a dual national's mere performance of his duties to the second sovereign of his citizenship could not be considered tantamount to such renunciation of his American nationality as to justify expatriation. 254 F.2d at 381; 256 F.2d at 548.
icer of the United States in a foreign State; (7) making a formal written renunciation of nationality in the United States whenever it is in a state of war and the Attorney General approves the renunciation as not contrary to the interests of national defense; (8) deserting the military of the United States in time of war when convicted thereof by court martial and dismissed or dishonorably discharged from the military service; (9) committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States; and (10) departing from or remaining outside of the United States in time of war or during a period of national emergency for the purpose of evading or avoiding training and service in the military of the United States. Furthermore, an American citizen may be simultaneously a citizen of another country without losing his U.S. citizenship and without precluding the United States from taxing him. United States v. Matheson, supra at 816-817; Jalbuena v. Dulles, 254 F.2d 379, 381 (3d Cir. 1958); Rueff v. Brownell, 116 F. Supp. 298, 306 (D. N.J. 1953). Respondent has taken the same position in Rev.
We disagree, however, with the Tax Court's use of a dual United States-Philippine citizen as the model for a "similarly situated American". It is possible that such a dual citizen might be eligible for the international-organization tax exemption despite filing the waiver, but we need not decide that question here. For the relevant tax years, Felilu was a citizen only of the Republic of the Philippines and was not a citizen of the United States. Although people who are born in the United States and subsequently move to the Philippines might qualify as dual United States Philippine citizens, see, e.g., Jalbuena v. Dulles, 254 F.2d 379, 381 (3d Cir. 1958); Petition of Bautista, 183 F. Supp. 271, 274 (D.Guam 1960), Felilu does not and cannot fall into that category, because she was not born in the United States. Therefore, the appropriate inquiry is not whether the exemption is a benefit that a dual United States-Philippine citizen would receive, but whether the exemption is a benefit that Felilu would receive if she were a United States citizen.
The same reasoning applies with equal force to a declaration of allegiance to a foreign sovereign or a petition for a certificate of Mexican nationality of the type executed by Mrs. Burns, which may simply represent the citizen's claim of dual nationality rather than a turning of his back on the United States or a voluntary relinquishment of his American citizenship. See generally, Nishikawa v. Dulles, 356 U.S. 129, 135, 78 S.Ct. 612, 616, 2 L.Ed.2d 659, 664 (1958); Kawakita v. United States, 343 U.S. 717, 723-24, 72 S.Ct. 950, 955-56, 96 L.Ed. 1249, 1257 (1952); Jalbuena v. Dulles, 254 F.2d 379, 381 (3d Cir. 1958); Peters v. Secretary of State, 347 F.Supp. 1035, 1038 (D.D.C. 1972) (3-judge court). Furthermore, since the purely objective legal meaning of such a declaration is likely to turn upon highly technical interpretations of foreign, domestic, and international law concerning the status of dual nationals, it would be unfair to strip an individual of his American birthright when he honestly but mistakenly believed that his conduct did not compromise his legal status as a United States citizen or as a dual national.
The "more" were the facts that Kawakita committed treason against the United States since while in Japan during World War II he abused American prisoners for the purpose of getting more work from them in producing war materials for Japan, overt acts giving aid and comfort to our enemy. Here the mere fact that Katamoto "asserts the rights of one citizenship", i.e., to teach school in Japan, "does not without more mean that he renounces" his American citizenship. He was "without [the] more" of the Kawakita case. Jalbuena v. Dulles, 3 Cir., 254 F.2d 379. (C) Katamoto's six years' residence in Japan did not deprive him of his American citizenship.
This was the only purpose that the petitioner took the oath of allegiance to the Republic of the Philippines on August 4, 1951. The United States Court of Appeals, Third Circuit, in the case of Jalbuena v. Dulles, 254 F.2d 379, decided on April 11, 1958, stated that where an individual, a natural born citizen of the United States, moves to the Philippine Island and by operation of law became a citizen thereof so that he then had a dual citizenship, action of the individual, who did not realize he retained United States citizenship, in applying for and receiving a Philippine passport after subscribing to an oath to support the Philippine Constitution, did not constitute a renunciation of the United States citizenship which would authorize a revocation thereof under statute. In the Jalbuena case, the Court cited in the footnotes, at page 381, note 2, the statement made by Secretary of State, later, Chief Justice Hughes: