Relinquishment of US Citizenship by Persons-Born-Dual or who Naturalised in a Foreign Country as a Minor

I was very happy to report on a born-dual friend’s successful consulate meeting this week, in which he applied for a CLN based on his relinquishment at the time of taking government employment.

However, people have reported some consulate personnel erroneously telling them that a person born dual or who acquired their non-US citizenship as a minor is unable to expatriate except by renouncing.  In fact, there is no automatic disqualification of such persons from having the capacity to perform certain other relinquishing acts.

Such consulate personnel are probably conflating s. 349(a)(1) of the Immigration and Nationality Act with all other non-renunciation methods of relinquishing one’s citizenship.  Section 349(a) (1) is naturalising in a foreign country after having attained the age of 18 with the intent to relinquish.  Obviously a person cannot naturalise in a country they’re already a citizen of.

It appears that s. 349(a) (2), taking an oath, may also not apply to persons who already possess citizenship in the country they’re taking the oath to, as DoS has a 4-prong test for determining if an oath of allegiance is “meaningful” for this purpose.  Prong 4 is “the making and receipt of the oath or affirmation alters the affiant’s legal status with respect to the foreign state” (7 FAM 1252(h))”.

But that still leaves not one, but three, possible ways for a person who acquired non-US citizenship at birth or as a minor can terminate their US citizenship:

– Commissioned or non-commissioned military officer in the armed forces , s.349(a)(3);

– Government employment, s. 349(a)(4);

– Renunciation, s. 349(a)(5).

Subs (6) and (7) deal with war and treason, so presumably not relevant to this particular discussion.

CLNs based on government employment have been issued to persons who acquired their foreign citizenship at birth or as a minor.  I’m aware of several of these and I know of none that have been rejected because the person was born dual or acquired their foreign citizenship as a minor — nor can I find anything in the law or DoS procedure manuals to indicate that this could be a ground for rejection.  I was also in contact with a citizenship specialist at DoS/Consular Affairs/Legal Affairs in Washington regarding persons-born-dual, who told me that it was her understanding that this was not a bar to relinquishing under subs (3) and (4). 

Reports on the consulates received at the Isaac Brock Society are mixed, though.  At Calgary in 2012, Prairie Girl had to insist that her s. 4 based application be sent to Washington, where it was approved over a Calgary consul’s negative recommendation in her CLN file.  Authentic had no problem at Halifax in 2013.  In recent months, people have run into problems with this misconception at Toronto, though another person had a smooth meeting at Ottawa, where the personnel were both aware of s. 4 and that it can apply to a person born dual.  

It starts to feel like luck of the draw, so bone up on it before you go.  Bring 349(a) and the relevant sections of the DoS manual/s with you.  They have this information, of course, but you can have relevant passages pre-marked for convenience, if needed.  Educating oneself is always important for any type of expatriation, and knowledge of the specifics of the law and procedure can be critical in any case where the consulate official handling your case is not familiar with CLN applications based on the sub-section you relinquished under.

Basically, be prepared, and politely but firmly stand your ground if a consulate official tells you that you are precluded from having relinquished under s. 3 or 4 because you were born dual or acquired your second citizenship as a minor.

Useful links:

8 USC 1481, Immigration and Nationality Act, s. 349(a)

Department of State Manuals:

7 FAM 1210  Introduction

7 FAM 1220  Developing a Loss of Nationality Case

7 FAM 1270  Military Service and Loss of Nationality

7 FAM 1280  Loss of Nationality and Taking Up a Position in a Foreign Government

See also reports on consulate visits by persons-born-dual or who naturalised as a minor:

Authentic.  Halifax. 2013.04

Benedict Arnold (1).  Calgary.  2013.04

Benedict Arnold (2).  Calgary.  2013.04

Prairie Girl.  Calgary.  2012.06

MyKitty.  Toronto. 2014.01

Pacifica’s friend.  Ottawa.  2014.03

Cross-posted at Isaac Brock Society.


5 thoughts on “Relinquishment of US Citizenship by Persons-Born-Dual or who Naturalised in a Foreign Country as a Minor

  1. @Schubert – thank you. I’ve lived my life as Canadian, as that’s what I truly have thought I am since 1976 – so I have done nothing that would negate that – never filed US taxes, nor got a SSN, nor a US passport, never worked there, never owned property there. Nuttin’.

    @Blaze, not long after this started, I managed to get a copy of the oath I signed in the 80′s. It’s not a certified copy, but a scanned copy of the form, with my signature.

    Nope, no oath.

     

  2. @Outraged:  As Schubert says, it may be enough that you worked for both the federal and provincial governments.  An extra bonus would be if you could get a copy of the oath you signed for the federal government position from your personnel file.

    In addition, are you certain you didn’t sign an oath for provincial government employment?  In Ontario, that is a requirement of employment with the provincial government.  So, is it possible you signed one but don’t remember?

     

  3. @Outraged

    It doesn’t matter that your employment with a provincial government didn’t involve an oath of allegiance. You had Canadian citizenship at the time of that employment, and assuming you were over 18 at the time as well, then your provincial-government work is an EXTRA example of a subsection 4A relinquishment, in addition to your federal employment. So you’ve got two arguments in your favour. As long as the “preponderance of evidence” of everything else they ask you on Form 4079 is consistent with your intention to relinquish US citizenship at the time you committed your two expatriating acts, the case should be straightforward IMO.

    Please note that it is apparent from the wording of the specific item on this on State Department Form 4079, that submitting tax returns to the IRS is essentially an exercise of US citizenship (particularly if you live outside the US and have no US-source income that would require a return from a non-resident alien). The form asks if you file tax returns to the IRS; “if yes, please explain” — note carefully, that’s “if yes” NOT “if no.” If you are claiming a years-ago relinquishment, they don’t expect you to have been filing tax returns to IRS, in fact that would be very inconsistent with a claim to have intended or believed that you’d relinquished. If you had that intent and belief, there’s no logical reason why you would have filed an IRS tax return. No one I know who has gone with a relinquishment application on 4079 and has said on the form “no, I don’t file returns to the IRS,” or hasn’t filed returns since committing their expatriating actions, has been hassled or queried about this. In fact, in the cases I know of personally, the vice consul hasn’t even batted an eye while reading over that page of the form during the interview. It’s a non-issue, in that case.

    Therefore do NOT submit ANYTHING to IRS as part of or before applying for a relinquishment CLN (it may be different for a renunciation). And if your relinquishing acts were before 2004, don’t even think of contacting or submitting anything to IRS after getting your CLN. Form 8854 and all that nasty stuff AFAIK does NOT apply to persons who committed a relinquishment before 2004.

    I do appreciate that by going forward with a CLN application to a US consulate, in some sense you are “outing” yourself to the US government. However as far as I am aware, no one who has gone with a pre-2004 relinquishment application has had their name passed on to IRS by State Department, nor have they been bothered by IRS. I personally know several people whom this describes, though obviously I don’t know all cases and maybe the people I know are just a very lucky and non-random subsample (possible, though I rather doubt that). None of the half-dozen-or-so pre-2004 relinquishment CLNs I know of by name, have shown up on the IRS Federal Registry lists (after more than 18 months in several of those cases, that’s six quarterly lists now). In stark contrast, all but one of a couple dozen renunciation cases whose names I know have shown up on those lists. I’ve been monitoring the lists closely for all the names I know, for nearly two years now.

    Also, given that we in Canada are now saddled with an IGA and supporting legislation (at least until it gets declared in violation of the Charter of Rights and Freedoms by the courts, if that happens), if you have a US birthplace on your passport, and you ever travel to the US, you’re eventually going to be “outed” to the US government anyway.

    Every case is different, and there may be special considerations and circumstances of which I’m not aware, which might argue against going forward with a relinquishment-CLN application if you qualify, but I thought I’d mention the above points. Likely more for the benefit of other readers and visitors to this thread, as I think you already know these points.

    But, as I always caution, I am not a lawyer, and this is not legal advice (nor am I an accountant, nor is this accounting advice).

  4. @Pacifica, I can’t tell you how happy you’ve made me. Thank you! And, you, as well, Schubert. As a lot of people know, I was a minor when I became Canadian (age 16), but then I swore another oath of allegiance in my twenties when I worked for the Fed govt. I also work for a provincial govt,  however I didn’t have to swear an oath for that, so not sure how powerful an argument that would be.

    Regardless, this post gives me more hope that if I am finally forced to apply for a CLN there’s a good chance I’d get it.   And, since my eternal optimism is flagging, I think it will come down to having to get my CLN in order to protect my husband, my home and my (limited) funds.

  5. Everyone who has ever worked for a foreign government OR ANY POLITICAL SUBDIVISION of a foreign government, please note the following – with reference specifically to 8USC1481 (4)(A) -

    a political subdivision would logically include a provincial or municipal government in a foreign country, as well as its national government;

    the law says that by “accepting, serving in, or performing the duties of” a job in such a government, ANY job (no restriction stated or implied re rank or nature of job) when over the 18 years of age and if you at that time HAD OR ACQUIRED nationality in that country, is a potentially expatriating act (subject to the usual limitations of volition and intent to relinquish as determined by preponderance of evidence) EVEN WITHOUT having sworn an oath of allegiance to that foreign state (subsection 4A) OR having done so (subsection 4B).

    Please also note that the “HAD OR ACQUIRED” bit is AFAIK the only relinquishment angle that should be a slam-dunk for a born-dual-citizen person, assuming all your actions after accepting, serving in, or performing the duties of that job are consistent with an intent to relinquish USC (i.e., you haven’t voted in a US election, traveled on a US passport except maybe into the US itself because of hassling and bullying by a US border officer upon entering on a non-US passport showing US birthplace).

    Please also note that the law says nothing about the duration of your employment. So arguably part-time employment, and even co-op student employment or internship employment also would qualify EVEN IF UNPAID (there’s nothing in section 4 about payment, number of hours per week, or whether it was permanent or contract or short-term employment). You might get an argument from a vice-consul on this, but I’d suggest pushing (politely) right back and requesting that your application be forwarded to DC for final decision by someone who hopefully does know what they’re talking about, which some vice-consuls clearly don’t. Especially if you’re a “border baby” and this is your only angle for a relinquishment rather than renunciation, and double-especially if your expatriating act was before 2004, this is very much worth pursuing IMO.

    I am no lawyer, but I don’t think you need an LLB to be able to understand that wording.

    See e.g. http://www.law.cornell.edu/uscode/text/8/1481

    Note however that service in the armed forces of another country (as distinct from serving in the public service of a foreign country) is only an expatriating act if done during a time of war (between the US and that country) or if you served as a commissioned or non-commissioned officer (e.g. sergeant or warrant officer, or anything above and including lieutenant or equivalents), ordinary “grunts” don’t qualify, no idea why that is when a low-level filing clerk in a municipality would qualify for a relinquishment, but there it is.

    I have absolutely no idea however how employment in what in Canada is called a Crown Corporation (e.g., CBC) would be interpreted under this legislation. Particularly as I doubt very much if CBC requires an oath of allegiance to the Queen. Resolution of that might require a court ruling, maybe some lawyer out there knows of any jurisprudence IN THE US on this point?

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