Kinji John Kozuki, Plaintiff-appellant, v. John Foster Dulles, Secretary of State of the United States, Defendant-appellee, 268 F.2d 207 (9th Cir. 1959)

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US Court of Appeals for the Ninth Circuit - 268 F.2d 207 (9th Cir. 1959) May 29, 1959

Chuman & McKibbin, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Richard A. Levine, Bruce A. Bevan, Jr., Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before STEPHENS, BONE and CHAMBERS, Circuit Judges.


This is an appeal from a judgment of the United States District Court refusing a declaration that appellant (plaintiff below) is now a national of the United States (§ 401, Nationality Act of 1940).* 

Heretofore, submission of this case to this Court for decision was set aside subject to the further order of this Court. Good cause appearing therefor, the case is resubmitted to this Court upon the record of the case and particularly upon the holding in Nishikawa v. Dulles, 356 U.S. 129, 78 S. Ct. 612, 617, 2 L. Ed. 2d 659.

We have reviewed the Findings of Fact and Conclusions of Law in our case, and we cannot say that the District Court conformed to the test of voluntariness set out in Nishikawa as follows:

"Regardless of what conduct is alleged to result in expatriation, whenever the issue of voluntariness is put in issue, the Government must in each case prove voluntary conduct by clear, convincing and unequivocal evidence."

The case is remanded to the District Court for further proceedings in accord with the quotation from Nishikawa. See Norio Kiyama v. Dulles, Upon Petition for Rehearing, 9 Cir., 268 F.2d 110 (April 27, 1959), and Yukio Yamamoto v. Dulles, Upon Petition for Rehearing, 9 Cir., 268 F.2d 111 (April 27, 1959).


Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1481(a)